Category: LAT Rules

Mahoney v. Jevco Insurance Company (21-004916)

This motion was brought by the claimant for a declaration that she was not barred from proceeding to a hearing due to non-attendance at a psychological IE. The claimant argued that the Notice of Examination for the IE did not satisfy the requirements in s. 44, and that s. 55(1) was not triggered because the IE had been requested after she had filed her LAT application. Adjudicator Mazerolle found that the Notice of Examination satisfied the requirements under s. 44 as it provided sufficient medical and other reasons for the assessment. Although it was concerning that the insurer had served the Notice of Examination in September 2021, despite the disputed treatment plan having been submitted on March 23, 2021, Adjudicator Mazerolle found that the insurer had requested medical records from the claimant on March 29, 2021, one week after the disputed treatment plan had been submitted, and had not received these records until August 21, 2021. He reasoned that the insurer had waited to receive these records before setting up the IE and had requested the IE with the intention of properly adjusting the claim. The adjudicator rejected the claimant’s argument that s. 55(1) would only be triggered if the IE was requested before a LAT application was filed, as this would impair the insurer’s ability to seek assessments under s. 44 and because it went against the principle that an insurer’s duty to adjust a claim in good faith did not end when litigation began. However, Adjudicator Mazerolle exercised the discretion granted under s. 55(2) and permitted the application to proceed because there remained ample time for the IE to be completed before the hearing.

Grewal v. Peel Mutual Insurance Company (2022 ONSC 4082)

The claimant appealed the Tribunal’s motion decision dismissing her request to add punitive damages to the LAT application. The Court dismissed the appeal, holding that it did not have jurisdiction to hear the appeal because the motion was an interlocutory step. The Tribunal’s decision could only be appealed upon the final decision on the merits.

Penney v. The Co-operators General Insurance Company (2022 ONSC 3874)

The claimant appealed the Tribunal’s decision denying her motion to remove the insurer’s counsel due to an alleged conflict of interest. The insurer’s counsel acted in the LAT dispute and in a priority dispute. The Divisional Court in The Personal v. Jia upheld a decision by the Tribunal that such representation in both matters was a conflict. In the present case, the Tribunal found that no conflict existed, and the matter was to proceed to a hearing. The Court dismissed the appeal, holding that the Tribunal’s order was interlocutory in nature, and the Court did not have jurisdiction to hear the appeal. The LAT Act restricted appeals to final decisions of the Tribunal. The Court was critical of the decision in The Personal v. Jia, stating that the panel hearing that matter erred in agreeing to hear the appeal, and the Court in the present matter declined to follow it. The Court commented+B2004 that a party could seek judicial review of an interlocutory decision, but only in exception circumstances, and the Court noted that the claimant in this matter had not sought judicial review.

Yevdokymova v. Economical Insurance (21-000502)

The claimant sought a catastrophic impairment designation and entitlement to various medical benefits and attendant care benefits. The insurer argued that the claimant was barred from disputing entitlement because an earlier hearing regarding NEBs already concluded that the claimant did not suffer the majority of the injuries or impairments allegedly sustained in the accident. The insurer also argued that the claim for ACBs was barred due to the claimant’s failure to participate in an IE, as the claimant had put conditions on her attendance, including the presence of her own occupational therapist. In response, the claimant argued that the current dispute was for different benefits, and as such, the earlier decision on NEBs was irrelevant. The claimant also argued that she ought to be permitted to have her own occupational therapist observe the in-home assessment requested by the insurer. Vice Chair Flude agreed with the insurer and held that the claimant’s current application was barred by res judicata. Although the specific benefits and designation at issue were different than the NEB hearing, the findings of fact in the NEB hearing were so closely related that to allow the claimant’s application to proceed would amount to an abuse of process. Vice Chair Flude also held that the claimant could not impose conditions on her attendance and participation in the requested in-home IE. The insurer met all requirements of section 44 when requesting the IE. As such, the claimant’s failure to participate in the format requested by the insurer triggered section 55. Vice Chair Flude dismissed the dispute in relation to a catastrophic impairment, and stayed the dispute in relation to ACBs until the claimant participated in the in-home IE.

Waring v Aviva General Insurance Company (21-012529)

A videoconference hearing had been arranged in relation to catastrophic impairment and attendant care. Ahead of the hearing, the claimant filed a motion to exclude a report from the insurer relating to ACBs and alleged the insurer’s notice was deficient. The claimant argued that the resulting report and Form 1 should be excluded from the hearing as per N.M. v. Aviva. The claimant’s issue was with a notice relating to a CAT IE with an occupational therapist. The claimant stated that the notice stated only CAT was to be assessed, however, upon arrival the OT informed the claimant that ACBs were also being determined during the evaluation. The claimant request that only the ACB report be struck from the hearing for deficient notice. Adjudicator Mazerolle noted that the original IE notice on March 24, 2021 only referenced CAT as an issue being assessed. Following completion of the assessment, the claimant was not provided with any further written notice that ACBs would also be addressed in the coming report. The insurer did not mention this until June 21, 2021, which was beyond the five business day notice of a benefit being addressed by IE as per s. 44(6). Adjudicator Mazerolle noted that this was a breach of the SABS and a “serious impediment” to the consumer protection mandate, as it deprived the claimant of the chance to be an active participant in the adjusting process, which could not be remedied by a retroactive notice. The insurer argued that the claimant “accepted the scope” of the IE as the OT explained to the claimant that ACBs would be addressed upon their arrival, and the claimant consented. Adjudicator Mazerolle did not accept this argument, noting that definition of a waiver for a notice requirement under s. 44(6) needed to be between the insured person and the insurer, not with the IE assessor. The report and accompanying Form 1 were struck from the hearing record.

