Category: Reconsideration

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.

M.M. v. Aviva Insurance Co. (17-006475)

The claimant requested reconsideration of Adjudicator Boyce’s decision in which he determined that the claimant was not entitled to IRBs (among other things). Adjudicator Boyce again reviewed the submissions and evidence before him and upheld his previous decision. The claimant alleged that accepting the surveillance evidence presented by the insurer did not show psychological or emotional struggle. While Adjudicator Boyce agreed, as he had in his original decision, he noted that while video evidence did not show psychological impacts, it did show that the claimant was working at her job and doing all of the required tasks she had told independent assessors she was unable to perform; thus showing she had an ability to return to her pre-accident employment. The reconsideration was dismissed.

S.M. v Wawanesa Mutual Insurance Company (18-008474)

The insurer and claimant sought reconsideration of Adjudicator Johal’s decision that: (1) the claimant was only entitled to 120 minutes of ACBs per day and 60 minutes of ACBs per week, and (2) the claimant was not entitled to retroactive ACBs. Adjudicator Johal dismissed the reconsideration and noted that she properly applied the law to her original decision – retroactive benefits were not payable because the claimant did not establish that there was a valid reason for his delay in filing a retroactive Form 1 (urgency, impossibility or impracticability in accordance with section 42(5) of the SABS.) With respect to the amount of ACBs, Adjudicator Johal noted that she weighed the evidence and the testimony of the witnesses and that her original decision provided sufficient reasons and explanations for her conclusion.

M.K. v. TD General Insurance Company (19-003616)

The claimant sought reconsideration of the Tribunal’s decision that she was statute-barred from proceeding with her application for NEBs because she did not appeal within the two-year limitation period. The claimant submitted her Reconsideration Request two days after the limitation period had expired, relying on the state of emergency arising out of the COVID-19 pandemic, and requested an extension of time. Adjudicator Grant denied the claimant’s request, noting that the claimant had not submitted any kind of evidence that the pandemic had in any way caused or contributed to the delay. Adjudicator Grant also found that, in any event, the claimant’s request for reconsideration was without merit. The Tribunal considered the evidence of submissions of the parties, and right found that the claimant’s applicable regarding NEBs was beyond the limitation period.

G.R. v. Aviva General Insurance Company (18-004375)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision awarding seven medical benefits, denying attendant care expenses, and granting a special award on a functional impairment assessment, which had been deemed incurred. The claimant argued that ACBs should have been awarded and should have been deemed incurred under section 3(8). Adjudicator Mazerolle rejected the claimant’s reconsideration request holding that the claimant had not incurred any ACBs, and that the Tribunal made no error in not deeming the expenses incurred. He also rejected the argument that McMichael v. Belair applied, reasoning that it was decided under an earlier version of the SABS that did not require attendant care services to be incurred. Adjudicator Mazerolle granted the insurer’s reconsideration request in relation to the functional impairment assessment. He accepted that the insurer was not given an opportunity to respond to the argument that it should be deemed incurred under section 3(8). He requested that both parties make submissions on whether the insurer’s unreasonable withholding or delay in payment of the functional impairment led the claimant not to incur the expense.

N.V. v. Allstate Insurance Company of Canada (18-008774)

The claimant sought reconsideration of the Tribunal’s decision that the limitation barred the IRB claim and that section 7 of the LAT Act should not apply to extend the limitation period. Adjudicator Boyce rejected the reconsideration request. He held that no error was made by the Tribunal in concluding that the insurer’s denial was clear and unequivocal. The claimant’s return to work was a valid reason for the IRB denial and complied with section 37(4). Adjudicator Boyce also rejected the argument that Tomec created a new date of discoverability for the IRB claim. He reasoned the Tomec was only applicable in the case of a catastrophic impairment finding (which was not present in this claim).

N.V. v. Allstate Insurance Company of Canada (18-008774)

The claimant sought reconsideration of the Tribunal’s decision that the limitation barred the IRB claim and that section 7 of the LAT Act should not apply to extend the limitation period. Adjudicator Boyce rejected the reconsideration request. He held that no error was made by the Tribunal in concluding that the insurer’s denial was clear and unequivocal. The claimant’s return to work was a valid reason for the IRB denial and complied with section 37(4). Adjudicator Boyce also rejected the argument that Tomec created a new date of discoverability for the IRB claim. He reasoned the Tomec was only applicable in the case of a catastrophic impairment finding (which was not present in this claim).

S.W. v. Aviva General Insurance Company (19-002127)

The insurer sought reconsideration of the Tribunal’s decision to allow the claimant to extend the limitation period under section 7 of the LAT Act. The insurer argued that the Tribunal did not have jurisdiction to extend the limitation period, or alternatively, that the facts of the case did not warrant the extension. Adjudicator Boyce dismissed the reconsideration request. He rejected the argument that the Tribunal did not have jurisdiction to extend the limitation period, noting that only a few adjudicators came to the opposite conclusion. Applying the four factors to the present claim, Adjudicator Boyce found no error in how the Tribunal approached the request to extend the limitation period. He reiterated that the delay was only a few business days and that the claimant’s failure to dispute within the timeline was due to clerical errors.

F.C. v. Aviva Insurance Canada (18-001359)

The insurer sought reconsideration of the Tribunal’s decision awarding NEBs and a treatment plan for failure to comply with sections 36 and 38, respectively. Adjudicator Boyce dismissed the reconsideration. He held that Stranges v Allstate was not good law in relation to the current version of the SABS, which required payment of NEBs until a proper denial is given to the claimant. He also rejected that the Tribunal should apply section 7 of the LAT Act in the insurer’s favour to cure the lack of NEBs denial.

H.K.C. v. Aviva Insurance Company (18-011956)

The insurer sought reconsideration of the Tribunal’s decision that a formal psychological diagnosis was not required for removal from the MIG. Adjudicator Johal dismissed the reconsideration. She found no error in the Tribunal’s decision and noted that the Supreme Court’s decision in Saadati v Moorhead supported the conclusion. She also rejected the insurer’s argument that other case law from the Tribunal was binding on her, noting that no adjudicator was bound by the decision of another member of the Tribunal.