The insurer appealed the Tribunal’s preliminary order excluding surveillance at an upcoming hearing. Justice Corbett dismissed the appeal, holding that it was premature and an abuse of process. If the insurer is ultimately unsuccessful at the hearing and if it decides to appeal, it will be open to the insurer to raise the issue of the Tribunal’s exclusion of surveillance as a basis for appeal.
The claimant brought a motion to: (1) compel the insurer to provide particulars clarifying a statement made by a claims representative in an email regarding a job site analysis; and (2) excluding the claims representative from representing the insurer before the Tribunal. Vice Chair Maedel dismissed both motions. Whether the claims representative stated something different in her email as compared to the job site analysis went to the issue in dispute before the Tribunal. The motion to exclude the claims representative was rendered moot because the insurer appointed counsel to deal with the matter. However, Vice Chair Maedel wrote that in future cases a claims representative could be excluded if he or she was not licensed with the Law Society if the Tribunal proceeding involved legal submissions.
The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment due to a GCS score less than 9. The primary grounds for appeal were the Tribunal’s refusal to admit video evidence of the accident and treatment by EMS, and the Tribunal’s decision to allow an IE expert to comment on matters outside of the written report. The Court held that the Tribunal breached the claimant’s right to procedural fairness on both grounds. First, the Tribunal ought to have allowed the video evidence to be submitted as it was relevant and could be probative of the claimant’s GCS score immediately after the accident. Second, the Tribunal ought to have allowed the claimant relief after the IE expert gave opinion evidence not contained in his written report. The Tribunal could have adjourned for a short period to allow counsel to prepare for cross-examination. The Tribunal also could have allowed the claimant to recall his own expert to give reply evidence. The Tribunal’s refusal to allow either was procedurally unfair to the claimant because it denied him an equal opportunity to address the new evidence. The matter was returned to the Tribunal for a new hearing before a new adjudicator.
The insurer appealed a production order made by the Tribunal in advance of ongoing proceedings. The Court dismissed the appeal as premature, holding there were no exceptional circumstances justifying appellate intervention by the Court. The insurer’s arguments were premised on the possibility of unfairness rather than any inevitable substantive unfairness, which could justify review of the orders. The Court wrote that the hearing adjudicator’s task included ensuring fairness to both sides as the case moved forward, and that an appeal would be available to the unsuccessful party at the end of the hearing if the party was not treated fairly.
The claimant sought reconsideration of a decision that his claims for ACBs were barred due to the limitation period. He made no submissions on the original decision because his counsel at the time unilaterally removed himself as counsel without notice. Four months after the decision was issued, the claimant retained new counsel, who filed a Notice of Motion to extend the time limit to seek reconsideration. Vice Chair Maedel granted the motion and extended the deadline to provide a Request for Reconsideration. The claimant was 74 years old and relied on his former counsel to file the written preliminary submissions. Vice Chair Maedel accepted that the claimant was unaware of the preliminary issue decision and the seriousness of the decision until he retained new counsel in July 2021. He also accepted that the claimant had bona fide intention to appeal the denial of benefits between February to July 2021. Vice Chair Maedel rejected the insurer’s argument that the motion should be dismissed because the claimant failed to show a bona fide intention to reconsider within the 21 day period prescribed by the Rules. He found that the Tribunal was mandated to ensure a fair process to permit effective participation by all parties and to ensure that decisions are based on the merits of the dispute as per Rule 3.1 (a). In this case, the claimant had provided no preliminary submissions through no fault of his own and a preliminary decision was rendered without his participation. Vice Chair Maedel indicated that other than a delay of the application between April and December 2021 as well as the cost of responding to the Request for Reconsideration, there was little prejudice to the insurer. Notwithstanding the extension of time granted to the claimant, Vice Chair Maedel indicated the claimant would be required to address the specific criteria for reconsideration pursuant to Rule 18.2 in seeking to reverse the Tribunal’s initial decision.
This is a LAT motion decision on two issues: (1) The insurer requested an adjournment of the hearing because it underwent a cyber attack and did not have access to internal files, computers, or email; and (2) the claimant requested that the insurer’s surveillance evidence be excluded because it was disclosed outside of the timelines provided in the case conference order, which ordered that evidence be disclosed by May 21, 2021, and at the latest October 15, 2021. The surveillance report and video, which had been completed in 2018, was served on October 28, 2021. The claimant argued that the surveillance evidence had little probative value, late disclosure prevented him from preparing witnesses on it, and inclusion of the surveillance evidence would elongate the hearing. The insurer argued that the surveillance evidence was not disclosed through inadvertence and the disclosure date still complied with Rule 9.2 of the LAT Rules, and that the video was relevant because it showed the claimant functioning at a higher level than he claimed. Adjudicator Lester ordered that the hearing be adjourned for three weeks and that the surveillance video and report be excluded. Adjudicator Lester found that the surveillance report and video had little probative value and were not relevant to the issues in dispute. Adjudicator Lester noted that the video was not used to determine the benefits in dispute and had not been provided to assessors for comment. Adjudicator Lester differentiated three cases relied on by the insurer as the surveillance evidence was considered relevant to the issues in dispute in the other three cases in which late-served surveillance evidence was allowed. Adjudicator Lester found that the prejudice the surveillance evidence would cause to the claimant in preparing his witnesses and elongating the hearing would outweigh its probative value.
