The Personal Insurance Co. v. Jia (2020 ONSC 6361)

The insurer appealed the LAT’s decision that counsel acting in a priority matter could not also act in the LAT dispute, and the decision excluding the transcript from the priority EUO from the LAT hearing. The Court dismissed the appeal and concluded that the LAT’s decision was reasonable. It held that a conflict could arise if the same counsel acted in the priority dispute and at the LAT. It also reasoned that the protections of section 33 would not be followed if the priority EUO transcript was admitted without leave of the Tribunal.

K.A. v. Aviva General Insurance Company (19-002676)

The claimant sought entitlement to IRBs. The insurer argued that the claimant had failed to attend IE, and failed to comply with section 33 requests. Adjudicator Johal held that the claimant was barred from proceeding due to the IE non-attendance, reasoning that the IEs were reasonably required for determining entitlement to post-104 week IRBs even though IRBs had been terminated prior to the 104 week mark, and that the notices provided the requisite information. Adjudicator Johal rejected the insurer’s section 33 defence because section 33 did not prevent the Tribunal from adjudicating the claim. The consequences of section 33 non-compliance ultimately go to entitlement to a disputed benefit.

I.Y. v. Pembridge Insurance Company (18-006724)

The claimant sought removal from the MIG, and entitlement to various medical benefits and cost of examinations. The insurer, in addition to opposing the claims, argued that the claimant failed to comply with section 33 requests, and sought costs. Adjudicator Ferguson concluded that the claimant had failed to comply with the numerous requests under section 33, and also had failed to provide a reasonable explanation for doing so. Adjudicator Ferguson noted that an explanation for non-compliance must be provided promptly after the reason for inability to provide information is known. Adjudicator Ferguson saw no reason why the claimant could not comply with the requests, and he found no evidence that either the claimant or his counsel attempted to work with the insurer over the course of the claim to gather the information. Adjudicator Ferguson also awarded the insurer costs in the amount of $250, noting that the claimant’s submissions and behaviour “so strain credibility and credulity that they do not support any contention that they are reasonable, good faith contentions, and the proceeding has wastefully consumed … time and resources.

Economical Mutual Insurance Company v. A.S. (19-001820)

The insurer applied to the LAT for repayment of IRBs, and also for a determination on the claimant’s entitlement to further IRBs, the application of a section 33 suspension, and whether the claimant sustained a catastrophic impairment. Adjudicator Boyce held that the insurer could not bring an application related to IRB entitlement, section 33 suspension, or a catastrophic impairment, but could proceed with the request for repayment. He reasoned that the Tribunal only had jurisdiction once there was a dispute between the parties. The insurer’s determination regarding IRBs, section 33, and a catastrophic impairment was not equivalent to a “dispute” or “disagreement.” The claimant could, potentially, agree with the determinations and abide by the decisions. The insurer was permitted to proceed with the request for repayment, but the remainder of the issues were dismissed.

F.A. v. Wawanesa Mutual Insurance Company (18-008453)

The claimant sought entitlement to IRBs. The insurer argued that the claimant failed to provide relevant records requested under section 33, including pre-accident income documentation, employment file, and post-accident income records. The insurer also argued that the claimant’s revocation of the right to conduct a paper IE was non-compliance with IE attendance. Adjudicator Chakravarti concluded that most of the insurer’s documentation requests were reasonable and that the claimant’s entitlement to IRBs was suspended in accordance with section 33. She also held that the claimant failed to participate in an IE by revoking consent for assessors to conduct a paper IE.

K.B. v. Aviva General Insurance (18-011950)

The Tribunal addressed three preliminary issues in this decision: whether the claimant’s failure to attend an IE barred the dispute for a chronic pain assessment and IRBs, whether the claimant’s failure to submit documentation resulted in a section 33 suspension, and whether the insurer was entitled to repayment of IRBs. Adjudicator Norris held that failure to comply with section 33 did not bar the application, but could result in non-payment following the hearing on the merits. He also noted that failure to submit an OCF-2 was not fatal to an IRB claim and was not necessary for an application for IRBs. The claimant’s failure to attend an IE barred the dispute for a chronic pain assessment. It did not bar the IRB claim because the missed IE was not scheduled in relation to IRBs. The issue of repayment was deferred to the main hearing.

W.F. v. Aviva Insurance Company (18-007724)

The insurer filed a request for reconsideration following a decision in which the Tribunal found that the insurer’s section 33 request was reasonably necessary and upheld its suspension of NEBs. The insurer claimed that the suspension should have lasted for a longer period of time. The Tribunal found that the insurer’s initial notice of suspension did not advise the claimant of his rights under section 33(8) of the SABS, which indicates what would happen if he eventually complied with the section 33 request, and thus the insurer was only entitled to suspend NEBs effective on the date of the later notice of suspension which did outline the claimant’s right under section 33. Vice-Chair Lester granted the reconsideration request in part, finding that the Tribunal made an error in law by obligating the insurer to include information in the section 33 notice that is not detailed in the SABS. As the claimant did not comply with the section 33 request in its entirety, the claimant’s NEBs were suspended as of the date of the initial notice of suspension.

Y.L.C. v. Gore Mutual Insurance Company (18-010499)

The claimant disputed his entitlement to chiropractic treatment and income replacement benefits. The insurer denied the proposed chiropractic treatment based on a physiatry IE report which found that further facility-based treatment would not be helpful. Vice Chair Lester nevertheless determined that the disputed treatment plan was reasonable and necessary, given the records from the treating facility which showed ongoing improvements in the claimantÂ’s range of motion and the fact that the claimant’s family physician had recently referred him to a chronic pain clinic for the same types of issues he complained of to the physiatry assessor. Vice Chair Lester concluded that she did not have jurisdiction to deal with the merits of the IRB claim, as the insurer had not denied entitlement to IRBs but rather suspended entitlement for failure to comply with a section 33 request for production of financial documentation.

Maeghan Easson v. Aviva Insurance Canada (18-011969)

The claimant sought an order reinstating payment of IRBs. The insurer argued that the claimant failed to provide relevant documents which had been requested under section 33. Adjudicator Go held that the insurer’s request for employment information and medical records were reasonable, and that the claimant failed to provide any explanation as to why it took a number of months to produce the requested records. Adjudicator Go concluded that IRBs were not unreasonably withheld, and that no interest or a special award were warranted.

B.K. v. Aviva Insurance Canada (18-007095)

The insurer had requested the claimant’s attendance at an examination under oath. The claimant refused to attend the examination under oath until the insurer had provided the particular of surveillance. The insurer suspended benefits in accordance with section 33. Adjudicator Ferguson held that there was no obligation on Aviva to disclose surveillance particulars under the SABS, so it was not reasonable for the claimant to refuse to attend the examination under oath on that basis. The adjudicator also noted that the examination under oath was scheduled before the LAT application, and the surveillance did not form the basis of any denials of benefits.