Category: LAT Rules

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.

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.

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.

Applicant v. Aviva Insurance Company of Canada (16-004144)

This motion concerned the appointment of a litigation guardian. The claimant’s counsel wrote to the LAT stating that the claimant did not have capacity, and was impecunious and unable to afford the cost of proceeding with a guardianship application. The LAT Rules did not provide a process for appointing a guardian. Vice Chair Hunter held that Rule 14 allowed him to make any order that was proper for the hearing to proceed. He adopted the process used by the Social Justice Tribunal of Ontario to allow the claimant to appoint a litigation guardian.

Applicant v. Echelon (16-003223)

The claimant was involved in a serious accident in which his daughter was fatally injured. The claimant was deemed to have sustained a catastrophic impairment. The claimant sought entitlement to occupational therapy assistance. The insurer denied the treatment plan and stated there was no rehabilitative goal of consuming the treatment. On review of the medical evidence, Adjudicator Mather concluded the treatment plan was reasonable and necessary and awarded the benefit. The claimant sought costs and asked that a negative inference be drawn of the insurer’s behaviour due to its refusal to produce log notes. Costs were denied and no inference was made regarding the non-production of log notes, since the notes were considered not relevant to the issues in dispute.

V.H.T. v. Certas Home and Auto Insurance Company (16-000874)

The claimant sought entitlement to IRBs and further medical benefits. A preliminary motion was first heard to address the admissibility of late documents. Adjudicator Sapin held that the late documents were admissible, that the insurer had sufficient time to review the new documents, and that the insurer should have requested an adjournment if it believed prejudice would result. In terms of the benefits in dispute, Adjudicator Sapin held that the claimant was entitled to post-104 week IRBs due to ongoing psychological issues, chronic pain, and inability to use his right hand. The medical benefit sought were not awarded because the claimant did not provide evidence that they were reasonable and necessary, or were not on a treatment plan.

J.X. v. TD Insurance Meloche Monnex (16-003179)

The decision dismissed an LAT application, given a settlement was reached during the hearing

L.S. v. Royal & Sun Alliance Insurance Company of Canada (16-002381)

The claimant sought entitlement to a medical treatment plan. In addition to the issues outlined in the Case Conference Order, the claimant also sought a lump sum payment of $35,000.00 for 5 years of future medical treatment. Adjudicator Truong noted that issues not codified by the Case Conference Order were not properly before the Tribunal and therefore could not be determined. On review of the medical evidence, the treatment plan in dispute was found not reasonable and necessary. It was noted that a treatment plan alone is not sufficient evidence to establish entitlement – corroborating evidence is also required.

Applicant v. Aviva General Insurance Company (17-000370)

The claimant sought entitlement to a number of benefits. At the case conference, a number of timelines were set. The claimant missed a number of document exchange deadlines and subsequently sought an adjournment and the insurer did not consent. The Tribunal did not grant the adjournment. On reconsideration Executive Chair Lamoureux noted the reason for the adjournment request was to allow for receipt of IE reports completed by the insurer on unrelated benefits. The claimant at the time of reconsideration now had the reports and therefore a determination was no longer necessary and the hearing was able to continue.