Volume. 4 Issue. 16 – April 22, 2020

Tomec and IRB Discoverability – Yes or No?

This decision caught our attention given the Tribunal affirming a contrasting take on the applicability of Tomec and discoverability in an IRB case from the same adjudicator.

IRB Discoverability – Not – In 19-006331 v Pafco, considering claims for a number of benefits that were conceded as being beyond limitation, the Applicant sought relief under s.7 of the LAT Act. One element raised was the applicability of Tomec v. Economical. The Applicant argued that the claim for post-104 IRB had not expired as “Tomec dictates that his cause of action for entitlement to income replacement benefits beyond 104 weeks of disability did not accrue until at least 104 weeks following the accident.”

The Tribunal in this instance found “there is no indication that the Tomec court overturned its decision in Bonilla, where it declined to import the discoverability rule to income replacement benefits and found that an insured’s loss is crystallized when a notice of termination is received.” Further, “there is no indication that the Tomec court, in finding that discoverability applied to attendant care and housekeeping in CAT matters, also determined income replacement benefits to be separate claims, which would overturn the finding from the Bonaccorso court that it is one single claim.”

To place this in context, it would be most instructive to review this earlier reported decision of the Tribunal, where the same adjudicator appears to have come to a completely different conclusion. In another claim for IRB, he in fact invoked Tomec and discoverability in an IRB application upon his own reconsideration.

Home Modifications “Unrealistic, Excessive and Not Proportional”

Spring Cleaning Preferred – In 19-001480 v Security National, the Tribunal considered a request for home modifications to a one-bedroom 600 square foot apartment for $158,476.89, in addition to the already approved $24,282. The Tribunal, while disagreeing with the Respondent that this was an attempt to secure a “windfall”, had “significant reservations about the [Applicant’s assessor’s] proposal and question what modifications are even realistic”. It found “overwhelmingly on the evidence” that the Applicant’s proposal is “largely unrealistic, excessive and, generally, not proportional to the evidence in the file.”

The Tribunal further “struggle(d) to comprehend” how the government-subsidized senior living facility would permit an extensive renovation that would require knocking down walls and rebuilding the entire layout of the unit, and the relocation of the Applicant for a period of 8-12 months.

Dealing specifically with references to the size and overall clutter of the unit and the impact on ambulation, “I query why the solution here is to complete a major renovation to a rental apartment instead of simply decluttering.” The Tribunal also found it “illogical” to propose that an 83 year old woman with a brain injury “relocate from the very apartment the proposal is supposedly attempting to make more comfortable for her to an unknown location for a period of 8-12 months.” Ultimately the Tribunal awarded closet organizers estimated at $1250, plus (assuming the facility would allow) a kitchen accessibility package (cabinets and shelving, any necessary tiling and patching) in the amount of $20,000.

Despite Direct Causal Link, Still not an Accident

Hello Dolly – In 18-011816 v Certas, the Applicant injured his leg while in the process of loading a refrigerator onto a trailer attached to his vehicle. He was standing beside a dolly on the trailer when one of the dolly’s tires failed. There was a loud bang and he noticed that his leg was bleeding and was taken to hospital to treat his injuries. There was no dispute that the trailer is a vehicle and loading a utility trailer such as this with items “is not only an ordinary use but its primary purpose.” While the Respondent contended there to be no clear causal link, the Tribunal applying the modified causation test, found, “there is a direct causal link between the use of the vehicle and the applicant’s injuries.”

Confirming the primary cause of the injuries to be the failure of the dolly used to load the refrigerator, “this occurred during the loading of the vehicle and entangled with the trailer’s intended use… As the failure of the dolly and the loading of the trailer were intermingled, I find that the ‘but for’ principle does not determine the direct causation question.” Further, there was “was no intervention by a rogue third party because the vehicle was tangential to the injuries sustained”. However, it was found that “The failure of the dolly was an intervening act − independent of the vehicle’s use or operation − which broke the chain of causation.” Thus, the use or operation of the vehicle was not the dominant feature, as the dolly failure “might have occurred in any place and in this instance happened to occur atop a trailer.”

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