Category: Special Award

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.

K.G. v. Motor Vehicle Accident Claims Fund (20-003724)

The claimant disputed his entitlement to ACBs in relation to a 1999 accident. The Fund stopped paying ACBs in 2000 without a proper notice, and agreed to reinstate ACBs with interest at the Form 1 rate of $120.40, and paid interest at 1 percent per month. The claimant requested that the LAT award ACBs at the rate of $5,575.31 per month from 2000 onwards based on a retroactive Form 1 completed in 2019. The claimant also requested interest at the rate of 2 percent per month, and a special award. Vice Chair Shapiro agreed that the Fund improperly stopped payment of ACBs without proper notice, and that the Fund correctly reinstated ACBs with payment back to 2000 at the rate of $120.41 per month, other than two periods in which a “top-up” of $331.10 was granted when the claimant moved residences. Vice Chair Shapiro rejected the retroactive Form 1 and the suggested need for 24-hour supervision. The retroactive Form 1 was completed by an OT will no familiarity of the Form 1 as it existed in 2000; the documents reviewed by the OT were scant; the OT’s evidence was contrary to the evidence of the claimant’s family members regarding the claimant’s independence; and the OT ignored the claimant’s recovery in the year or two after the accident. Additionally, the claimant’s current treatment team did not support the need for 24 hour supervision. As to interest, Vice Chair Shapiro held that the claimant was entitled to interest at the rate of 2 percent per month, rather than 1 percent per month, based on the Court of Appeal’s decisions in Federico v State Farm, and Sidhu v State Farm. Finally, Vice Chair Shapiro granted a special award of 10 percent on all ACBs that were wrongly withheld. The Fund inappropriately placed ACBs “on hold” without any provision in the SABS allowing it to do so, and there was a delay of almost 20 years in payment of ACBs.

Singer v The Co-operators General Insurance Company (19-014099)

The claimant was seriously injured in an accident and received benefits from his insurer as a result. The claimant applied to the LAT seeking an award under s. 10 of Regulation 664, submitting that the insurer acted in bad faith to prevent him from applying for additional benefits. Specifically, the claimant argued that the insurer failed to inform him of benefits which were available and failed to advise that he obtain legal counsel. Adjudicator Evans concluded that the claimant failed to establish that the insurer acted in bad faith. The evidence before the LAT confirmed that a representative of the insurer met with the claimant after the accident and provided an information packet containing all of the necessary information to make a claim. Adjudicator Evans further highlighted that the SABS does not require an insurer to recommend legal counsel but may require that they provide notice that an insured person is entitled to legal representation at an examination under oath. The claimants application was dismissed.

Padua v. Co-operators General Insurance Company (20-005450)

The claimant brought a LAT application after various treatment plans were denied because her injuries were deemed to fall under the MIG. She also sought a special award for unreasonably withheld or delayed payments. Several months after the accident in April 2018, the claimant had voluntarily withdrawn from receiving treatment without exhausting her MIG benefits. She did not seek further treatment until January 2020. The claimant had not referenced any psychological injuries to her treatment providers following the accident. Owing to the lapse of a year and a half in which no treatment was sought, combined with the absence of any psychological complaints related to the accident prior to January 2020, the insurer denied approval of the assessment and did not conduct a psychological IE. Adjudicator Norris ruled that the claimant was entitled to a special award in the amount of $1,612.79. He found that the insurer had acted unreasonably in rejecting the conclusions of Dr. Brunshaw’s psychological assessment dated April 22, 2020, which stated that the claimant had suffered psychological injuries from the accident and required treatment. At the hearing, the claimant acknowledged that she had denied experiencing pre-accident psychological issues in her assessment, despite her family doctor’s notes indicating otherwise. However, Adjudicator Norris noted that the insurer had not produced any independent medical opinions following receipt of the claimant’s psychological report, leaving its conclusion, which included causation of the alleged injuries, uncontested. He opined that psychological injuries could develop over time and that the year and a half gap did not disqualify the claimant from receiving further treatment. She was deemed to be entitled to 50% of the amounts withheld but was awarded 30% to account for a failure to disclose pre-existing psychological issues during her psychological assessment.

O’Brien v. Intact Insurance Company (20-003729)

The claimant’s father was fatally injured in an automobile accident which led the claimant to develop psychological injuries and claim benefits pursuant to the SABs. A section 44 examination concluded that the proposed psychological treatment sought by the claimant was reasonable and necessary; however an incorrect fax number was used to send correspondence approving treatment. The claimant applied for an award pursuant to s. 10 of O. Reg 664 due to the insurer’s error. Adjudicator Norris found that the claimant was not entitled to an award as the insurer’s behaviour did not amount to unreasonable withholding or the delay of the payment. Adjudicator Norris emphasized that insurers are not to be held to the standard of perfection, and mistakes are not errors that warrant the grant of an award.

Shweihat v. Aviva Insurance Company of Canada (20-001897)

The Tribunal determined that the claimant was not entitled to an award under s. 10 of O. Reg 664. The claimant had argued that the insurer’s denial of a treatment plan was unreasonable as it had relied on an insurer examination that was contrary to the available medical records. Vice-Chair Marzinotto found that the medical evidence included in the report was consistent with the claimant’s records and that it was therefore reasonable for the insurer to rely on the report. There is a high threshold for entitlement to an award under O. Reg. 664. The claimant failed to demonstrate that the insurer had either unreasonably withheld or delayed the payment of a benefit to which he was entitled.

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