Aviva Canada Inc. v. McNamara (2022 ONSC 1462)

The insurer appealed the Tribunal’s decision that the claimant was entitled to IRBs during a period of section 33 non-compliance. The Tribunal found that the claimant’s explanation for the delay in providing records was reasonable because she thought the insurer had access to her medical records by way of signed authorization, and that she was suffering from post-traumatic stress. The insurer argued that the Tribunal erred by applying subjective factors to the reasonable explanation. The Court dismissed the appeal, holding that the reasonable explanation under section 33 was not a strictly objective test, and that the reasonableness of the explanation had to be considered in the context of the particular claimant and take into account the remedial nature of the SABS.

Kunaseelan v. Aviva Insurance Company of Canada (20-000565)

The claimant sought entitlement to IRBs of $400.00 per week for the five month period between the date of loss and the date the OCF-3 was submitted. Adjudicator Norris dismissed the claim, holding that section 36(3) barred the claimant’s entitlement to IRBs for the period prior to OCF-3 submission. The claimant argued that the insurer failed to prove an OCF-3 in the application package, and that the insurer’s failure to comply with section 32(2) should result in her entitlement to IRBs during the period. The claimant relied upon a FSCO decision in Anthonipillai v. Security National in which a similar result was reached. Adjudicator Norris rejected the claimant’s arguments and found that the decision in Anthonipillai was incorrect and that the bar to receiving IRBs prior to submission of an OCF-3 was absolute. Adjudicator Norris also found that no interest was payable on IRBs that were back-paid to the claimant in May 2020 because the claimant had not provided sufficient information to support her claim for IRBs, meaning that IRBs were never actually overdue. Similarly, the claim for a special award was dismissed because the insurer was not required to pay IRBs while the claimant remained in non-compliance with requests for financial and income records.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.

Shen v. Aviva General Insurance Company (20-000662)

The claimant applied to the LAT seeking entitlement to NEBs and chiropractic services proposed in one OCF-18. Pursuant to section 36(4) of the SABS, the claimant argued that the insurer was required to pay for NEBs as a result of a failure to reply to an OCF-3 within 10 days and a failure to provide adequate medical and other reasons why it determined the claimant was not entitled to NEBs. Alternatively, the claimant argued that NEBs were payable as a result of failure to provide s. 44 reports within 10 days of receipt of the reports, as required by section 36(7) of the SABS. The insurer argued that the claimant failed to comply with section 33 requests for medical records and was not entitled to any amount for NEBs. Adjudicator Grant found that the claimant was in non-compliance with section 33, having failed to comply with all reasonable section 33 requests up to the time of the hearing, and was not entitled to payment of NEBs. Adjudicator Grant also found that the section 33 requests were made in compliance with section 36(4) of the SABS. Adjudicator Grant further found that the medical and other reasons in the s. 44 notice of examination were sufficient and the claimant failed to provide compelling evidence that the insurer was required to pay NEBs for any period of alleged s. 44 non-compliance. It was noted that the claimant attended all of the s. 44 assessments, and if there was an issue with reasons for the examination, she could have requested further information from the insurer prior to attending. The claimant was also found not to meet the complete inability test for NEBS. The claim for NEBs was dismissed, but the claimant was entitled to the chiropractic treatment.

Carpizo v. Co-operators General Insurance Company (20-007999)

A preliminary issue hearing was held to address whether the claimant was entitled to payment of NEBs until the substantive hearing based on the insurer’s failure to comply with section 36 of the SABS. Adjudicator Farlam found that the claimant was not entitled to the payment of NEBs until the substantive hearing and that the claimant failed to prove that the insurer did not comply with the SABs. A denial letter was sent indicating that the insurer did not have sufficient medical information to support the claimant’s entitlement to NEBS and that the benefit would not be payable until the receipt of additional information, which was requested under section 33. The claimant failed to comply with the insurer’s request. The claimant argued that the letter was not SABs compliant as it failed to reference the submitted OCF3. Adjudicator Farlam highlighted that there is no requirement that an OCF3 be mentioned in a denial letter. The claimant further argued that she had requested the additional records and ought to have been paid NEBs in the meantime. Adjudicator Farlam disagreed, finding that the requirement is for a claimant to provide records to the insurer, not merely request them.

