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.

Amiri and Mireskandari v. The Co-operators (20-003296)

The claimants were out for a walk with their spouses when a member of their group, a close relative, was struck by a motor vehicle in a pedestrian accident. The claimants, who were uninsured, applied for accident benefits under the driver’s policy, claiming emotional shock and psychological distress. Adjudicator Norris had previously ruled that the claimants did not meet the definition of an “insured person” in section 3(1) of the SABS, and therefore had no entitlement to accident benefits under the driver’s policy. The claimants requested Reconsideration of the decision. The claimants alleged that Adjudicator Norris erred in fact or law by failing to recognize the broad, consumer-protecting threshold of section 3(1). Adjudicator Norris disagreed, noting that while protections did exist, the claimants had no relation to the named insured (driver) as required by law to claim benefits, and as unfortunate as the event may have been, they were not entitled to claim accident benefits from the insured driver. The request for reconsideration was denied.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

P.M. v. Aviva General Insurance (19-002717)

The insurer requested reconsideration of a decision that awarded the claimant two treatment plans as a result of the insurer’s non-compliance with sections 38(8) and 38(9). The insurer submitted that the Adjudicator erred in law by vitiating its right to “cure” its deficient notices regarding the treatment plans submitted under section 38(11) even after the Tribunal rendered a decision. The insurer argued that its liability for payment of goods and services under a treatment plan as a result of its failure to comply with sections 38(8) and 38(9) ends upon delivery of a compliant denial notice pursuant to section 38(11), and not as a result of a decision of the Tribunal. Adjudicator Lake disagreed and stated that it was well settled that the Schedule must be read generously with any limitations construed narrowly. In this context, Adjudicator Lake considered it 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 also strip the Tribunal of its jurisdiction to resolve accident benefit matters. As a result, Adjudicator Lake found no error of law in finding that the insurer’s opportunity to cure its defective denial notices ended upon the issuance of the decision.

Catic v. Aviva General Insurance (19-005572)

The claimant requested reconsideration of a decision in which the Tribunal found that the claimant was not entitled to the cost of a psychological assessment because it was not reasonable and necessary, despite the insurer’s denial not complying with section 38. The claimant argued that the applicable consequences set out in section 38(11) required the insurer to pay for all assessments and examinations described in the treatment plan starting on the 11th business day and ending on the day the insurer gives a notice described in section 38(8). Further, the claimant argued that evidence of services being incurred was not required, as stated in P.M. v. Aviva General Insurance, where the adjudicator held that s. 38(11)2 does not include a requirement for any services to be “incurred.” The section only states “that relate to.” Adjudicator Grant set aside the Tribunal’s decision and held that the claimant was entitled to the disputed psychological assessment even though it had not been incurred prior to the insurer delivering a section 38 compliant denial.