Volume. 3 Issue. 20 – June 19, 2019

$415,000 Home Modifications Proposal Based Upon “Worst Case Scenario” Rejected

Speculative Worst-Case Scenario – In 17-008069 v Economical, it was noted that the central issue in the dispute was that the Applicant’s report for the home modifications proposal was premised on the need for the use of a wheelchair. There was no indication as to whether reasonableness/necessity was established for the use of a walker, which was in fact how she ambulates within the house. The use of a wheelchair was found to be entirely speculative, with the Applicant’s expert conceding this to be premised upon a “worst case scenario” for the future. Concluding, the Tribunal found, “the proposal for wheelchair modifications is excessive. Put simply, the report does not address the applicant’s current disability.”

In this case, the Respondent was paying for 24 hour attendant care services. The Tribunal noted that “other adjudicators and arbitrators have found that modifications were unnecessary where the applicant has been provided with attendant care assistance.” The Applicant sought modifications totalling $415,000, with the Respondent approving a total of $41,245.

Given the attendant care services already being received, and the fact that the Applicant was at risk of falling if unsupervised, it was agreed that installation of an elevator would not reduce the need for 24 hour supervision. Proposed laundry room modifications were not awarded, as “she has been found to have a substantial inability to do housekeeping activities…[and] I am not satisfied that the applicant will be able to do laundry with the proposed modifications, nor reduce the effect of her disability.”

This is a clear example of how a home modification case is reconciled against current impairments. This case also considers whether the provision of attendant care services obviates the need for any related recommendation.

No AB Entitlement for Vehicle Not Used for Motoring Purpose

Burned – In 18-003343 v Intact & 18-001607 v Economical, two Applicants suffered life threatening burns as a result of an explosion and a fire that occurred while they were working on changing the fuel pump of a 1998 Monte Carlo car. The Tribunal noted, “This is not a case where the use or operation of a vehicle started a chain of events that led to necessary repairs that resulted in an impairment. The Monte Carlo had been in [the] garage for several days before the incident took place.” The Tribunal was “of the view that on the facts of this case the repair undertaken by the applicant’s is not an ordinary and well know[sic] use of a vehicle by an insured which is covered [by] the Schedule. I do not see any connection between the Monte Carlo being used for a motoring purposes and the repair…the no fault automobile benefits provided in the Schedule are not meant to be available to a person whose only connection to the vehicle is that of a repairman.”

The Tribunal disagreed with the Applicants that the replacement of a fuel pump is a “minor repair” ordinarily undertaken by car owners or their family members. “How many insured’s have their own hydraulic lifts in their garage and the know-how to access and replace a fuel pump?” Further, “the fact that the vehicle was inoperable at the time of the incident and the complexity of the repair undertaken support the conclusion that the applicants were not using the vehicle for a motoring purpose at the time of the incident.” It was found not to be “a reasonable expectation of insured or insurers that insureds who undertake to repair a third party’s vehicle and are not using the vehicle for a motoring purpose at the time of the repairs are covered by no-fault accident benefit.” With the facts not meeting the “purpose” test, there was no need for consideration as to “causation”.

The distinction drawn between doing something “to” a vehicle, as opposed to actually “using” a vehicle is central in this consideration, as is the discussion regarding what would be considered as “ordinary” use.

Thank you to Beata Morris from Intact for submitting this recently released decision, which is yet to be published on CanLII.

In Trending – Interlocutory Conundrum?

The three cases below confirm that the Tribunal appears steadfast in strictly adhering to the new rules on reconsideration (now not available for interlocutory matters), despite the application of same seemingly making no sense..

Claim for IRB Dismissed – Unable to seek Reconsideration Until All Other Issues Finally Disposed of

In 18-001145 v Economical, the Tribunal, in a preliminary issue hearing, had found that the Applicant missed the two year limitation period, and therefore dismissed the application for IRBs and ACBs (the latter found to have been a typographical error). The Associate Chair dismissed the Applicant’s request for reconsideration, finding that the proceeding is ongoing and that the reconsideration request “is in regards to a decision that does not finally dispose of the appeal”.

Interestingly, despite the fact that the claim for IRB was in fact finally disposed of in the original hearing, the Applicant must await disposition of all other issues in dispute prior to seeking reconsideration of the discrete item that was in fact finally disposed of.

Hear All Matters Together Before Determining whether Appropriate to do so

In 18-004179 v TD, the insurer sought reconsideration of a motion granting the Applicant’s request for two applications be combined so that all issues in dispute can be heard together. The request was dismissed by the Associate Chair, as the matter “is in regards to a decision that does not finally dispose of the appeal”.

It therefore seems in essence that the parties must go through the entire hearing on all matters, prior to deciding whether it was appropriate to do so!!

Production of All Documents Before Determining Whether Appropriate to do so

In 18-007928 v Co-operators, the insurer sought reconsideration of an order to produce adjuster log notes, the complete AB file and records and raw data from the IE assessors. The Associate Chair issued the same response as above, dismissing the request as it too “is in regards to a decision that does not finally dispose of the appeal”

As a result, the parties will now need to proceed through a seven day hearing, with all documents above included, prior to having the ability to contest whether the documents ought to have been produced.

Share your experience…how are you able to influence the Case Conference Order to avoid the above?