OLAT 2020

The appellant appealed Tarion's denial of a warranty claim regarding an allegedly crooked wall and window in her new home.

The appellant also sought $100,000 in damages, aggravated damages, and costs.

The Tribunal first ruled it lacked jurisdiction to award damages for secondary claims outside the statutory warranty.

On the merits, the Tribunal found the appellant failed to provide reliable measurements or expert evidence proving the wall or window exceeded acceptable tolerances.

The appeal was dismissed.

The applicant, who was catastrophically impaired in a motor vehicle accident, sought a determination that the HST charged on attendant care services should be paid outside the statutory monthly limit of $6,000.

The respondent insurer had been paying the HST out of the benefit limit.

The Tribunal found that HST is a tax, not a 'reasonable and necessary expense' under section 19 of the Schedule, and therefore must be paid outside of the attendant care benefit limit.

The Tribunal dismissed the applicant's claim for a special award under O. Reg. 664, finding that the insurer's interpretation of the Schedule, while incorrect, was not unreasonable given the lack of explicit guidance on the issue.

The respondent insurer requested a reconsideration of a Tribunal decision which found that catastrophic impairment (CAT) assessments are not medical benefits subject to the $50,000 limit under s. 18 of the Schedule.

The adjudicator dismissed the reconsideration request, finding that the insurer merely repeated arguments already decided and failed to demonstrate any material error of fact or law.

The adjudicator also granted the applicant $100 in costs, concluding that the insurer's reconsideration request was frivolous and lacked supporting evidence or argument.

The applicant sought a non-earner benefit following a motor vehicle accident.

The insurer denied the benefit on May 18, 2016, because the applicant failed to submit a Disability Certificate (OCF-3).

The applicant applied to the Tribunal on August 10, 2018.

The insurer argued the application was statute-barred by the two-year limitation period.

The Tribunal found the May 18, 2016 denial letter was clear and unequivocal, triggering the limitation period.

The Tribunal held the application was filed late but allowed the parties to make written submissions on whether an extension of time should be granted under section 7 of the Licence Appeal Tribunal Act, 1999.

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 appellant, a registered real estate broker, appealed a Notice of Proposal by the Registrar to suspend his registration.

The Registrar alleged the appellant provided false statements on renewal applications by having staff complete his mandatory continuing education courses and failing to disclose his involvement in another business.

The Tribunal found that the appellant made false statements and that his past conduct, including the use of highly inappropriate language towards employees, afforded reasonable grounds for belief that he would not carry on business with honesty and integrity.

The Tribunal ordered a three-month suspension of the appellant's registration, rejecting arguments that the suspension was disproportionate or amounted to double jeopardy following provincial offences fines.

The appellant's request for costs was dismissed.

The applicant was struck by a vehicle as a pedestrian and sought statutory accident benefits.

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

The Tribunal found that the applicant's psychological injuries, including depression and anxiety, removed her from the MIG.

The Tribunal ordered the respondent to pay for the disputed chiropractic treatment plans and a psychological assessment, finding them reasonable and necessary, along with interest on overdue payments.

Both parties' requests for costs were denied.

The applicant sought payment for a capacity assessment and the legal costs of a court application for guardianship following a motor vehicle accident.

The Licence Application Tribunal dismissed the application, finding that the capacity assessment was incurred before the treatment plan was submitted and did not meet the emergency exception under s. 38(2)(b) of the Schedule.

Furthermore, the Tribunal held that the legal costs for a guardianship application are not covered as medical or rehabilitation benefits under the Schedule.

The respondent insurer sought a preliminary determination that the applicant was barred from proceeding with his Licence Appeal Tribunal application because he failed to attend catastrophic impairment examinations.

The applicant argued he was not required to attend because the insurer failed to provide adequate medical and other reasons for its decision and for the examinations, as required by sections 45(3)(b) and 44(5)(a) of the Statutory Accident Benefits Schedule.

The adjudicator found that the insurer's notices, which merely stated its decision was based on medical documentation and that it needed to verify the applicant's impairment rating, lacked sufficient explanation of its reasoning.

Consequently, the insurer failed to meet the statutory notice requirements, and the applicant was not precluded from proceeding with his application.

The applicant sought a rehabilitation benefit of $7,545.00 for personal training and a gym membership following a motor vehicle accident.

The adjudicator found that the applicant failed to prove the treatment plan was reasonable and necessary.

Medical evidence indicated the applicant had reached maximum medical improvement and did not specifically endorse the requested exercise program.

The claim was dismissed.

The applicant requested a reconsideration of a Tribunal decision finding her injuries fell within the Minor Injury Guideline (MIG).

The respondent argued the request was time-barred.

The adjudicator found the request was filed 9 days late and was therefore time-barred under Rule 18.1 of the Common Rules of Practice and Procedure.

