Category: Reconsideration

H.M.L. v. Northbridge Personal Insurance Company (19-000375)

The claimant requested reconsideration of the Tribunal’s decision that she did not meet the post-104 week IRB test. The claimant argued that she received catastrophic impairment assessments that were not available at the time of the decision and which would change the Tribunal’s decision. Vice Chair Mather dismissed the reconsideration request. The claimant had received her section 25 catastrophic impairment assessments after the due date for written submissions, but before the Tribunal rendered a decision. Because the assessments were in the claimant’s possession before the Tribunal’s decision, she ought to have brought a motion to have the Tribunal consider the assessments. Vice Mather also held that the assessments were unlikely to have changed the Tribunal’s decision. The information and opinions in the assessments were contradicted by the surveillance of the claimant. The assessments also did not provide an opinion on the claimant’s ability to work in a suitable employment or self-employment, as they were only directed towards the catastrophic impairment test.

H.M.L. v. Northbridge Personal Insurance Company (19-000375)

The claimant requested reconsideration of the Tribunal’s decision that she did not meet the post-104 week IRB test. The claimant argued that she received catastrophic impairment assessments that were not available at the time of the decision and which would change the Tribunal’s decision. Vice Chair Mather dismissed the reconsideration request. The claimant had received her section 25 catastrophic impairment assessments after the due date for written submissions, but before the Tribunal rendered a decision. Because the assessments were in the claimant’s possession before the Tribunal’s decision, she ought to have brought a motion to have the Tribunal consider the assessments. Vice Mather also held that the assessments were unlikely to have changed the Tribunal’s decision. The information and opinions in the assessments were contradicted by the surveillance of the claimant. The assessments also did not provide an opinion on the claimant’s ability to work in a suitable employment or self-employment, as they were only directed towards the catastrophic impairment test.

E.C. v. Northbridge Commercial Insurance Company (18-006384)

The claimant sought reconsideration of the Tribunal’s rejection of catastrophic impairment costs. Adjudicator Grant rejected the reconsideration request. He acknowledged two typos / misnomers, but neither affected the Tribunal’s decision. He maintained that the Tribunal applied the correct legal test, which required the claimant to prove that the disputed assessments were reasonable and necessary. The Tribunal considered the claimant’s physical and psychological conditions and determined that the claimant did not meet his onus. Adjudicator Grant rejected the argument that the Tribunal could not rely upon the content of medical records as it was hearsay. The Tribunal was permitted to accept hearsay and assess its weight. Second, the medical records were to be accepted as accurate unless the claimant called evidence to contradict the content. If the claimant wished to dispute the accuracy, he needed to summons the creator of the record to examine them at the hearing. Finally, Adjudicator Grant rejected the argument that he could not hear the reconsideration because he was the adjudicator hearing the original application. Jurisprudence was clear that a reconsideration is not a statutory right and that administrative tribunals are permitted to provide rules governing reconsideration the process, including who will hear the reconsideration.

T.M. v. Aviva General Insurance (18-010477)

The claimant sought reconsideration of the Tribunal’s decision dismissing his claim for IRBs. The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to repayment. Both requests for reconsideration were denied. Regarding the claimant’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error of law in finding that the claimant was not employed at the time of the accident and that she had not earned employment income prior to the accident. Regarding the insurer’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error in conclude that the insurer’s request for repayment sent via email did not comply with section 64 of the SABS; the insurer required the consent of the claimant to send the notice for repayment by email, even though the claimant and insurer had communicated by email on previous instances.

T.M. v. Aviva General Insurance (18-010477)

The claimant sought reconsideration of the Tribunal’s decision dismissing his claim for IRBs. The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to repayment. Both requests for reconsideration were denied. Regarding the claimant’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error of law in finding that the claimant was not employed at the time of the accident and that she had not earned employment income prior to the accident. Regarding the insurer’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error in conclude that the insurer’s request for repayment sent via email did not comply with section 64 of the SABS; the insurer required the consent of the claimant to send the notice for repayment by email, even though the claimant and insurer had communicated by email on previous instances.

J.J. v. Jevco Insurance (18-012155)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s newly purchased motorcycle was insured under the policy as a “newly acquired automobile”. The insurer’s arguments were primarily based on failure to follow two Superior Court decisions. Vice Chair Flude rejected the reconsideration, holding that he did not make an error that would change the result. He held that his initial decision did consider the relevant case law, but came to a different result based on factual distinctions.

J.J. v. Jevco Insurance (18-012155)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s newly purchased motorcycle was insured under the policy as a “newly acquired automobile”. The insurer’s arguments were primarily based on failure to follow two Superior Court decisions. Vice Chair Flude rejected the reconsideration, holding that he did not make an error that would change the result. He held that his initial decision did consider the relevant case law, but came to a different result based on factual distinctions.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.