Volume. 4 Issue. 10 – March 11, 2020

Only Obligation in Seeking CAT Is to Provide an OCF-19

Timing Isn’t Everything – In 18-002124 v Aviva, the Applicant, injured in a 2005 accident, sought a CAT determination by providing an OCF-19 in May 2015 completed by his family physician, “who seemingly just checked the box under Part 4, indicating that [the Applicant] meets the criteria for CAT.” The question before the Tribunal was whether the Applicant was entitled to the cost of examination for rebuttal CAT assessments in the amount of $16,320 after the Respondent had conducted its own CAT IEs. Ultimately it was found that the Applicant was entitled to the partial cost of the assessments in the amount of $10,500.

Firstly, it was found that “the 2010 amendments to the Schedule closed off every available avenue for funding CAT rebuttal reports.” The Tribunal then turned to the question of “how to reconcile an applicant’s right to be assessed for CAT with the 2010 amendments and the lack of CAT rebuttal report funding available?”

“In the previous incarnation of the Schedule, it is uncontroverted that a CAT rebuttal report constituted a third report in the proceedings.” The Applicant submits their reports first, followed by the Respondent’s securing of a corresponding report, to which the Applicant was then entitled to a rebuttal report. In this case however, there needs to be consideration of an “altered timeline”, where an Applicant seeks funding for initial CAT reports only after the insurer has secured its CAT reports. “Such reports would be unfairly classified as ‘rebuttals’…”

“Again, for a CAT matter, the result is procedurally flawed, but I find the arithmetic is not particularly complex. [The Respondent] … furnished one CAT report; [the Applicant] has… furnished zero CAT reports. For those keeping score, as I am, CAT reports are 1-0 in favour of [the Respondent].” The right to be assessed for CAT is a substantive one that is entrenched in the current 2010 Schedule. “There is no ambiguity.”

There was as well a practical component to not attaching a timeline to an insured’s CAT. “For instance, an insurer is invariably going to conduct s. 44 IEs to assess every CAT claim, even if the insured’s medical records and medical practitioners suggest CAT is a foregone conclusion. In practice, if the s. 44 IEs concur, then the insurer is only on the hook for the cost of one set of assessments and reports (being its own) and the insured is deemed CAT.”

“In arguing that the timing of the OCF-18 under these sections is somehow critical and must come first, [the Respondent] is effectively obligating insurers to de facto fund two sets of CAT assessments and reports where it may only be required to fund one. This also results in the insured having to endure two invasive and intrusive sets of CAT assessments where only one may be required. I struggle to understand why the legislature would seek these outcomes.”

The Tribunal has confirmed that the only obligation to seek CAT is to provide an OCF-19.

In Trending…3 Staged Collisions Weren’t ‘Accident(al)’

In 3 recently released decisions, the Tribunal established that the parties were involved in deliberately staged collisions. All three shared similar characteristics, with numerous inconsistencies, credibility issues and adverse inferences drawn as a result of a failure to call other parties involved as corroborating witnesses. However, each case also points to unique factors in establishing staged accidents. In all three cases, there was confirmed to have been wilful misrepresentation from the involved parties, hence they were not involved in an “accident” as defined in s. 3(1) of the Schedule.

Wrong City, Wrong Time – In 18-008967 v Wawanesa, it was confirmed that the “applicant’s cell phone records indicate that the applicant and his cell phone were not in fact near [a sport’s bar] at the time of the collision, which is located in [city B], and were instead in the area of [city C].” Ultimately, it was found that “the collision was staged and that the applicant has failed to satisfy his onus to show he was in an accident as defined in s. 3(1) of the Schedule.”

Perplexing Similarities – In 18-006374 & 18-005514 v Certas, the Tribunal referenced numerous documents relating to accidents involving the Applicant’s ex-wife and friends which occurred on July 12, 2016 and July 17, 2016, which involve some connections and perplexing similarities to the July 25, 2016 accident. This included the fact that all vehicles used had been involved in prior accidents, the occupants in the vehicles did not witness the accident because they were on their phones, the accidents took place around the same geographic area, they were all going shopping at the same mall prior to the accident occurring, and the same tow truck was used. Therefore, it was found that “both applicants deliberately participated in a staged accident for the sole purpose of receiving monetary gain through their insurance policies.”

Black Box Treasure Chest – In 19-000637 v Certas, in examining the evidence collected in the vehicles’ black box, it was confirmed that “in the final two seconds before the two vehicles collided, the trajectory of the Ford changed as it steered to the right. It was opined by [the engineer] that the Ford should have steered away from the mini van and it was illogical for the Ford to steer towards the minivan. I find this evidence supports that the Ford steered right to collide with the minivan.” Further, while the third party driver and his wife confirmed by way of EUO that the wife was a belted front seat passenger, the event data recorder confirmed that “the seatbelt was also so tight that it would not have been possible that the seatbelt had been worn by a normal sized adult.”

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