Category: Reconsideration

C.T. v. Aviva Insurance Canada (16-000958)

The claimant sought entitlement to income replacement benefits and was successful at the LAT. The insurer sought reconsideration as it asserted that the claimant was working during a period in which IRBs were awarded. The claimant countered by asserting improper notice was provided under Rule 18.1. Executive Chair Linda Lamoureux determined that the proviso noting a party indicate if it is seeking judicial review was only if the party is indeed seeking an appeal and that a party need not declare it is not appealing. Moreover, Rule 3.1 allowed for a liberal interpretation of the Rules so as to not cause unfairness or prejudice. The reconsideration was allowed and on review, Executive Chair Lamoureux noted that the LAT decision did not properly consider evidence that the claimant worked during a period in which IRBs were claimed. As a result, the reconsideration was granted and the matter remitted for a rehearing.

C.T. v. Aviva Insurance Canada (16-000958)

The claimant sought entitlement to income replacement benefits and was successful at the LAT. The insurer sought reconsideration as it asserted that the claimant was working during a period in which IRBs were awarded. The claimant countered by asserting improper notice was provided under Rule 18.1. Executive Chair Linda Lamoureux determined that the proviso noting a party indicate if it is seeking judicial review was only if the party is indeed seeking an appeal and that a party need not declare it is not appealing. Moreover, Rule 3.1 allowed for a liberal interpretation of the Rules so as to not cause unfairness or prejudice. The reconsideration was allowed and on review, Executive Chair Lamoureux noted that the LAT decision did not properly consider evidence that the claimant worked during a period in which IRBs were claimed. As a result, the reconsideration was granted and the matter remitted for a rehearing.

G.P. v. Aviva Insurance Company of Canada (16-000726)

The insurer appealed the Tribunal decision that a 2006 denial of income replacement benefits was not valid. Executive Chair Lamoureux agreed with the insurer and held that the Tribunal’s decision was a substantial error in law. She wrote that the denial had clearly and unequivocally communicated to the claimant that her entitlement to further income replacement benefits had been denied, and provided the claimant with the dispute process. Further, Executive Chair Lamoureux held that the claimant’s re-application for income replacement benefits in 2015 did not create a second triggering event for the limitation period. The claim for income replacement benefits was therefore barred.

G.P. v. Aviva Insurance Company of Canada (16-000726)

The insurer appealed the Tribunal decision that a 2006 denial of income replacement benefits was not valid. Executive Chair Lamoureux agreed with the insurer and held that the Tribunal’s decision was a substantial error in law. She wrote that the denial had clearly and unequivocally communicated to the claimant that her entitlement to further income replacement benefits had been denied, and provided the claimant with the dispute process. Further, Executive Chair Lamoureux held that the claimant’s re-application for income replacement benefits in 2015 did not create a second triggering event for the limitation period. The claim for income replacement benefits was therefore barred.

C.N. v. Aviva Canada Insurance (16-002658)

The claimant failed to attend two case conferences. Accordingly, the insurer sought to have the matter dismissed. The claimant argued that the matter was merely withdrawn and therefore it was available to return to the LAT to raise the same issues. The case conference adjudicator agreed with the claimant and found the issues withdrawn. The insurer sought a reconsideration to have the matters dismissed. Executive Chair Linda Lamoureux held that the LAT may only invoke Rule 3.4 (dismissal without a hearing) in a limited number of situations, such as abandonment. However, the matter was not abandoned in this matter – it was withdrawn based on the facts. The reconsideration request was denied.

N.Y. v. TD Insurance Meloche Monnex (17-001054)

The claimant sought entitlement to accident benefits. The LAT case conference adjudicator ordered a hybrid hearing with evidence to be entered via writing. After the claimant filed submissions, the insurer responded with submissions containing addendum IE reports as evidence. The claimant made a motion objecting to the admissibility of the new addendum reports and was partially successful. However, the case conference adjudicator did not grant the claimant access to the adjuster log notes, nor did the addendum reports get excluded. Rather, the authors of the reports were to be made available for cross-examination and a 90 day resumption of case conference was afforded to allow the claimant to commission rebuttal reports if desired. The claimant sought reconsideration of the case conference order seeking the addendum reports to be entirely inadmissible. Executive Chair Linda Lamoureux held the case conference adjudicator did not error – the addendum reports were considered relevant and therefore admissible. The denied request for log notes was also reaffirmed. The reconsideration appeal was dismissed.

N.Y. v. TD Insurance Meloche Monnex (17-001054)

The claimant sought entitlement to accident benefits. The LAT case conference adjudicator ordered a hybrid hearing with evidence to be entered via writing. After the claimant filed submissions, the insurer responded with submissions containing addendum IE reports as evidence. The claimant made a motion objecting to the admissibility of the new addendum reports and was partially successful. However, the case conference adjudicator did not grant the claimant access to the adjuster log notes, nor did the addendum reports get excluded. Rather, the authors of the reports were to be made available for cross-examination and a 90 day resumption of case conference was afforded to allow the claimant to commission rebuttal reports if desired. The claimant sought reconsideration of the case conference order seeking the addendum reports to be entirely inadmissible. Executive Chair Linda Lamoureux held the case conference adjudicator did not error – the addendum reports were considered relevant and therefore admissible. The denied request for log notes was also reaffirmed. The reconsideration appeal was dismissed.

M.F.Z. v. Aviva Insurance Canada (16-000517)

The Tribunal had determined in both cases that the MIG did not apply because the insurer failed to comply with section 38(8) of the SABS. The insurer sought reconsideration. Executive Chair Lamoureux held that the Tribunal had not made a significant error in concluded that section 38(8), and that the insurer’s notice was deficient. She agreed that the insurer’s failure to properly follow section 38(8) in regard to one treatment plan prohibited the insurer from relying on the MIG for all future treatment plans. However, Executive Chair Lamoureux did reduce the quantum of the treatment plan payable to one of the claimants to the amount incurred between the insurer’s defective notice and the date the insurer sent the claimant a cured notice.

M.F.Z. v. Aviva Insurance Canada (16-000517)

The Tribunal had determined in both cases that the MIG did not apply because the insurer failed to comply with section 38(8) of the SABS. The insurer sought reconsideration. Executive Chair Lamoureux held that the Tribunal had not made a significant error in concluded that section 38(8), and that the insurer’s notice was deficient. She agreed that the insurer’s failure to properly follow section 38(8) in regard to one treatment plan prohibited the insurer from relying on the MIG for all future treatment plans. However, Executive Chair Lamoureux did reduce the quantum of the treatment plan payable to one of the claimants to the amount incurred between the insurer’s defective notice and the date the insurer sent the claimant a cured notice.

J.C.C. v. Aviva Insurance Company of Canada (16-000663)

The Tribunal had determined in both cases that the MIG did not apply because the insurer failed to comply with section 38(8) of the SABS. The insurer sought reconsideration. Executive Chair Lamoureux held that the Tribunal had not made a significant error in concluded that section 38(8), and that the insurer’s notice was deficient. She agreed that the insurer’s failure to properly follow section 38(8) in regard to one treatment plan prohibited the insurer from relying on the MIG for all future treatment plans. However, Executive Chair Lamoureux did reduce the quantum of the treatment plan payable to one of the claimants to the amount incurred between the insurer’s defective notice and the date the insurer sent the claimant a cured notice.