Yatar v. TD Insurance Meloche Monnex (2021 ONSC 2507)

The claimant appealed and sought judicial review of the Tribunal’s decision that her claims were barred by the limitation period. The Court dismissed both the appeal and the judicial review. The Court explained that statutory appeals are limited to strict questions of law, and the claimant had failed to identify an error of law on which to appeal; rather, she was appealing on a question of mixed fact and law, which were not subject to the statutory appeal. Judicial review, on the other hand, was a discretionary remedy that was only to be granted in exceptional circumstances. The Court noted that the Legislature had intended to restrict matters on which the Tribunal could be reviewed, and acknowledged that the Tribunal’s reconsideration process weighed in favour of a more limited right to judicial review. Again, the nature of the alleged error – being one of mixed fact and law – meant that the Court was to be highly deferential, and only intervene if the error is so serious as to constitute an error of law.

M.L. v. The Dominion of Canada General Insurance Company (19-011699)

The claimant requested reconsideration of a preliminary issues decision in which the LAT adjudicator found that the claimant was barred from proceeding with her application for certain benefits because she failed to commence her application within two years of the insurer’s refusal to pay the benefits claimed. The claimant submitted that the LAT acted outside of its jurisdiction and made errors of law by not properly weighing evidence, failing to explain how it weighed evidence, and by misconstruing the applicant’s arguments. The request for reconsideration was dismissed.

A.M. v. Aviva Insurance Company (19-004182)

The claimant requested reconsideration of the Tribunal’s preliminary issue decision barring the claimant from disputing IRBs. Adjudicator Grant dismissed the reconsideration. The claimant submitted that the Tribunal erred in equating the OCF-10 as a request for IRBs for less than the mandated seven working days lost. The claimant submitted the OCF-10 and she did not elect to receive NEBs although the OCF-3 indicated that she suffered a complete inability to carry on a normal life. The insurer submitted that this was not sufficient grounds to change the decision. There was no evidence that the claimant was not claiming entitlement to IRBs until August 14, 2019 when the claimant sent a letter to the insurer explaining the reasons for the delay in submitting the OCF-2. Adjudicator Grant considered that the claimant was represented in 2016 and there was no reasonable explanation for the delay between the January 16, 2017 notice letter and the claimant’s failure to appeal the denial before the limitation period expired. Adjudicator Grant did not find the claimant’s delay in her letter of explanation to the insurer to be reasonable. Even though the claimant had been hospitalized, the claimant’s representative could have contacted the insurer well before the limitation period to advise of the claimant’s situation. The claimant further argued that the insurer’s January 2017 denial letter of IRB entitlement was not valid when she did not stop working until February 2017. The insurer relied upon the Court of Appeal decision Sietzema v. Economical, which held that clear and unequivocal notice given by the insurer denying benefits was sufficient to trigger the limitation period. The insurer argued that if the claimant found the denial was improper, she had the right to dispute the denial within the two year limitation period. The OCF-10 submitted by the claimant electing IRBs after the completion of the OCF-1 and OCF-3 was an indication that it was applying for IRBs and was, therefore, notifying the insurer of her intent to apply for a specified benefit.

Jones v. Aviva Insurance Canada (19-013768)

The insurer requested reconsideration of a preliminary issue hearing in which the Tribunal found that the claimant’s application for a non-earner benefit was not barred pursuant to section 56 of the SABS. Vice Chair McGee dismissed the insurer’s request for reconsideration, on the basis that Rule 18 of the LAT Rules provides that the Tribunal will only reconsider a decision that finally disposes of an appeal. Vice Chair McGee noted that the preliminary issue decision was interlocutory in nature, and held that the Tribunal cannot grant reconsideration of an interlocutory order.

Mohamud v. Certas Home and Auto Insurance Company (19-005153)

The claimant disputed entitlement to four treatment plans for various assessments and assistive devices, and a special award. The insurer raised a preliminary issue, claiming that the disputed dental assessment was barred by the limitation period. The insurer denied the plan on April 6, 2017, provided a clear and unequivocal denial and warned of the two-year limitation period. The claimant argued that the limitation clock did not begin until July 26, 2017, when the insurer sent a letter partially approving other dental procedures and noting that it “will not pay for any treatment that it had not authorized.” Adjudicator Lake ruled in the insurer’s favour, noting that the April 2017 denial was clear and provided notice of the two-year limitation. Furthermore, Adjudicator Lake noted that there was no power to extend the limitation period. Regarding the other treatment plans, the claimant requested to add additional evidence in the form of clinical notes and records. Adjudicator Lake denied the request, agreeing with the insurer that Orders should be followed. As there was no reason to why the late record could not have been produced earlier, the request was denied. Adjudicator Lake awarded the claimant part of a disputed OCF-18 for assistive devices and interest and dismissed the remainder of her claim.

