Jason R. Frost

The applicant, who sustained catastrophic injuries as a pedestrian struck by a truck, sought attendant care benefits of $6,000 per month and various treatment plans.

At the outset of the hearing, the applicant brought a motion seeking the adjudicator's recusal based on an alleged reasonable apprehension of bias, citing the adjudicator's past decision record.

The Tribunal dismissed the recusal motion, finding the statistical analysis unverified and insufficient to overcome the presumption of impartiality.

On the merits, the Tribunal found that the applicant failed to prove she had incurred attendant care expenses beyond what the insurer had already paid.

The Tribunal also declined to deem the expenses incurred under s. 3(8) of the Schedule, finding the insurer had not unreasonably withheld or delayed payments.

The applicant's claims were dismissed, and costs of $500 were awarded to the respondent for unreasonable motions brought by the applicant.

The applicant, a minor, sought statutory accident benefits for psychological impairments arising from a motor vehicle accident involving her father and brothers.

The applicant was not in the vehicle at the time of the accident.

The respondent denied the claims, arguing the applicant was not involved in an accident and was not an 'insured person' under the Schedule.

The Tribunal found that while the applicant was not involved in the accident, she qualified as an 'insured person' because she was a dependent who suffered psychological injuries as a result of the physical injuries sustained by her father in the accident.

Applying the 'but for' test for causation, the Tribunal rejected the respondent's argument that the psychological injuries were caused by intervening post-accident family dynamics, noting the respondent's own expert diagnosed the applicant with an accident-related anxiety disorder.

The Tribunal ordered the respondent to pay $2,200 for a psychological assessment but denied the claim for lost educational expenses as they were not incurred prior to the accident.

The respondent insurer requested a reconsideration of an adjudicator's decision to unilaterally declare a mistrial and order a new hearing on the second day of a three-day hearing.

The Licence Appeal Tribunal granted the reconsideration, finding that the adjudicator committed errors of law and fact that resulted in procedural unfairness.

The Tribunal cancelled the order for a re-hearing and directed that the hearing continue before a new adjudicator using the transcript from the first two days, subject to the applicant's right to bring motions regarding evidence.

This appeal addresses a priority dispute between insurers regarding Statutory Accident Benefits (SABS) where the claimant had basic mandatory SABS coverage from one insurer (Chubb) and both basic mandatory and optional enhanced SABS coverage from another (Continental).

The Superior Court Appeal Judge (SCAJ) had found the claimant was not a "deemed named insured" under Continental's policy, making Chubb the priority insurer for basic SABS, but still held Continental liable for all SABS under an OPCF 47 endorsement, ordering Chubb to reimburse Continental for basic SABS.

The Court of Appeal upheld the SCAJ's finding that the claimant was not a "deemed named insured" under Continental's policy, clarifying that "regular use" requires actual use, not just theoretical access.

However, the Court of Appeal reversed the SCAJ's decision on reimbursement, holding that the OPCF 47 endorsement displaces the statutory priority rules (s. 268 of the Insurance Act) for the optional benefits insurer, meaning Continental, as the OPCF 47 insurer, is solely responsible for both basic mandatory and optional enhanced SABS without a right to reimbursement from Chubb.

The applicant sought statutory accident benefits following an incident where he was punched in the face by another driver after a road rage encounter.

The Licence Appeal Tribunal held that the incident was not an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

Applying the Purpose and Causation tests, the Tribunal found that the applicant's vehicle was merely the venue for the assault, and the use or operation of the vehicle was not the direct cause of his impairments.

The assault was an intervening act that broke the chain of causation.

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

The respondent denied a treatment plan for chiropractic services, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued her pre-existing diabetes and Lupus, along with chronic pain, warranted removal from the MIG.

The Tribunal found the applicant's injuries were predominantly sprains and strains, and she failed to provide compelling medical evidence that her pre-existing conditions precluded recovery within the MIG.

Furthermore, the medical evidence did not support a diagnosis of chronic pain causing functional impairment.

