Category: LAT Rules

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.

Hutchinson v. Aviva General Insurance Company (19-006130)

The matter had a long history of adjournments, partly due to Covid protocols and partly due to adjournment requests from the parties. During a Case Conference on October 23, 2019, the hearing was adjourned and an in-person hearing was scheduled for June of 2020. In April of 2020, the Tribunal informed the parties that the hearing would not be proceeding, however, if both parties consented, the hearing format would be transferred to a videoconference hearing. The insurer did not consent to the change in format. On May 8, 2020, the claimant filed a Notice of Motion to change the hearing format to a teleconference hearing, but the Tribunal declined due to the number of witnesses and potential documentary evidence issues. A Case Conference was then scheduled for June 29, 2020 and both parties consented to a three-day in-person hearing in March of 2021. In October of 2020, the format was changed to a videoconference hearing due to Covid protocols. The claimant filed for an adjournment of proceedings and the videoconference was rescheduled to March of 2022. Four days prior to the hearing, the claimant filed another Notice of Motion requesting a written hearing, alleging that the claimant was not mentally prepared, and that testifying at a videoconference hearing would have a negative effect on his mental health. The insurer objected under Rule 15.2 and 15.2 of the Common Rules, noting that it was entitled to at least 10 days notice of a Motion prior to a hearing, and a right to provide a meaningful response. Furthermore, the insurer argued that allowing the Motion to proceed on such short notice would prejudice its ability to respond properly as witnesses had already been prepared, costs were incurred, and it was prepared to proceed. The insurer did not object to the format being changed, rather the hearing being adjourned again with less than two business days notice. The motion was set to be heard at the hearing. Adjudicator Kaur noted that accommodations for disability, including psychological disabilities, were included in the Ontario Human Rights Code, and that the claimant could have requested an accommodation. Furthermore, the adjudicator noted that there was no evidence of the disability itself, simply the word of claimant. While Adjudicator Kaur did acknowledge that the claimant had been diagnosed with psychological conditions by Dr. Shaul, the reports were four-years old, and no further evidence had been presented. Adjudicator Kaur ruled that further delays on such short notice would not be of benefit to either party, and would simply continue to delay the matter further. Claimant’s counsel attended the first day of the hearing and again requested an adjournment, stating that he did not have instructions from the claimant to proceed. The request was denied. Claimant’s counsel did not participate in the hearing and stated that he did not have instructions to do so. The insurer in turn declined to call its witnesses and requested that the matter be dismissed in its entirety, as the burden of proof to medical benefits was on the claimant, who refused to participate. Adjudicator Kaur agreed and the matter was dismissed.

Robinson v. AIG Insurance (20-003795)

The claimant was involved in a serious motor vehicle accident in March 2019 and was determined to be catastrophically impaired by the insurer. She applied to the LAT seeking entitlement to ACBs and various medical/rehabilitation benefits. All issues in dispute except ACBs, a special award, and costs were withdrawn after the commencement of the hearing. The hearing in this matter began with the claimant’s motion to have Vice-Chair Farlam recuse herself from the hearing. This was the 18th motion brought during the proceeding. Two reasons were submitted for the recusal request: (1) the claimant had been denied the right to add 14 witnesses to the hearing, and (2) the allegation that Vice-Chair Farlam had a “leaning, inclination, bent or predisposition” favouring insurers. The recusal motion was denied. With regards to the benefits in dispute, Vice-Chair Farlam found that the claimant was not entitled to payment for ACBs because she had not proven that the ACBs in dispute were incurred. Vice-Chair Farlam declined to use her discretion to deem the expenses incurred. The claim for a special award was denied. Vice-Chair Farlam order the claimant to pay $100 for 5 motions that were unreasonably brought without sufficient notice and too late in the proceedings (i.e., on the eve or during the hearing).

Nagalingam v. Economical Mut. Ins. Co. (20-006884)

A request for reconsideration was filed by the insurer regarding a decision of October 29, 2021 wherein the Tribunal ordered a re-hearing on the second day of a three day hearing after unilaterally declaring a mistrial during the proceedings. The hearing addressed IRBs, an award and interest. At the subsequent case conference , the parties agreed that the adjudicator had erred in ordering a new hearing and that the hearing should continue. The claimant sought costs. The parties agreed to reserve new dates for the resumption of hearing scheduled for November 18-30, 2022 by videoconference. The format of the hearing and resulting unfairness was in dispute. The insurer submitted the remedy was to complete the hearing in a timely fashion at the earliest date convenient to the parties and the new adjudicator should be provided with the first two days of the hearing transcript to avoid repeating evidence and to save costs. subject to the new adjudicator requesting a fresh exam in chief of the claimant or to deal with other evidentiary issues. The claimant agreed the adjudicator erred, but submitted that the order did not dismiss the claim and a reconsideration was inappropriate. The claimant submitted that if the hearing resumed, the new adjudicator would only be able to observe the claimant on cross exam, which was procedurally unfair. In addition, some of the evidence already submitted and some of the questions ordered answered were irrelevant. Vice Chair Boyce indicated there was no doubt the Tribunal erred when it unilaterally declared a mistrial and ordered a new hearing in the middle of a hearing. Vice Chair Boyce noted the claimant argued the relevance of the insurer’s line of questioning and that certain evidence was not clear if it was not raising material misrepresentation. Vice Chair Boyce further noted the insurer’s response, the case conference summaries, and the case conference order confirmed that the issue of section 31 was not before the Tribunal. The adjudicator’s concerns arose after the insurer pursued a line of questioning that the adjudicator interpreted as raising the issue of material misrepresentation, which in the adjudicator’s view would prejudice the claimant. The insurer asserted at no time did either party ask the Tribunal to deal with section 31. Vice Chair Boyce indicated the error was compounded when neither party requested a new hearing, brought a motion for a new hearing, or were given an opportunity to make submissions regarding the adjudicator’s unilateral decision. The adjudicator also rejected the parties’ request to pause the proceeding to allow a review of the transcript. Vice Chair Boyce found the Tribunal’s decision to order a re-hearing prejudiced both parties and did not follow the Tribunal’s mandate to ensure a fair and efficient resolution of dispute. Vice Chair Boyce also noted the adjudicator erred in his decision as the Common Rules do not contemplate a mistrial or ordering a new hearing by a first instance adjudicator without submissions from a party. The only avenue of relief is Rule 18.4(b)(ii). Vice Chair Boyce agreed this was an exceptional issue of procedural unfairness that needed to be rectified by the Tribunal. Vice Chair Boyce granted the request for reconsideration. The Tribunal committed errors of law and fact that violated procedural fairness that affected the outcome of the hearing. Vice Chair Boyce ordered the Tribunal’s order for re-hearing cancelled pursuant to Rule 18.4(b)(i), the hearing that had already begun would be continued pursuant to Rule 18.4(b)(ii), and a new adjudicator would be assigned and the transcript provided to the new adjudicator in advance of the hearing. The issue of the claimant’s costs would be added to the issues in dispute as requested pursuant to Rule 19. The claimant would be permitted to bring motions for a fresh exam in chief and to raise any evidentiary concerns.

Pihokker v. The Personal (20-011554)

The claimant was involved in an automobile accident, and sought certain benefits that were subsequently denied by the insurer. The claimant previously applied to the Tribunal, where Adjudicator Ferguson released his decision (“the 2019 Decision”) which found that the claimant’s injuries fell within the MIG. The claimant did not seek reconsideration or judicial review of the 2019 Decision. The claimant subsequently submitted another treatment plan for chiropractor services along with updated records from his treating orthopaedic surgeon, which the insurer denied. The claimant commenced this new application before the LAT. The insurer argued that the application was subject to res judicata, as the claimant had not provided fresh evidence to impeach the Tribunal’s 2019 Decision. Adjudicator Kepman agreed with the insurer, and held that the application was barred by res judicata. The 2019 Decision held that the claimant fell within the MIG, and Adjudicator Kepman found that the new records and treatment plans would not have removed the claimant’s injury from the MIG.

Micanovic v. Intact Insurance (2022 ONSC 1566)

The claimant appealed a production order made by the Tribunal for him to produce personal and corporate income tax records from his housekeeping provider. The Divisional Court granted the appeal and set aside the order. The Court explained that even though the production order was interlocutory, the order was “fatally flawed” and had to be set aside. First, the Tribunal erred in its understanding of the housekeeping claim. The productions were ordered produced on the belief that an economic loss was being advanced by the claimant and service provider. To the contrary, the housekeeper stated that she was acting in the course of employment though a company that existed prior to the claimant’s accident. Second, the Tribunal believed that the housekeeping provider was the spouse of the claimant. That finding was an error and not supported by any evidence, nor argued by either party. Finally, the claimant had no control or power to produce the records of the housekeeper, and could therefore not be ordered to produce the records.