David Kapanadze

The appellants challenged an order refusing leave to amend their amended statement of defence in an insurance indemnity proceeding under s. 132(1) of the Insurance Act.

They sought to characterize alleged lies by the insureds about the mechanism of injury as civil fraud.

The court held that, regardless of whether civil fraud was legally available in such a proceeding, the existing pleading already allowed the appellants to advance the factual allegations necessary to defend the indemnity claim and oppose relief from forfeiture.

The proposed amendment was therefore irrelevant in the circumstances, and the motion judge made no reversible error in finding non-compensable prejudice on the eve of trial.

The appeal was dismissed with agreed costs to the respondent.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied the claim for catastrophic impairment and scheduled insurer's examinations (IEs).

The respondent alleged the applicant failed to attend rescheduled IEs and sought to dismiss the application as a preliminary issue.

The Tribunal found the respondent's allegation was pre-emptive and speculative, as there was no evidence the applicant failed to attend the most recently scheduled IEs.

The Tribunal held the respondent did not meet its burden to show non-attendance, and ordered the parties to proceed to the substantive hearing.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied his entitlement to an income replacement benefit (IRB), interest, and an award.

The applicant argued that the Tribunal breached procedural fairness and made errors of law in assessing the validity of the insurer's notices under section 36(4) of the Statutory Accident Benefits Schedule.

The Vice-Chair dismissed the reconsideration request, finding no breach of procedural fairness and concluding that the rehearing adjudicator correctly applied the law in determining that the insurer's requests for information were compliant, thereby not triggering the mandatory payment provisions of section 36(6).

The applicant sought income replacement benefits (IRBs) pursuant to s. 36(6) of the Statutory Accident Benefits Schedule, arguing that the respondent insurer failed to provide a compliant denial notice under s. 36(4) after receiving an updated disability certificate.

The Tribunal found that the insurer's request for additional information, including employment and medical records, was reasonably required and compliant with s. 36(4)(c).

Furthermore, the insurer's subsequent denial letter referencing a prior denial was compliant with s. 36(4)(b).

As the insurer complied with its obligations, the applicant was not entitled to IRBs under s. 36(6), nor to interest or an award.

The applicant requested reconsideration of a Licence Appeal Tribunal decision that found he was not catastrophically impaired and dismissed his claims for an income replacement benefit (IRB) and other benefits following a motor vehicle accident.

The applicant argued the Tribunal erred in its causation analysis and failed to address his argument for IRB entitlement under s. 36(6) of the Statutory Accident Benefits Schedule.

The Vice-Chair dismissed the causation arguments, finding no error in the Tribunal's application of the 'but for' test.

However, the Vice-Chair granted the reconsideration request in part, finding the Tribunal erred by failing to explicitly consider the applicant's s. 36(6) argument regarding the insurer's alleged failure to provide a compliant denial.

A written re-hearing was ordered solely to determine the applicant's entitlement to an IRB under s. 36(6), along with related claims for an award and interest.

The applicant requested a reconsideration of a Tribunal decision that found she did not sustain a catastrophic impairment.

The applicant argued the Tribunal breached procedural fairness by shortening the hearing from 7 to 4 days and erred in its assessment of expert evidence, the AMA Guides, and causation.

The Tribunal dismissed the request, finding the shortened hearing was proportional given the reduced witness list and that the applicant was improperly attempting to re-weigh the evidence.

The Tribunal confirmed its preference for the respondent's psychiatric expert over the applicant's psychological expert.

The applicant sought a determination of catastrophic impairment and entitlement to income replacement benefits and medical benefits following a 2016 motor vehicle accident.

The Tribunal found that the accident was not a necessary cause of the applicant's right hip osteoarthritis aggravation or his psychological impairments, which were instead attributed to a post-accident stroke and subsequent loss of his driver's licence.

Consequently, the applicant did not meet the 55% whole person impairment threshold for catastrophic impairment.

The claims for income replacement benefits and medical assessments were also dismissed as the applicant failed to prove they were reasonable, necessary, or caused by the accident.

This appeal addressed the application of the discoverability doctrine to the limitation period for income replacement benefits (IRBs) under the Statutory Accident Benefits Schedule (SABS).

The appellant insurer, The Personal Insurance Company (TPIC), argued that the Divisional Court erred in finding that the insured's application to the Licence Appeal Tribunal (LAT) was not limitations-barred.

The Court of Appeal affirmed that the doctrine of discoverability applies to IRB claims, consistent with its prior decision in Tomec.

It held that a pre-emptive denial of benefits by an insurer does not trigger the limitation period if the insured was not yet eligible for or had not applied for the benefits.

The Court found that the LAT adjudicator had not made an implicit factual finding regarding when the insured applied for benefits, thus allowing the Divisional Court to draw its own inferences.

The appeal was dismissed, upholding the Divisional Court's decision to remit the matter to the LAT for a new hearing on the substantive merits of the IRB claim.

The applicant sought statutory accident benefits, claiming she sustained a catastrophic impairment under Criterion 8 (mental or behavioural disorder) following a motor vehicle accident.

The applicant argued she suffered a marked impairment in adaptation, relying on psychiatric and occupational therapy evidence.

The respondent contended the impairment was mild, pointing to pre-existing physical health issues and inconsistencies in the applicant's self-reported functioning.

The Tribunal found the applicant's evidence failed to differentiate between physical and mental impairments, concluding her limitations were primarily physical and pre-existing.

The Tribunal held the applicant suffered only a mild impairment in adaptation and did not meet the threshold for catastrophic impairment.

Both parties' requests for costs were dismissed.

The appellant appealed a Licence Appeal Tribunal decision denying his claim for income replacement benefits on the basis that it was barred by the two-year limitation period.

The appellant had returned to work immediately after the accident but stopped working 16 months later, at which point he applied for benefits.

The Divisional Court allowed the appeal, finding that the adjudicator erred in law by failing to apply the doctrine of discoverability.

Following Tomec, the court held that the limitation period could not begin to run before the appellant became eligible for the benefits.