The application was dismissed, and claims for interest and a section 10 award were denied.

The insurer appealed a Licence Appeal Tribunal decision regarding attendant care benefits for a catastrophically injured insured.

The issue was whether, for accidents occurring before June 3, 2019, the Harmonized Sales Tax (HST) payable for attendant care services was included within the $6,000 monthly and $1,000,000 total maximum limits under section 19 of the Statutory Accident Benefits Schedule, or payable in addition.

The Divisional Court held that the language of section 19 is unambiguous and that HST must be paid as part of the attendant care benefit, subject to the maximum limits.

The appeal was allowed and the LAT decision was set aside.

The applicant sought statutory accident benefits following a 2018 motor vehicle accident.

The respondent brought a preliminary issue motion seeking production of the applicant's complete accident benefits and long-term disability files from a prior 2007 motor vehicle accident.

The Tribunal ordered the applicant to produce the complete files, redacted for privilege and reserves, finding them highly relevant to the applicant's pre-accident functioning and entitlement to non-earner benefits, given the severity of the 2007 injuries and the applicant's failure to return to work since that time.

The applicant sought income replacement benefits (IRBs) following a motor vehicle accident.

The insurer denied ongoing entitlement to IRBs on July 11, 2017, and later determined the quantum of IRBs prior to that date was nil on March 16, 2018.

The applicant filed an application with the Licence Appeal Tribunal on January 20, 2020.

The Tribunal held that the applicant was statute-barred from disputing the denial of ongoing IRBs from July 11, 2017 onwards, as the application was filed beyond the two-year limitation period under s. 56 of the Schedule, and the applicant failed to provide reasonable grounds for an extension under s. 7 of the LAT Act.

However, the applicant was not barred from disputing the quantum of IRBs prior to July 11, 2017, as the application was filed within two years of the quantum determination.

The applicant was injured in a motor vehicle accident and sought a non-earner benefit, medical and rehabilitation benefits, and the cost of an examination from the respondent insurer.

The adjudicator found that the applicant failed to prove a complete inability to carry on a normal life, as she continued to engage in her pre-accident activities of daily living.

The adjudicator also preferred the insurer's medical assessments, concluding that the proposed treatment plans and assessments were not reasonable and necessary.

The application was dismissed.

The applicant sought a determination that he sustained a catastrophic impairment due to a mental or behavioural disorder following a motor vehicle accident.

The Tribunal applied the Pastore three-step approach and assessed the applicant's functioning in four domains.

Relying on surveillance evidence and the respondent's expert assessments, the Tribunal found the applicant sustained only mild to moderate impairments in the four domains.

The application was dismissed as the applicant failed to meet the threshold for catastrophic impairment.

The insurer brought an application to the Licence Appeal Tribunal seeking a determination that the insured was not catastrophically impaired and was not entitled to income replacement benefits, as well as seeking repayment of overpaid benefits.

The insured raised a preliminary issue arguing the Tribunal lacked jurisdiction because the insured had not disputed the insurer's determinations.

The Tribunal held that an insurer cannot bring an application to determine entitlement to benefits or catastrophic impairment where the insured has not disputed the insurer's denial, as no 'dispute' exists under s. 280 of the Insurance Act.

However, the Tribunal allowed the insurer's application for repayment of overpaid income replacement benefits to proceed.

The applicant sought reconsideration of a Licence Appeal Tribunal decision that found her injuries fell within the Minor Injury Guideline and denied her claims for non-earner and medical benefits.

The applicant argued the adjudicator failed to consider whether the treatment plans were reasonable and necessary.

The adjudicator reviewed the treatment plans for occupational therapy, physiotherapy, and various assessments.

Applying the criteria for reasonable and necessary treatment, the adjudicator found that the applicant had sufficient functional abilities and that further assessments would be duplicative.

The request for reconsideration was dismissed.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that found their injuries fell within the Minor Injury Guideline (MIG) and denied medical benefits.

