In the recent decision of Flerova and Economical, 2025 ONLAT 22-01455/AABS the Applicant made no arguments on whether their impairments fell outside of the MIG, instead arguing the validity of each of the denials pursuant to s.38 of the SABS. Our office was able to successfully defend each and every denial reaffirming the recent LAT decision of Golden v Economical Mutual Insurance Company, 2024 CanLII 2672 (argued by my colleague Colin MacDonald) which confirms that there is no statutory or common law obligation for the insurer to list the Applicant’s specific injuries in a denial, rather, the insurer need only provide medical or other reasons.
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They say “you never forget your first”. The decision in Lacnit and Economical was the first file that was ever assigned to me following my call to the bar and the first file I ever handled from opinion through to decision making this decision incredibly special to me. As new lawyers, we must remind ourselves to walk before we can run and to always start with the basics. This decision is a perfect example of that. Although the Applicant reported both physical and psychological complaints to his treating practitioners and assessors, these complaints were not supported by the records of his family doctor. Post-accident complaints of neck and shoulder pain reported 7 months post-accident were not attributable to the accident. While it’s always fun to brainstorm new and interesting technical defences, sometimes simply relying on the medical records is enough to secure a great result for the client. More importantly than the basics, a strong team contributed to this win. Special thanks to Jason Zhang for preparing the document brief and Kadey Schultz, LL.B. LL.M. CRM for all of her guidance along the way.
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“The issue of medical evidence in support of claims for chronic pain and/or chronic pain syndrome is one that frequently comes before the License Appeal Tribunal for disputes. Where an Applicant can prove a diagnosis of Chronic Pain Syndrome within the AMA Guides, or where they can prove a diagnosis of “chronic pain” with a corresponding impairment of their function, they will be removed from the Minor Injury Guideline. In the recent LAT Decision of Arifi v. Economical Insurance, Adjudicator Beauchesne clearly set out some important principles for medical evidence on these issues. With respect to the various factors for Chronic Pain Syndrome in the AMA Guides, the LAT held that relying “heavily” on prescription medication is not the same thing as “use of prescription drugs beyond the recommended duration” and does not constitute “abuse” of prescription medication. The LAT also confirmed that an Applicant’s self-reporting on things like withdrawal from social milieu are insufficient to satisfy that branch of the test, even if those self-reports are included in a treating physician’s records. The LAT held that reliance on the “injury list” portion of a Disability Certificate (OCF-3) is insufficient to demonstrate an injury outside the MIG unless those injuries are corroborated by other contemporaneous medical evidence. In this case, no such evidence was referred to. Lastly, the LAT made reference to a number of points where the Applicant’s written submissions and self-reports to treating physicians was inconsistent with the objective surveillance evidence obtained by the Respondent. These findings reiterate the importance of strategic investigations being conducted early on and throughout the life of a claim file. While it is certainly not the case that every surveillance report will contain a “smoking gun” so-to-speak, the potential value of evidence showing an Applicant engaging in much more functionally demanding activity than they reportedly are able to sustain is incalculable. This is true not just in the context of MIG disputes, but also in the context of CAT disputes, where impairment of function is often the determining factor between a CAT claim and a non-CAT claim. I recommend that anyone advancing arguments that an Applicant’s self-reporting to a family physician, in the absence of other supporting medical opinion evidence, is insufficient to establish a claim for chronic pain and/or a removal from the MIG on that basis.
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LAT Finds No Settlement Absent Meeting of the Minds The LAT has confirmed that a mutually agreeable signed release and SDN can be considered essential terms of a settlement in an accident benefits settlement. In Robinson v AIG Insurance, 2024 ONLAT 23-0088800/AABS the parties reached an “agreement in principle” as to the monetary amount of a settlement, but could not agree on the terms of the release – specifically whether AIG’s insured could be included in the release. The emails from AIG’s counsel were clear that a mutually agreeable worded release was an essential term of the settlement. When settlement discussions fell apart, the Applicant signed the Settlement Disclosure Notice, unilaterally crossing out the reference to the signed release. No release had ever been executed by the Applicant at the time of the hearing. Co-Adjudicators Rebecca Hines and Dagmara Szczudlo concluded that Section 9.1(3) of Regulation 664 is clear that both a signed release and SDN are required components of a settlement agreement in an accident benefits settlement. They determined that the Applicant’s unilateral amendment to the SDN was evidence that the release was an essential term of the settlement that had not been agreed upon by the parties. As the Applicant had not signed an SDN or release in the form agreeable to both parties, there was no meeting of the minds on the essential terms and therefore no enforceable settlement. The Applicant requested the alternative relief of an Order requiring removal of all references to AIG’s insured from the release. The LAT concluded that its authority was limited to a determination as to whether the parties reached a binding settlement and that there was no authority of the LAT to dictate the terms of the settlement. This is a significant development in the evolution of settlement enforcement cases at the LAT which had previously only addressed enforcement of settlements where the Applicant had passed away prior to execution of the settlement documents.
