R.S. v. Aviva Insurance Canada, 16-003141/AABS (LAT)

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A must read for anyone arguing non-earner benefit entitlement before the LAT

Date Case Heard: Written Hearing: May 15, 2017 | Full Decision [PDF]

This is a recent non-earner benefit eligibility case from the LAT.  It provides a helpful guide on how to argue a non-earner benefit case before the LAT.

At the outset, the adjudicator addressed a number of preliminary procedural issues.  It allowed surveillance and an expert report despite both being late-served.  The Adjudicator concluded that technical non-compliance with the Rules and a Tribunal Order did not outweigh the benefits of having relevant information before the Tribunal.  Further, the Adjudicator chastised counsel for not complying with the Tribunal’s order regarding page limits.

The Applicant was 28 at the time of the crash.  Following his crash, the Applicant suffered soft tissue injuries and went on to develop depression, and chronic pain.  At the time of the crash, the Applicant was enrolled in college, had three children, and enjoyed playing sports such as basketball and soccer in his spare time.  He was also involved in housekeeping, and enjoyed socializing with friends.  At the hearing, the Applicant never indicated how much time his activities occupied in a given week, month or year.

The Adjudicator dismissed the Applicant’s claim because he never quantified the time commitments associated with his pre-crash activities.  Without knowing how much time was spent on the activities that were most important to the Applicant, the Adjudicator could not determine whether the Applicant was prevented from doing substantially all of his pre-crash activities.  The Adjudicator wrote:

It is impossible to properly assess whether the applicant is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged is difficult in this case. I do not have sufficient information about the time commitments of the applicant’s pre-accident activities. I cannot determine what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on these activities prior to the accident. For example, child care was listed in the applicant’s Reply material as one of the most important activities in his pre-accident life. His affidavit described it as toileting, grooming, bathing, spending time with the children and taking them to outings. How much time did child care occupy of the applicant’s day? Of his week? Of his month? How much less is he able to dedicate time to this important activity now?  I do not know, and I need to know in order to make a decision. The applicant’s failure to provide this information requires me to dismiss his claim. He has not met his onus of proving that he is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged.

Counsel for the Applicant: Michelle Brown

 Counsel for the Insurer: Catherine H. Zingg

 Adjudicator: Chris Sewrattan

Read the full decision [PDF]
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.