Category: LAT Rules

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.

Johnson v The Dominion of Canada General Insurance Company (20-001056)

The claimant was involved in a motor vehicle accident and sought benefits pursuant to the SABS. On January 24, 2019, the claimant filed a LAT application to determine whether her injuries fell within the MIG as well as her entitlement to various treatment plans. On February 4, 2020, the claimant filed a second application which again included the issue of the MIG and entitlement to additional treatment plans. On June 9, 2020, Adjudicator Johal released the decision for the first LAT application, concluding that the claimant’s injuries fell within the MIG. The claimant did not request reconsideration nor did she pursue an appeal. Adjudicator Kaur found that the claimant’s second LAT application was barred by the doctrine of res judicata. The claimant relied on additional assessment obtained after the first LAT hearing but failed to explain why this evidence was not available at the material time. Adjudicator Kaur noted that even if the reports were admissible, they were based heavily on the claimant’s self-reporting and lacked persuasive value.

Sharma v. Allstate Insurance (2022 ONSC 803)

The claimant appealed the Tribunal’s decision that she was barred from disputing NEBs due to the limitation period. She missed the limitation period by five days. The Court allowed the appeal, and ordered the Tribunal to rehear the preliminary limitation defence with a new adjudicator. The Court held that the Tribunal erred in three ways. First, the Tribunal improperly considered the length of the delay by considering the 735 days since the denial of NEBs rather than just the five day delay. Second, the Tribunal improperly analyzed the prejudice to the insurer by considering the prejudice that may have arisen during the entire 735 days since the denial of NEBs rather than the prejudice arising over the five day delay. Third, the Tribunal erred by excluding in reconsideration a new email from the claimant’s counsel to the insurer sent on the date the limitation period expired asking if the claimant had been paid NEBs.

Pereira v. Aviva (2022 ONSC 688)

The claimant appealed the Tribunal’s decision that he was not entitled to certain medical benefits because services were incurred prior to submission of a treatment plan, and that he could not add new claims for NEBs and a special award in his written submissions. The Divisional Court dismissed the appeal in its entirety. First, the Court held that the LAT was entitled to govern its own procedure, and there was no issue of law raised in the Tribunal’s refusal to allow additional issues in the original hearing. The claimant was free to commence a new LAT application for the new issues. Second, the Tribunal did not err in its application of section 38(2) which required the submission of a treatment plan prior to incurring a medical benefit. Further, the application of section 38(2) to the claim was one of mixed fact and law, which the Court did not have jurisdiction to interfere with.

Jarret v. Aviva Insurance Company of Canada (20-007746)

The claimant filed a motion seeking to add punitive damages as an additional issue in dispute to the LAT application. The insurer argued that the Tribunal had determined on numerous occasions that it did not have the power to order punitive damages. After considering the legislation, Adjudicator Mazerolle agreed with the insurer that it was well decided that the Tribunal did not have the authority to add punitive damages to an accident benefits claim. The claimant would not be prejudiced by this decision and was entitled to argue any allegations of bad faith through her application for a special award.