Linda M. Kiley

The appellant appealed a judgment dismissing an appeal from an arbitrator's decision in an insurance priority dispute.

The appellant argued the judge erred in finding the arbitrator owed no deference to the Licence Appeal Tribunal and in concluding the truck was involved in an accident.

The Court of Appeal found no error in the reasons for judgment and dismissed the appeal, awarding costs of $15,000 to the respondent.

The appellant appealed a Licence Appeal Tribunal decision dismissing her claim for statutory accident benefits due to a two-year delay in notifying her insurer.

The appellant argued the Tribunal erred in law by dismissing the claim under s. 55(1)1 of the Statutory Accident Benefits Schedule, asserting that s. 32(10) provided the insurer's exclusive remedy of extra time to respond.

The Divisional Court dismissed the appeal, holding that s. 32(10) does not preclude the dismissal of a claim under s. 55(1)1 where the claimant fails to provide a reasonable explanation for the delay.

The appellant insurer appealed an arbitrator's decision in a priority dispute regarding statutory accident benefits.

The arbitrator had found that the appellant was the priority insurer for a claimant who was catastrophically injured while loading an inoperable truck onto a trailer.

The appellant argued the truck was not an automobile and the incident was not an automobile accident, and that the arbitrator's decision was an abuse of process because it conflicted with a prior License Appeal Tribunal decision.

The Superior Court dismissed the appeal, holding that the arbitrator correctly applied the purpose and direct cause tests to find the incident was an automobile accident, and that there was no abuse of process as the arbitrator had exclusive jurisdiction over the priority dispute.

The applicant was involved in a motor vehicle accident and sought statutory accident benefits.

She failed to submit her OCF-1 application within the 30-day time limit prescribed by the Schedule, submitting it nearly two years later.

The respondent argued she was statute-barred from proceeding.

The Tribunal found the applicant had a reasonable explanation for the delay, citing her psychological and cognitive impairments, her mistaken belief that a previous law firm had submitted the form, and confusion caused by the respondent's partial approval of a treatment plan.

The Tribunal concluded the applicant could proceed with her application to a substantive hearing.

The applicant sought reconsideration of a decision finding her claim for statutory accident benefits was statute-barred due to a 27-month delay in notifying the insurer.

The applicant argued the Tribunal erred by failing to apply the rule of discoverability.

The Adjudicator dismissed the request, finding no error of law or fact, as the applicant had not raised the discoverability argument at the initial hearing and, regardless, failed to provide a reasonable explanation for the delay under section 34 of the Schedule.

The applicant applied for statutory accident benefits claiming psychological impairments resulting from her son's motor vehicle accident.

The application was submitted more than two years after the accident.

The respondent raised a preliminary issue regarding the applicant's failure to notify it of her intention to apply within the 7-day time limit prescribed by section 32(1) of the Schedule.

The Tribunal found that the applicant failed to comply with the time limit and did not provide a reasonable explanation for the delay under section 34.

Consequently, the applicant was statute-barred from proceeding with her claim pursuant to section 55(1) of the Schedule, and the application was dismissed.

The respondent insurer brought a preliminary issue motion arguing that the applicant was barred from proceeding with her application for statutory accident benefits because she failed to attend scheduled insurer examinations.

The Tribunal reviewed the notices of examination provided by the insurer and found that they did not comply with the strict requirements of section 44(5) of the Statutory Accident Benefits Schedule, as they failed to adequately set out the medical reasons or the specific provisions of the Schedule relied upon.

Because the notices were deficient, the insurer could not rely on section 55 to bar the application.

The preliminary issue motion was dismissed.

The respondent requested a reconsideration of a decision finding he was not involved in an 'accident' as defined in s. 3(1) of the Statutory Accident Benefits Schedule relating to the vehicle insured by the applicant.

The respondent argued the Tribunal exceeded its jurisdiction and made an error of law by narrowly framing the issue to a specific vehicle.

The Tribunal dismissed the request, finding the issue was properly framed by prior consent orders and the Tribunal did not exceed its jurisdiction or make an error of law.

The applicant, a pedestrian involved in a 2010 motor vehicle accident, sought funding for $26,919.25 in catastrophic impairment (CAT) assessments.

The insurer denied the funding after conducting its own assessments and determining the applicant was not catastrophically impaired.

On a reconsideration hearing, the Tribunal found that the applicant failed to prove the proposed assessments were reasonable and necessary.

The Tribunal noted a lack of objective medical evidence supporting a reasonable possibility of catastrophic impairment, significant inconsistencies in the applicant's reporting, and the fact that the applicant had used less than $10,000 in treatment funding over ten years.

The claims for the assessment costs, interest, and an award were dismissed.

The applicant requested a reconsideration of a decision denying her entitlement to $26,919.25 for a catastrophic determination assessment.

The applicant argued that the adjudicator applied the incorrect test and failed to consider the Divisional Court's decision in Aviva Insurance Company v. J.A., which clarified the law on when an insurer must pay for a CAT assessment and what constitutes a rebuttal assessment.

The adjudicator found that an error of law or fact was made in the original decision by characterizing the assessment as a rebuttal assessment.

The request for reconsideration was granted, and the matter was ordered to be reheard in writing by a different adjudicator.