Maillet v. The Dominion of Canada General Insurance Company (20-011519)

The insurer brought a motion requesting that the claimant’s application for IRBs be barred under s. 55(1) due to IE non-attendance. The claimant had failed to attend a post 104-week physiatry IE on four occasions. Adjudicator Mazerolle found that the Notice of Examination provided sufficient medical and other reasons for the examination under s. 44. Nonetheless, he exercised his discretion permitted under s. 55(2) to allow the IRB claim to continue. He found that the claimant had participated in other IEs, which demonstrated her interest to pursue the claim. He noted that two of the missed four IEs had been postponed due to COVID-related concerns, and that the claimant had been ill for the most recently rescheduled IE. Above all, Adjudicator Mazerolle found that the parties had enough time before the hearing to reschedule and complete the IE and ordered that the IRB claim proceed.

Warren v. Licence Appeal Tribunal (2022 ONSC 3741)

The claimant appealed the Tribunal’s decision that he was entitled to only $2,600 in IRBs, and that he was not entitled to a special award. His grounds of appeal were based on allegations of unfairness. First, he argued that the Tribunal’s reconsideration process was procedurally unfair because it permitted the adjudicator hearing the matter at first instance to also hear and decide the reconsideration. Second, he argued that the Tribunal’s error in assigning an adjudicator to decide a motion who had not heard the oral submissions rendered the whole matter unfair, despite the Tribunal cancelling that decision and re-assigning the correct adjudicator. The Court dismissed the appeal. The Court held that the Tribunal’s rules permitting the same adjudicator that heard the matter initially to conduct the reconsideration did not violate any principles of procedural fairness. Second, the Court held that the Tribunal corrected any breach of procedural fairness in re-assigning the correct adjudicator to decide a motion and cancelling the earlier decision. The Court also rejected an argument that the Tribunal was institutionally biased, which the claimant argued based on statistics showing that the Tribunal finds in favour of insurers more often than applicants.

Gilani v. Travelers Insurance Company of Canada (19-009248)

The claimant brought a motion to add claims for extracontractual issues, to add claims for bad faith against the adjusters personally, and to add claims against an investigation company for intrusion upon seclusion. Adjudicator Mazerolle held that the Tribunal did not have the statutory authority to adjudicate claims outside of the SABS and the accident benefits contained therein. No statutory authority or regulation gave the Tribunal the power to adjudicate tort claims or extracontractual issues aside from a special award.

Singh v. Wawanesa Mutual Insurance Company (2022 ONSC 3361)

The claimant appealed the LAT’s decision that she was not entitled to IRBs. She argued that she was denied procedural fairness by the Tribunal due to late production of raw testing data from an IE psychologist. She also argued that the insurer did not make best efforts to obtain the IE assessor’s records. The Court dismissed the appeal, finding that the claimant was given a fair hearing. The claimant had the IE reports well in advance of the hearing, and knew the case she had to meet in responding to the IE reports. The claimant was not restricted in the experts she could retain to respond to the IE reports. When the raw test data was delivered during the hearing, the Tribunal granted an adjournment of five weeks to allow the claimant and her expert to process the data. Additionally, the claimant was given the opportunity to cross-examine the IE assessor and test the reliability of her conclusions. The Court also determined that the Tribunal applied the correct legal test for determining whether the insurer made best efforts to obtain the IE assessor’s records. As such, there was no error of law.

Afshan v. Security National Insurance Co. (18-007658)

The claimant had initially sought a special award related to denial of NEBs. At a teleconference hearing an adjuster for the insurer gave testimony regarding the denial of benefits. At the conclusion of the hearing, the claimant requested that costs be added as an issue in dispute. Adjudicator Hines granted the request and the parties filed submissions. The claimant alleged that the insurer had unreasonably attempted to raise a preliminary issue to bar her from claiming NEBs based on s.44 non-compliance, when the insurer had not given proper notice when arranging the IE, and had also failed to comply with a production order. The claimant alleged that this behaviour resulted in a delay and prevented a fair hearing and sought costs in the amount of $12,500.00. Adjudicator Hines ruled that the insurer was not acting unreasonably by arguing s.44 non-compliance, but did act unreasonably and was in breach of the LAT order for failing to disclose all of the workflow correspondence between the insurer and the IE facility. During the hearing, claimant’s counsel noted that several pages were missing from the documents, which delayed the hearing as further review had to be undertaken. Adjudicator Hines rules that the insurer’s failure to comply with the production order constituted a blatant disrespect of the Tribunal’s process, and that the claimant had a right to transparency in understanding the adjusting of her claim and denial of benefits. As the delay caused an additional day to be added to the scheduled hearing, Adjudicator Hines awarded the claimant $500.00 in costs.