Volume. 3 Issue. 8 – March 27, 2019

Impossible and impractical to expect the Applicant to submit a Form 1 earlier, thereby leading to retroactive ACB entitlement for over eight years

“The Tribunal sets out a clear message confirming that an insurer needs to balance the managing of risk with the equally important duty to inform claimants as to their potential entitlements. “At no time did [the Respondent] inform [the Applicant] of her rights to accident benefits despite its obligation to do so, which omission is glaring as it now argues she should have applied.”

A Glaring Omission – In 18-000790 v Jevco, the Applicant, who was injured in a November 2007 accident, did not apply for accident benefits until March 2015, or specifically for attendant care benefits until December 2015. However, “based on the unique circumstances in this case, [the Tribunal] find that [the Applicant]…is entitled to the ACB and retroactive interest from November 9, 2007 (discharge from the hospital after the accident) to December 25, 2015.” As the Applicant had been rendered CAT, benefits were the maximum amount of $6,000 per month.

It was not until two years post-accident in 2009, upon filing a claim under tort, that the Applicant first became aware of the identity of the Respondent. The Respondent then took an off-cover position (that they eventually conceded in September 2014), and repeatedly indicated there was no policy for the vehicle involved, with the position said to “inherently mean it disputed any obligation to pay accident benefits”. The Tribunal found that the Respondent “failed to manage its risk, and more importantly, failed to fulfill its duty to inform [the Applicant] of available benefits or send her application forms to apply under s. 32, despite an insurer’s obligation to provide insured parties sufficient information to claim benefits”. “When [the Respondent] received a tort claim involving a pedestrian, it should have, at some level of the company, considered that it may be the priority insurer and reached out to her to advise her of the potential accident benefits and considered its own obligation to adjust the claim.”

In conclusion, the Tribunal reiterated that the Respondent “was aware of [the Applicant]’s potential claim early on, and to the extent its accident benefit department did not know, as I found above, it should have known. I do not accept that [the Respondent] can use its decision to dispute coverage, as a basis to fail to identify and inform [the Applicant] of her accident benefit claim and the ACB to which she may be entitled, and in turn, as a basis to now claim [the Applicant] is not entitled to benefits she ought to have received years ago.”

Of note: We can inform you that a reconsideration is in the works…

The Applicant “has a Marked Impairment in the Adaptation domain, enough to tip him over the fence into CAT”

Following 10 days of an in-person hearing on a pre-June 1 CAT determination matter, the Tribunal found sufficient evidence to “tip [the Applicant] over the fence into CAT” due in part to the Tribunal’s observation of the Applicant. The Tribunal stated, “I agree with [the Applicant]’s counsel that this was not a case where the parties were describing two different people, but rather, ‘arguing over the shades of grey between moderate and marked impairments’.”

On the Fence – In 18-000169 v TD, the Tribunal found that the Applicant “sits atop an imaginary fence between the two classes, where it was entirely reasonable to argue that he may fall to either side”. Following ten days of evidence, it was determined that the Applicant “has a Marked Impairment in the Adaptation domain, enough to tip him over the fence into CAT”. While noting that the Applicant “exhibits some evidence of functioning”, the Tribunal raised the question of whether it is the type of useful function contemplated by the Guides. From a psychological perspective, the Tribunal found that the evidence suggested that it is not.

Discussing multiple instances of inappropriate actions, described as “embarrassing, disproportionate—and in some cases, criminal—outbursts… In my view, they represent cries for help and a need for continuing treatment in order to protect [the Applicant] from himself, from his family and, potentially, the community.”

Degrees of LATitude

Not What I Signed Up For

In 17-004072 v The Commonwell, when presented with a number of jobs for which the “applicant was employable…as a result of her education, training and experience…”, the Applicant indicated that “she would have to deal with people and that she did not want to do these jobs”. While finding throughout that the Applicant provided “compelling” evidence that was “particularly persuasive”, this does not negate the obligation to consider occupations for which one is qualified

Excuses, Excuses

In 18-002177 v Aviva, provided to us by Geoffrey Keating at Kostyniuk & Greenside, the IE report indicated that “collectors/skip tracer/collections investigation officer was not an option for the applicant as the applicant had anger management issues” which would therefore “interfere with the social demands of the occupation”. In addition, the Applicant indicated that he would not go back to the insurance industry as he did not “ethically agree with his job”. The Tribunal reconfirmed the requirement to seek suitable employment, as there was no evidence of any attempts in the six areas of work options recommended in this instance..


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