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.

Bashiruddin v. TD General Insurance Company (21-008274)

The claimant sought entitlement to a special award and interest on an approved OCF-18 for a psychological assessment. The claimant was involved in an automobile accident in September 2018. In March 2020, the respondent contacted the claimant about scheduling section 44 IE assessments to determine her eligibility to receive benefits. These assessments were rescheduled several times due to the claimant’s refusals to attend. The inability to conduct assessments resulted in the respondent deeming that the claimant was to remain within the MIG until such time that further information could be provided or an assessment conducted that would justify MIG removal. Upon compliance, the claimant was removed from the MIG. Adjudicator Fogarty determined that the claimant was not entitled to a special award. The respondent’s response was reasonable and proportionate, showing great flexibility in its many attempts to reschedule the IE assessments and offering accommodations at each juncture. Adjudicator Fogarty also found that the claimant was entitled to interest on an approved psychological assessment for the period of April 4, 2023 (the day after the assessment was approved) until payment was received from the respondent, at the rate of 1% per month, compounded monthly and prorated by day, to the date on which the overdue amount was paid. Adjudicator Fogarty emphasized that when the benefit became payable was the point in which the benefit became due and on the following day that amount owed became overdue.

L.D. v. Gore Mutual Insurance Company (18-011978)

The claimant sought entitlement to IRBs and a special award relating to a three year prior where she did not attend IEs. The Tribunal dismissed the claim, holding that the insurer had given proper IE notices, and that the claimant did not have a reasonable explanation for failing to attend the IEs. The claimant raised multiple arguments regarding the IE notices and the IE assessors. The adjudicator rejected all arguments. Adjudicator Neilson found that the notices contained sufficient medical and other reasons, as there was specificity to the claimant’s conditions and treatments. The notices properly referred to the benefit being assessed. The number and type of assessments was not excessive, given that the claimant was alleging physical, psychological, and neuropsychological injuries. Further, many of the assessors withdrew from conducting IEs due to aggressive communications from claimant’s counsel, leading to the insurer needing to retain further assessors and make additional IE requests. The scope of the insurer’s requests were similar to the assessments proposed and completed by the claimant’s section 25 assessors. The insurer’s use of assessment centres was not unreasonable, and is permitted by the Insurance Act. There was no violation of the Human Rights Code in the nature or format of the assessments, and the claimant failed to advise on any further accommodations she required (if any). Because the claimant did not have a reasonable excuse for failing to attend IEs, there was no unreasonable delay in the payment of IRBs, and no special award was given. Additionally, Adjudicator Neilson found that the claimant’s arguments were not proven. The insurer was not engaged in criminal harassment in using an investigator to conduct surveillance. The allegations that the insurer’s OT injured the claimant were not proven, and there was no evidence that the OT was made aware of any restrictions the claimant had. The claimant failed to prove that the insurer was selective in its review of the evidence. Furthermore, to the extent that the claimant believed that the assessors were not aware of her medical conditions, the SABS required the claimant to advise of any relevant information. Multiple procedural issues were considered by the adjudicator. The requests for contempt orders against IE facility directors were dismissed, and certain summons were not properly served. The claimant’s attempt to use summons to obtain production of records from assessors and assessment facilities was improper; the claimant was obliged to make the production requests through the insurer’s counsel, and to seek a Case Conference Order if disputes arose about the scope of production and relevance.

Doran v Gore Mutual Insurance Company (20-013924)

The claimant sustained a CAT impairment and sought ACBs from the insurer. The insurer initially provided ACBs at $6,000 per month, but benefits were reduced to $4,339.71 and later cut to $1,040.10, based on the determination that she no longer required basic supervisory care and mobility assistance. The claimant disputed these reductions. The LAT ruled that the claimant was entitled to ACBs at $1,630.72 per month and interest on overdue payments . A few procedural issues were raised. The claimant argued that the s. 44 IE report and Form 1 should be excluded as the insurer’s correspondence and examination notice were not compliant with sections 19, 42 or 44 (5) of the SABS. The claimant asserted that the notice to assess did not include a medical reason for the IE request distinct from the non-earner benefit. As such, the claimant contended that the deficient notice should lead to the exclusion of the report. The LAT held that the SABS does not provide for the exclusion of an IE report as a remedy for non-compliance with s. 44(5) and that the LAT could not read such a remedy into the SABS. Furthermore, the LAT found that a claimant’s attendance at an IE constitutes a waiver of any recourse he/she may have had against the insurer for providing a deficient notice. Accordingly, the LAT stated that it is incumbent upon claimants to seek clarity regarding the medical reasons for an assessment before consenting to participate. Given the claimant’s failure to seek clarification with the insurer and her ultimate participation in the IE, the LAT decided that the corresponding IE report and Form 1 should be allowed. Addressing a second procedural issue, the LAT allowed the claimant to add a special award but found that non-compliance with notice requirements did not meet the threshold for a special award. The LAT held that: (a) deficient notices can only be addressed when they occur/prior to participation in the IE they correspond to and (b) assigning a remedy for a deficient notice would be akin to reading a remedy into the SABS where none exists. The claim for a special award was denied.

[K.M.] v. Aviva Insurance Canada (22-000554)

The claimant sought benefits, including increased monthly rental costs, home renovations and a wheelchair accessible vehicle, after sustaining a catastrophic impairment. Prior to the hearing, the insurer approved all treatment plans at issue, leaving only a special award in dispute. The claimant argued that they were entitled to a special award as the insurers adjusting of the claim was not timely and was inflexible. The LAT agreed and awarded the claimant a special award in the amount of 50% of the initially disputed OCF-18s and interest. In determining quantum, Adjudicator Hartwick considered a variety of factors, with emphasis placed on the insurers seeming indifference to the vulnerability of the claimant as well as the significant delay in adjusting the claim. The only mitigating factor considered for the insurer was that it chose to settle the issues prior to the hearing, though Adjudicator Hartwick highlighted that did not undo the blameworthiness of the insurers past conduct.

J.T. v. Certas Home and Auto Insurance Company (19-001148)

The matter stemmed from a previous LAT Application in which Adjudicator Hines deemed an OCF-18 in the amount of $166,437.70 to be incurred pursuant to the SABS, and awarded the claimant an award equal to 25% of the OCF-18. Certas had issued payment for the OCF-18 on July 6, 2022, consisting of $166,437.70 for the OCF-18 and an additional $41,609.42 representing the 25% award and advised that it was having an accounting report commissioned to confirm the interest owing on the OCF-18. On October 7, 2022, Certas paid an additional $36,839.56 in interest owing, which did not include interest on the special award. The claimant filed a second LAT Dispute and argued that, when the SABS and the Regulation are read together, interest should be calculated based on the benefits awarded, plus interest, plus a 2% monthly compounded interest on that amount. The claimant argued that this was mandatory as stated in the SABS and the Regulation. The claimant further disputed the calculations within the Insurer’s accounting report. Certas argued that interest was not mandatory, and interest on the award was up to the Adjudicator’s discretion. As Adjudicator Hines had never expressly stated in her prior decision that interest was payable on top of the award, then it was not necessary and not ordered to be paid. Adjudicator Hines noted that her wording regarding her previous decision could have been clearer, but noted that she did allude to interest on the award being payable when she noted that the amount (of interest) payable was to be determined by the two parties. The parties had both retained expert accountants, and Adjudicator Hines ruled that the claimant’s report was not only far more detailed, but Certas’ report did not include interest payable on the award, and that the time frame calculated by the Insurer’s accountant did not comply with the SABS. Adjudicator Hines ruled in favour of the claimant and ordered that the $154,028.00 amount calculated by the claimant’s accountant, which included interest on the award, be paid.

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.

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