Category: LAT Rules

M.S. v. Primmum Insurance Company (16-000546)

Following an earlier decision, in which the claimant’s case was dismissed, the insurer sought costs. Adjudicator Sewrattan reviewed the reasoning for the dismissal of the claimant’s case, which largely turned upon the claimant’s counsel failing to submit materials and evidence to the LAT. He concluded that the applicant had not acted unreasonably, but rather, that the applicant’s counsel had. Generally, Adjudicator Sewrattan would have considered the applicant and his counsel as one party, but given the exceptional facts in the case, he reasoned it was appropriate to distinguish the two. He also held that the LAT Rules did not permit an award of costs against the claimant’s counsel. Therefore, no costs were awarded.

M.S. v. Primmum Insurance Company (16-000546)

Following an earlier decision, in which the claimant’s case was dismissed, the insurer sought costs. Adjudicator Sewrattan reviewed the reasoning for the dismissal of the claimant’s case, which largely turned upon the claimant’s counsel failing to submit materials and evidence to the LAT. He concluded that the applicant had not acted unreasonably, but rather, that the applicant’s counsel had. Generally, Adjudicator Sewrattan would have considered the applicant and his counsel as one party, but given the exceptional facts in the case, he reasoned it was appropriate to distinguish the two. He also held that the LAT Rules did not permit an award of costs against the claimant’s counsel. Therefore, no costs were awarded.

P.E. v. The Dominion of Canada General Insurance Company (16-003460)

The claimant sought entitlement to medical benefits. At the outset, the insurer sought a dismissal of the claimant’s application for arbitration based on non-compliance with disclosure requirements. Adjudicator Ferguson noted there was no authority under Rule 9 of the LAT Rules to dismiss an application for failing to comply with Tribunal disclosure rules. Moreover, the insurer failed to demonstrate how non-disclosure by the claimant would cause prejudice. On the merits, Adjudicator Ferguson held the treatment plans claimed were reasonable and necessary.

K.K. v. Aviva Insurance (16-000863)

The claimant sought entitlement to four medical treatment plans. At the hearing the claimant also sought to add a claim for a special award and interest. On review, Adjudicator Bickley refused to allow the additional issues. After examining the medical evidence, one treatment plan was found reasonable and necessary. Because the treatment plan was originally partially approved up to MIG limits, the subsequent removal from the MIG precluded the insurer from taking the position the plan was unreasonable. The rest of the claims, however, were dismissed on the merits.

R.L. v. State Farm Insurance Company (17-000020)

The insurer brought a preliminary issues motion seeking to preclude the claimant from bringing an application for arbitration disputing the denial of medical benefits. The claimant asserted the requested assessments were unreasonable. Adjudicator Maedel identified the following factors to determine if an IE was requested: (i) The timing of the insurer’s request; (ii) The possible prejudice to both sides; (iii) The number and nature of the previous insurer’s examinations; (iv) The nature of the examination(s) being requested; (v) Whether there are any new issues being raised in the applicant’s claim that require evaluation; and, (vi) Whether there is a reasonable nexus between the examination requested and the applicant’s injuries. The requested IEs were deemed reasonable and therefore, per s. 55 of the SABS the claimant was precluding from bringing an application for arbitration due to non-attendance at an IE.

M.R. v. Aviva Insurance Company of Canada (16-00216)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to attendant care benefits. As a preliminary issue, the respondents sought to exclude the supplementary report of Dr. El-Hage, psychologist, and the sworn affidavit of the occupational therapist. Adjudicator Nemet granted the motion, as the material was written less than 30 days before the hearing and was clearly generated to address evidentiary deficiencies in the claimant’s case as set out in the respondent’s submissions. Further, the respondent would not have the chance to cross-examine the expert, as neither were being called by the claimant. The adjudicator found that the claimant’s psychological injuries fell outside of the MIG. The claimant’s evidence was that she required 45 hours per week of attendant care assistance, and that these services were provided by various family members. The adjudicator found that there was no reliable evidence by way of invoices, logs or any other corrobative evidence to what services, when, by whom and for how long were provided. He was not satisfied that the claimant had “incurred” the expenses as required by section 3(7)(e), noting that the evidence was consistent with the notion that the family members volunteered to help and that discussion about payment did not occur until much later. The adjudicator concluded that the claimant was not entitled to attendant care benefits, and dismissed the application.

Applicant v. TD General Insurance Company (16-002706)

The insurer sought entitlement to costs after the claimant withdrew an application before the LAT. The claimant also sought costs for having to resist the insurer’s costs motion. Adjudicator Belanger-Hardy noted that a withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a costs order. Additionally, neither party led evidence of unreasonable, frivolous or vexatious behaviour or conduct in bad faith pursuant to Rule 19. No costs were awarded.

H.S. v. TD General Insurance Company (16-002705)

The insurer sought entitlement to costs after the claimant withdrew an application before the LAT. The claimant also sought costs for having to resist the insurer’s costs motion. Adjudicator Belanger-Hardy noted that a withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a costs order. Additionally, neither party led evidence of unreasonable, frivolous or vexatious behaviour or conduct in bad faith pursuant to Rule 19. No costs were awarded.

Y.C. v. State Farm Mutual Automobile Insurance Company (16-004494)

The insurer sought to exclude a medical report tendered on behalf of the claimant. The insurer asserted the submission was in contravention of a deadline imposed by a case conference adjudicator. The claimant sought to have the report included and argued procedural fairness. Vice Chair Terry Hunter concluded to allow the report as is would cause prejudice to the insurer. Accordingly, the report was allowed and the hearing date extended so as to permit the insurer to commission a report of its own if it so wished.

Applicant v. Aviva Insurance Canada (16-001031)

This is a reconsideration in which the insurer sought to have the LAT overturn the award of various treatment plans. The insurer also argued that the claimant had submitted documents too late, and should not have been considered by the adjudicator. Executive Chair Lamoureux held that there was sufficient evidence for the adjudicator to conclude that the disputed treatment plans were reasonable and necessary. She also held that the claimant had complied with the timetable set out by the Case Conference adjudicator, and that the documents were therefore not provided contrary to the LAT rules.