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 Volume. 7 Issue. 14 – April 19, 2023


Two weeks ago, we reported on Spiegel v Intact (20-000279) wherein the applicant was found to be liable to pay a maximum costs award. Perhaps not to be outdone, the Tribunal this week provides insight into conduct that would warrant a maximum costs award against a respondent.



LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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Maximum Costs Award Against Respondent

Applicant Awarded $2K Costs – The hearing for 20-012739 v Belairdirect, commenced December 19, 2022, and during the first two days the Tribunal decided on a number of motions. One such being a request for an adjournment, which was denied, prompting the Applicant Ayaz to withdraw her application for dispute resolution.

One motion was brought by Ayaz contending there to have been improper redaction of log notes. Ayaz argued that it was “suspicious that numerous posts on a single date were redacted, that long paragraphs were redacted, that log notes were redacted for privilege long before an application to the Tribunal was filed and that log notes were redacted for internal conversations.”

After counsel for Belairdirect reviewed the individual redactions, it agreed to disclose 62 of the log notes, with a dispute arising on the remaining two.

One note was redacted for “privilege- internal discussions client and client”, Belairdirect arguing that “the note should be redacted for litigation privilege and that a conversation between two colleagues internally should be kept confidential.” The Tribunal ordered this note to be disclosed, citing the Court in Blank v. Canada that the purpose of litigation privilege “is to create a zone of privacy in relation to pending or apprehended litigation” and terminates when litigation on the issue ceases… litigation privilege should attach to documents created for the dominant purpose of litigation.”

The Tribunal could not “see how the log note was created for the dominant purpose being litigation considering the application for dispute resolution was not filed until 18 months later… This log note pertains to the adjusting of the non-earner benefit and at that time the benefit had not been denied. Therefore, I cannot see how the respondent could have anticipated litigation considering the issue had not yet been denied.”

The second contested note referenced a discussion between Belairdirect and counsel regarding an OCF-19 submitted for a catastrophic determination. This note however was found to have been properly redacted, as “I have no knowledge of a law that prevents an insured from speaking to their lawyer regarding benefits. Also the claim was already in litigation at that time, so it is reasonable that an insured may choose to speak to counsel.”

Ayaz further argued that redactions for “reserve discussions” were not proper, as the Court has confirmed this referred only to the number. Belairdirect argued that “there is more to reserve discussions than just a number.” The Tribunal agreed that Belairdirect “has properly redacted the log note. The respondent may redact for reserve and reserves discussions if it does not pertain to a benefit being adjusted. In this case, it does not.”

Ayaz also brought a motion for costs. It was noted that an earlier motion was successful when Belairdirect had not complied with an order to produce log notes, with both a motion to produce being made, as well as a cost award ($200) against Belairdirect. Ayaz contended that “improperly redacting the log notes created a time-consuming and unnecessary process.” Belairdirect countered that costs had already been awarded, and that the earlier order anticipated that dispute would arise with respect to the notes provided, as the order states that if they did, it could be brought to the hearing adjudicator.

The Tribunal found that “the conduct of the respondent was a serious breach of the Tribunal’s order and meets the high bar of bad faith. The actions on behalf of the respondent were a gross violation of trust between officers of the court…in the end, the respondent has a serious responsibility to properly redact the log notes. The actions taken by the respondent were an abuse of power.”

Further, that Belairdirect “had all knowledge to know whether a log note should be redacted, and the applicant had to trust that the redactions were fair and appropriate. The Tribunal and counsel wasted countless hours pouring through the log notes, only to have two log notes in dispute. The respondent agreed that 62 log notes were improperly redacted and agreed to disclose them. Had someone cared to look at the redactions and truly analyze them in advance of the disclosure deadline, it could have saved both the applicant and the Tribunal two hearing days.”

It was also found that Belairdirect “improperly redacted log notes for “client-to-client” discussions, indicating it was a form of privilege.” Ultimately, the conduct of Belairdirect “interfered with the Tribunal’s ability to carry out an efficient hearing. I find the conduct prejudiced the applicant because it withheld information contained in the log notes that might be necessary for arguing her case.” It was noted that “It is rare that an adjudicator is faced with misconduct to this degree.” Therefore, “I agree with the applicant and award costs in the amount of $2,000.00.”



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Archive of LAT Updates

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March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

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March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

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March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

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March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

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March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

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February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

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December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

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November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

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November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

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November 8, 2023: Maximum Award in Excess of $60K on CAT Case

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November 6, 2023: Medical Evidence Overrides Legal Referrals

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November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

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October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

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October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

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October 16, 2023: Injuries Not Static - MIG Determined Again

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October 11, 2023: CERB is Income However Not “Gross Employment Income”

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October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

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October 2, 2023: ‘IE’ Does Not Establish Causation

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September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

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September 25, 2023: Chronic Pain Distinct from Recurring Pain

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September 20, 2023: Expert Opinion Not Required for IRB Entitlement

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September 18, 2023: Inconsistency Argument Not Accepted

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September 13, 2023: IRB Payment Delayed Four Years – 20% Award

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September 11, 2023: MIG Determined Absent Applicants Written Submissions

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August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

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August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

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August 23, 2023: WSIB Placement Qualifies for IRB

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August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

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