News Update – June 10, 2019

Final word? CAT Assessments not included in $50,000 limit

In 17-007215 v Aviva, which may well be the final word on the matter, at least from the LAT, the Respondent sought reconsideration of an earlier decision that the costs of a CAT assessment were not encompassed by the non-CAT medical limits. The Vice-Chair hearing this matter found that there had been no significant error of law and further agreed with the Tribunal’s “interpretation of the Schedule that catastrophic assessments are not included in the $50,000 medical benefit limit”.

The Vice-Chair cited a line of cases that stand for the premise that a CAT assessment is neither a benefit nor a payment. He went on to note that the proposed assessment of $21,000 represented 42% of available limits, noting “to be denied 40% of available reasonable and necessary treatment may have a devastating impact on potential recovery”. Further, with the Schedule promoting expeditious treatment, “it runs in the face of that purpose to include a large percentage of available funds in reserve”.

While there are reportedly numerous similar cases before the Tribunal for Reconsideration, it seems unlikely that an alternative interpretation will be forthcoming. The Tribunal continues to reference the proposition of injured parties not being obliged to hold upwards of 40% of available limits in reserve. Unasked is the question of why CAT assessments constitute such a high percentage of available limits.

No Jurisdiction for Stand-Alone MIG Determination

In 18-005228 v Aviva, somewhat of a similar situation, the Tribunal considered whether the determination of whether MIG applies could be advanced as a stand-alone issue. The Tribunal in this instance held, “in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies, the Tribunal does not have jurisdiction to determine whether the MIG applies.”

In coming to this conclusion, it was noted that this issue is distinguishable from the issue of whether the Tribunal has jurisdiction to make a CAT determination on a stand-alone basis. The basis of which was found in the fact that an “insured is entitled to apply for a CAT determination pursuant to section 45 of the Schedule, and a denial of such a determination then gives rise to a dispute that the Tribunal has jurisdiction to decide. There is, however, no provision in the Schedule that entitles an insured to apply for a MIG determination.” Further, while “the issue of whether the MIG applies is routinely decided by the Tribunal, the Tribunal decides that issue as a threshold issue in an application where entitlement to benefits provided for in the Schedule is in dispute.”

In finding “there is no dispute before the Tribunal over which it has jurisdiction”, the Tribunal clarifies the clear distinction between CAT vs MIG determinations.

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