Category: LAT Rules

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 FSCO arbitrators had the power to grant interim benefits under s. 279 of the Insurance Act, which was repealed when the LAT was granted jurisdiction over accident benefit disputes.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.

Grewal v. Peel Mutual Insurance Company (20-010308)

The claimant sought to add a claim for punitive damages to his LAT application. Adjudicator Mazerolle held that the Tribunal did not have jurisdiction to award punitive damages in accident benefits disputes. The Tribunal’s jurisdiction was limited to matters provided for in the Insurance Act and Regulations. The Legislature provided clear authority to the Tribunal to grant a special award. No statutory authority existed for an award of punitive damages.

Hosseini v. Economical Mutual Insurance Company (20-004222)

The insurer sought production of the claimant’s AB file from a 2007 accident, and the LTD file relating to the same accident. The claimant argued that the materials were not relevant, as they related to an incident more than 10 years prior to the subject accident. Adjudicator Lake ordered the claimant to produce the full AB file and LTD file, subject to redaction for privilege and reserves. She reasoned that the productions were relevant because the 2007 accident caused significant orthopaedic injuries and resulted in the death of the claimant’s mother. The probative value of the AB file and LTD file outweighed any prejudicial effect. The insurer agreed to pay for the cost of producing the files.

Howe v. The Commonwell Mutual Insurance Group (19-010824)

This motion decision arose in the context of a LAT hearing relating to a catastrophic impairment determination. On the third day of the hearing during direct examination of one of the claimant’s expert witnesses, counsel for the insurer objected on the ground that the expert’s testimony was beyond the scope of her written report. The expert’s evidence in direct examination was contained in a rebuttal report, which had not been served on time and was not allowed to be admitted as hearing evidence. The insurer argued that the expert’s testimony should be limited to the expert’s original report. Adjudicator Paluch ruled that the probative value of the expert’s testimony would outweigh the prejudice suffered by the insurer and allowed the expert’s testimony relating to her updated rebuttal report as it was potentially relevant. Adjudicator Paluch also ruled that the insurer would be granted a brief adjournment for the purpose of preparing for cross examination, to prepare its expert to testify, and to call any additional witnesses required to address the claimant’s expert’s evidence.

L.M. v. The Co-operators General Insurance Company (19-003485)

The insurer sought reconsideration of the Tribunal’s decision that the claimant was an insured person as a dependent of his mother. Vice Chair Flude dismissed the reconsideration because the Tribunal’s decision had not finally disposed of the appeal. Rule 18.1 required that the insurer wait until the matters in dispute were finally disposed of. The preliminary decision did not finally determine the claimant’s entitlement to benefits.