Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 16-001014/AABS
Case Name: 16-001014 v. A.M.
Written Submissions By:
For the Applicant: Amanda Faulkner, Counsel
For the Respondent: No Submissions
Overview
- On April 6, 2017, the Licence Appeal Tribunal (the “Tribunal” or “LAT”) issued a decision in this matter originating under the Statutory Accident Benefits Schedule – Effective after September 1, 2010, O. Reg. 34/10 (the “Schedule”). The decision concerned a single issue: whether the applicant is entitled to receive a repayment in the amount of $4,414.29, representing all of the income replacement benefits it paid to the respondent from July 4, 2015 to September 27, 2015. The Tribunal determined that the applicant was not entitled to repayment. The applicant now asks that I reconsider the Tribunal’s decision.
Decision
- For the reasons that follow, I grant its request.
Facts
The accident and application for benefits
- The respondent, A.M., was injured in a motor vehicle accident on June 27, 2015. As a result, a number of things happened within the next month. A.M. submitted both an application for benefits (OCF-1) and an election to receive income replacement benefits (“IRB”) (OCF-10) to his insurer, Aviva Insurance Company of Canada (“Aviva”). He provided Aviva with a disability certificate (OCF-3) indicating that he was eligible to receive an IRB. He also provided Aviva with an employer’s confirmation form (OCF-2) outlining the details of his employment and income. A.M. submitted all of these documents to Aviva through his counsel, MK Legal Services.
Aviva pays A.M. an IRB
Based on these documents, Aviva granted A.M.’s application for an IRB. By letter dated July 28, 2015, it informed A.M. that it would pay him an IRB of $400 per week as of July 4, 2015. However, it noted that, based on the information contained in his employer’s confirmation form, he was entitled to receive short term disability (STD) benefits through his extended health care insurance provider, Great West Life. Aviva explained to A.M. that his receipt of STD benefits would result in a reduction to his IRB. For that reason, Aviva availed itself of its right under s. 33 of the Schedule and asked A.M. to forward his paystubs following the accident by August 19, 2015.
That request went unanswered. Consequently, by letter dated September 3, 2015, Aviva informed A.M. that it was suspending his IRB as of September 11, 2015.
The next time Aviva heard from A.M. or his counsel was after A.M. returned to work on September 28, 2015. A.M.’s counsel provided Aviva the update and, more importantly, secured A.M. further benefits. He provided Aviva with a copy of A.M.’s application for STD benefits to Great West Life, along with a copy of a letter from Great West Life denying the application. That is to say, A.M.’s counsel provided Aviva with proof suggesting that A.M. did not receive STD benefits. In exchange, Aviva lifted the hold on A.M.’s benefits and paid him the IRB from the date of suspension, September 11, 2015, until the date immediately before his return to work, September 27, 2015.
As it turned out, A.M. did receive STD benefits. On January 26, 2016, A.M.’s counsel called Aviva to inform it that Great West Life had paid A.M. 100% of his lost income after the accident. Aviva’s log notes indicate that, based on this call, it believed that A.M. or his counsel would be “issuing [Aviva] back” the “total amount” of the IRB.
Aviva’s demands for repayment
That did not happen. Thus, by letter dated April 26, 2016, Aviva wrote to A.M. invoking s. 52(1)(c) of the Schedule and asking for repayment. In its letter, Aviva described the conversation it had on January 26, 2016 with A.M.’s counsel, mentioning specifically that A.M. “received 100% of [his] pay from Great West Life” and its understanding that A.M. or his counsel “would be reimbursing Aviva for the over payment” of the IRB.
Again, Aviva heard nothing. So, again, it asked for repayment, this time on June 6, 2016. That same day, A.M.’s counsel informed Aviva that it no longer represented A.M.
Aviva subsequently commenced this application, seeking a complete repayment of the IRB it paid to A.M. from July 4, 2015 to September 27, 2015, totalling $4,414.29.
Aviva successfully couriered this application to A.M. After that, all of its attempts to courier letters to A.M. were unsuccessful.
Upon receiving the application, the Tribunal wrote to A.M. to request his response. The Tribunal received none. The Tribunal’s records indicate that a Tribunal Case Management Officer spoke to A.M. and that he was aware of this proceeding. However, A.M. chose not to participate. A.M. did not attend a case conference that the Tribunal held in this matter and he did not participate in this application’s hearing on December 5, 2016.
The Tribunal’s decision
- In its decision of April 6, 2017, the Tribunal denied Aviva’s application. The Tribunal focused exclusively on Aviva’s supporting affidavit sworn by Brian Samways, Aviva’s Claims Advisor responsible for adjusting A.M.’s file (the “Samways Affidavit”). Mr. Samways communicated with A.M.’s counsel throughout the relevant period. The key evidence that the Samways Affidavit offered was Mr. Samways’s conversation with A.M.’s counsel on January 26, 2016, including the assurance that Aviva would be repaid. The Tribunal admitted the Samways Affidavit into evidence, but gave it little weight. The Tribunal explained its reasons, at para. 17, for doing so as follows:
In this case, I do not give much weight to the hearsay statement for the following reasons. Firstly, I do not have any information as to how the respondent’s legal representative obtained the information provided to Mr. Samways. Secondly, I do not have any details that would allow me to identify who the STD provider is. Thirdly, the statement does not provide any details as to the amount of money paid by the STD provider and as to the timeframe of when the money was received by the respondent.
Given these concerns, the Tribunal held that Aviva failed to establish on a balance of probabilities that it was entitled to repayment.
For the following reasons, I would cancel the Tribunal’s order, and order that Aviva is entitled to repayment.
Discussion and Reasons
I have reviewed the record that was before the Tribunal, along with the reasons offered in its decision. Based on that review, it is clear to me that the Tribunal failed to consider or misconstrued the evidence before it.
Among the Tribunal’s mistakes was its observation that the “only evidence” it received on the issue was the Samways Affidavit: see para. 11. That was incorrect. Aviva also adduced a detailed affidavit sworn by Karen Brandt, a Senior Litigation Specialist at Aviva with knowledge of this matter (the “Brandt Affidavit”). Unlike the Samways Affidavit, the Brandt Affidavit outlined a complete history of A.M.’s claim and Aviva’s demand for repayment. It contained important information that the Tribunal did not consider. For example, in explaining why it decided to give the Samways Affidavit little weight, the Tribunal expressed dissatisfaction over not having “any details” that would allow it to identify A.M.’s STD provider: see para. 17. However, the Brandt Affidavit included that information: it not only appended A.M.’s application for STD benefits to Great West Life, but included additional other documents and correspondence discussing Great West Life and its payment of STD benefits to A.M. In focusing only on the Samways Affidavit, the Tribunal missed this relevant evidence, along with the much more extensive narrative of the facts that the Brandt Affidavit relayed.
This error was compounded by the fact that the Tribunal misunderstood relevant and important evidence in the Samways Affidavit. In focusing on the Samways Affidavit’s key evidence – Aviva’s January 26, 2016 conversation with A.M.’s counsel – and in explaining why it gave this evidence little weight, the Tribunal faulted the affidavit for offering no details “as to the amount of money paid by the STD provider and as to the timeframe of when the money was received by [A.M.]:” see para. 17. However, the Samways Affidavit answered that question. In particular, the log note appended as Exhibit A – a contemporaneous record of Aviva’s conversation with A.M.’s counsel – outlines explicitly what A.M.’s counsel told Aviva: A.M. received “100% of pay for STD from DOL [i.e., date of loss] to Oct 2015.” Together with A.M.’s employment information contained in the Brandt Affidavit, this log note contained the information the Tribunal wanted.
The Tribunal was also concerned about the source of A.M.’s counsel’s information. As indicated above, the Tribunal was troubled over not having “any information as to how the respondent’s legal representative obtained the information [i.e., that A.M. received an STD covering his lost income] provided to Mr. Samways:” see para. 17. The point is irrelevant. The fact of the matter is that the information came from A.M.’s legal counsel, who, as such, spoke on A.M.’s behalf. In the circumstances, the information was no less reliable than if it came from A.M. directly. There was no need to question the information’s source. Moreover, as the Brandt Affidavit illustrates, when Aviva repeated this same information in its April 26, 2016 letter to A.M. and his counsel, it was never disavowed. The Tribunal failed to consider this.
Ultimately, the Tribunal’s reasons indicate that it viewed Aviva’s application as resting entirely on the Samways Affidavit and, more specifically, Mr. Samways’s hearsay account of what A.M.’s counsel told him on January 26, 2016. As the Tribunal put it, “[i]n the absence of any other supporting evidence, the hearsay statement alone does not establish on a balance of probabilities that the respondent received a STD benefit in excess of 70% of his gross pre-accident income during the time period from July 4, 2015 to September 27, 2015:” see para. 18. However, the record contained considerable additional evidence supporting the central facts that the Samways Affidavit conveys: that A.M. received an STD that exceeded his IRB, and that Aviva was told that it would be repaid. The Tribunal erred, unfortunately, in not reviewing or appreciating all of this evidence.
Based on the record, the Tribunal’s conclusion is one that was not open to it. This was the result of a significant error, whether of fact or law, such that the Tribunal would have determined the matter differently.
Conclusion and Order
- I therefore grant Aviva’s request for reconsideration, cancel the Tribunal’s order of April 6, 2017, and, pursuant to s. 52(1)(c) of the Schedule, order A.M. to repay Aviva $4,414.29.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: July 04, 2017