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For anyone who gets an argument from opposing counsel about deficient notice letters, check out this decision. Not only does it reiterate the well established principle that insurers are not doctors, and their notice letters do not need to be perfect. This decision also held that insurers do not need to “refer to specific pieces of evidence” in their denial letters.
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The Applicant claimed to have a diagnosis of a concussion but the LAT agreed that the “?” next to the word concussion meant there was no diagnosis.
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This is the case involving an Ontario man, who misrepresented in his Application for Insurance, then had an accident in Michigan and elected to receive Michigan benefits, then got caught in the misrepresentation.
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Interesting accident benefits decision where the applicant was barred from receiving IRBs due to material misrepresentations in his application for insurance. The applicant was ordered to repay $72,881.74 to the insurer plus interest.
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Motion Endorsement for complex motion/cross-motion regarding the test for further examination for discovery, and the binding nature of appraisals under s. 128 of the Insurance Act. Contains valuable judicial commentary about the manner in which counsel comport themselves during examinations.
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Important decision confirming that adjusters and their lawyers can share information between claims to investigate suspected fraud and that counsel can act for both a priority dispute and LAT proceeding flowing from the same accident.
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Important priority dispute decision dealing with allegations that the insurer of a rental vehicle had an insufficient claims handling program in place to ensure that the Applicant's claim for accident benefits was not deflected to another insurer which did not insure the loss, but which had offered Accident Death and Dismemberment coverage at the rental location.
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Successful Reconsideration decision confirming the Insurer was not obligated to pay any further benefits and the LAT Application was dismissed.
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In this landmark case, the Court of Appeal confirms that for losses prior to June 3, 2019, the attendant care benefit limits are inclusive of HST.
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A LAT decision dismissing claims for NEBs, interest and a s. 10 award.
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An interesting LAT decision which further develops the "aberrant use" doctrine at the LAT. The Vice-Chair declined to find that the contemporaneous clinical notes indicating the Applicant was suicidal pre-accident and the treating psychological counsellor's post-incident clinical note that this incident was a suicide attempt resulted in a conclusion that the Applicant was using the vehicle for the aberrant purpose of trying to kill himself.
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Superior Court Appeal confirming the OAP 1 extends accident benefits coverage to a rental vehicle as a "temporary substitute automobile" so long as the described vehicle is not operational.
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Economical policy provided coverage for temporary replacement vehicle under the OAP 1, meaning that it was the priority insurer and could claim loss transfer against Intact.
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Precedent setting Divisional Court appeal decision confirming that for accidents prior to June 3, 2019, HST is payable as an incurred attendant care expense within the policy limits. In the initial LAT Hearing, the Adjudicator decided that HST is not a “reasonable and necessary” expense and therefore was not subject to the $6,000 limit in s.19(3) of the Schedule or the policy limit of $1,000,000. He concluded that the insurer has to pay it as a tax, which the Adjudicator found was distinct from an expense. The Divisional Court concluded: "The problem with this reasoning is that the tax legislation does not impose an independent obligation on the insurer to pay HST and s. 14 of the Schedule only requires the insurer to compensate the insured for attendant care benefits as they are defined under s. 19: “reasonable and necessary expenses.” Therefore, if the HST is not a “reasonable and necessary expense” under the Schedule, the Schedule does not obligate the insurer to pay it."
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Successful motion for production of prior AB claims file and medical records more than three years prior to the current MVA.
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Important priority decision confirming the consequences of Co-Operators' deflection of the claim to Algoma, with optional benefits under the Co-Operators policy.
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Interim decision requiring the Applicant to produce outstanding productions and for summonses issued to third parties for employment and LTD records.
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Successful opposition to a motion for summary judgment to recover $62,264.74 following a suspicious fire loss and allegations of money laundering.
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An important decision regarding the LAT's common-law duty to safeguard the identity of a whistleblower and to avoid a chilling effect that may impact other informants from providing assistance in cases involving alleged insurance fraud.
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Adjudicator Robert Watt, in his recent Reconsideration Decision of December 18, 2019, upheld a prior LAT decision denying the claim that his injuries arising from a motor vehicle accident fell outside of the Minor Injury Guideline. In doing so, Adjudicator Watt maintained what has long been accepted by both FSCO and the LAT alike: a diagnosis of chronic pain will not in and of itself automatically remove an insured/applicant from the MIG.
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LAT Hearing confirming applicant was not principally dependent upon his father for finances and therefore not an "insured person".
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Written LAT Hearing dismissing claims for MIG and various OCF-18s.
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Following a 106-day trial, the plaintiff sought in excess of $60,000,000 in damages and was awarded $50,000, far less than the Defendants' offers to settle.
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A claimant who returned to work post-accident and then discontinued was found to not meet the substantial inability test. The insurer successfully argued the claimant lacked credibility and was an inconsistent historian about past injuries and claims.
