Patrick M. Baker

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.

Certas Home and Auto Insurance Company appealed an arbitration decision regarding loss transfer indemnification from Intact Insurance Company for statutory accident benefits paid to an insured.

The arbitrator found Certas had grossly mishandled the claim by failing to follow its own adjusting plan and continuing benefits despite medical opinions and the insured's completion of vocational training.

The Superior Court of Justice upheld the arbitrator's decision, finding no palpable and overriding error in the arbitrator's conclusion that Certas grossly mismanaged the claim, thereby limiting Intact's indemnification obligation.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming entitlement to four treatment plans for medical devices, a physiatry assessment, and massage and chiropractic treatments.

The respondent insurer denied the benefits based on insurer's examinations.

The Tribunal found that the applicant demonstrated the treatment plans were reasonable and necessary, supported by consistent medical evidence including MRI results showing a rotator cuff tear.

The Tribunal also found the insurer failed to provide sufficient medical reasons for denying the medical devices plan under s. 38(8) of the Schedule.

The applicant was awarded the treatment plans and interest, but the claim for an award under s. 10 of O. Reg. 664 was dismissed as the insurer's conduct amounted to a difference of medical opinion rather than unreasonable behaviour.

The applicant sought statutory accident benefits following a single-vehicle accident.

The Tribunal found the applicant was not entitled to a non-earner benefit, as she failed to demonstrate a complete inability to carry on a normal life, noting her pre-existing conditions and lack of evidence showing a significant post-accident functional decline.

However, the Tribunal removed the applicant from the Minor Injury Guideline (MIG), finding she met the criteria for chronic pain and suffered an exacerbation of prior psychological impairments.

The Tribunal awarded $2,460.00 for a psychological assessment but denied a $3,805.69 claim for physiotherapy because the treatment plan was not submitted into evidence.

The insurer appealed a Licence Appeal Tribunal decision finding that the insured's claim for income replacement benefits was not statute-barred, as the termination letter was not clear and unequivocal.

The insured cross-appealed the dismissal of her claim for post-104 week income replacement benefits, arguing the adjudicator failed to consider whether alternative employment was comparable in status and reward.

The Divisional Court dismissed both appeals, holding that the limitation issue was a question of mixed fact and law not subject to appeal, and that the post-104 test under the Schedule does not require alternative employment to be comparable in status and reward.

The applicant requested a reconsideration of a previous Licence Appeal Tribunal decision that partially granted attendant care and chiropractic benefits but dismissed other claims.

The applicant argued the adjudicator violated procedural fairness and made errors of law and fact by improperly weighing medical evidence and failing to provide sufficient reasons.

The Vice-Chair dismissed the request, finding no violation of procedural fairness or errors of law or fact, noting that the applicant was attempting to re-litigate issues already decided.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that partially granted attendant care and chiropractic benefits but dismissed the remaining claims.

The applicant argued the adjudicator violated procedural fairness and made errors of law and fact by improperly weighing medical evidence and failing to provide sufficient reasons.

The Vice-Chair dismissed the request, finding that the original decision fully considered the evidence, provided adequate reasons, and contained no errors of law or fact.

The reconsideration request was deemed an attempt to re-litigate the issues.

The applicant was severely injured when the ATV he was driving collided with a dirt bike on private property.

He sought statutory accident benefits from the respondent insurer, who denied the claim on the basis that the incident did not meet the definition of an "accident" under the Schedule because neither vehicle was an "automobile".

The Tribunal found that the owner of the ATV was not an occupier of the private property where the collision occurred.

Consequently, the ATV was required to be insured under section 15 of the Off-Road Vehicles Act, bringing it within the definition of an "automobile" under the Insurance Act.

The Tribunal concluded that the incident was an "accident" and the applicant was entitled to claim benefits.

The applicant requested a reconsideration of a motion order that dismissed his application for accident benefits as an abuse of process.

The dismissal followed the applicant's repeated failure to complete a psychological insurer's examination over three years, including refusing to sign consent forms and threatening assessors.

The Vice Chair found no error of law or jurisdiction in the original dismissal, rejecting arguments of res judicata, assessor bias, and adjudicator bias.

The request for reconsideration was dismissed, and the respondent's request for costs was denied.

The applicant sought statutory accident benefits after tripping over a forklift tine while walking towards her parked vehicle and using her key fob to unlock it.

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

The Tribunal found that the incident did not meet the purpose test, as walking towards a vehicle and unlocking it with a key fob does not constitute the use or operation of an automobile.

Furthermore, the Tribunal found that the causation test was not met, as tripping over the forklift tine was an intervening act that broke the chain of causation.

The application was dismissed.

The applicant sought a special award under s. 10 of O. Reg. 664, alleging the respondent unreasonably delayed paying a settlement amount of $5,786.83 to two medical clinics.

The respondent argued the Tribunal lacked jurisdiction because the payment obligation arose from a private settlement agreement, not an entitlement under the Statutory Accident Benefits Schedule.

