Category: Reconsideration

Z.R. v. Certas Direct Insurance Company (18-001468)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under section 3.1(1)(5)(i), which requires positive findings of a traumatic brain injury on a CAT scan, MRI, or other medically recognized brain diagnostic technology. Adjudicator Gosio rejected the reconsideration. The claimant did not make any arguments regarding the French version of the SABS at the original hearing, and was therefore barred from advancing such argument on reconsideration. Adjudicator Gosio also rejected the argument that updated records should be obtained on behalf of the claimant, and that a new hearing should be held regarding the dispute. Adjudicator Gosio agreed with the Tribunal’s decision that the use of the word “with” in section 3.1(1)(5)(i) denotes a temporal association between a person’s hospital admission and a positive finding on medical imaging.

A.H. v. Unica Insurance Inc. (18-012320)

The claimant applied for reconsideration of the Tribunal’s decision that he was not entitled to IRBs because he was not employed at the time of the accident. The claimant was scheduled to start a job two weeks after the accident. Because of the accident, he was unable to start the job. Adjudicator Grieves dismissed the reconsideration, holding that the Tribunal’s decision did not violate the principle of stare decisis, the principles of statutory interpretation, or the purposes of consumer protection legislation. The SABS required the claimant to be “employed at the time of the accident”. To construe the phrase to include a person in the claimant’s position would go beyond what the legislation entitled the claimant to receive.

Omere v. The Commonwell Mutual Insurance Group (20-007753)

The insurer sought reconsideration of the Tribunal’s refusal to decide an IE non-attendance defence upon the claimant’s Notice of Withdrawal. Vice Chair Maedel dismissed the reconsideration. Once the claimant withdrew her LAT application, there were no matters in dispute between the parties. The IE non-attendance defence was moot and could not be decided by the Tribunal.

J.T. v. Primmum Insurance Company (18-009043)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment, and that his injuries fell within the Minor Injury Guideline. He argued that the Tribunal acted outside of its jurisdiction or violated rules of procedural fairness. Vice Chair Maedel found no error on the part of the Tribunal. The adjudicator considered all the evidence before the Tribunal. There were no expert reports in support of the claimant’s position that he sustained a 55 percent Whole Person Impairment. The Tribunal was entitled to accept the position of the insurer’s assessors that the claimant did not suffer a catastrophic impairment, and that the claimant did not suffer from a pre-existing condition that would prevent maximal recovery under the MIG.

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The claimant sought reconsideration of the Tribunal’s decision that his IE non-attendance barred the LAT dispute. Adjudicator Makhamra dismissed the reconsideration, holding that the Tribunal properly considered whether the claimant was barred by section 55 from disputing the MIG and the disputed treatment plan. However, Adjudicator Makhamra noted that the decision did not bar the claimant from submitting treatment plans in the future and disputing entitlement to same if the insurer refused to approve the treatment plans, and subject to IE requests in relation to any future treatment plans.

M.I. v. Coseco Insurance Company (18-000742)

The claimant sought reconsideration of the Tribunal’s decision that it did not have jurisdiction to award ongoing IRBs, and the dismissal of a claim for a special award and interest. IRBs had been reinstated prior to the initial hearing, so there was no dispute as to entitlement or quantum. Vice Chair Maedel dismissed the reconsideration request and held that the Tribunal’s decision was correct. The FSCO jurisprudence the claimant relied upon did not consider the current legislation. Vice Chair Maedel held the Tribunal could not issue declaratory relief for ongoing IRBs when the insurer was paying IRBs at the time of the hearing. He also found no error in the Tribunal’s denial of a special award.

N.F. v. Aviva Insurance Company (18-007077)

The insurer sought reconsideration of the Tribunal’s award of IRBs of $400.00 per week from March 2 to December 18, 2018. The insurer argued that the Tribunal erred by awarding IRBs during the period November 1 to December 18, 2018 when the claimant returned to work on a modified basis. Adjudicator Mazerolle agreed with the insurer and held that the Tribunal erred in awarding IRBs during the seven week period as the Tribunal ought to have required the claimant to prove that he continued to meet the substantial inability test during that period rather than looking to the insurer to disprove the claimant’s entitlement. Adjudicator Mazerolle rejected the insurer’s arguments relating to use of the claimant’s updated Notices of Assessment to calculate IRBs, holding that the claimant was permitted to refile his income tax, and the CRA accepted the refiling.

B.A. v. Economical Mutual Insurance Company (18-005968)

The claimant applied for reconsideration of the Tribunal’s decision that section 31 barred his claim for IRBs because of a material misrepresentation relating to her address, which resulted in lower insurance premiums. Vice Chair Johal dismissed the reconsideration request. The Vice Chair held that the Tribunal did not err in allowing evidence of the phone call where the claimant purchased insurance to be admitted, and rejected the argument that the claimant was not permitted to make submissions regarding the issue. The Vice Chair also held that the SABS did not give the Tribunal power to apply equitable remedies such as waiver or estoppel.

G.T. v. The Guarantee Company of North America (18-003334)

The insurer sought reconsideration of a decision in which the Tribunal found that the claimant had sustained a catastrophic impairment based on Criteria 7. The Tribunal concluded that the claimant had sustained 54% WPI. After rounding up, as permitted by the Guides, the claimant met the threshold of 55%. The insurer submitted that the Tribunal made errors of law and/or fact in assigning three of the WPI ratings (5% for the left leg disfigurement, 9% for the sleep disorder, and 3% for a discretionary increase). Adjudicator Grieves dismissed the insurer’s request for reconsideration, as the Tribunal carefully reviewed each sphere of possible impairment and provided sufficient explanations for accepting or rejecting evidence. She went on to note that while the insurer may disagree with the Tribunal’s assessment of the evidence, there was no basis to interfere with the decision.

T.A.K. v. Aviva General Insurance Company (18-008232)

The insurer sought reconsideration of the Tribunal’s decision granting a special award of 35% on IRBs. The insurer argued that the Tribunal erred in finding that the insurer received the claimant’s employment file in August of 2018, his CPP file by March 12, 2018, and his tax returns by August 2018. The insurer argued that Adjudicator Neilson made significant errors of fact in determining that it received emails enclosing these documents, when no email confirmation receipts were filed by the claimant. Adjudicator Neilson noted that, upon review of correspondence in the file, that the claimant was directed to provide documents to a specific adjuster. She further noted that, although the claimant did provide emails showing that these documents were provided, they were provided to a different adjuster. Adjudicator Neilson noted section 64(2)(e) of the SABS allows delivery of documents via electronic means. She noted that several documents had already been sent to the approved adjuster by the claimant electronically. However, the emails allegedly containing the aforementioned employment documents were sent to a different adjuster. Adjudicator Neilson cited section 22(3)(a) of the Electronic Commerce Act, 2000, which determined when an email was considered under the Schedule to be delivered. As the documents were allegedly provided to a different adjuster, rather than the adjuster who was the only one that consent had been provided to release documents to, Adjudicator Neilson ruled that she had made an error of both fact and law to have found that the other adjuster consented to receive these documents or that these documents emailed to her on the claimant’s behalf were delivered by the claimant and received by the insurer. Adjudicator Neilson granted Aviva’s request for reconsideration and rescinded the previous ruling.