Oct 18, 2017
Ont. Div'l. Ct. upholds LAT Adjudicator's decision in case where our Shikha Sharma acted for the respondent insurer, and held the appropriate standard of review from the LAT is reasonableness
Author Michael S. Teitelbaum
Related Lawyers Linda Kiley and Shikha Sharma
Many thanks to my colleagues Bevin Shores and Laura Dickson who have been monitoring the recent case law while I've been away.
One of the decisions involved our very own Shikha Sharma who was successful before a three-judge panel of the Ontario Divisional Court in upholding the decision of the Licence Appeal Tribunal in a SABS IRB decision which also dealt with the standard of appellate review from a LAT decision. Laura Dickson prepared a note about that decision which is set out below, and which I've lightly edited.
I add my congratulatory voice to hers in saying Well Done, Shikha!
In Melo v Northbridge Personal Insurance Company, 2017 ONSC (Div Ct) 5885, our own Shikha Sharma, acting on behalf of the insurer, successfully defended an appeal from a LAT decision. Congratulations, Shikha!
By decision dated February 14, 2017, following a written hearing, Adjudicator Sewrattan of the LAT held the claimant was not entitled to the IRB as claimed. The note on the prior LAT decision is pasted below. The applicant appealed to the Divisional Court.
The Divisional Court, noting its jurisdiction to hear appeals from the LAT are limited to an appeal based on questions of law only, held that the standard of review to be applied is reasonableness.
The Divisional Court stated in part:
“ The Adjudicator cited the correct legal test for entitlement to an income replacement benefit, and correctly identified and conducted the comparative exercise that section 5(1) the Schedule requires, namely to compare the essential tasks of an insured’s pre accident employment with his post-accident ability to perform them. In particular, at paragraph 19 of his reasons, the Adjudicator reviewed the essential tasks and at paragraph 29 concluded that the “sprains and strains” suffered as a result of the accident did not render the Applicant substantially unable to perform those tasks.
 The adjudicator weighed the evidence, applied the proper standard of proof, and provided reasons for his findings, which were well grounded in the material before him. His exercise of weighing the evidence and preferring some evidence over other evidence does not amount to question of law only. It is also well established that the Adjudicator was not obliged in his reasons to refer to all the evidence put before him, and as such, his failure to refer specifically to the second disability certificate of Dr. Ullah is not determinative.
 The Applicant has failed to establish an error of law. The Adjudicator’s decision was reasonable as it was within the range of possible outcomes.”
The court dismissed the appeal and ordered costs in the amount of $5,000 payable by the applicant to the respondent.
Congratulations to our Shikha Sharma for LAT Adjudicator's finding that applicant not entitled to IRBs
by Michael Teitelbaum | Feb 14, 2017
Hearty Congratulations and a tip of the advocacy chapeau to our Shikha Sharma who was successful before the Licence Appeal Tribunal in M.M. and Northbridge in persuading Adjudicator Sewrattan that the applicant was not entitled to the payment of income replacement benefits (IRBs).
Our Linda Kiley observes that the key to the Adjudicator’s decision was his finding that the applicant’s report submitted by Dr. Wong (physiatrist) did not support the applicant's position. The Adjudicator ruled that Dr. Wong had failed to establish a link between the tests that he conducted and his diagnosis of chronic pain syndrome. The Adjudicator agreed with Shikha’s submissions that the applicant had failed to satisfy his onus of establishing a causal link between his post-accident symptoms and his inability to return to his pre-accident employment.
Please see paras. 22-29 in this respect.
A non-cuttable and non-pasteable version of the decision is attached.
Well Done, Shikha!