Eric K. Grossman

The appellant sought judicial review and appealed a Licence Appeal Tribunal decision finding that her application for statutory accident benefits was time-barred.

The appellant argued the insurer's notice of refusal did not comply with s. 54 of the SABS because it failed to detail all levels of appeal and misleadingly stated a hard two-year limitation period without explaining discoverability.

The Divisional Court dismissed the appeal, holding that s. 54 only requires notice of the right to dispute the refusal at the Tribunal, not subsequent appeal rights.

The Court also found the notice was not misleading, as detailing discoverability principles could detract from the clarity of the warning and confuse claimants.

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

The respondent denied several treatment plans, prompting the applicant to apply to the Licence Appeal Tribunal.

The Tribunal found the applicant was statute-barred from pursuing one occupational therapy treatment plan because she failed to attend a properly scheduled insurer's examination without a reasonable explanation.

However, the Tribunal ordered the respondent to pay for a driving assessment and a dietician assessment because the respondent failed to provide proper notice of denial under s. 38(8) of the Schedule.

Another occupational therapy plan was partially approved based on medical evidence supporting the need for cognitive and psycho-emotional support.

The claim for an award for unreasonable delay was dismissed.

Zurich appealed a Superior Court decision that held Zurich and Chubb equally responsible for paying statutory accident benefits to a claimant injured in a rental vehicle.

The claimant initially applied to Chubb, who denied the claim and failed to notify Zurich within 90 days as required by O. Reg. 283/95.

The second arbitrator found Chubb solely responsible for the benefits due to its breaches of sections 2 and 3 of the Regulation.

The appeal judge overturned this, finding the insurers should share responsibility.

The Court of Appeal allowed Zurich's appeal and reinstated the arbitrator's award, holding that the appeal judge erred in treating the insurers as having equal priority under section 268 of the Insurance Act.

The arbitrator reasonably exercised his discretion in requiring Chubb to pay the benefits permanently as a consequence of its breaches.

The applicant sought statutory accident benefits following a 2014 motor vehicle accident.

The insurer denied the claims and the applicant applied to the Licence Appeal Tribunal.

The Tribunal found the applicant was barred from claiming a non-earner benefit because she failed to submit a disability certificate within 104 weeks of the accident.

The Tribunal also found the applicant was barred from claiming various treatment plans because she failed to dispute the insurer's valid denials within the two-year limitation period.

The Tribunal declined to extend the limitation period under section 7 of the Licence Appeal Tribunal Act, noting the applicant provided no evidence of an intention to appeal or explanation for the delay.

The application was dismissed.

The applicant sought a determination that he sustained a catastrophic impairment under criterion 4 of the Statutory Accident Benefits Schedule following a motor vehicle accident.

The applicant relied on a SPECT scan to demonstrate a traumatic brain injury.

The Tribunal found that a SPECT scan is not a medically recognized brain diagnostic technology, as it is not sufficiently reliable to identify a traumatic brain injury resulting from an accident.

Furthermore, the Tribunal preferred the respondent's radiological evidence, which concluded that the SPECT scan findings were nonspecific and could be explained by other etiologies, such as pre-existing psychological conditions or prior head traumas.

The application was dismissed, and no award for unreasonable delay was granted.

The appellant was severely injured in a bicycle collision and rendered mentally incapable of making decisions.

She applied for non-earner benefits under the Statutory Accident Benefits Schedule (SABS) but was denied benefits for the period before her disability certificate was submitted, pursuant to s. 36(3).

The Licence Appeal Tribunal upheld the denial.

On appeal, the Divisional Court held that the Tribunal erred by failing to consider s. 34 of the SABS, which excuses non-compliance with time limits if there is a reasonable explanation.

The Court found that s. 34 applies to the requirement in s. 36(3), and remitted the matter to the Tribunal to determine if the appellant's incapacity constituted a reasonable explanation.

The appellant sought income replacement benefits (IRBs) under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The central issue was the correct interpretation of the test for post-104-week IRBs under section 6(2)(b) of the Schedule.

The appellant argued that the test requires consideration of employment in a competitive, real-world setting comparable in nature, status, and remuneration to the insured's former employment.

The respondent insurer argued that the statutory test does not include such requirements.

The Court of Appeal upheld the lower courts' decisions, holding that while factors such as competitive real-world setting, status, and remuneration are relevant considerations in the evidence-based analysis, they are not stand-alone requirements of the test.

The appellant failed to prove a complete inability to engage in any employment for which she was reasonably suited by education, training, or experience, particularly given evidence that wedding planning remained a viable option.

The appellant sought judicial review and appealed a Licence Appeal Tribunal (LAT) decision dismissing his application for Income Replacement Benefits (IRBs) as statute-barred.

The LAT found that the insurer's May 3, 2021 letter constituted a clear and unequivocal denial of benefits, triggering the two-year limitation period under the Statutory Accident Benefits Schedule.

The Divisional Court upheld the LAT's decision, finding no error in its application of the limitation period or its refusal to extend the time to appeal.

The court also rejected the appellant's arguments regarding discoverability and the impact of subsequent correspondence from the insurer.

The applicant sought statutory accident benefits following a motor vehicle accident, specifically claiming entitlement to two treatment plans for dental services and one for a psychological assessment.

The Licence Appeal Tribunal found that the applicant failed to prove the dental treatment plans were reasonable and necessary, noting a significant gap in treatment and lack of ongoing complaints in the clinical notes and records.

The Tribunal also denied the psychological assessment, finding the applicant's anxiety was pre-existing and adequately managed by her family doctor.

The application was dismissed in its entirety, and no interest was payable.

The applicant was injured when the pickup truck he was repairing fell on him.

