Category: LAT Rules

Gilani v. Travelers Insurance Company of Canada (19-009248)

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.

Nadarajah v. Aviva General Insurance Company (20-009520)

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.

Chen and Chen v. Travelers Insurance Company of Canada (20-007653 and 20-007658)

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.

Nguyen v. Economical Insurance Company (20-006171)

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.

Gilani v. Travelers Insurance Company of Canada (19-009248)

The claimant brought a motion for interim benefits, including attendant care benefits at $6,000 per month. The claimant argued that it had been 2.5 years since he was denied the benefits in dispute. The insurer had inadvertently delayed providing catastrophic impairment IE reports for 7 months and post-104 IRB IE reports for 9 months. The dispute resolution process was ongoing for almost 2 years. The claimant’s condition had deteriorated with reported suicidal thoughts. He was arrested and charged with assault against his daughter. The claimant lived separately from the family. He was provided temporary funding by the insurer for a place to live and receive attendant care, which was about to expire. The insurer argued the Tribunal did not have the jurisdiction to award interim benefits given the powers conferred to it under the Insurance Act. Adjudicator Gosio agreed and dismissed the claimant’s motion. Adjudicator Gosio indicated in his reasoning that the jurisdiction of the Tribunal must be found within a statute or regulation. The LAT could only exercise power delegated to it as a statutory tribunal under it’s enabling legislation, and no power to grant interim benefits was given to the Tribunal. With respect to legislative intent, the legislature deliberately removed provisions relating to interim orders previously found in the Act. FSCO arbitrators had the power to grant interim benefits under s. 279 of the Insurance Act, which was repealed when the LAT was granted jurisdiction over accident benefit disputes. To date this power has not been conferred to the LAT. Adjudicator Gosio also reasoned that the SPPA should not be interpreted so broadly to give the Tribunal discretionary powers not explicitly conferred to it. The purpose of the SPPA was to provide a framework for hearings, and not to provide substantive powers to the Tribunal. The intent of s.16.1 of the SPPA, which allowed interim orders, was to allow discretionary power to make interim procedural orders rather than substantive ones.

Carter v. Aviva Insurance Company of Canada (19-013446)

The insurer filed a Notice of Motion seeking to stay the claimant’s application, alleging that the claimant failed to participate in a neuropsychological insurer’s examination meant to assess his entitlement to IRBs. The insurer’s request for a neuropsychological assessment was made after the claimant submitted his own neuropsychological assessment. The insurer corresponded with the claimant’s counsel regarding its request, but no formal IE notice was ever delivered to the claimant. Nevertheless, the insurer argued that the claimant could not proceed with his application until he attended the assessment. Section 55(1) of the Schedule disallows claimants from pursuing his claim for a benefit if he did not attend a properly scheduled and reasonably necessary examination. Section 55(2), however, states that the insurer is required to provide the claimant with notice in accordance with Section 44. Adjudicator Mazerolle concluded that the insurer could not request a stay of proceedings under s. 55(1) because it did not deliver a compliant notice to the claimant. As a result, Adjudicator Mazerolle dismissed the request for a stay.

Tipping v. Coseco Insurance Company (2021 ONSC 5295)

The claimant sought judicial review of the Tribunal’s decision that he failed to attend properly requested IEs and that he could not proceed with his dispute relating to a catastrophic impairment. The Court dismissed the judicial review, holding that the claimant ought to have pursued a statutory right of appeal under the Insurance Act, and holding that there were no exceptional circumstances warranting the Court’s interference by way of judicial review. The Court noted that the claimant’s allegations of bias, lack of procedural fairness, and lack of natural justice were all questions of law, which could be addressed on a statutory appeal (though the Court went on to say that these claims seemed to have little meri, noting that strong disagreement with a decision was not sufficient to justify a finding of reasonable apprehension of bias). Finally, the Court noted that the LAT’s decision might not be a final decision, as the claimant could attend the IEs and then proceed with his LAT dispute.

Gilani v. Travelers Insurance Company of Canada (19-009248)

A motion was brought by the claimant for an order to add additional witnesses (the current claims adjuster and the case manager) and to allow the filing and use of certain documents from the OT’s updated records requested by the insurer to be admitted into evidence. The motion to add the two additional witnesses was dismissed and the filing and use of the new documentary evidence at the hearing was granted. The insurer argued the claimant should not be allowed to rely on the two additional witnesses but consented to the filing and use of the new documentary evidence. The claimant argued that it should be permitted to call the current adjuster who had taken transfer of the file. The previous adjuster, who no longer worked for the insurer, did not have access to the complete AB claims file. The claimant further submitted that he would be prejudiced if the current adjuster was unable to speak to her awareness and adjusting of the claim given recent developments in the claimant’s level of impairment and attendant care needs. The claimant also submitted he would be prejudiced without the testimony of the case manager, who had been his case manager since February 2021 and had provided multiple updates in regard to his impairments and attendant care needs. Adjudicator Gosio reasoned that the addition of two new witnesses were not in compliance with the disclosure requirements set out in the Case Conference Order which indicated the parties were to disclose the evidence and witnesses before the hearing. No motion was brought to extend or vary this deadline. Adjudicator Gosio indicated the timelines in the order were set to ensure the parties had a fair hearing and were not surprised by last minute evidence. The purpose of the Rules is to ensure a fair, efficient and timely resolution of the matter. The hearing in this matter was originally set for 6 days, yet 9 additional days had already been added. A further delay was not justified by adding the additional witnesses.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant filed a request for reconsideration arising out of Adjudicator Neilson’s decision that he was not entitled to IRBs or the cost of a psychological treatment plan. Adjudicator Neilson dismissed the request. At the initial hearing, the claimant brought a motion to exclude the insurer’s experts’ reports on the basis that the insurer failed to comply with an order to produce the clinical notes and records of its IE experts, in particular the raw test data from the IE psychologist. Adjudicator Neilson had dismissed the motion on the basis that the insurer had provided proof of best efforts to obtain these records. Then, the claimant sought an adjournment so that the IE psychologist could produce the data to the claimant’s treating psychologist. Adjudicator Neilson dismissed that adjournment request, but the hearing was adjourned for other reasons. At the hearing, the claimant’s treating psychologist testified that she did not interpret the raw data as did not pay the fee to obtain this data through a computer program. Ultimately, Adjudicator Neilson agreed with the IE psychologist and on reconsideration, found that the raw data results would not have changed her opinion with respect to the IRB dispute or entitlement to the disputed psychological treatment plan.

Fratarcangeli v. North Blenheim Mutual Insurance Company (2021 ONSC 3997)

The Divisional Court considered three LAT decisions addressing section 7 of the LAT Act, to determine whether the Tribunal had the power to extend the two-year limitation period. The Court held that the LAT Act did grant the Tribunal the power to extend the limitation period and upheld two of the decisions in which the adjudicators had granted the extensions. The Court held that the third matter, in which the adjudicator had held that the LAT did not have the power to extend the limitation period, had to be returned to the adjudicator for a determination on whether the extension should be granted.

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