Volume. 3 Issue. 10 – April 10, 2019

That’s Going to Cost You…Sort of?

In 17-001154 & 17-001337 v Coachman, while finding that the Applicant was not catastrophically impaired, the Tribunal nonetheless made a costs award against the Respondent. The Applicant sought costs based upon the Respondent’s “actions during a series of events regarding the length and timing of closing submissions, which delayed the matter for six months, ultimately resulting in a reconsideration decision of Associate Chair J. Batty, dated January 25, 2018”. The Tribunal found that “the series of events was ‘unreasonable’. It caused [the applicant] – who is seriously impaired – a delay in receiving a decision by six months.”

While being sure to “commend both counsel for their excellent and vigorous representation of their clients”, the Tribunal found that “the entire process and delay stems from [the Respondent]’s continual failure to comply with timeliness and page limits – which it agreed to at each step of the way…In fact, I allowed [the Respondent] a late and expanded submission. Yet that did not end the matter, though it should have. Thus, it’s the cumulative effect of many small actions regarding the submissions – coming from one party – that triggers the Rule’s high standard.” Further, “[the applicant] timely filed his submission, but was forced to appear for conferences, draft several unnecessary filings, and suffer delay”. Accordingly, “given the unreasonable, but not egregious, actions and, to be in line with the Tribunal’s other decisions, I set costs at $1,500.00”.

Slap on the Wrist

In two further cases, the Tribunal saw fit to impose a cost award against the Applicant, confirming that the Tribunal may “order a party to pay all or part of another party’s costs in a proceeding”.

In 18-001031 v Aviva, it was found that “the applicant’s conduct was in direct breach of an order issued by the Tribunal”. Since the Respondent was not seriously prejudiced by the Applicant’s conduct, the Tribunal found a cost of $300 was appropriate under the circumstances.

In 16-001032 v Allstate, the Applicant “did not request the consent of the Tribunal with respect to filing late submissions and evidence. Nor did the applicant provide a reasonable explanation with respect to why their submissions were late or why the documents were not disclosed in accordance with Rule 9 or the Case Conference Adjudicator’s Order.” The Tribunal found “this behaviour was unreasonable” and awarded $125 in costs to the Respondent.

“Bizarre and Unprecedented” Resulting in Award Granted

In 17-009121 v TTC, the Applicant was not successful in establishing entitlement to NEB or ACB, being granted only two of three Treatment Plans for physical therapy. However, an award was “appropriate in these circumstances based on the lack of transparency [the Respondent] afforded the applicant during the adjustment of her file”. As a result, the Respondent “breached its duty to adjust the applicant’s claim continuously in good faith, resulting in the unreasonable withholding and delay of benefit payments”.

Further, “while comment on [the Respondent]’s internal processes as a whole is beyond the scope of this hearing, in my view, the lack of adjuster’s notes or log notes—or really, any evidence of internal communication between individuals handling such a voluminous file at any time during the life of the claim—over the span of two and a half years is, quite frankly, bizarre and unprecedented. At times, [the Respondent] seemed to double down on its lack of transparency in its processes, submitting that relying blindly on the results of Insurer’s Examinations and issuing denials without evidence of internal decision-making is normal industry practice. I disagree. To echo the applicant’s counsel, I do find that this may be ‘the only case ever where there are no notes, ever’.”

The Tribunal did not “accept that a sophisticated party like the [the Respondent] could continue to exist and function without some sort of internal record-keeping process to organize its business, continuously adjust active claims and convey information between employees who, evidently, come and go with some regularity”. An award of $1,000 was granted, representing 40% of benefits awarded.

The Camera Doesn’t Lie?

In three recently reported cases, surveillance evidence produced by the Respondent was largely determinative of the issue at hand. However, this was not always the case…

Severely Hampers – In 18-002962 v Guarantee, the Tribunal found surveillance evidence to be “compelling” in demonstrating that the Applicant’s impairments were “not continuous and uninterrupted as a result, as required by the Schedule”. While the Applicant “does not have to prove that she is handicapped”, the “surveillance evidence alone severely hampers her case”.

On Vacation – In 17-000565 v Wawanesa, the Respondent provided surveillance evidence confirming that the Applicant “took a cruise to Spain, France and Italy in August 2016” and further that “the applicant is seen walking, running, laughing and carrying bags and lifting a box over a two day period without any visible discomfort”.

Can’t Leave the House – In 17-006537 v Aviva, the Applicant contended that she did not attend a scheduled IE, as “her psychological and pain-related impairments ‘got so bad that she didn’t want to leave her house’”. Surveillance evidence however showed the Applicant performing a number of activities outside the house “all without apparent difficulty or limitation”. The Tribunal accepted this evidence, which was unexplained or uncontested by the Applicant.

However…

Making Their Case – In 18-001560 v Allstate, surveillance evidenced “the applicant and her fiancé were in a vehicle at a gas station and they appeared to be having an argument while her fiancé was fueling the car. The applicant and her fiancé both testified that they argue a lot. I find the surveillance evidence strongly corroborates the testimony provided by the applicant and her fiancé as it showed the applicant driving short distances locally for short periods of time to go to a local store, or drive-thru before returning to her home.”

Wholly Incongruent, Not – In 17-001981 v RBC, “the respondent submits that video and photographic surveillance obtained…is wholly incongruent with the applicant’s claim for impairment. The applicant asserts that she has never claimed that she could not drive, walk up and down stairs, sweep and carry groceries”. Agreeing with the Applicant, the Tribunal found that “the fact that the applicant was able to carry on certain normal activities does not materially conflict with the medical evidence indicating that she suffered pain, discomfort and restricted range of movement. I attach little weight to the surveillance as it fails to substantiate the applicant’s lack of impairment.”

Degrees of LATitude

“No Crash, No Cash”

In 17-008345 v Guarantee, the Tribunal confirmed that as per the Insurance Act, “no statutory accident benefits are payable in respect of an occupant of a public transit vehicle…..if the public transit vehicle did not collide with another automobile or any other object in the incident”; essentially, the ‘no crash, no cash’ rule for claims involving public transit vehicles for statutory accident benefits. While the Tribunal accepted the description of the Applicant’s injuries and that her injuries very likely occurred on a bus, the Tribunal found no direct evidence in support of the Applicant’s testimony that her bus was struck by another bus. In the absence of supporting evidence and any incident report on record with the transit service, the Tribunal found no collision had occurred.

A Matter of Privilege

In 18-004555 v Wawanesa, litigation privilege arose in September 2014 when the Applicant filed an arbitration application for NEB with FSCO. Subsequently, there was a filing at the LAT for a dispute over CAT determination. The Tribunal held that “the litigation privilege that arose in the 2014 application continues for the purpose of this application and that litigation privilege attaches to surveillance evidence, if any, created after that date”. Quoting the Court, “the litigation is not over until it is over: It cannot be said to have ‘terminated’, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.” Accordingly, “the privilege may retain its purpose — and, therefore, its effect — where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended.”

In this instance, the claim for NEB made in the 2014 application “shares sufficient commonality with the CAT determination in dispute in this application to support a finding that the litigation privilege that arose in the 2014 application continues for the purpose of this application”. Both determinations “examine the same fundamental issue: the applicant’s level of impairment resulting from the accident. Although the specific test that must be satisfied is different for each determination, the underlying factual basis for the determination of both claims is very similar. In this sense, both the 2014 application and the current application are, in my view, closely related proceedings that raise sufficiently common issues to satisfy the test for continuing litigation privilege.”