Print

 

Volume. 4 Issue. 35 – September 9, 2020



Unreasonable, Frivolous and Even Bad Faith Behaviour

The Cost(s) of Bad Faith – In 18-009967 v Allstate, a matter with a long procedural history, the Applicant brought a motion making seven specific orders for productions, as well as an order for Costs. After ruling on the various requests, the Tribunal considered the request for costs, citing numerous transgressions on the Respondent’s part. Firstly, they were in breach of an Order to which it consented (to produce the IME file) and “an applicant should not have to bring a motion to compel the respondent to abide to a Tribunal order especially an order that was consented to.” Further, “the respondent has not been forthcoming in its information and caused confusion by again ignoring the letters from the applicant when he was seeking clarification regarding the existence of an IME File.”

The fact of having ignored letters seeking clarification “constitutes unreasonably (sic) behavior and bad faith and caused the motion.” The Respondent was found to have “acted in an unreasonable manner that it frustrated the Tribunal’s capacity to maintain an efficient proceeding and in a manner that was disrespectful to the applicant and in bad faith by ignoring the requests from the applicant and its obligations under section 50 of the Schedule.” Collectively, the actions of the Respondent “do rise to the threshold of unreasonable and frivolous and even bad faith by not abiding to the Order of the Tribunal and by ignoring letters from the applicant.” As a result, the Tribunal ordered costs payable in the amount of $500.



Consumer Protection Excuses Late CRA Filing

Very Late CRA Filings Accepted After In-Person Hearing – In 18-007077 v Aviva, the Applicant sought ongoing IRB based upon his reported 2016 earnings, with his CRA NOA confirming earnings of $3,000. It was then not until after the conclusion of the in-person portion of the hearing that the Applicant provided an updated 2016 NOA, with income now reported as $37,400. The Applicant “conceded” that there were “errors” in his original filings, “but his updated filings provide an accurate representation of his pre-accident earnings.”

The Respondent argued that this was not an “error”, as the 2016 T4 indicated $9,000, with the NOA lower still at $3,000, and that it was “highly unlikely” that the Applicant, would somehow have missed these “dramatic differences”, calling the Applicant’s credibility into question. Further, the Respondent argued that the Schedule denotes that income is to be calculated “without reference to any income the person has failed to report contrary to that Act or legislation. Since the applicant did not report his full income to the CRA at first instance, he must be held to the lower amount in his original Notice of Assessment.” The Tribunal however indicated that credibility was “not a feature of this analysis… the focus is on the amount accepted by the CRA.”

Further, the interpretation from the Respondent “ignores the consumer protection mandate that underpins the entire Schedule.” This mandate “is best protected through an interpretation of these provisions that is not concerned about what caused the CRA to issue a reassessment. Rather, so long as the CRA has ‘determined’ that a reassessment must take place, this updated amount should be relied upon by the Tribunal.” Therefore, the Applicant was entitled to the maximum IRB of $400 per week.



“Gift” Returned as Income Confirmed

Income Not a “Gift” – In 17-006525 v Aviva, the case of a “gift” v. “income”, a rehearing was ordered before the same adjudicator. The Tribunal, following a review of the transcripts from the original hearing, the evidence and the law found that the Applicant was in fact receiving post-accident employment income that is deductible Further, “there is no cogent and compelling evidence in support of the applicant’s claim that the money was a gift.” With the Respondent therefore entitled to deduct the confirmed post-accident earnings, there was no IRB payable as a result.

The Applicant’s position was that she was not actively employed and was therefore not earning employment income from her mother’s business. The Respondent noted specifically that “the Income Tax Act does not treat income differently depending on how active a person is. The Tribunal found that “section s 4, 7(2), 7(3)(b) of the Schedule do not distinguish between active and passive income in the calculation of the insured’s income…any net income (active/passive) earned post-accident should be deducted, to avoid…a gross overpayment…” Therefore, “the applicant does not have to be actively engaged in or ‘doing work in exchange for money’, in order to be considered to be receiving income as a result of employment.”

Considering whether the payments could constitute a “gift”, the Tribunal found no corroborating evidence of such, specifically finding missing “the intention to make a gift on the part of the donor, without consideration or expectation of remuneration”. There had been no discussions with her accountant about paying the daughter money as a gift rather than income through the business. The evidence showed “the applicant to have received the money in the same form post-accident as she did pre-accident. There was no difference; it was reported to the CRA as income from employment for tax purposes and the documentation in support of her request for an IRB also showed it to be income from employment.”



Related LAT inFORMER issues:

“There could not have been any more flagrant non-compliance than this” – IE Report ExcludedCosts Awards – Sufficient Deterrence?
Remaining on Payroll Does not Equate to Employment Income


Access inHEALTH’s research resources through Live Chat and reduce your research time!

 

Archive of LAT Updates

April 30, 2025: Tribunal Confirms Four Class 4 Marked Impairments

CAT

April 28, 2025: MIG Not Conceded Despite Approved CAT Assessments

MIG

April 23, 2025: Court Reverses Tribunal’s Unreasonable Adjournment Refusal

Adjournment, CAT, Divisional Court

April 21, 2025: MIG Escape on Fractured Tooth 15 Months Later

MIG

April 16, 2025: Deficient Notice Renders NEB Payable

NEB

April 14, 2025: MIG Valid Medical Reason

MIG

April 9, 2025: Bus Travelling Over Elevated Manhole Cover Satisfies “Collision”

Definition Accident

April 7, 2025: Four OCF 18’s Payable Despite MIG Hold

MIG

March 26, 2025: Post 104 IRB Ongoing for Non-CAT

CAT, IRB

March 24, 2025: 30% Award for Failure to Review CNRs Overturned on Reconsideration

MIG

March 19, 2025: Yes to CAT, No to Post 104 IRB

CAT, IRB

March 17, 2025: Imaging Report Alone Insufficient to Establish Causation

MIG

March 12, 2025: Tribunal Rules Again on Matter Referred Back by the Court

Definition Accident, Divisional Court

March 10, 2025: Res Judicata Waived on New Evidence

MIG

March 5, 2025: No Criterion 8 CAT as Physical Pain the Limiting Factor

CAT

March 3, 2025: Cause of Shoulder Tear Degenerative or MVA Related?

MIG

February 26, 2025: NEB Payable to 104 Week Mark Due to Technical Breaches

NEB

February 24, 2025: Doctor Not Required to Provide Diagnosis

MIG

February 19, 2025: Court Sets Aside Tribunal S.32 Notice Decision

Breaking News, Div Court, Limitation Period

February 12, 2025: Post 104 IRB Despite Employment & No CAT As Only Two Marked Impairments

CAT, IRB

February 10, 2025: GP Evidence Preferred over IE Regarding Concussion

MIG

February 5, 2025: No Election Required Despite Endorsement of IRB & NEB

Procedure, SABS

January 27, 2025: CNR’s + Imaging Determinative of Complete Shoulder Tear

MIG

January 22, 2025: Court of Appeal Upholds Divisional Court Decision

Divisional Court, NEB, Reconsideration

January 20, 2025: GP’s Diagnosis of “Head Injury” Prevails

MIG

January 15, 2025: Tribunal Accepts Neither Expert in Awarding Pre But Not Post 104 IRB

IRB

January 13, 2025: A Brain Contusion is Not Enough for a Concussion Diagnosis

MIG

January 9, 2025: Court Awards $69K in Costs for Apparent Miscarriage of Justice

Divisional Court,Costs

January 6, 2025: Corroborative Evidence Not Necessarily Required in Psych Diagnoses

MIG

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG