Eleonora (Elinor) Izmaylov of Dentons Canada successfully argued this decision before the License Appeal Tribunal (LAT) who ruled in favour of the insurer on all issues.
In J. T. vs. Primmum Insurance Company, 2020 ONLAT 18-009043/AABS, the applicant was involved in a motor vehicle accident on November 4, 2013 at a Walmart parking lot and claimed insurance benefits under the Statutory Accident Benefit Schedule (the Schedule). When the insurer denied his claim for benefits, the applicant applied to the LAT.
The insurer denied the benefits because it determined that the applicant did not sustain a catastrophic impairment, and rather, his accident related injuries would fall within the Minor Injury Guidelines (MIG), and therefore, subject to the $3,500 limit for medical benefits. The applicant sought a section 10 Special Award  claiming that the insurer has unreasonably withheld or delayed payment as well as costs.
The LAT determined that the applicant did not sustain a catastrophic impairment, the applicant is not entitled to costs and the applicant is not entitled to a special award.
- Has the applicant sustained a catastrophic impairment or are his injuries predominantly minor injuries as denied in the Schedule?
- Is the applicant entitled to a special award because the insurer unreasonably withheld or delayed payment of benefits?
- Is the applicant entitled to costs due to unreasonable, frivolous or vexatious conduct by the insurer?
The claim for impairment
While there are several ways of meeting the definition of a “catastrophic impairment”, the threshold of finding a catastrophic impairment under the Schedule is defined as a combination of mental or behavioural impairment with a physical impairment resulting in 55% or more of the whole person.
In this case, the applicant relied on a signed OCF-19 form by his family physician but did not have any other supporting medical evidence to substantiate a claim for a catastrophic impairment. No expert opinion was provided to support his claim, nor did he undergo a catastrophic impairment assessment by qualified specialists.
Insurer examinations did not support the applicant’s claim and found that he did not suffer from a catastrophic impairment due to the accident.
In addition, the applicant did not discharge his onus of proving his injuries fall outside the MIG by simply pointing to pre-existing injuries. The LAT found that the existence of pre-existing injuries alone do not automatically take an applicant out of the MIG. The applicant must lead sufficient evidence to support the proposition that the pre-existing injuries will prevent him from being properly treated within the MIG limits.
The LAT determined that the applicant did not suffer a catastrophic impairment as result of the November 4, 2013 accident, and that his injuries fall within the MIG limits.
A special award may be granted when the LAT finds that an insurer has unreasonably withheld or delayed the payment of a benefit to a claimant. In order to grant this remedy, sufficient evidence must be provided to substantiate the claim. Here, the applicant provided no proof of treatment being incurred and therefore there was no corresponding denial that could be considered unreasonably withheld or delayed.
In accordance with the LAT rules (Rule 19.1), a party may make a request to the Tribunal for its costs where one party believes that another party in the proceeding has acted in an unreasonable, frivolous, vexatious manner or in bad faith. The limit on costs has been set at $1,000. 
The applicant claimed costs and argued that the insurer acted in a deceptive and unfair manner, but failed to produce any evidence in support of that claim. The LAT further stated that:
“the costs provision in Rule 19.1 is not intended to remedy unpleasant situations that are common in litigation. Rather, an order for costs is used to maintain a certain level of respect, civility and decency throughout the process… I am not persuaded that the respondent’s behaviour amounts to being unreasonable, frivolous, vexatious or to acting in bad faith. Therefore, no costs are ordered against the respondent”. 
It is the onus of the party alleging improper conduct to support those claims with appropriate evidence when seeking costs, and/or a special award. It is the onus of the applicant to provide adequate medical evidence to prove that the alleged injuries sustained in an accident fall outside the MIG, or could meet the catastrophic impairment definition.
 Regulation 664, Section 10 of the Insurance Act, RSO. 1990 c. I.8.
 Rule 19.6
 Paras 48-49.