Higashi v. Western Assurance Company (2020 ONSC 7616)

The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. She argued that the insurer’s denials were invalid because the insurer did not provide copies of the IE reports to the practitioners who completed the Disability Certificates. The Court agreed with the Tribunal that the insurer’s failure to provide the IEs was not fatal to the limitation period. The insurer communicated all of the information required to the claimant to enable her to decide whether to dispute her entitlement.

Williams v. Wawanesa Mutual Insurance Company (19-007941)

The insurer sought an order that the claimant’s application for IRBs was time barred since it was commenced more than two years after the denial. The insurer had written to the claimant and her legal representative of the stoppage, provided the claimant with a copy of the IE report and advised of the right to dispute by filing an application within the two year time limit. Vice Chair Farlam found that the insurer’s IRB stoppage letter was clear and unequivocal and included a warning if the claimant did not apply within the two year limit, she would be statute barred. Vice Chair Farlam declined to exercise her discretion to extend the time limit under section 7 of the LAT Act because there was no evidence to show the claimant’s bona fide or good faith intention to appeal within the time period. The claimant had failed to establish that her application had merit. The claimant filed no evidence and as such, she was likely unable to meet the test for IRBs.

R.M. v. CAA Insurance (19-003499)

The insurer sought an order barring the claimant from proceeding with her application due to non-compliance with the limitation period. The insurer had denied further payment of NEBs by way of letter dated October 4, 2016, which was mailed to the claimant and faxed to her counsel. The claimant applied to the Tribunal on November 19, 2018 to dispute the NEBs and other denials. The claimant argued that the NEBs denial letter was never sent. Vice Chair Shapiro found there was virtually no doubt the letter was sent because the insurer was able to produce a fax confirmation report. Vice Chair Shapiro found the fax and letter were both sent on or about October 4, 2016 and the claimant had not appealed the NEB denial within the two year limitation period. Vice Chair considered section 7 of the LAT Act and found that the claimant had not met her burden. She had missed the deadline for a significant period of time with no reason for late filing.

Thompson v. Aviva Canada Inc. (19-005493)

A preliminary issue hearing was brought by the insurer for an order barring the claimant from proceeding with an application for IRBs due to the expiration of the limitation period. The insurer had notified the claimant on November 8, 2016 of stoppage of IRBs effective November 22, 2016 per IEs. The claimant requested payment on November 21, 2016 of IRBs from February 9, 2015 to November 22, 2016. The insurer obtained an accounting report to determine the amount payable as the claimant was self-employed at the time of the accident. The claimant was paid IRBs plus interest in a lump sum on July 28, 2017 based on the accounting report. The claimant filed his application for ongoing IRBs on May 29, 2019. The claimant argued his application was filed within the two year limitation period, stating that the calculation of limitation started on July 28, 2017 because the insurer’s letter enclosing the accounting report included reference to the two year limitation period. Adjudicator Norris found the November 8, 2016 letter started the limitation period as it satisfied the proper denial requirements. Adjudicator Norris did not consider the July 28, 2017 letter to impact the deadline because the letter was not a new denial of benefits. The letter’s purpose was to provide the claimant with a copy of the accounting report and confirm the amount of IRBs payable. Adjudicator Norris did not exercise his discretion to extend the deadline to file application under section 7 of the LAT Act as there was no evidence to show the claimant had any intention to appeal within the appeal period.

Gareau v. Economical Mutual Insurance Company (19-011520)

This is a preliminary decision over whether a claimant could apply to the Tribunal and dispute his claim for a housekeeping and home maintenance expenses denied by the insurer prior to receiving a catastrophic impairment designation, despite the claimant not yet being found to suffer a catastrophic impairment. Adjudicator Johal held that based on the Ontario Court of Appeal decision of Tomec v Economical, the claimant would not be barred from bringing his claim for HK expenses once he has “discovered” his entitlement. However, Adjudicator Johal agreed with the insurer that the claimant did not yet have a cause of action because he had not been deemed to be catastrophically impaired, and he would not be prejudiced by withdrawing his application and bringing the application before the Tribunal if, and when, he was deemed catastrophically impaired. To dispute the benefits at this stage when the claimant had yet to apply for a claim of a catastrophic impairment would create an absurd result by permitting the claimant to dispute a claim for HK expenses, to which he had no entitlement until his medical status deteriorated to the point of a catastrophic impairment designation.