Sokoloff Lawyers are thrilled to announce a significant victory for our client that was secured at the Divisional Court.

Exciting news!
 
Sokoloff Lawyers are thrilled to announce a significant victory for our client that was secured at the Divisional Court.

The Divisional Court granted an appeal from the decisions of the License Appeal Tribunal (“LAT”) and ruled in favour of our client on two significant matters.  

Firstly, the Divisional Court found that the LAT erred in law when it failed to consider whether it should make a special award under s. 10 of Regulation 664. At the LAT Hearing, our client claimed a s. 10 award (“special award”) in respect of two benefits: the insurer’s delay in paying her income replacement benefits (“IRBs”) and its delay in removing her from the minor injury guidelines (“MIG”), which delayed the payment of approximately $62,000 worth of benefits. In respect of both the IRBs and the MIG, the insurer reversed its denials shortly before the scheduled LAT Hearing. While the MIG and IRBs were not substantive issues the Adjudicator was required to determine, there was never any agreement that the insurer could avoid a special award by acting unilaterally to reinstate the benefits when it did. To the contrary, we made it clear to the Adjudicator that the delay in paying these benefits was going to form the basis for a request under s. 10.  The Adjudicator refused to make a special award. The reason for her refusal was brief, “As I have found that the applicant is not entitled to any of the benefits claimed, there is no basis for an award”. The LAT maintained that position in its Reconsideration decision.

On appeal, in finding for our client, the Divisional Court noted that the Statutory Accident Benefits Schedule is consumer protection legislation and that one of the ways consumers are protected is when insurance companies are encouraged to be efficient in their resolution of legitimate benefit disputes. The Court highlighted that section 10 is a vehicle for promoting efficiency by deterring insurance companies from unreasonably delaying the payment of benefits to which an insured is entitled. Insurers should not be able to unreasonably delay payments to insureds without consequences, thereby causing vulnerable people who are injured increased hardship and suffering.

The second ground for the appeal was in respect of procedural fairness at the LAT. The Divisional Court found that the LAT breached procedural fairness when it admitted and relied on the report of the insurer’s psychiatric expert, in spite of the fact that the insurer’s expert refused to attend the hearing and be cross-examined though he was duly summoned. The Court held that once it was clear that the insurer’s expert psychiatrist was not going to appear at the hearing to be cross-examined, the LAT should have refused to admit his report into evidence. Instead, the Court noted that the LAT promised to take steps to mitigate the unfairness occasioned by admitting his report, but then did not do so and in fact relied on it to find against our clien.

As a result, the Divisional Court set aside the Hearing Decision and the Reconsideration Decision and ordered that the application be referred back to the LAT for a hearing in front of a differently constituted tribunal.