He sought statutory accident benefits, which the respondent insurer denied on the basis that the incident was not an 'accident' under s. 3(1) of the Schedule.

The Tribunal applied the two-part purpose and causation test, finding that repairing a vehicle is an ordinary and well-known activity to which automobiles are put, and that the repair was the dominant feature that directly caused the injuries.

The Tribunal concluded the incident met the definition of an accident.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied her non-earner benefits for a specific period due to her failure to submit a completed disability certificate (OCF-3) under s. 36(3) of the Schedule.

The applicant argued that the Tribunal erred in its strict interpretation of s. 36(3), asserting that the provision should not apply to an incapable applicant, and that the Tribunal failed to properly consider the Human Rights Code and the Charter.

The Vice-Chair dismissed the reconsideration request, finding that the applicant was attempting to re-litigate arguments made at the initial hearing and had failed to establish any error of law or fact under Rule 18.2(b).

The applicant insurer sought judicial review of a Licence Appeal Tribunal decision finding that the respondent insured was not barred by the two-year limitation period from claiming income replacement benefits.

The Tribunal had concluded that the insurer's termination letter was not a clear and unequivocal denial because it left open the possibility of future benefits upon submission of an updated disability certificate.

The Divisional Court dismissed the application, holding that the Tribunal's interpretation of the letter as ambiguous was both reasonable and correct.

The court also upheld the Tribunal's refusal to extend the time for the insurer's reconsideration request.

The applicant appealed and sought judicial review of a Licence Appeal Tribunal decision upholding the insurer's denial of medical and rehabilitation benefits beyond the $3,500 Minor Injury Guideline limit.

The applicant argued the Tribunal erred in finding he did not suffer from chronic pain, misapplied the AMA Guides, misapplied the pre-existing condition exception under s. 18(2) of the SABS, and breached procedural fairness by disregarding illegible clinical notes.

The Divisional Court dismissed the appeal and application, finding the Tribunal's factual conclusions were reasonable, it was entitled to weigh the expert medical evidence, and there was no breach of procedural fairness in a written hearing where the applicant provided illegible records.

The applicant was injured in a bicycle-automobile collision and suffered a traumatic brain injury.

She applied for a non-earner benefit but the insurer denied payment for the period before she submitted her disability certificate (OCF-3), relying on s. 36(3) of the Statutory Accident Benefits Schedule.

The applicant argued that s. 36(3) should be interpreted to exempt incapable applicants, or alternatively, that it violates the Charter and the Human Rights Code.

The Tribunal rejected the applicant's interpretation, finding the language of s. 36(3) clear and mandatory.

The Tribunal also found the applicant failed to establish a constitutional or Code violation.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought removal from the Minor Injury Guideline (MIG) due to chronic pain and a psychological condition, as well as approval for a $2,200 psychological assessment.

The Tribunal found that the applicant failed to provide compelling medical evidence of a more than minor injury, chronic pain with functional impairment, or a psychological condition warranting removal from the MIG.

The Tribunal preferred the respondent's psychological assessment over the applicant's, finding no reliable evidence of an accident-related psychological impairment.

The application was dismissed.

The moving party insurer sought an extension of time to commence an application for judicial review of a 2020 Licence Appeal Tribunal (LAT) decision regarding income replacement benefits.

The moving party relied on the recent Supreme Court of Canada decision in Yatar to explain the delay.

The Divisional Court granted the motion on terms, noting that while finality is a central principle, the prejudice to the respondent was diluted by the fact that an appeal regarding the same benefits was still outstanding at the Court of Appeal.

The applicant sought statutory accident benefits, alleging he struck his head and fell while being transported in an ambulance.

The respondent denied the claim on the basis that the applicant was not involved in an 'accident' under section 3(1) of the Statutory Accident Benefits Schedule.

The Tribunal found that the contemporaneous medical and ambulance records did not support the applicant's assertion that he sustained a head injury during the ambulance ride, noting instead that the records described an older, scabbed wound.

The application was dismissed as the applicant failed to prove on a balance of probabilities that the use or operation of an automobile directly caused his impairment.

The applicant sought statutory accident benefits following a motor vehicle accident and applied for a catastrophic impairment determination, which the respondent insurer denied.

The respondent argued the applicant was barred from proceeding to a hearing because he failed to dispute the denial within the two-year limitation period under section 56 of the Statutory Accident Benefits Schedule.

The Tribunal found that the limitation period was not triggered because a catastrophic impairment determination is a threshold for eligibility, not a specific benefit.

The applicant was permitted to proceed to a hearing, and the respondent's request for costs was denied.

The appellant, Chubb Insurance Company of Canada, appealed an arbitration decision that held it solely liable for Statutory Accident Benefits (SABS) payments to an injured person, despite Zurich Insurance Company being the actual primary insurer.

The Supreme Court of Canada had previously ruled that Chubb, as the first insurer to receive a misdirected SABS application, was deemed an insurer for the claim.

The Superior Court found that the arbitrator erred by not fully analyzing the interplay between the Insurance Act and O. Reg. 283/95.

The court concluded that both Chubb and Zurich were insurers of equal priority due to the unique circumstances and must share liability 50/50, with each responsible for 2% compound interest for delays attributable to them.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying her post-104-week income replacement benefits following a motor vehicle accident.

The appellant argued the LAT adjudicator erred in law by failing to reference a Functional Capacity Evaluation, ignoring subjective evidence, demonstrating bias, and misapplying the test for suitable alternative employment.

The Divisional Court dismissed the appeal, finding that the adjudicator's failure to mention specific evidence did not constitute an error of law, there was no reasonable apprehension of bias, and the adjudicator's factual findings supported the conclusion regardless of the specific employment factors considered.