Liao v. Aviva General Insurance (19-004856)

The claimant applied to the LAT seeking entitlement to IRBs and a treatment plan proposing chiropractic treatment. The claimant submitted that she attempted to return to work after the April 2016 accident but ceased working in August 2016 due to accident-related impairments. The insurer argued that the claimant was not entitled to IRBs because she did not comply with requests for documents to complete her IRB application and calculation until November 2019, and therefore she was not entitled to IRBs prior to November 2019. Alternatively, the insurer argued that the claimant had not shown that she satisfied the test for pre- or post-104 IRBs. Adjudicator Chakravarti found that the insurer provided proper (although late) s. 33 requests in December 2016 following receipt of the OCF-3 and the insurer was able to rely on the s. 33(6) consequences for the claimant’s non-compliance with s. 33 requests. The claimant did not produce requested income information until January 2018 and did not produce the requested OCF-2 until November 2019. Adjudicator Chakravarti found that the claimant did not provide a reasonable explanation for the delay in providing the requested documentation and the insurer was entitled to withhold payment of IRBs for the period of non-compliance. Adjudicator Chakravarti found that the insurer’s s. 33 request was made more than 10 days after receipt of the OCF-3 (contrary to the requirements in s. 36(4)) and IRBs would therefore be payable for the period from receipt of the OCF-3 until the s. 33 request was made if the claimant met the substantial inability test for pre-104 week IRBs during this period. Adjudicator Chakravarti found that the claimant failed to prove that she met the test for pre- or post-104 IRBs and was not entitled to IRBs for any period before the s. 33 requests were made or after the s. 33 requests were complied with. The claimant also failed to meet her onus of demonstrating that the proposed chiropractic treatment was reasonable and necessary. The application was dismissed in its entirety.

Nelson v. Travelers Insurance Company of Canada (19-012673)

The claimant sought entitlement to ongoing IRBs, removal from the MIG, and four treatment plans for physiotherapy and two assessments. Vice Chair McGee dismissed the claims. She held that the claimant failed to prove that she suffered from a non-minor injury. Her alleged chronic pain was not serious enough to qualify as non-minor. The claimant did not use medications, she returned to college within a few months of the accident, and she was largely independent with personal tasks and chores. The claimant also did not meet the IRB disability test. She returned to college shortly after the accident after quitting her job so that she could upgrade her credentials. She planned on returning to college before the accident occurred. The claimant did not look for a job while in college because she did not believe she could handle both a job and her studies. After graduating from college, the claimant’s inability to find employment was due to COVID rather than any physical impairment. Finally, Vice Chair McGee held that even if the claimant met the IRB disability test, she would not be entitled to claim IRBs until her completed election was submitted, as the OCF-3 supported both IRB and NEB.

Dino v. Travelers Insurance (20-005704)

The insurer brought a motion for suspension of the claimant’s benefits due to his failure to attend an examination under oath seven months prior to a scheduled hearing. Adjudicator Mazerolle granted the suspension. He rejected the claimant’s argument that there was a temporal limitation on when an insurer could request an examination under oath. The notice provided to the claimant was sufficient to satisfy the requirements of section 33. Adjudicator Mazerolle declined to decide whether the claimant had a reasonable explanation for the non-attendance.

Xie v. Allstate Insurance Company of Canada (20-001171)

The claimant disputed the insurer’s decision to keep her in the MIG, as well as her entitlement to various medical benefits. The insurer argued that the claimant had failed to comply with its section 33 requests for medical records, and as such, was not liable to pay any benefit. Adjudicator Grant agreed, noting that the claimant had not directed him to any evidence that she had complied with any of the insurer’s section 33 requests, or provided proof that she had requested the medical records, nor had she provided a reason for her failure to comply with the time limits. He further agreed with the insurer that the records requests were directly relevant and necessary to assist both the insurer and the Tribunal in the determination of whether the claimant was entitled to the benefits sought. As such, Adjudicator Grant concluded that the insurer was not liable to pay any of the benefits in dispute. He went on to find that, in any event, the claimant’s injuries fell within the MIG. The claimant relied solely on a section 25 psychological report, but had not submitted any contemporaneous medical evidence to support the need for continuing treatment, whether from a family doctor or objective medical professional.

Harvey v. TD Insurance Meloche Monnex (19-008497)

The claimant applied to the LAT seeking entitlement to incurred ACBs, occupational therapy, and a special award. The insurer raised two preliminary issues: 1) Did the LAT have jurisdiction to adjudicate the ACB issue as the benefit had been suspended for non-compliance with s. 33 requests rather than denied; and 2) Was the claimant barred from pursuing entitlement to ACBs pursuant to s. 55 for failure to attend an IE assessment? Adjudicator Victor found that the LAT had jurisdiction over the ACB dispute and the claimant was not barred from pursuing entitlement to the benefit pursuant to s. 55 because the notice of assessment was deficient for failure to provide specific medical and other reasons. Adjudicator Victor found that the claimant was entitled to all the benefits in dispute and granted a special award in relation to the claim for ACBs. The special award was justified because payment of ACBs was stopped while catastrophic impairment IEs were scheduled, despite section 45(4) which required ongoing ACBs until the IEs were completed. The insurer also used the COVID-19 delays in scheduling the IEs to its advantage by not paying ACBs while IEs were rescheduled.