Volume. 3 Issue. 23 – July 10, 2019

Suspect Rationale for Seeking Further CAT IE’s

Questionable Motives – In 18-009821 v TTC, the Tribunal considered whether the Applicant is required to attend a second, multidisciplinary catastrophic insurer examination assessment following receipt of the Applicant’s rebuttal exams. While acknowledging that it took the Applicant about a year and a half to provide the rebuttals, it was noted that the Respondent waited more than seven months to request the 2nd CAT IE’s. The Tribunal found that “the untimeliness of the respondent’s request for rebuttal IEs, coupled with the fact that the request was made after the [LAT] application was initiated, [was] suspect.” This led the Tribunal to believe that “the purpose of the proposed IEs has more to do with bolstering the respondent’s evidence rather than investigating the applicant’s impairment”..

The Respondent also sought production of medical records going back five years prior to the accident. The Tribunal ruled against the Respondent, noting that much of the Applicant’s medical issues were 20 years in the past, and a further was but an isolated incident. The Tribunal concluded that under the circumstances, “In the event there was a relevant behavioural pattern, as the respondent suggests, the pattern would manifest in the two years prior to the accident, a period for which the respondent has been provided records.”

No Adversarial Relationship in a Priority Dispute

In this yet to be released to CanLII decision, 18-003979 v Intact, submitted by Beata Morris at Intact, the Tribunal dealt with a request for removal of counsel due to participation in an EUO regarding a Priority Dispute. In this instance, it was found that “unlike tort, there is no adversarial relationship created, therefore no expectation of privacy in a priority dispute. To conflate the tort and accident benefit matters is to read protections into the law which simply do not exist.” Accordingly, the suggestion that counsel’s appearance suggested a conflict of interest “is insufficient to meet the high bar of removing respondent counsel from the record”.

However, we reported earlier upon a reconsideration wherein the Vice-Chair determined that the Tribunal had “erred in its characterization of the priority dispute as a proceeding that does not create an adversarial relationship between [the Respondent] and the applicants”. Accordingly, it was decided that “the Tribunal made a significant error in law by failing to exclude counsel for [the Respondent] and the EUO from the proceedings at LAT”. A Priority Dispute was held to create “a similar adversarial relationship between the insurer and the applicants as in a tort proceeding”. In this matter, counsel for the Respondent was removed.

Is this an example of the Tribunal asserting its independence despite contrary finding by the Vice-Chair?

Earning Self-Employment Income Does Not Make One Self-Employed

In 18-003763 v The Dominion, the Tribunal agreed with the Applicant, confirming that he was in fact not self-employed on the date of loss, despite having operated as an Uber driver for seven weeks prior to the accident. Following the accident, he ceased working at his part-time employment, however, continued to operate as an Uber driver for a further month and a half.

The Tribunal found that “just because he earned self-employment income from Uber seven weeks prior to the accident, that fact does not establish he was self-employed at the time of the accident. There is a distinction between, on one hand, income earned as the result of being an employee and having that income supplemented by self-employment income versus, on the other hand, income earned solely through being self-employed.” As a result, the IRB entitlement was based upon the last 4 weeks earnings as opposed to the last 52, without taking into account Uber income as he did not declare same on his 2017 tax filings.

Of note, “self-employed person” is defined under s.3(1) of the Schedule as a person who “engages in a trade, occupation, profession or other type of business as a sole proprietor or as a partner, other than a limited partner, of a partnership”.

We’ve confirmed that the Respondent has filed for reconsideration.

Degrees of LATitude – Two Different Takes on Appropriateness of Assessment Fees for Partial Approvals

Evidence Required to Determine Whether a Fee is Reasonable and Necessary

Breakdown – In 18-001128 v Aviva, the Applicant sought the balance of a partially approved psychological assessment, with the Tribunal noting same to be both “vague and unparticularized”. It was also indicated that “no additional breakdown or detail is provided for these claimed amounts. For example, there is no itemization of the particular services that form part of the assessment, the number of hours for each service, or the hourly rate.” The Tribunal cited an earlier such decision with which she had in fact earlier agreed in yet another decision, confirming that “without the hourly rate and fee breakdown, [the adjudicator] was unable to conclude that the proposed fees were reasonable and necessary…and agreed that it is not sufficient to simply claim the allowable amounts for a cost of examination under the Schedule without additional detail or a breakdown.”

Further, “for the purposes of determining whether a fee claimed is reasonable and necessary, I should have been presented with persuasive evidence of how the time is being spent, for which task, and at what rate. There was no such evidence properly before me in the record.” It was also noted that the Applicant had for the first time included an e-mail from the assessor in its submissions for the written hearings. There was no weight afforded this document, as a “hearing ‘by ambush’ is not consistent with the objectives of the Tribunal to ensure a fair and efficient process.” It was also noted that the assessor was only able to provide a “guess” as to the number of hours expended.

The Tribunal’s Discretion to Assign Hourly Rates

Well Within Scope – In 18-007991 v Intact, submitted by Beata Morris at Intact, the Tribunal was asked to consider whether a psychotherapist who specializes in cognitive behavioural therapy (CBT) can bill at the same rates as a psychologist or psychological associate when providing CBT. The Respondent contended this would not be the case given that she is neither a psychologist nor a psychological associate, however the Tribunal did not agree. It found that as the assessor was qualified to provide CBT, she was entitled to receive the same fee as a psychologist or psychological associate would receive for providing the same services.

The Tribunal found, “the plain language meaning of the Guideline establishes that registered psychotherapists are not listed within the Guideline, and as a result are not covered by the Guideline. Therefore, the amounts payable are to be determined by the parties, or if the parties cannot agree, an adjudicator. This allows the Tribunal to exercise its discretion in determining an hourly rate…” The Tribunal disagreed with the suggestion this would lead to an “absurd result”, as the assessor “would be paid for providing cognitive behaviour therapy which she has specialized training and expertise in”.