OLAT 2017

The appellant's vehicle was impounded for 45 days after her boyfriend was caught driving it with a suspended licence.

She appealed the impoundment to the Licence Appeal Tribunal on the grounds of due diligence and exceptional hardship.

The Tribunal dismissed the appeal, finding that the appellant took no steps to verify the driver's licence status and that exceptional hardship was not established because the family had access to an alternative vehicle.

The appellants appealed a Tarion Warranty Corporation decision denying their warranty claims for hardwood flooring and marble tile defects in their new condominium unit.

The Licence Appeal Tribunal found that the hardwood floor cupping was caused by high humidity during a period when the builder had control of the unoccupied unit, constituting a breach of the warranty of workmanlike construction.

The Tribunal awarded $9,500 for floor repairs.

However, the Tribunal dismissed the marble claims, finding that the foyer crack was likely excluded due to concrete movement or was a common element issue, and the bathroom marks were naturally occurring fissures rather than warranted defects.

The appellant appealed the 45-day impoundment of her vehicle, which was driven by her boyfriend whose licence was suspended.

She argued the vehicle was stolen and that the impoundment caused exceptional hardship.

The Tribunal found the vehicle was not stolen, as the boyfriend had access to the keys and had driven her vehicles previously.

The Tribunal also found no exceptional hardship, as the appellant had alternatives to the impounded vehicle, including public transit, taxis, help from other parents, and a second vehicle.

The appeal was dismissed and the impoundment confirmed.

The appellant appealed the Registrar of Motor Vehicles' decision to suspend her driver's licence due to alcohol dependence and substance abuse.

The appellant had sought treatment for alcohol overconsumption and abstained from alcohol for over seven months prior to the hearing.

She also used a small amount of marijuana daily as a sleep aid.

The Licence Appeal Tribunal found that the appellant's alcohol dependence was in remission and her marijuana use did not constitute an addiction likely to significantly interfere with her ability to drive safely.

The Tribunal set aside the Registrar's decision to suspend the licence.

The respondent insurer requested a reconsideration of a Licence Appeal Tribunal decision awarding the applicant income replacement benefits (IRBs).

The insurer argued the Tribunal made a significant error of fact regarding the start date of the applicant's post-accident employment, which precluded the insurer from deducting 70% of gross employment income under s. 7(3)(a) of the Statutory Accident Benefits Schedule.

The applicant argued the request should be summarily dismissed for failing to comply with Rule 18.1(b) notification requirements.

The Executive Chair declined to dismiss the request on procedural grounds, finding no prejudice to the applicant.

On the merits, the Executive Chair found the Tribunal made a significant error of fact by concluding the applicant started work in July 2015, despite irreconcilable medical evidence indicating she was working by June 2015.

The reconsideration was granted and a written rehearing was ordered to determine the employment start date and any resulting IRB deductions.

The applicant was injured in a single-vehicle accident and sought a determination of catastrophic impairment based on a Glasgow Coma Scale (GCS) score of 9 or less.

The adjudicator found that while the applicant's GCS score dropped to 8T and 9T following surgery, this was due to pharmacologic sedation and intubation rather than brain impairment.

The applicant's initial GCS scores were 13 to 15, indicating no brain impairment upon arrival at the trauma centre.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought income replacement benefits.

The insurer requested tax documents under section 33 of the Schedule, which the applicant failed to provide.

The insurer subsequently refused to pay the benefits, placing the applicant in non-compliance.

The applicant filed an application for dispute resolution more than two years after the refusal.

The Tribunal held that the refusal to pay stemming from a section 33 non-compliance triggered the two-year limitation period under section 56.

As the applicant failed to provide a reasonable explanation for the delay and filed outside the limitation period, the application was statute-barred and dismissed.

A post-hearing motion for an award and costs was also dismissed.

The applicant, a 79-year-old passenger injured in a bus accident, sought a non-earner benefit and medical benefits.

The insurer initially denied medical benefits beyond the Minor Injury Guideline (MIG) cap but later conceded the injuries were not minor and approved a disputed treatment plan.

The Tribunal dismissed the claim for a non-earner benefit, finding the applicant failed to prove a complete inability to carry on a normal life, as his limitations were largely due to pre-existing conditions.

However, the Tribunal awarded interest and a 50% special award on the delayed treatment plan, finding the insurer's belated decision to remove the applicant from the MIG unreasonably delayed his access to treatment.

The insurer requested a reconsideration of a Licence Appeal Tribunal decision that awarded the applicant an income replacement benefit (IRB).

The insurer argued the Tribunal erred in finding the applicant had a reasonable explanation for failing to provide requested financial information under s. 33(1) of the Statutory Accident Benefits Schedule.

The Executive Chair agreed, finding no evidentiary basis for the applicant's explanation that his age and injuries delayed his compliance.

Consequently, under s. 33(6), the insurer was not liable to pay the IRB for the period of non-compliance.

The Tribunal's decision was varied to limit the IRB entitlement period.

The applicant was injured in a 2006 motor vehicle accident and received income replacement benefits (IRBs) for approximately one month.

In October 2006, the insurer provided an Explanation of Benefits stating that IRBs would not be paid beyond 16 weeks as the impairment fell within the Pre-Approved Framework Guideline.

In 2015, the applicant sought reinstatement of IRBs, which the insurer denied.

