Category: Special Award

McDonald v. Aviva Insurance Company (2024 ONSC 6030)

The claimant appealed the Tribunal’s decision that he was not entitled to a special award in relation to housing benefits following the insurer’s concession just prior to the hearing. The claimant had sustained a catastrophic impairment and required 24-hour care. He sought accessible housing, which was denied by the insurer. He then sought a rental, which was also denied by the insurer. The insurer reconsidered its position and approved the benefits shortly prior to the hearing. The matter proceeded solely on the issue of a special award. The Tribunal decided that an award was appropriate for some of the other disputed benefits, but not the housing benefits. The reason for not granting a special award on the housing benefits because there was no evidence before the Tribunal regarding the value of the renovations that would be required to accommodate the claimant’s needs. The Court held that the Tribunal erred in its application of s.10 by assuming that evidence was needed to adjudicate the housing benefits before a special award could be granted. Where an amount has been agreed upon, as it was in this case when the insurer agreed to pay the benefit, the claimant was not required to prove the amount of his entitlement for the Tribunal to make a special award.

Vivekanantham v. Certas Direct Insurance Company (2024 ONSC 6198)

The claimant appealed and sought judicial review of the Tribunal’s decision that she did not sustain a catastrophic impairment and that she was not entitled to a special award. At the Tribunal hearing, the insurer’s psychiatric assessor refused to attend to give evidence despite a summons, but the adjudicator still allowed the IE report to be considered. Also during the hearing, the insurer conceded the claimant’s entitlement to IRBs, removal from the MIG, and entitlement to medical benefits, and paid amounts owing plus interest. However, the adjudicator concluded that she did not have jurisdiction to grant a special award once the benefits were approved. The Court granted the appeal, holding that the Tribunal erred when it failed to consider whether to make a special award on IRBs and the approved medical benefits, and in breaching procedural fairness when it admitted the psychiatry IE despite the refusal of the assessor to attend the hearing. The Court wrote that the Tribunal should have excluded the IE report once it was clear the assessor would not attend the hearing. The Court remitted the matter to the Tribunal for a new hearing.

Bennett v. Allstate Insurance Company of Canada (2023 ONSC 2609)

The claimant appealed the Tribunal’s denial of a special award related to IRBs which were reinstated after the post-104 week mark following further medical assessments. The Court dismissed the appeal, holding that it did not raise an issue of law. The Tribunal’s determination regarding the special award were factual in nature, and the Tribunal applied the proper legal test in deciding whether a special award was warranted.

Shwaluk v. Royal & Sun Alliance (20-000137)

The claimant was injured in a 1994 accident. She received benefit under the relevant SABS until at least 1996. In 2015, the claimant contacted the insurer and requested that her claim be re-opened as her accident-related impairments had worsened, and that she required 24-hour supervisory care. The insurer agreed that care was required, but disputed the amount of time needed for care, and the amount of the indexed attendant care benefit. The claimant also disputed entitlement to various medical benefits for physical therapy and sought a special award. Vice Chair Todd agreed with the claimant’s proposed attendant care services and accepted that the claimant required supervisory care for severe tremors that impacted her physical safety and would prevent her from engaging with her environment in an emergency. Vice Chair Todd also awarded all the disputed treatment plans for the deteriorating physical condition the claimant demonstrated. Finally, Vice Chair Todd granted a 50 percent special award on ACBs and medical benefits, holding that the insurer’s decision to challenge the cause of the claimant’s injuries only upon re-opening the claim in 2015 (and not at any point during the original adjusting of the claim in the 1990s). The insurer’s behaviour suggested that it did not review the medical records on file from the 1990s. Additionally, the insurer took four years to fully investigate and respond to the 2015 request to re-open the claim.

Panchadcharam v Aviva Insurance Company (20-013921)

The claimant initially applied to the LAT regarding a MIG determination and various denied OCF-18s. Prior to the LAT Case Conference, Aviva removed the claimant from the MIG and approved all disputed treatment, leaving only a special award in dispute. The claimant argued that they were entitled to a special award as Aviva had maintained a MIG position “months longer than necessary”. Aviva noted that they had adjusted the claim on a good faith basis, and did not have clinical notes or family doctor records that were legible or updated. Aviva noted that several s. 33 requests for the same had been outstanding and that the claim was adjusted on its merits. Adjudicator Hartwick ruled in favour of Aviva, noting that the claimant was in fact removed from the MIG prior to receipt of legible family doctor records and that the treatment had been approved based on what legible evidence the insurer did receive. Adjudicator Hartwick opined that Aviva had acted on all received medical information in a timely manner, and it was in fact the claimant who had frustrated the adjusting process for failure to produce relevant evidence pursuant to s. 33. The claim for a special award was dismissed.

Ali v The Co-operators General Insurance Company (20-006796)

The claimant applied to the LAT seeking entitlement to NEBs and interest. During the written hearing, the claimant sought to add a claim for a special award. The Co-operators sought to strike 2 pages of the claimant’s submissions as they were over the 10 page limit ordered at the Case Conference. Furthermore, they sought to have the claim for a special award dismissed. The insurer argued that the claimant submitted pleadings that were 12 pages in length, which was 2 pages over the limit ordered. They relied on A.Y. v. Aviva and F.H. v. Certas Direct Insurance Company, which established that pages submitted beyond the ordered limit in a written hearing were unable to be considered. The insurer further argued that, as per Selby v. Security National, the issue must be added either on consent, or via a motion, neither if which occurred. Vice-Chair Ciriello ruled that the claimant’s submissions beyond the 10 pages ordered were inadmissible, and noted that the claimant had the option to “seek permission” from The Tribunal for additional pages, which they failed to do. With regards to the special award, Vice-Chair Cirello preferred the claimant’s case law (16-004312 v. Aviva Insurance Canada) and upheld that a claim for a special award may be added at any point during the dispute, even during a hearing, as it promoted efficiency. The claimant was not found entitled to NEBs based on the medical evidence and the claim was dismissed.

