Category: Reconsideration

J.T. v. Aviva Canada Inc. (16-003674)

The claimant sought reconsideration of the underlying Tribunal decision, in which the adjudicator concluded that the ATV the claimant was occupying at the time of the accident was not an “automobile,” and that the claimant was therefore not entitled to accident benefits. Executive Chair Lamoureux allowed the reconsideration and remitted the matter to a new adjudicator for a new hearing. She reasoned that the initial adjudicator failed to consider various documentary evidence and failed to analyze that evidence in the context of the OAP1 and the Sale of Goods Act. Executive Chair Lamoureux did uphold the adjudicator’s decision that estoppel did not apply (i.e. that the insurer was not required to continue paying accident benefits simply because it had started paying accident benefits upon receipt of the OCF-1), and re-iterated that the LAT did not have jurisdiction to exercise equitable relief. The LAT’s purpose was to adjudicate the claimant’s entitlement to benefits based on the terms of the SABS.

D.W. v. The Co-operators (17-000388)

The claimant sought reconsideration of the Tribunal’s denial of IRBs. The crux of the issue was whether the claimant could claim IRBs after the first 104 weeks without first receiving IRBs during the first 104 weeks. The Tribunal initially ruled that the claimant could not seek IRBs. Executive Chair Lamoureux confirmed the result, but on different reasons. She held that according to the language of the SABS and the Court of Appeal’s reasons in Wadhwani v. State Farm, an insured did have to first suffer a “substantial inability” within the first 104 weeks after the accident in order to receive any IRBs beyond the 104 weeks. Where the Executive Chair differed with the original decision was in her view that an insured’s entitlement to IRBs within the first 104 weeks could be determined looking to evidence generated after the first 104 weeks. Essentially, the claimant had to prove that he suffered a “substantial inability” within the first 104 weeks to receive IRBs, but that he did not have to satisfy that evidentiary burden before the 104 week mark passed. The reconsideration was ultimately dismissed because the claimant’s evidence was inconsistent and did not support the “substantial inability” test.

J.T. v. Aviva Canada Inc. (16-003674)

The claimant sought reconsideration of the underlying Tribunal decision, in which the adjudicator concluded that the ATV the claimant was occupying at the time of the accident was not an “automobile,” and that the claimant was therefore not entitled to accident benefits. Executive Chair Lamoureux allowed the reconsideration and remitted the matter to a new adjudicator for a new hearing. She reasoned that the initial adjudicator failed to consider various documentary evidence and failed to analyze that evidence in the context of the OAP1 and the Sale of Goods Act. Executive Chair Lamoureux did uphold the adjudicator’s decision that estoppel did not apply (i.e. that the insurer was not required to continue paying accident benefits simply because it had started paying accident benefits upon receipt of the OCF-1), and re-iterated that the LAT did not have jurisdiction to exercise equitable relief. The LAT’s purpose was to adjudicate the claimant’s entitlement to benefits based on the terms of the SABS.

C.W. v. Unifund Assurance Company (16-003336)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s injuries were non-minor due to a partial shoulder tear and pre-existing back pain. Executive Chair Lamoureux dismissed the reconsideration. She held that the Tribunal’s decision was based on the evidence before it and that the Tribunal was entitled to weight the contradicting evidence as it saw fit. Executive Chair Lamoureux was not satisfied that there was a significant error of fact or law.

C.W. v. Unifund Assurance Company (16-003336)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s injuries were non-minor due to a partial shoulder tear and pre-existing back pain. Executive Chair Lamoureux dismissed the reconsideration. She held that the Tribunal’s decision was based on the evidence before it and that the Tribunal was entitled to weight the contradicting evidence as it saw fit. Executive Chair Lamoureux was not satisfied that there was a significant error of fact or law.

N.L. v. North Blenheim Mutual Insurance Company (16-002606)

The Tribunal initially held that the claimant had failed to apply to the LAT within two years. The claimant’s application occurred during the transition between FSCO and the LAT. Executive Chair Lamoureux held that it was an error for the Tribunal not to consider whether the limitation period should be extended. She noted that section 7 of the Licence Appeal Tribunal Act granted the Tribunal the power to extend any limitation period under any other Act. She remitted the matter to an adjudicator to determine whether a extension should be granted. The Executive Chair looked to earlier LAT case law and wrote that the factors to consider in granting an extension are: (1) the existence of a bona fide intention to appeal within the appeal period; (2) the length of the delay; (3) prejudice to the other party; and (4) the merits of the appeal. The four factors are not strict factors that each must be met. Rather, they are a guide to assist in determining the justice of each case.

Y.D. v. Aviva Insurance Canada (16-001810)

The Tribunal ruled against the claimant’s application for further attendant care benefits on the basis that no expenses had been incurred, and that the Tribunal did not have equitable jurisdiction to order the ongoing payment of attendant care benefits based solely upon earlier payments of the benefit. Executive Chair Lamoureux upheld the earlier decision and noted that even if the Tribunal did have equitable jurisdiction to decide the matter, the pre-requisites for estoppel to apply were not present in this case.

N.L. v. North Blenheim Mutual Insurance Company (16-002606)

The Tribunal initially held that the claimant had failed to apply to the LAT within two years. The claimant’s application occurred during the transition between FSCO and the LAT. Executive Chair Lamoureux held that it was an error for the Tribunal not to consider whether the limitation period should be extended. She noted that section 7 of the Licence Appeal Tribunal Act granted the Tribunal the power to extend any limitation period under any other Act. She remitted the matter to an adjudicator to determine whether a extension should be granted. The Executive Chair looked to earlier LAT case law and wrote that the factors to consider in granting an extension are: (1) the existence of a bona fide intention to appeal within the appeal period; (2) the length of the delay; (3) prejudice to the other party; and (4) the merits of the appeal. The four factors are not strict factors that each must be met. Rather, they are a guide to assist in determining the justice of each case.

M.B. v. Aviva Insurance Canada (16-002325)

The Tribunal initially held that the claimant failed to attend IEs related to post-104 week IRBs. The claimant applied for reconsideration and was successful. Executive Chair Lamoureux held that the IE notice sent to the claimant did not provide sufficient reasons, in particular because the insurer had simply restated its reasons from IEs related to initial entitlement to IRBs that “the impairments identified do not appear clearly or directly caused by the accident.” The Executive Chair reasoned that this notice would not have informed an unsophisticated person why a further IE was required for a benefit that had been granted and was being paid. The Executive Chair also held that the claimant need not raise the issue of the IE notice contents at the time of the IE, and that the issue could be raised for the first time during litigation.

M.B. v. Aviva Insurance Canada (16-002325)

The Tribunal initially held that the claimant failed to attend IEs related to post-104 week IRBs. The claimant applied for reconsideration and was successful. Executive Chair Lamoureux held that the IE notice sent to the claimant did not provide sufficient reasons, in particular because the insurer had simply restated its reasons from IEs related to initial entitlement to IRBs that “the impairments identified do not appear clearly or directly caused by the accident.” The Executive Chair reasoned that this notice would not have informed an unsophisticated person why a further IE was required for a benefit that had been granted and was being paid. The Executive Chair also held that the claimant need not raise the issue of the IE notice contents at the time of the IE, and that the issue could be raised for the first time during litigation.