Alternatively, the adjudicator dismissed the request on its merits, finding no violation of natural justice or procedural fairness, and no errors of fact or law that would have led to a different outcome.

The applicants requested a reconsideration of a Tribunal decision which found that the deceased's death was not caused by a motor vehicle accident.

The applicants argued that the Tribunal failed to consider the mental stress caused by the accident and exaggerated the deceased's pre-existing health conditions.

The adjudicator dismissed the request, finding that the Tribunal applied the correct legal test and properly relied on medical and coroner reports indicating that the death resulted from pre-existing medical issues and bleeding from a fall, rather than stress from the accident.

The respondent insurer requested a reconsideration of a Tribunal decision that removed the applicant from the Minor Injury Guideline (MIG) and awarded various statutory accident benefits, including non-earner benefits (NEBs) and treatment plans.

The insurer argued the Tribunal erred in fact and law on several grounds, including the applicant's failure to attend insurer examinations, the finding of chronic pain, and the start date for NEBs.

The Vice-Chair granted the reconsideration in part, expunging an erroneously awarded expense for clinical notes and records that had been resolved prior to the hearing, and amending the start date for NEBs to six months post-accident based on the applicable pre-June 1, 2016 Schedule.

The request for reconsideration was dismissed on all other grounds, as the insurer was primarily seeking to re-weigh the evidence.

The applicant requested a reconsideration of a Tribunal decision that denied two treatment plans for case manager services, including $600 for mileage.

The applicant argued the Tribunal erred in fact and law by not determining whether the mileage expenses were necessary and by finding the treatment plan unreasonable.

The Tribunal dismissed the request, finding that the applicant was merely re-arguing submissions from the original hearing without demonstrating any error in fact or law.

The applicant sought reconsideration of a decision finding her appeal for an income replacement benefit was statute-barred.

The Tribunal considered whether section 7 of the Licence Appeal Tribunal Act applies to extend limitation periods under the Statutory Accident Benefits Schedule.

Preferring previous Executive Chair decisions over a conflicting adjudicator decision, the Tribunal found section 7 does apply.

Applying the four-factor test for extensions of time, the Tribunal found the 13-day delay was caused by a law firm error, the applicant had a bona fide intention to appeal, and there was no prejudice to the respondent.

The extension was granted.

The applicant requested a reconsideration of a preliminary issue decision that found his claim for post-104 income replacement benefits (IRBs) was statute-barred due to a pre-emptive denial by the insurer.

The adjudicator granted the reconsideration, applying the recent Court of Appeal decision in Tomec v. Economical.

The adjudicator found that the limitation period is tied to the accrual of the cause of action and subject to discoverability.

Because the applicant was working full-time and not eligible for IRBs at the time of the pre-emptive denial, the cause of action had not yet accrued.

The preliminary decision was reversed, allowing the applicant to proceed with his claim.

Aviva sought reconsideration of a Licence Appeal Tribunal decision that found M.R. was entitled to payment for a chronic pain assessment and a neurological assessment under the Statutory Accident Benefits Schedule.

The adjudicator dismissed the request regarding the chronic pain assessment, finding no significant error of law or fact in the original decision's reliance on the medical records and the assessor's recommendations.

However, the adjudicator granted the request regarding the neurological assessment, acknowledging an error in focusing on headaches rather than the cervicalgia noted in the treatment plan.

The original decision was varied to deny entitlement to the neurological assessment.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for chiropractic treatment plans and a functional cognitive assessment.

The respondent denied the claims.

The Licence Appeal Tribunal found that the chiropractic treatment plans were incurred prior to their submission to the respondent, contrary to section 38(2) of the Statutory Accident Benefits Schedule, and no exceptions applied.

The Tribunal also found that the functional cognitive assessment was not reasonable and necessary, as the medical evidence did not show significant cognitive impairment requiring further investigation.

The application was dismissed, and no interest was awarded.

The applicant sought reconsideration of a Licence Appeal Tribunal decision that denied her entitlement to a cost of examination expense for a second chronic pain assessment.

The applicant argued the adjudicator acted outside his jurisdiction by recommending a treatment modality and violated procedural fairness by not allowing reply submissions on surgical options.

The adjudicator dismissed the reconsideration request, finding no error of law, fact, or procedural fairness, as the original decision correctly determined a second assessment was not reasonable and necessary.

The applicant sought an extension of the two-year limitation period under section 7 of the Licence Appeal Tribunal Act to dispute the termination of his income replacement benefits.

The Tribunal applied the four-part test from Manuel v. Registrar, considering the applicant's intention to appeal, the length of the delay, prejudice to the insurer, and the merits of the appeal.

Finding that the applicant failed to demonstrate a clear intention to appeal within the limitation period and provided little evidence on the merits, the Tribunal declined to extend the time.

The claim for income replacement benefits was dismissed as out of time.