Jin v Certas Home and Auto Insurance Company (20-011392)

The claimant was involved in an accident on July 16, 2019 and sought accident benefits. Certas had initially kept the claimant within the MIG and denied various medical benefits. The claimant filed a LAT Application in response to the MIG designation and denials. Following various s. 44 IEs, Certas removed the claimant from the MIG in September 2021 and approved all disputed issues, leaving only the claim for a special award. The issue of a special award related to three OCF-18s that were originally disputed in the Application. Vice-Chair Todd ruled in favour of the claimant. Vice-Chair Todd noted that Certas had been in possession of various records from medical practitioners, including a psychologist, which all noted psychological issues the claimant was facing. Certas had been in possession of these records, including the report, for up to 16 months prior to arranging for a s. 44 IE. Furthermore, the claimant had received numerous calls from the accident benefits adjuster, in which their psychological complaints (as stated in the medical records) had been reiterated on at least two occasions directly to the adjuster. Vice-Chair Todd was unable to reconcile the lengthy delay between Certas being in possession of medical evidence and statements from the claimant, and Certas arranging for a s. 44 psychology IE. As the claimant did not make a request regarding quantum of the award, Vice-Chair Todd opined that 30% of the amount of the three treatment plans, plus interest, would be reasonable considering the delay.

Intact Insurance Company v. Hashemi (20-011873)

The insurer applied to the LAT seeking repayment of benefits after concluding that the claimant was involved in a staged accident. The insurer sought repayment of accident benefits, examination costs, and other expenses (including EUO expenses and engineering expert expenses). Adjudicator Kepman accepted that the claimant made wilful material misrepresentations regarding the accident. However, only the amount of benefits paid was repayable by the claimant. The insurer could not claim repayment for IE expenses, EUO expenses, expert expenses, or legal fees. The insurer also sought a special award against the claimant. Adjudicator Kepman found that a special award could not be given against a claimant, even in such circumstances.

Ni v. Aviva Insurance Company of Canada (20-008774)

The claimant requested a special award for IRBs due to an unreasonable delay by the insurer. As of January 16, 2020, the claimant had provided her OCF-1, OCF-2, OCF-3 and OCF-10 to the insurer. On January 30, 2020, the insurer sent a section 33 request for further income-related documents. The insured made repeated section 33 requests for these documents, claiming that they were required for a determination of the claimant’s entitlement to IRBs. The claimant provided most of the requested documents by March 6, 2020. On April 13, 2020, the insurer suspended the claimant’s IRBs for non-compliance. On January 26, 2021, the claimant sent a letter to the insurer advising that she had not received any IRBs since the accident occurred on December 23, 2019. She further advised that the outstanding documents requested by the insurer were not required to determine her eligibility to IRBs. In its response, the insurer acknowledged the claimant’s position as it advised that certain documents that had been previously requested were no longer necessary. On August 9, 2021, the insurer advised the claimant that IRBs in the amount of $23,314.29 and interest in the amount of $1,579.20 had been paid to the claimant for the period from December 23, 2019 to February 9, 2021. The insurer continued to pay IRBs to the claimant from August 9, 2021 and onwards. Vice-Chair Brooks found that the insurer’s conduct satisfied the test for unreasonably delaying payments as it was “imprudent, stubborn and inflexible”. Vice-Chair Brooks found that the claimant had provided all documents necessary for the determination of her eligibility to IRBs as of January 16, 2020. Vice-Chair Brooks awarded the claimant a special award of $11,652.14, which constituted 50 percent of the IRBs paid. She noted that this was the highest rate permitted under the SABS. She found that the insured’s actions fell on the “furthest end of the scale” as it had refused to pay the claimant IRBs for over a year due to alleged non-compliance, when the claimant had already provided all the required documents as of January 2020.

Cruz v. Belair Insurance Company (20-014208)

The claimant was involved in a serious motor vehicle accident in September 2017, in which she sustained multiple fractures. She applied to the LAT seeking CAT determination under Criteria 7 and entitlement to post-104 IRBs, medical benefits, and a special award. Vice-Chair Lester decided to exclude two insurer reports that were served after the deadline for productions. The claimant was permitted to call the claims adjuster despite late service of particulars for the claim for a special award. The claimant’s assessors determined the claimant had a WPI rating of 66%. The insurer’s assessors determined the claimant had a WPI rating of 40%. Vice-Chair Lester determined that the WPI ratings of the claimant’s assessors were incorrect for a variety of reasons, including advancing a rating for a future risk. Vice-Chair Lester found that the claimant had a combined WPI rating of 47% and was not catastrophically impaired. The claimant’s pre-accident employment jobs had all been part-time short-term positions in retail, childcare, and a travel agency. Vice-Chair Lester found that the claimant was unable to sit long enough for any sedentary part-time position and was entitled to post-104 IRBs. The claimant was entitled to OT services and physiotherapy. She was not entitled to a SPECT assessment or a special award.

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