The applicant argued that the adjudicator made an error of fact, as the respondent had already removed the applicant from the MIG prior to the hearing.

The Vice-Chair agreed that the adjudicator made a factual error by deciding an issue that was no longer in dispute, which resulted in the treatment plans not being adjudicated.

The request for reconsideration was granted, and the matter was remitted to the original adjudicator to issue a new decision solely on the reasonableness and necessity of the treatment plans based on the existing evidence.

Peter Ekstein was catastrophically injured as a pedestrian.

He had a personal auto policy with Chubb and was the owner/CEO of a company with an auto policy (including optional enhanced benefits and OPCF-47 endorsement) with Continental Casualty Company (CNA).

Chubb began paying statutory accident benefits (SABS) but served a priority notice on CNA.

An arbitrator found CNA to be the priority insurer, deeming Ekstein a "named insured" under the CNA policy due to "regular use" provisions.

CNA appealed.

The Superior Court found the arbitrator erred in deeming Ekstein a "named insured" under the CNA policy, as he never actually used company vehicles.

However, due to the OPCF-47 endorsement, CNA was still obligated to pay both mandatory and optional SABS benefits to Ekstein.

The court clarified that the OPCF-47 endorsement does not alter priority rules between insurers, entitling CNA to reimbursement from Chubb for the mandatory SABS benefits and associated administration costs.

The respondent insurer requested a reconsideration of a Tribunal decision that found the applicant entitled to pre- and post-104 week income replacement benefits (IRBs) due to psychological injuries sustained in a motor vehicle accident.

The insurer argued the Tribunal erred in law and fact by misapplying the IRB tests and misinterpreting the medical evidence, particularly given the applicant's non-disclosure of marital issues to assessors.

The Vice Chair denied the reconsideration request, finding that the Tribunal correctly applied the legal tests and that its conclusions regarding the applicant's complete inability to work were well-supported by the psychological evidence.

The appellant insurer appealed an Arbitrator's decision finding that the respondent's election to opt out of Workplace Safety and Insurance Act benefits was not made primarily for the purpose of claiming statutory accident benefits.

The insurer argued that the respondent's tort claim in North Carolina was not viable due to contributory negligence and the involvement of an unidentified driver.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's conclusions regarding the respondent's bona fide intent to pursue a tort claim were findings of fact supported by evidence, which an appellate body limited to reviewing errors of law cannot overturn.

Aviva Canada appealed an arbitrator's decision finding that the claimant's injuries fell outside the Minor Injury Guideline (MIG) due to a diagnosis of chronic pain.

The Director's Delegate allowed the appeal, holding that the arbitrator erred in law by failing to apply the proper test from Scarlett.

Specifically, the arbitrator did not analyze whether the chronic pain was a 'clinically associated sequela' of the initial minor soft tissue injuries.

The Delegate substituted an order finding the injuries fell within the MIG.

A secondary ground of appeal regarding the late admission of expert reports was dismissed because Aviva had elected to proceed with the hearing rather than adjourn.

Following an arbitration where the applicant was found not to have sustained a catastrophic impairment and was denied various benefits, the insurer requested an expense hearing.

The arbitrator considered the criteria under Rule 75.2 of the FSCO Dispute Resolution Practice Code, including the insurer's complete success and a rejected offer to settle.

The arbitrator awarded the insurer expenses, applying a 4:1 preparation to hearing ratio for counsel and a 2:1 ratio for the articling student, and reduced certain disbursements.

The applicant was ordered to pay the insurer $101,205.11 inclusive of fees, disbursements, and taxes.

The applicant was injured in a motor vehicle accident and sought payment for an orthopaedic assessment under the Statutory Accident Benefits Schedule.

The respondent denied the treatment plan based on an insurer's examination which concluded the injuries were mild and temporary.

The Tribunal found the assessment was reasonable and necessary given the chronic nature of the applicant's pain and the need to rule out orthopaedic causes.

The respondent was ordered to pay for the assessment.