The Tribunal agreed it lacked jurisdiction, finding the dispute was contractual.

In the alternative, the Tribunal found the respondent's conduct did not meet the high threshold for a special award, as the delay resulted from a miscommunication regarding the submission of invoices through HCAI, rather than excessive or stubborn behaviour.

The motion was dismissed.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits, which the respondent insurer denied.

The Licence Appeal Tribunal found that the applicant suffered from ongoing post-concussion symptoms that caused a substantial inability to perform the essential tasks of her pre-accident employment, entitling her to income replacement benefits.

The Tribunal also approved treatment plans for an attendant care assessment, a functional abilities assessment, and a portion of a psychological treatment plan, finding them reasonable and necessary.

The Tribunal dismissed a claim for physical therapy services.

Finally, the Tribunal ordered a 25% award against the respondent under Ontario Regulation 664, finding that the insurer unreasonably withheld the attendant care and functional abilities assessments by failing to properly investigate the applicant's concussion symptoms and relying on flawed independent medical examinations.

The applicant was injured in a motor vehicle accident and sought medical benefits for physiotherapy.

The respondent denied the benefits on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued that his injuries warranted removal from the MIG due to a pre-existing condition and chronic pain syndrome.

The Tribunal found that the applicant failed to demonstrate that his injuries fell outside the MIG or that he suffered from chronic pain syndrome.

As the MIG limits were exhausted, the benefits and an award for unreasonable delay were denied.

The applicant sought accident benefits for physiotherapy and removal from the Minor Injury Guideline (MIG) following a motor vehicle accident.

The Licence Appeal Tribunal found that the applicant failed to provide sufficient medical evidence to demonstrate that her soft-tissue injuries, lingering pain, or alleged psychological distress warranted removal from the MIG.

The Tribunal also dismissed the claim for a $2,384.58 physiotherapy treatment plan because the applicant failed to submit the required OCF-21 invoice.

All claims, including the request for a section 10 award, were dismissed.

The applicant sought statutory accident benefits following an incident where a driver struck her with his vehicle door and subsequently exited the vehicle to punch her in the face.

The respondent accepted that the first phase involving the vehicle door constituted an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule, but denied benefits for the psychological impairments resulting from the subsequent assault.

The Tribunal found that the incident was severable into two distinct phases.

Applying the Purpose and Causation tests, the Tribunal held that the assault was an intervening act that broke the chain of causation and did not arise out of the ordinary and well-known activities for which automobiles are used.

The applicant's claim for benefits related to the assault was dismissed.

The appellant insurer appealed a tribunal reconsideration decision that found its counsel was in a conflict of interest for acting in both a priority dispute and a benefits dispute against the same insured.

The tribunal also excluded examination under oath transcripts obtained in the priority dispute from being used in the benefits dispute.

The Divisional Court dismissed the appeal, holding that the tribunal's findings on conflict of interest and the circumvention of procedural protections under section 33 of the Statutory Accident Benefits Schedule were reasonable.

The applicant sought a medical and rehabilitation benefit for a psychological assessment following a motor vehicle accident.

The respondent denied the benefit, asserting the applicant's injuries fell within the Minor Injury Guideline (MIG) and the $3,500 limit was exhausted.

The Tribunal found that the applicant's physical injuries were sprains and strains falling within the MIG.

The Tribunal rejected the applicant's claims of psychological impairment and chronic pain, finding insufficient medical evidence to support either diagnosis.

As the applicant's injuries were predominantly minor and the MIG limit was exhausted, the application was dismissed.

The applicant requested a reconsideration of a Tribunal decision that found her statute-barred from applying for dispute resolution due to her failure to attend an insurer's psychological examination.

The applicant argued the Tribunal erred in law and failed to exercise its discretion to allow the application despite the non-attendance.

The Tribunal dismissed the reconsideration request, finding no error of law or fact, as the applicant provided no reasonable explanation for missing the examination and no evidence that she attempted to reschedule it.

The applicant sought statutory accident benefits following a motor vehicle accident, specifically claiming for occupational therapy services and a Muse wearable headband.

The Licence Appeal Tribunal found that the applicant had largely recovered from her injuries and returned to work and other activities shortly after the accident.

The Tribunal concluded that the proposed treatment plans were neither reasonable nor necessary, as the evidence did not support the need for the occupational therapy and the psychological treatment plan lacked identified goals.

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

The respondent insurer requested a reconsideration of a Tribunal decision which found that the applicant's injuries fell outside the Minor Injury Guideline (MIG) and awarded medical benefits.

The insurer argued the Tribunal erred in fact by accepting unsubstantiated opinion evidence regarding chronic pain and erred in law by misapplying the MIG test.

The adjudicator dismissed the request, finding no significant errors of fact or law that would have changed the outcome, as the Tribunal properly weighed the totality of the medical evidence.

The applicant's request for costs was also denied.