Category: LAT Rules

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.

Bagherian v. Aviva Insurance Company (2022 ONSC 3103)

The claimant appealed the Tribunal’s decision dismissing his application due to repeated non-attendance at IEs. The Court dismissed the appeal, holding that the LAT had the legal authority to dismiss the application. The claimant’s failure to cooperate in obtaining IEs interfered with the insurer’s ability to participate in the process before the Tribunal, and caused delay in the timely determination of the matter before the Tribunal. The Tribunal was justified in concluding that the claimant’s behaviour amounted to abuse of process. The Court also rejected the claimant’s argument that the Tribunal did not have the power to require that he sign a consent as part of the IE process. The Court affirmed that the Tribunal does have such power as part of its power to require the claimant to cooperate in the IE process.

Gore v. Rusk (2022 ONSC 2893)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. The Court dismissed the appeal, holding that both appeals were on matters of mixed fact and law and that there were no extricable legal error that had been demonstrated. The findings regarding each WPI allocation were findings of fact, as was the issue of whether combining certain ratings would entail double-counting or overlap. The Court also dismissed the argument that the reconsideration process was unfair because only one of the two adjudicators that heard the original matter conducted the reconsideration. The Court held that the Tribunal had broad authority to conduct reconsiderations, and that any adjudicator could hear the reconsideration, including the adjudicator or adjudicators hearing the original matter, or an entirely new adjudicator.

Pham v. Coseco Insurance Company (20-004749)

The claimant commenced two applications for treatment and assessment plans. The first application dealt with certain disputed treatment and assessment plans, and the Insurer’s determination that the claimant sustained a minor injury. The second application concerned the claimant’s chronic pain treatment plan. A motion decision ordered that the decision rendered in the first application regarding the MIG would apply to the second application. In the first application, the Tribunal held that the claimant fell within the MIG. For the second application, the claimant argued that she was entitled to the treatment plan because the insurer failed to respond in accordance with s. 38 of the SABS, and that the treatment was reasonable and necessary. The insurer argued that the Tribunal had already held the Plaintiff was subject to the MIG, the claimant’s fresh evidence did not impeach the original decision, and thus not entitled to the chronic pain treatment plan. Adjudicator Norris agreed with the Insurer, and held that the claimant was not entitled to the disputed chronic pain treatment plan as her injuries fell within the MIG.

Sahadeo v. Pafco Insurance Company (19-006331)

A hearing regarding disputed medical benefits and catastrophic impairment was scheduled over eight days. The hearing was originally scheduled for July of 2021, but was rescheduled to begin on January 18, 2022. Due to a scheduling conflict, the hearing that was supposed to take place consecutively beginning January 18, 2022, was bifurcated, and the remainder of the hearing days were rescheduled to March 28-30, 2022. Claimant’s counsel intended to call an insurer’s assessment examiner, Mr. Kaplun, who was allegedly served with a summons. Mr. Kaplun denied any recollection of receiving a summons by personal service. At some point in advance of the March 2022 hearing dates, counsel for the insurer advised that he spoke with Mr. Kaplun and asked him the details of the alleged summons service. Upon hearing the details, the insurer’s counsel told Mr. Kaplun that he did not think it was a valid summons, but that he should seek legal advice on the issue. On January 29, 2022, Vice-Chair Lester issued an Order stating that, among other things, Mr. Kaplun was required to attend. Mr. Kaplun did not attend the hearing on his scheduled date, but did eventually attend on the last day of the hearing. Mr. Kaplun gave testimony that he did not speak to anyone at the claimant’s law office as they did not hire him (the insurer did), and further stated that the insurer’s counsel did not offer him any legal advice, but simply indicated that if Mr. Kaplun had not been served personally, then it would not be a valid summons. Claimant’s counsel alleged that defence counsel interfered with Mr. Kaplun’s testimony and attendance and violated article 5.1-2 (j) of the Rules of Professional Conduct by “improperly dissuade[ing] a witness from giving evidence or advise[ing] a witness to be absent”. Claimant’s counsel further alleged that defence counsel was guilty of contempt of court by poking fun at claimant’s counsel’s allegations, and making a joke about possible “jail time” if found guilty. Claimant’s counsel requested that the matter be referred to the Divisional Court and filed a motion. Vice-Chair Lester reviewed the evidence of the case and ruled that claimant’s counsel did not establish a prima facie case for contempt or violation of the rules. Although Vice-Chair Lester found that defence counsel’s conduct, including his conversation with Mr. Kaplun, ought not to have happened, she saw no evidence this was a calculated or deliberate attempt to interfere with justice. The fact that Mr. Kaplun attended the hearing (although late) was further evidence in support of this conclusion. Vice-Chair Lester dismissed the motion, and advised claimant’s counsel that they may file a complaint with the Law Society if they so choose.

Kanama v. Waterloo Insurance (19-006369)

In a prior decision, the Tribunal held that the claimant’s injuries were minor, and subject to the $3,500 MIG limit. The claimant reapplied to the tribunal, seeking an income replacement benefit and entitlement to treatment plans. The claimant asserted that his condition had worsened, and provided updated medical records. The insurer argued that the applicability of the coverage limit had already been previously decided by the tribunal. Vice Chair Flude held that the claimant failed to establish a material change occurred in his condition that would change the Tribunal’s previous decision. The claimant’s records did not establish that his condition deteriorated. The claimant’s back issues were largely unchanged, the imaging studies showed no change, and the claimant’s physiatrist did not change his recommendation despite numerous visits. However, the claim for IRBs was permitted to proceed.