Volume. 6 Issue. 2 – January 19, 2022
This week features two cases where the Tribunal’s somewhat uneven reliance upon Court precedents plays a role.
The first case involves Notice requirements and the inclusion of medical reasons based upon an Applicant’s confirmed return to work. In two separate rulings the LAT affirmed proper stoppage notices were provided. The Court, albeit three weeks later, had indicated that a denial based solely upon a confirmed return to work was not in accordance with the Schedule.
In the second case, one of the precedent Tribunal cases relied upon had subsequently been reversed by the Court, apparently unbeknownst to any of the involved parties.
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Return to Work Satisfies “Medical Reason”
Medical Reason Not Required for RTW IRB Denial – In the December 22, 2021 LAT inFORMER, we featured a Divisional Court decision wherein the Court found that the insurer’s IRB denial based solely upon a confirmed work return was not sufficient notice.
However, three weeks prior to the release of the Court decision, the Tribunal, in Perrigard v Primmum (19-010651), once again affirmed that a denial based upon a confirmed return to work met the Notice requirements. In fact, the Tribunal went on to indicate “the level of detail in the letters that is specific to the applicant’s claim is greater than most denial letters that come before the Tribunal.” The rationale indicated that Primmum had “received confirmation from the applicant’s employer that he had returned to full-time work duties after a graduated return. The notice then clearly states that “Therefore your [IRB] ceased effective January 9, 2017 as you have returned to work.”
As was the case in the earlier Tribunal decision, N.V. v Allsate (18-008774) the Tribunal further affirmed that “when an applicant returns to full-time employment, an insurer is not required to conjure up or fabricate a medical reason for stopping an IRB—the medical reason is the applicant’s return to work.” Given the divergent decision directly on point by the Court, it would be anticipated that Perrigard would seek either Reconsideration or appeal to the Court.
However, he was also found to be in non compliance regarding attendance at multiple properly scheduled IE’s. As a result “Primmum has not been provided the opportunity to fully or contemporaneously assess his claim due to his failure to attend the IE’s. Accordingly, for these reasons, I find the applicant is also statute-barred from proceeding with his claim under s. 55(1)2.”
Drive-By Shootings Not Insured
“Drive – By” Not Accident – In Patel v Coseco (20-015075), Patel suffered paraplegia as the direct result of being hit by a bullet as the result of a “drive-by shooting”. The Tribunal accepted that the incident met the “purpose” test, however resisted the assertion that drive-by shootings are by nature of the location of this incident common, taking place in the ordinary course of things. The Tribunal agreed with the Court in LaFond v. Allstate, indicating “I refuse to believe that our society has degenerated to such a point where this type of injury may be anticipated when operating a motor vehicle.”
Ultimately, the Tribunal followed the reasoning of the Court in Chisholm v. Liberty Mutual, as well as an earlier decision of the Tribunal, Lindo v. Echelon, each of which found that a shooting was an intervening incident, with such an assault unrelated to the anticipated risks of operating a motor vehicle. Accordingly, the Tribunal agreed with Coseco that “the vehicle was simply the location of the injury and was ancillary to the injuries sustained.” The “shooting was a severable act of violence which clearly broke the chain of causation.” The Tribunal further reasoned “that this type of assault should not be contemplated as a risk covered by a contract of automobile insurance.”
In addition to the two cases cited above, the Tribunal also relied upon a further decision of the Tribunal, 17-002640 v. Intact. In this case, an assault occurred when an egg was thrown from a vehicle and blinded a pedestrian. The Tribunal found that the throwing of the egg was “an intervening event, a distinct and severable assault that was not within the definition of an “accident”.
However, it appears that none of the involved parties were aware of a March 2019 case from the Ontario Supreme Court, Gilbraith v Intact, that dismissed Intact’s motion to dismiss the action, finding that throwing eggs from a moving vehicle was an ordinary and well-known activity of automobiles, such that coverage was afforded for the resulting injury.
The Court had reasoned that “throwing egg(s) from a vehicle travelling 50 to 60 kph, resulting in injury, is not…”a distinct and intervening act completely independent from the use or operation of the [motor vehicle]”. Nor do I find… that the vehicle merely “create[d] an opportunity in time and space for damage to be inflicted”.
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