The applicant insurer sought a preliminary determination of whether the respondent was involved in an 'accident' as defined in s. 3(1) of the Statutory Accident Benefits Schedule.

The respondent suffered paraplegia when an inoperable vehicle he was helping to load onto a trailer fell and pinned him.

The Tribunal found that the incident did not meet the purpose test, as the vehicle was not roadworthy and could not move under its own power, meaning the injuries did not arise out of the ordinary use or operation of the vehicle.

Consequently, the Tribunal concluded that the respondent was not involved in an accident relating to the vehicle insured by the applicant.

The applicant insurer sought repayment of $9,197.65 in income replacement benefits paid to the respondent following a motor vehicle accident.

The insurer alleged the respondent wilfully misrepresented his employment status, as Records of Employment confirmed he was terminated prior to the accident.

The respondent did not participate in the hearing.

The Tribunal found the insurer proved wilful misrepresentation and ordered the respondent to repay the benefits with interest.

The applicant sought reconsideration of a decision denying her income replacement benefits beyond 104 weeks post-accident, relying on four new multidisciplinary reports as new evidence under Rule 18.2(d).

The Tribunal dismissed the request, finding that the reports could have been obtained prior to the release of the original decision and that the applicant made a tactical decision not to seek an adjournment.

Furthermore, the Tribunal held that the new evidence would not have affected the result, as the reports relied on self-reporting that was contradicted by surveillance evidence showing the applicant engaging in various activities.

The respondent's request for costs was also dismissed.

The applicant insurer sought repayment of $9,197.65 in income replacement benefits (IRBs) paid to the respondent following a motor vehicle accident.

The insurer alleged the respondent wilfully misrepresented his employment status, as records later revealed he had been terminated from his job prior to the accident.

The respondent did not participate in the hearing.

The Tribunal found that the respondent had wilfully misrepresented his employment status and that the insurer met the procedural requirements for repayment under section 52 of the Schedule.

The Tribunal ordered the respondent to repay the IRBs with interest.

The applicant, a pedestrian injured in a 2010 motor vehicle accident, sought payment for a catastrophic impairment assessment totaling $26,919.25.

The respondent denied the claim.

The Licence Appeal Tribunal found that the applicant failed to provide sufficient objective medical evidence to suggest a reasonable possibility of catastrophic impairment.

The Tribunal held that the assessment was not reasonable and necessary, noting evidence of symptom amplification and a lack of support from treating physicians.

The application for the assessment costs, interest, and a special award was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident, including ongoing income replacement benefits (IRBs) and medical benefits for a chronic pain assessment and physiotherapy.

The Licence Appeal Tribunal found that the applicant was substantially unable to perform the essential tasks of her pre-accident 'heavy' employment for the first 104 weeks due to chronic pain and psychological issues, entitling her to IRBs for that period.

However, she failed to prove a complete inability to engage in any suitable employment after 104 weeks.

The Tribunal also found the proposed chronic pain assessment and physiotherapy treatment plans to be reasonable and necessary, ordering them payable if incurred, along with interest on overdue benefits.

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

The respondent insurer brought a motion for repayment of benefits already paid, alleging wilful misrepresentation.

The Tribunal found that the applicant deliberately misrepresented his employment status, claiming to be an employee rather than self-employed, and submitted falsified pay slips to support his claim.

Surveillance evidence further undermined the applicant's credibility.

The Tribunal dismissed the application for ongoing benefits and ordered the applicant to repay $59,817.21 in benefits previously paid due to his wilful misrepresentation.

The respondent was also found entitled to an off-set for CPP disability benefits.

The applicant, who was deemed catastrophically impaired following a 1999 motor vehicle accident, sought attendant care benefits and the cost of a home modification assessment.

The Tribunal found that the applicant did not have to 'incur' past attendant care benefits for them to be payable, as the 1996 Schedule applied.

The Tribunal awarded attendant care benefits for the period of October 2016 to July 2017 but dismissed the claims for other periods, finding the applicant did not require 24-7 supervision.

The Tribunal also dismissed the claim for the home modification assessment, finding the $2,000 cap under the 2010 Schedule applied.

The applicant sought costs after the respondent conceded catastrophic impairment less than two weeks before the scheduled hearing.

The applicant argued the respondent acted unreasonably, frivolously, and in bad faith by delaying the concession and failing to produce two medical reports.

The Tribunal dismissed the motion, finding the respondent acted reasonably in relying on its medical evidence and noting the applicant's low medical/rehabilitation expenses.

The Tribunal also found no breach of disclosure orders, as the applicant could have obtained the reports directly from his own service providers.

The applicant brought a motion to adjourn a scheduled three-day hearing regarding non-earner and attendant care benefits.

The applicant had recently served an Application for Determination of Catastrophic Impairment (OCF-19) and argued that proceeding with the hearing before the catastrophic impairment issue was resolved could result in a multiplicity of proceedings.

The respondent opposed the adjournment, citing delay.

The adjudicator granted the adjournment, finding that the delay in serving the OCF-19 was justified by the need for medical testing, and that adjourning the hearing would avoid duplicative proceedings and allow for a full and fair hearing on the merits.