Category: LAT Rules

C.T. v. Aviva Insurance Canada (16-000958)

The claimant sought entitlement to income replacement benefits and was successful at the LAT. The insurer sought reconsideration as it asserted that the claimant was working during a period in which IRBs were awarded. The claimant countered by asserting improper notice was provided under Rule 18.1. Executive Chair Linda Lamoureux determined that the proviso noting a party indicate if it is seeking judicial review was only if the party is indeed seeking an appeal and that a party need not declare it is not appealing. Moreover, Rule 3.1 allowed for a liberal interpretation of the Rules so as to not cause unfairness or prejudice. The reconsideration was allowed and on review, Executive Chair Lamoureux noted that the LAT decision did not properly consider evidence that the claimant worked during a period in which IRBs were claimed. As a result, the reconsideration was granted and the matter remitted for a rehearing.

Applicant v. Waterloo Insurance (17-001265)

The claimant sought removal from the MIG and entitlement to four treatment plans. A number of procedural issues were first addressed. Adjudicator Ferguson rejected the claimant’s objection to the insurer’s expert report being considered by the Tribunal because the issue was not raised until the claimant’s reply submissions. The adjudicator rejected the insurer’s objection about the claimant’s written materials being too long, the insurer’s objection about late medical documents, and the insurer’s objection about the lack of Acknowledgement of Duty form by the claimant’s experts. He reasoned that excluding the impugned records or opinions would prevent him from making a fair and proportional determination on the merits of the case. In terms of the claims, Adjudicator Ferguson held that the claimant suffered a “minor injury” in the accident, and that he did not have any pre-existing conditions warranting removal from the MIG. He noted that none of the claimant’s experts were professionally qualified to make psychological diagnoses, there were no medical reports formally making a diagnosis, and the practitioners supporting a chronic pain diagnosis had no expertise in the area.

J.S. v. Aviva General Insurance Company (16-002529)

The claimant sought entitlement to a treatment plan. The insurer asserted the treatment plan was not reasonable a necessary. The insurer also objected to evidence supplied by the claimant’s OT, as it was not disclosed at the case conference. Adjudicator Sandeep Johal ruled that the inclusion of more documentation on the part of the claimant did not prejudice the insurer and allowed the testimony. However, on review of the evidence, the treatment plan was physical-based and the claimant’s aliments, psychological; the plan was deemed not reasonable and necessary and not payable.

Applicant v. Aviva Insurance (17-004068)

The claimant sought production of the entire file from the insurer’s IE assessors based on notations in the reports referring to drafts. The insurer did not object to production of the file from the IE assessors. Adjudicator Makhamra ordered the IE assessors to produce their entire files including all draft reports.

P.L. v. Aviva Insurance Canada (17-002907)

The insurer sought to admit two late IE reports at a hearing. Adjudicator Bickley granted the request without opposition from the claimant, and noted that if the IEs had proceeded when originally scheduled, the insurer would have had the IEs in advance of the deadline set by the Tribunal for exchange of documents.

D.N. v. Aviva Insurance (17-004104)

The claimant failed to provide records as ordered by the Case Conference adjudicator, and submitted his written materials 15 days late. The insurer sought to have the claim dismissed and requested costs. Adjudicator Paluch held that the dismissal of a claim should only occur with utmost caution in unusual circumstances. However, he was prepared to allow the insurer additional time to complete written submissions, and ordered that the claimant be barred from relying upon the late records. The adjudicator declined to make an order on costs and reasoned that it would be best for the hearing adjudicator to decide costs upon disposition of the matter.

Applicant v. Allstate Insurance Company of Canada (17-003121)

The claimant sought an summons for the claims adjustor and the manager of the claims adjustor to attend a hearing. The claims adjustor was listed on the Case Conference Order as a witness; the manager was not. Adjudicator Paluch held that the claimant had not complied with Rule 8.2 regarding the request for a summons of the claims adjustor, but that once the claimant filed materials complying with the Rule, a summons would be issued. The adjudicator refused to issue a summons for the claims manager because the claimant had not submitted sufficient evidence to prove that the manager’s evidence was necessary or relevant for the issues in dispute.

S.V. v. Aviva Insurance Company (17-002973)

The claimant sought an adjournment after two case conferences. The insurer requested a dismissal. Adjudicator Cezary Paluch noted that the claimant was effectively seeking an extension in timelines for submissions and should have properly brought documentation under Rule 15, than seeking an adjournment. Moreover, although the submissions of the claimant were late, Adjudicator Paluch ruled that it was not enough to have the entire claimed dismissed. Accordingly, an extension was granted to afford the insurer an opportunity to respond to the late submissions and the hearing would continue, albeit at a later date.

D.A. v. The Personal Insurance Company (17-001941)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to various medical benefits and costs of examinations. As a preliminary issue, the claimant requested to know the number of reports that each of the IE assessors had provided to the respondent for the last three years and the cost of each report. Adjudicator Paluch denied the claimant’s request for production. He failed to see how information about how many times a particular assessor has been retained by an insurer or how much the report cost would be relevant in assisting the claimant in satisfying that his injuries are not minor or that the proposed treatments are reasonable and necessary. The more appropriate forum to impugn the objectivity of an expert is at a live hearing, not a written preliminary issue hearing.

C.N. v. Aviva Canada Insurance (16-002658)

The claimant failed to attend two case conferences. Accordingly, the insurer sought to have the matter dismissed. The claimant argued that the matter was merely withdrawn and therefore it was available to return to the LAT to raise the same issues. The case conference adjudicator agreed with the claimant and found the issues withdrawn. The insurer sought a reconsideration to have the matters dismissed. Executive Chair Linda Lamoureux held that the LAT may only invoke Rule 3.4 (dismissal without a hearing) in a limited number of situations, such as abandonment. However, the matter was not abandoned in this matter – it was withdrawn based on the facts. The reconsideration request was denied.