The applicant applied to the Licence Appeal Tribunal, and a preliminary decision found the application was not time-barred because the 2006 denial was improper.

The insurer requested a reconsideration.

The Executive Chair granted the reconsideration, finding that the 2006 denial was clear and unequivocal, and that the 2015 request for reinstatement did not trigger a new limitation period.

The application was dismissed as statute-barred.

The applicant sought attendant care benefits following a motor vehicle accident.

The insurer stopped payment after the applicant failed to attend a scheduled insurer examination and argued the subsequent application was statute-barred under section 56 of the Schedule as it was filed more than two years after the refusal.

The Tribunal found that the examination was not properly constituted because the notice did not specify it was for attendant care benefits.

Furthermore, the refusal letter was not clear and unequivocal because it stated the benefit was suspended and would be reconsidered if the applicant attended a rescheduled examination.

The preliminary issue was resolved in favour of the applicant, allowing the claim to proceed.

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

The respondent denied payment, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Licence Appeal Tribunal found that the applicant's psychological impairments, specifically Somatic Symptom Disorder and Posttraumatic Stress Disorder, took his injuries outside the MIG.

The Tribunal ordered the respondent to pay for a chronic pain assessment and two treatment plans for physiotherapy and chiropractic services, finding them reasonable and necessary.

Two other physiotherapy treatment plans were denied.

Interest was awarded on the overdue payments.

The applicant sought payment for various treatment plans and assessments, including psychological services, chiropractic services, an attendant care assessment, an orthopaedic assessment, and a naturopathic assessment, following a motor vehicle accident.

The respondent denied the claims based on independent medical examinations indicating the applicant had mostly resolved soft tissue injuries and was capable of self-care.

The Tribunal dismissed all claims, finding the applicant failed to prove the treatment plans and assessments were reasonable and necessary, and applied the FSCO Guidelines to cap the hourly rate for psychological services.

The applicant sought statutory accident benefits following a 2013 motor vehicle accident.

The Tribunal found that the applicant's claim for a $2,850 chiropractic treatment plan was statute-barred by the two-year limitation period.

However, the Tribunal determined that the applicant's injuries fell outside the Minor Injury Guideline (MIG) due to chronic pain syndrome and a pre-existing condition from a 2011 accident.

The Tribunal ordered the respondent to pay for the remaining chiropractic treatment plans, a psychological assessment, and a chronic pain assessment, finding them reasonable and necessary, along with interest on the assessments.

The applicant sought payment for a $2,000 chronic pain assessment following a motor vehicle accident.

The respondent denied the claim, arguing the applicant's injuries fell within the Minor Injury Guideline.

The applicant challenged the sufficiency of the respondent's denial notices under s. 38 of the Statutory Accident Benefits Schedule.

The Tribunal found that the respondent's explanations of benefits complied with s. 38.

On the merits, the Tribunal held that the applicant failed to prove the chronic pain assessment was reasonable and necessary, noting evidence of steady improvement, return to pre-accident activities, and failure to pursue approved treatments.

The application was dismissed, with no interest or costs awarded.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund, which later transferred the claim to the respondent insurer.

The insurer argued the application was barred under s. 55 of the Schedule because the applicant failed to notify the Fund within seven days and submitted an incomplete application lacking a police report.

The Tribunal found the applicant notified the Fund as soon as practicable and that a police report was not mandatory since the Fund had sufficient information to determine if a benefit was payable.

Furthermore, the Tribunal held that the insurer failed to provide proper notice under s. 38(8) when denying the treatment plans, as it did not provide medical reasons or state that the Minor Injury Guideline applied.

Consequently, under s. 38(11), the insurer was prohibited from applying the Minor Injury Guideline and was ordered to pay for all the disputed treatment plans.

The applicant brought a motion for an order requiring non-party assessors and their assessment facility to produce their complete files, including draft reports, clinical notes, and correspondence.

The applicant sought these documents to clarify changes made between draft and final reports regarding a catastrophic impairment determination.

As the respondent and the assessment facility did not oppose the request, the Tribunal ordered the production of the requested documents.

The respondent brought a motion to admit two late-filed section 44 assessment reports and supplementary written submissions for an upcoming written hearing.

The applicant did not attend the motion hearing.

The adjudicator granted the motion, noting that the delay in obtaining the reports was partly due to the applicant cancelling an earlier assessment date, and that the applicant had already addressed the reports in his reply, resulting in no prejudice.

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

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

The Tribunal found that the applicant's physical injuries were predominantly minor and that he failed to provide compelling evidence of a pre-existing condition that would preclude maximal recovery within the MIG limits.

The Tribunal also preferred the evidence of the respondent's psychological expert, finding that the applicant did not suffer from a psychological impairment that would remove him from the MIG.

As the applicant's injuries were confined to the MIG, the disputed benefits exceeding the $3,500 cap were denied.

The applicant sought attendant care benefits following a motor vehicle accident.

The insurer suspended the benefits after the applicant failed to attend an insurer examination and argued the subsequent application was statute-barred under section 56 of the Schedule as it was filed more than two years after the refusal.

The Tribunal found that the insurer's denial letter was not clear and unequivocal because it stated the benefit was suspended and would be reconsidered if the applicant attended a rescheduled examination.

As the denial merely suspended rather than terminated the benefit, the limitation period was not triggered, and the claim was allowed to proceed.