LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Tribunal File Number: 16-000058/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8., in relation to statutory accident benefits
Between:
Applicant
Applicant
and
Motor Vehicle Accident Claims Fund
Respondent
AMENDED
REASONS FOR DECISION AND ORDER
Adjudicator: Lori Marzinotto
Appearances:
For the Applicant: Applicant Maria Marusic, Counsel
For the Respondent: Daniel Fenwick, Counsel
Held by Teleconference: August 3, 2016
Overview / Introduction:
The Applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) seeking benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).1
A hearing was held on August 3, 2016, by teleconference, to consider the Applicant’s application pursuant to s. 280(2) of the Insurance Act, R.S.O. 1990, c. I-8 (the “Act”).
The Tribunal Orders that the Applicant is entitled to receive a non-earner benefit at the rate of $185.00 per week for the period from October 29, 2013 to April 1, 2014.
Preliminary Issues:
i) Adjudicator Observed Case Conference
- Prior to commencing the hearing, I disclosed that on June 7, 2016, I had observed the case conference in this matter which was conducted by another adjudicator. Although Tribunal members who observe or preside at the case conference normally do not conduct the hearing, the parties consented to me presiding over the hearing. Accordingly, pursuant to Rule 14.3 of the Licence Appeal Tribunal Rules of Practice and Procedure, with the consent of the parties I presided over the hearing.
ii) No Affidavit Evidence
The Order dated June 15, 2016, from the case conference stated that the Applicant would testify by way of affidavit and be cross-examined by telephone. The Applicant did not provide an affidavit. The Applicant attended the hearing and indicated he could provide oral testimony in chief and be cross-examined. Counsel for the Respondent, the Motor Vehicle Accident Claims Fund (“MVACF”) did not object, and consented to the Applicant providing oral testimony in chief and being subject to cross-examination.
The Applicant was duly affirmed.
Substantive Issue:
Background
The Applicant was injured in an automobile accident on August 28, 2012 (the “Accident”). The Applicant was unemployed at the time of the Accident and sought non-earner benefits pursuant to the Schedule.
In October 2013, MVACF sent correspondence addressed to the Applicant at his parents’ home, requesting that he attend an insurer’s examination on October 29, 2013.
The Applicant did not attend the October 29, 2013 insurer’s examination and MVACF terminated the Applicant’s non-earner benefit.
The Applicant submits that he has a reasonable explanation for his non-attendance and therefore MVACF should pay all of the amounts it withheld during the period that he did not attend.
Facts / Evidence
At the time of the Accident, the Applicant had been living with his parents. The Applicant had been receiving correspondence from ClaimsPro relating to the Accident at this address.
Sometime after the Accident, the Applicant moved out of his parents’ home but could not recall the date.
After leaving his parents’ home, the Applicant sought addiction treatment, and was a residential patient at Brentwood for three months. After leaving Brentwood in June 2013, he moved to two different dry-house facilities to continue treatment. During this time, he received mail at both his parents’ address and at his wife’s home. He does not recall whether he informed anyone of this address, but did use his wife’s address when filling out forms.
The Applicant testified that he believes he was living with his wife during October 2013. The Applicant testified that if he received mail at his parents address, who would give it to him.
MVACF sent a letter addressed to the Applicant at his parents’ address, requiring the Applicant to attend an insurer’s examination on October 29, 2013. There is no dispute that the letter indicating that an insurer’s examination was scheduled on October 29, 2013 exists. The dispute is whether the Applicant received it. MVACF did not provide any evidence of how the letter was sent to the Applicant. The Applicant’s evidence is that he never received the letter.
The Applicant testified that he first learned of the October 29, 2013 insurer’s examination in February, 2014 from his counsel. The Applicant testified that once he was informed that he missed the insurer’s examination, he asked his counsel that one be re-scheduled. The insurer’s examination was re-scheduled and the Applicant attended. Counsel for the Applicant submitted that the Respondent waited two months to reschedule the insurer’s examination.
The Respondent did not cross-examine the Applicant.
Analysis / Law
The Respondent submits that it requested the Applicant attend an insurer’s examination on October 29, 2013. The Applicant failed to attend and as a result, MVACF terminated the Applicant’s benefit.
Pursuant to s. 37(7) of the Schedule, if an insured fails to comply with s. 44(9), in this case failing to attend an insurer’s examination, the insurer may refuse to pay the benefit during the period of non-compliance.
If the insured subsequently complies, pursuant to s. 37(8)(ii), the insurer shall pay all amounts that were withheld during the period of non-compliance if the insured provides a reasonable explanation for his non-attendance.
The Tribunal finds that the Applicant has provided a reasonable explanation for his non-compliance. The Applicant’s evidence is that he did not receive the notice requiring his attendance at an insurer’s examination on October 29, 2013. The Applicant had been moving from place to place including several months stay in three different rehabilitation treatment facilities. In February 2014, when the Applicant was made aware that he had missed the October 29, 2013 insurer’s examination, he requested that one be rescheduled and did, in fact, attend once it was rescheduled.
It was not until February 2014 that MVACF notified the Applicant that he had missed the insurer’s examination scheduled in October 2013. There was no evidence presented to suggest that MVACF followed up with the Applicant prior to February 2014. Applicant’s counsel submitted that the insurer did not reschedule the insurer’s examination for a further two months after the Applicant requested it.
Respondent’s counsel submitted that a reasonable person would have provided the insurer with his updated address especially since the Applicant was receiving accident benefits. While the Tribunal agrees that it would have been prudent for the Applicant to provide the insurer with an updated address, the Applicant had been in several different rehabilitation treatment centres seeking addiction treatment.
The Tribunal found the Applicant’s evidence credible. The Applicant provided a reasonable explanation for the original non-compliance. There was no evidence of delay on behalf of the Applicant after he learned of the missed insurer’s examination. There was however, a significant period of delay by the insurer between the date of the original insurer’s examination of October 29, 2013, the notice of non-compliance in February 2014, and the rescheduled insurer’s examination in April 2014, without explanation.
Decision
- After considering the evidence, pursuant to the authority vested in the Tribunal under s.280(2) of the Act, the Tribunal orders that the Applicant is entitled to be paid non-earner benefits in the amount of $185.00 per week from October 29, 2013 to April 1, 2014.
Released: August 25, 2016
Lori Marzinotto
Adjudicator
Footnotes
- The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.