A motion was brought by the claimant seeking an order for a contempt hearing because the insurer’s occupational therapist failed to attend the hearing to give evidence. The hearing was commenced March 9, 2021 and the IE occupational therapist witness was called by the claimant. Two Summons to Witness were obtained on February 19 and March 12, 2021 for the occupational therapist’s attendance at the hearing. Unsuccessful attempts were also made by a process server to personally serve the Summons at the OT’s home as listed at the College of Occupational Therapists of Ontario. Claimant’s counsel also contacted the College and the insurer’s counsel to obtain alternative or additional contact information for the OT but no additional contact information was available. A Summons was then served on the OT by email. Claimant’s counsel subsequently attempted to contact the OT by email for her attendance which generated an automatic response that the OT was indefinitely on leave and she would not be responding to any emails. Adjudicator Gosio was satisfied that the witness was properly served and failed to attend the hearing. There was no information for her non-attendance. The OT’s evidence was important in relation to the catastrophic impairment determination. Pursuant to s.13(1) of the Statutory Powers and Procedure Act, Adjudicator Gosio granted the claimant’s motion and referred the matter to the Divisional Court for a contempt hearing.
The insurer filed a motion requesting that the Tribunal strike the claimant’s reply submissions, contending that the claimant had split his case and provided new submissions in his reply, which prevented the insurer from responding. The insurer argued that is was not only improper but contrary to procedural fairness, and the insurer sought permission to provide sur-reply submissions. Vice-Chair Maedel granted the insurers motion in part, agreeing that the claimant has split the case and provided arguments that could have been anticipated and included as part of his initial submissions. Some portions of the reply submissions were however proper and allowed to stand. The insurers request for sur-reply submissions was also denied. Vice-Chair Maedel stated that sur-reply submissions are a remedy that ought to be rarely imposed and are only necessary where a party has made additional legal arguments or introduced addition issues in reply, provided an inaccurate statement of law, or an inaccurate statement of fact critical to the determination of issues in dispute.
The claimants’ daughter was involved in an accident in Ontario. The claimants resided in China at the time. They moved to Canada to assist their daughter with her recovery. They applied for accident benefits under the daughter’s policy. The insurer argued that the claimants were not insured persons at the time of the accident. Adjudicator Watt agreed with the insurer. The claimants were required to show that the were principally dependent on the daughter for financial assistance at the time of the accident. Adjudicator Watt held that the evidence submitted by the claimant was insufficient to prove dependency. There was insufficient evidence of the claimants’ access to their daughter’s bank account, or that they withdrew funds on a regular basis, or that they required the funds for their own financial needs. The claimants did not provide admissible evidence regarding the cost of living in their home town (Chengdu, China). Adjudicator Watt criticized the claimants’ failure to put forward affidavit evidence from either the themselves or their daughter regarding the financial relationship. As a procedural matter, Adjudicator Watt excluded three documents from the hearing because they were not disclosed by the claimants to the insurer in accordance with the Case Conference Order, and had only first been provided as part of the claimants’ submissions.
The self-represented claimant was involved in a motor vehicle accident in 2003. In 2018, FSCO denied the claimant’s claims for caregiver benefits and NEBs and awarded costs against the claimant, which she did not pay. The claimant later submitted claims for a CAT determination, NEBs, ACBs, and housekeeping benefits, which the insurer denied. The claimant then applied to the LAT seeking entitlement to these benefits. The LAT application was filed about 2.5 months after the two-year limitation period. A preliminary issues hearing was held to determine: (1) whether the application should be dismissed as frivolous, vexatious, or commenced in bad faith because it was res judicata and there were outstanding costs awarded against the applicant in favour of the insurer, (2) whether the application for CAT determination should be dismissed because of the claimant’s non-attendance at insurer’s examinations, and (3) whether the application should be dismissed because it was brought beyond the two-year limitation period. Vice-Chair Farlam found: (1) that the claims for caregiver benefits and NEBs were barred due to res judicata, and (2) that the application was statute-barred because it was not commenced within two years of the denial of benefits. Vice-Chair Farlam declined to extend the limitation period pursuant to s. 7 of the LAT Act, finding that the claimant failed to show a bona fide intention to appeal within the limitation period, there was incurable prejudice to the insurer, and there was a lack of evidence indicating the application had merit. Because the application was barred due to the limitation period, Adjudicator Farlam did not consider the issue of non-attendance at IEs. The application was dismissed.
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles
Subscribe to get TGP’s case summaries straight to your inbox
Subscribe to get TGP’s case summaries straight to your inbox
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP