Belanger v. Intact Insurance Company (19-013755)

The insurer requested reconsideration of the Tribunal’s earlier decision which held that the claimant was not statute barred pursuant to s. 56 of the Schedule. In the initial decision, the Tribunal found that the delivery of the initial IRB denial letter dated March 26, 2015, despite being an adequate stoppage letter, was not done in accordance with s. 64 of the Schedule as the claimant subsequently retained counsel on June 20, 2015. The initial denial letter was not delivered to counsel until February 15, 2019. The claimant submitted his application on November 27, 2019. As such, the Tribunal initially determined that the application for IRBs fell within the effective limitation period of February 14, 2021. On reconsideration, Adjudicator Logan found that the Tribunal made an error. Adjudicator Logan held that s. 64 of the Schedule does not include a requirement to re-deliver a notice to counsel after they’ve been retained, and that the limitation period applied

Vaillancourt v. Intact Insurance Company (19-009063)

This is a reconsideration decision. In the initial preliminary hearing decision, the LAT found that that the exclusion in s. 31(1)(a)(i) of the SABS did not apply in this matter. Pursuant to 31(1)(a)(i), an insurer is not required to pay IRBs, NEBs, or a benefit under ss. 21, 22, or 23 in respect of a person who was the driver of an automobile at the time of the accident if the driver knew or ought reasonable to have known that they were operating the automobile while it was not insured. The insurer submitted that the hearing adjudicator made an error in law by applying an exclusively subjective test to the language of s. 31(1)(a)(i). The insurer argued that the correct test is the “contextual objective” test articulated in Batoor v. State Farm. Vice-Chair Logan granted the request for reconsideration and found that the claim for accident benefits was subject to the exclusion in s. 31(1)(a)(i) of the SABS and that a “contextual objective” test applied.

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

This is a reconsideration decision. In the initial decision the LAT barred the claimant from proceeding with claims for benefits because she applied to the LAT outside of the limitation period. The LAT further determined that it lacked discretion to extend the limitation period under s. 7 of the LAT Act. The reconsideration hearing proceeded because the state of the law changed after the LAT hearing decision, when the Divisional Court determined that the LAT does have jurisdiction to extend the limitation period under s. 7 of the LAT Act. On reconsideration, Vice-Chair McGee found that the claimant had not established grounds for an extension of the limitation period. In finding that the claimant did not establish a bona fide intention to appeal, Vice-Chair McGee rejected the claimant’s argument that she was delayed in filing the LAT application due to ineffective representation by counsel and be causing she was engaging in settlement negotiations with the insurer. Vice-Chair McGee found that delays in filing the LAT application between 6 months and 10 years were significant and prejudicial to the insurer. The reconsideration was dismissed.

Giannoylis v Travelers Insurance (20-000280)

The claimant sought reconsideration of the Tribunal’s decision in which it found that he: (i) was not entitled to IRBS from August 10, 2018 to February 19, 2019; (ii) failed to provide sufficient particulars to calculate the IRBs payable from February 20, 2019 to January 11, 2021; and (iii) was not entitled to IRBs from January 12, 2021 to date and ongoing. With respect to issue (iii), both the claimant and the insurer agreed that the parties never intended for the Tribunal to make a finding regarding the claimant’s entitlement to IRBs in the post-104 week period. As such, Vice Chair Lake varied the decision to strike the paragraphs that addressed and made findings regarding the claimant’s entitlement to post-104 week IRBs. The remainder of the claimant’s request for reconsideration was dismissed. In dismissing the reconsideration, Vice Chair Lake found that there was no error of fact or law in her findings, and this was not a situation where it would have been appropriate to simply order IRBs payable subject to the claimant having yet another opportunity to provide additional information, given the claimant’s failure to comply with the Tribunal’s Order for productions.

Bagla v. TD Ins. Meloche Monnex (20-004159)

A request for reconsideration of a preliminary issue decision was filed by the claimant. The preliminary issue decision found the claimant was statute barred for failure to appeal the denial of attendant care benefits in the two year limitation period. In this case, the claimant was involved in two accidents: one on March 3, 2014 and the other on May 25, 2015. He sought ACBs. In regard to the 2014 accident, the insurer denied ACBs by letters dated January 12 and April 17 , 2015. The claimant filed his application on January 17, 2020. In regard to the 2015 accident, the insurer denied ACBs by letter dated April 1, 2016 and the claimant filed his application on June 28, 2019. A case conference was held on November 25, 2020 for both accident claims. The claimant was represented by counsel. An order set down a preliminary issue hearing for March 8, 2021 to determine whether the claimant was statute barred from disputing his ACBs for both accidents. A Notice of Written Hearing was sent to the parties January 25, 2021. Written submissions for the preliminary issue hearing were due February 19, 2021. The insurer filed its submissions and evidence on February 4, 2021. One day prior to the deadline for written submissions, the claimant’s counsel notified the insurer and LAT that she was no longer representing the claimant. The claimant did not file his submissions on the due date. The LAT was unsuccessful in contacting the claimant and a decision was released April 29, 2021. The claimant reportedly did not know about his former counsel’s lack of submissions until several months later. The claimant retained new counsel who immediately filed a motion for an extension to file reconsideration submissions on August 13, 2021. The motion was heard and a decision was released December 6, 2021. The claimant’s request for an extension was granted and the claimant filed this reconsideration request on January 6, 2022. The claimant submitted that he was deprived of his right to participate in a hearing that was significant to his well-being and the evidence regarding the circumstances of his ACBs claim denial was not before the Tribunal and would likely have affected the result. He submitted that the doctrine of discoverability applied to his claims and it was an error to statute bar his claims. The claimant relied on the Tomec decision amongst others. He submitted alternatively that the Tribunal exercise its discretion under s.7 of the LAT Act to allow his claim to proceed to a substantive hearing. The insurer argued that the claimant’s assertion that he was denied procedural fairness was baseless and was rectified by allowing him to make submissions on reconsideration. The insurer also submitted that the claimant did not show how the previously unavailable evidence would have changed the result of the decision. In addition, no rationale was provided to overturn the decision using section 7 of the LAT Act. Vice Chair Boyce reasoned that procedural fairness included participatory rights with an opportunity for those affected by the decision to put forward their views and evidence to be considered. He indicated that the claimant should not suffer for the mistake of his counsel when the Tribunal could rectify the mistake. Vice Chair Boyce found that the claimant was unable to participate in the first instance through no mistake of his own. The claimant did not become aware of the Tribunal’s decision until three months after its release. Vice Chair Boyce granted the claimant’s request for reconsideration under Rule 18.2(a). Vice Chair Boyce accepted that he had made his initial decision solely on the evidence of the insurer and reliance on one party’s evidence affected the result. The claimant was seeking a catastrophic impairment designation at the substantive hearing. Vice Chair Boyce indicated that the doctrine of discoverability in Tomec applied in this case, and that if the Tribunal were to uphold the original decision, the claimant would be unable to claim post-104 ACBs. The preliminary decision of April 29, 2021 was set aside and the claimant was allowed to proceed with his ACBs claim at the substantive hearing.

Perrigard v. Primmum Ins. Co. (19-010651)

This is a reconsideration decision. At the hearing, Vice-Chair Boyce found that the claimant was barred under section 56 of the SABS from proceeding with his application for failure to commence the application within two years of receipt of valid denials, and for his failure to attend a properly scheduled IE assessments. The claimant submitted that the Tribunal had erred by finding that an IRB denial letter met the requirements of section 37(4), erred by finding that a Notice of Examination met the requirements of section 44(5)(a), erred in not considering the claimant re-applying for IRBs, and erred in determining that the LAT application was submitted late. In the hearing decision, Vice-Chair Boyce found that the claimant was not required to conjure up or fabricate a medical reason for terminating IRBs where there was a valid “other” reason, such as a return to employment, which was the basis for the denial in this case. Based on the Divisional Court’s recent decision in Varriano v. Allstate, Vice-Chair Boyce found that he had erred by finding that a medical reason (or indication that the IRB was not being denied for a medical reason) was not required in these circumstances. Based on the Divisional Court decision, Vice-Chair Boyce found that the denial letter was not valid and did not start the limitation period clock. Vice-Chair Boyce granted the claimant’s request for reconsideration and ordered that the claimant could proceed with his application to the LAT.

Nagalingam v. Economical Mut. Ins. Co. (20-006884)

