Category: LAT Rules

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 All issues in dispute except ACBs, a special award, and costs were withdrawn after the commencement of the hearing.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.

Sahadeo v. Pafco Insurance Company (19-006331)

A hearing regarding disputed medical benefits and catastrophic impairment over eight days. The parties commenced the hearing on January 18, 2022. Due to scheduling conflicts, the hearing was set to continue from March 28-30, 2022. Claimant’s counsel issued a summons via email to an insurance adjuster for the insurer for cross-examination. The insurer’s counsel argued that the summons was not properly served as it was provided via email; furthermore, they argued that claimant’s counsel should not be able to summons an adjuster as their own witness as they were an employee of the insurer. Vice-Chair Lester noted that the Tribunal was bound by LAT Rules, the SPPA, and more recently, HITPA; furthermore, a hearing Adjudicator was bound by case law regarding procedural fairness. In terms of the testimony of the adjuster, Vice-Chair Lester ruled that the adjuster’s testimony would be relevant as a special award was in dispute, and as the insurer had not articulated any prejudice as to the order of testimony, the adjuster may be called to testify at any time. In terms of how the adjuster was called, Vice-Chair Lester noted that the Rules of Civil Procedure do not apply to the Tribunal, and there were no similar provisions in the SPPA or Ontario Evidence Act that addressed the issue. Vice-Chair Lester ruled that the adjuster may be called, but that claimant’s counsel must begin with an examination-in-chief. Vice-Chair Lester noted that if the adjuster demonstrated that they were in fact a hostile witness, then it would be up to claimant’s counsel to request permission to cross-examine their own witness. Lastly, with regard to the validity of the Summons served via email, Vice-Chair Lester noted the HITPA allowed for the Tribunal to “vary the wording” in the SPPA to make orders that it considered appropriate. Vice-Chair Lester noted that claimant’s counsel stated that they attempted numerous times to obtain the adjuster’s address for personal service, however, declined to validate the email service as claimant’s counsel did not provide proof of these attempts. Vice-Chair Lester ruled that the insurer must provide the adjuster’s address for service by March 16, 2022 to ensure an opportunity for proper personal service. Parties were advised to make submissions on costs at the end of the hearing.

Sugunarajan v. Wawanesa Mutual Insurance Company (21-000665)

A hearing had been scheduled to start on July 18, 2022. Prior to the hearing, the claimant filed a Notice of Motion seeking to strike certain expert reports of the insurer from being introduced into evidence, alleging that the notices of examination did not contain sufficient medical and other reasons for the examination. Although the claimant did attend the examinations, the claimant argued that the deficient notices meant that the resulting reports must be struck from the record. The claimant also sought an order to add an issue to the hearing, an order finding that IRBs were improperly denied, and an order for payment of IRBs (with interest) based on the improper denial. Adjudicator Mazerolle ruled that several of the IE notice letters were not valid, noting the test in M.B. v. Aviva. As a result, he ruled that those reports attached to the deficient notice letters would be struck from the hearing for breaching s.44(5). Adjudicator Mazerolle noted that, as these offending reports were attached to post-104 IRBs, the insurer could always arrange for further post-104 IEs. As the other deficient notices dealt with pre-104 IRBs and ACBs, which were attached to a different test within 104 weeks of the accident, the insurer could not turn back the clock and re-assess the claimant, which would irrevocably damage the insurer’s defence and the reports, despite being attached to deficient notices, were allowed. Adjudicator Mazerolle ruled that the insurer’s IRB denial letter was compliant with s.37(4), thus payment of IRBs was not to be considered as there was no technical violation.

Bablak v. Gore Mutual Insurance Company (20-002022)

The matter had previously been set down for a five-day hearing to commence on June 7, 2021. On June 7, 2021, counsel for the claimant authored an email to the LAT and the insurer’s counsel stating that the claimant was withdrawing the LAT Application. The claimant did not submit a formal Notice of Withdrawal. The insurer had incurred significant costs preparing for the hearing, including preparation of witnesses and obtaining a court reporter. The insurer requested costs under Rule 19.2, alleging that the claimant had acted unreasonably. Adjudicator Watt ruled in the favour of the insurer, finding that the claimant acted unreasonably by waiting until the day of hearing to deciding not to proceed with the Application, when they had ample time beforehand to make such a decision. Adjudicator Watt also noted that the failure to file a formal Notice of Withdrawal interfered with the Tribunal’s ability to carry out a fair and efficient and effect process. Adjudicator Watt noted that Rule 19.6 restricted costs to $1,000.00 for each full day of attendance at a hearing, and awarded the insurer the full sum of $1,000.00.

Alazab v. Aviva General Insurance (19-011494)

A preliminary issue hearing was held where Adjudicator Norris determined that the claimant was barred from proceeding under the doctrine of res judicata. The Tribunal had previously determined that the claimant’s injuries had not been caused or exacerbated by the accident. The claimant argued that her second application was for now for entitlement to NEBs and that she had new evidence in the form of catastrophic impairment assessment reports which had been obtained, but not submitted as part of her initial application. The Tribunal disagreed with the claimant’s argument. Adjudicator Norris wrote that when the Tribunal determined that she did not sustain an impairment from the accident, it was also concluded that she would not qualify for NEBs. Further, the catastrophic impairment assessment reports were not new evidence. The reports were in the possession of the claimant when she applied for reconsideration of the original decision and if she believed that the reports would have affected the outcome of her claim, she was required to submit them at that time. The principle of res judicata meant that the claimant could not relitigate a matter and the appeal is dismissed.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.

Zakaria v. Wawanesa Mutual Insurance Company (20-008398)

The claimant sought entitlement to NEBs and various medical benefits. The insurer raised a preliminary issue regarding the admissibility of the claimant’s chronic pain assessment, which was served two months after the production date set at the Case Conference. Adjudicator Kepman found the claimant’s chronic pain assessment inadmissible, as the claimant consented to the production date and prevented the insurer from commissioning its own assessment of the claimant. The insurer raised a further preliminary issue regarding the admissibility of the claimant’s affidavit. Adjudicator Kepman also found that the claimant’s affidavit was inadmissible, as the Case Conference Order specified that no affidavits would be submitted into evidence and the claimant failed to ask permission to include the affidavit as part of her written submissions. With respect to entitlement, Adjudicator Kepman determined that the claimant was not entitled to the occupational therapy assessment, physiotherapy, or NEBs. However, the claimant was entitled to the assistive devices treatment plan, in part because the insurer’s IE assessor did not comment directly on the appropriateness of the assistive devices in question.

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