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The Supreme Court of Canada declined to give leave to appeal, without reasons (as is customary.
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Important LAT decision following the ONCA Stranges decision to find that "technical entitlement" does not exist under the SABS. Rather, the insured must prove that they meet the substantive test for entitlement during a period of the insurer's "technical" non-compliance with a procedural pay pending provision. Reconsideration filed by the Applicant.
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Written LAT Hearing confirming "Ferawana" argument did not apply - Application dismissed.
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Interesting priority dispute decision dealing with the 'LICO' and 'big picture' approaches to financial dependency for an adult who earned "grey market" cash income prior to the accident.
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The Court of Appeal concluded it was reasonable for the summary judgement motion judge to find that the use of a parked motor vehicle in a drivethru directly caused impairments from a scalding hot cup of coffee.
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Successful appeal confirming dismissal of accident benefits claim due to failure to notify the Insurer of the claim within 30 days of the accident.
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FSCO Appeal pertaining to an order that the Applicant's paralegal personally pay the costs of a frivolous proceeding.
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This FSCO decision confirms an assault is an intervening act breaking the chain of causation between the use of a vehicle for a motoring purpose and the direct cause of the injuries. Despite the contemporaneous use of the insured taxi, this was not an accident under the SABS.
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Successful motion to stay a related Small Claims Court matter pending the Insurer's Superior Court action to recover damages for breach of contract & fraudulent misrepresentation from an alleged staged motor vehicle accident and related claim for accident benefits.
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A mid-Trial ruling that the Plaintiff's proposed expert accounting witness was not an Expert Witness under the Rules.
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Interesting LAT Motion Decision confirming that a recording of an expert made without notice to the expert was not admissible.
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FSCO arbitration proceeding dismissing claims for NEBs, MR and a Special Award. The Applicant was ordered to pay $22,340 in costs.
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In a precedent setting preliminary issue decision, Kadey Schultz secured a withdrawal of claims for Income Replacement, Attendant Care and Housekeeping Benefits as well as costs of $19,620.36 payable to RBC as a result of the fraudulent claim for IRBs.
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Precedent setting Court of Appeal decision confirming proper interpretation of Rule 9 of the Fault Determination Rules.
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With a unanimous 3-0 decision, the Court of Appeal confirms that heavy commercial vehicle insurers only pay loss transfer to insurers of vehicles with which they actually collide under Rules 9 and 11 of the Fault Determination Rules.
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The now infamous December 5, 2014 Williams and State Farm Preliminary Issue Motion Decision found that s. 36(4) prohibits a s. 33 examination under oath for specified benefits if it is not requested within 10 days of the insurer's receipt of the OCF-1 and the OCF-3. The Appeal Decision(FSCO Appeal P15-00001)confirms that an EUO is permitted at any time to address past, present or future benefits.
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A landmark decision dealing with a delayed retroactive claim for Attendant Care Benefits and a precedent setting award of interest and a Special Award.
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A unique precedent and successful Loss Transfer Appeal confirming that an insurer who fails to properly transfer priority for an accident benefits claim cannot claim loss transfer.
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Superior Court Appeal of a private arbitration decision challenging the correct application of Rule 9 of the Fault Determination Rules. The entire industry awaits the appellate ruling from the Ontario Court of Appeal as hundreds of millions of dollars in potential indemnification claims remain pending.
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Juriansz J.A.'s insightful dissent confirming that a motor vehicle liability insurer in Ontario is obligated to respond to a claim for accident benefits and then initiate a priority dispute was affirmed by the Supreme Court of Canada on April 21, 2015 in Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2015 SCC 19 (CanLII).
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FSCO decision confirming the onus is on the insured person to prove that their impairments are not predominantly minor in nature in order to be entitled to medical and rehabilitation benefits outside of the MIG and the hard cap of $3,500.
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Successful appeal from a Master's decision requiring the Defendant to answer certain questions and produce documents not covered by a statutory privilege found in the Education Act.
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After a 32-day trial, the action was dismissed.
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Textbook opposition of motion to set aside registrar's dismissal of the action. Despite solicitor's negligence, the action was restored. $16,500 in costs awarded to the unsuccessful insurer.
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Successful motion at the outset of the Arbitration Hearing excluding all of the Applicant's documentary evidence.
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Interesting motion to dismiss the personal injury action for delay due to failure to satisfy undertakings and against the background of a WSIB fraud conviction during relevant times.
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Appeal confirming the dismissal of the arbitration and costs against the legal representative, personally.
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Court of Appeal decision dealing with the AB settlement regulation and enforcement of settlement after the insured discharged their counsel.
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FSCO Arbitration Decision dismissing housekeeping benefits claim.
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FSCO Appeal confirming s. 33 suspension of benefits and remitting matter back to arbitration to determine whether the Applicant had a reasonable explanation for the s. 33 non-compliance.
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