A request for reconsideration was filed by the insurer regarding a decision of October 29, 2021 wherein the Tribunal ordered a re-hearing on the second day of a three day hearing after unilaterally declaring a mistrial during the proceedings. The hearing addressed IRBs, an award and interest. At the subsequent case conference , the parties agreed that the adjudicator had erred in ordering a new hearing and that the hearing should continue. The claimant sought costs. The parties agreed to reserve new dates for the resumption of hearing scheduled for November 18-30, 2022 by videoconference. The format of the hearing and resulting unfairness was in dispute. The insurer submitted the remedy was to complete the hearing in a timely fashion at the earliest date convenient to the parties and the new adjudicator should be provided with the first two days of the hearing transcript to avoid repeating evidence and to save costs. subject to the new adjudicator requesting a fresh exam in chief of the claimant or to deal with other evidentiary issues. The claimant agreed the adjudicator erred, but submitted that the order did not dismiss the claim and a reconsideration was inappropriate. The claimant submitted that if the hearing resumed, the new adjudicator would only be able to observe the claimant on cross exam, which was procedurally unfair. In addition, some of the evidence already submitted and some of the questions ordered answered were irrelevant. Vice Chair Boyce indicated there was no doubt the Tribunal erred when it unilaterally declared a mistrial and ordered a new hearing in the middle of a hearing. Vice Chair Boyce noted the claimant argued the relevance of the insurer’s line of questioning and that certain evidence was not clear if it was not raising material misrepresentation. Vice Chair Boyce further noted the insurer’s response, the case conference summaries, and the case conference order confirmed that the issue of section 31 was not before the Tribunal. The adjudicator’s concerns arose after the insurer pursued a line of questioning that the adjudicator interpreted as raising the issue of material misrepresentation, which in the adjudicator’s view would prejudice the claimant. The insurer asserted at no time did either party ask the Tribunal to deal with section 31. Vice Chair Boyce indicated the error was compounded when neither party requested a new hearing, brought a motion for a new hearing, or were given an opportunity to make submissions regarding the adjudicator’s unilateral decision. The adjudicator also rejected the parties’ request to pause the proceeding to allow a review of the transcript. Vice Chair Boyce found the Tribunal’s decision to order a re-hearing prejudiced both parties and did not follow the Tribunal’s mandate to ensure a fair and efficient resolution of dispute. Vice Chair Boyce also noted the adjudicator erred in his decision as the Common Rules do not contemplate a mistrial or ordering a new hearing by a first instance adjudicator without submissions from a party. The only avenue of relief is Rule 18.4(b)(ii). Vice Chair Boyce agreed this was an exceptional issue of procedural unfairness that needed to be rectified by the Tribunal. Vice Chair Boyce granted the request for reconsideration. The Tribunal committed errors of law and fact that violated procedural fairness that affected the outcome of the hearing. Vice Chair Boyce ordered the Tribunal’s order for re-hearing cancelled pursuant to Rule 18.4(b)(i), the hearing that had already begun would be continued pursuant to Rule 18.4(b)(ii), and a new adjudicator would be assigned and the transcript provided to the new adjudicator in advance of the hearing. The issue of the claimant’s costs would be added to the issues in dispute as requested pursuant to Rule 19. The claimant would be permitted to bring motions for a fresh exam in chief and to raise any evidentiary concerns.

Viran v. Aviva General Insurance Company (19-008488)

The insurer filed a request for reconsideration following a decision in which the Tribunal found that the claimant was entitled to various medical benefits and a special award. Adjudicator Grant granted the insurer’s request for reconsideration in part, and the order for a special award was set aside. Adjudicator Grant was persuaded by the insurer’s argument that section 38(11) already had a punitive measure that did not need to be overlapped by an award. He agreed that by failing to properly deny the OCF-18, the “shall pay” consequences discourage an insurer from failing to respond to an OCF-18 that it receives, and serves as an appropriately punitive result. In doing so, Adjudicator Grant noted that the threshold for an award was high for a reason, and that a penalty on top of a penalty could be reasonably construed as excessive.

Foster v. Aviva General Insurance Company (19-014657)

The claimant sought reconsideration of the Tribunal’s decision that the CERB / CRB was deductible from IRBs. The insurer agreed with the claimant that the Tribunal’s decision was an error. Vice Chair Boyce granted the reconsideration and held that CERB / CRB was not deductible from IRBs because it was not “gross employment income” or “other remuneration from employment”, and was not analogous to “salary, wages and other remuneration from employment”.

Morris v. Aviva General Insurance (19-002717)

The insurer filed a request for reconsideration after the Tribunal previously decided that, among other things, the claimant was entitled to two OCF-18s, plus interest as a result of the insurer’s failure to comply with section 38 of the SABS. The insurer argued that the Tribunal had referred to case law not submitted by either party, denied the insurer the right to issue a proper denial notice, and misapplied section 38(11). On reconsideration, Adjudicator Lake noted that, while case law that was not submitted by either party was cited (MFZ v. Aviva), it was in terms of comparison towards the purpose of statutory interpretation. In relation to the allegation that the previous decision denied the insurer the opportunity to issue compliant denial notices, Adjudicator Lake noted that the insurer’s position fell afoul of the SABS consumer protection mandate and that it was unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would strip the Tribunal of its jurisdiction to resolve accident benefit matters. Lastly, Adjudicator Lake addressed the insurer’s position that she erred in misapplying section 38. Adjudicator Lake noted that in her previous decision she was silent on whether the OCF-18s were required to be incurred prior to payment. While her silence on the issue did not amount to an error of law, Adjudicator Lake conceded that she should have been clearer regarding the interpretation of section 38 in that the OCF-18s were to be paid within 30 days of an invoice being submitted. Adjudicator Lake granted the request for reconsideration in part, finding that the claimant was entitled to the OCF-18s plus interest following submission of an invoice for services rendered.