Tribunal File Number: 16-003577/AABS
Case Name: 16-003577 v The Guarantee Company of North America
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
L. K.
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
Adjudicator: Gemma Harmison
Written Submissions By:
For the Applicant: Mark Grossman, counsel for the Applicant
For the Respondent: Talaal Bond, counsel for the Respondent
Written Hearing: May 29, 2017
OVERVIEW:
1L.K. (the “applicant”) was injured in an automobile accident on October 9, 2001, and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule — Accidents on or after November 1, 19961 (the “Schedule”).
2As a result of the accident, the applicant applied for and was receiving income replacement benefits (“IRBs”) from the respondent.
3Effective July 13, 2016, the respondent suspended payment of the applicant’s IRBs because the applicant had not provided certain documentation which the respondent had requested. Subsequently, on or about December 19, 2016, the respondent reinstated payment of the applicant’s IRBs after the applicant provided the respondent with the requested documentation. No IRBs were paid to the applicant by the respondent between the date of suspension and the date of reinstatement (the “disputed period”).
4The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”).
5The applicant seeks payment of IRBs for the disputed period. The applicant also claims for costs of the proceeding.
6A case conference was held on January 19, 2017. The parties were unable to resolve their dispute at the case conference, and the matter was scheduled for the present written hearing.
7The parties served and filed their initial submissions and evidence by the respective deadlines imposed upon them as stipulated in the Order. The applicant was additionally afforded the opportunity to provide reply submissions, however I was informed by the case management officer that no reply submissions were received by the Tribunal.
8A review of the initial submissions and evidence filed by the parties form the basis of this decision.
ISSUES TO BE DECIDED:
9The issues to be decided at this hearing are:
i. Is the applicant entitled to receive income replacement benefits for the disputed period of July 13, 2016 to December 19, 2016?2
ii. Is the applicant entitled to costs of the proceeding?
RESULT:
10For reasons set out below, I find that:
i. The applicant is not entitled to payment of IRBs for the disputed period.
ii. The applicant is not entitled to costs of the proceeding.
BACKGROUND:
11The disputed IRB period arises from a series of letters between the parties, as well as other correspondence.
12At issue in particular is the respondent’s request for the applicant’s Canada Pension Plan Disability file (“CPPD file”).
13Since those letters and other correspondence are key to understanding the disputed IRB period, as well as the respective positions of the parties, and my ultimate decision in this matter, I find it important to summarize those letters and other correspondence, as outlined below.
April 12, 2016 letter from the respondent to the applicant:
14The respondent sent a letter dated April 12, 20163 to the applicant asking that she provide the respondent with certain documents by May 3, 2016. Specifically, this letter requested that the applicant complete and return to the respondent two enclosed forms, namely a Permission to Disclose Health Information form and a Third Party Request for Personal Claims History form (“the two forms”).
15This letter advised the applicant that the respondent was requesting the foregoing documentation per section 33(1) of the Schedule in order to assess the applicant’s (ongoing) entitlement to IRBs. The letter asked that the applicant provide the requested documentation to the respondent by May 3, 2016.
16The letter indicated that the respondent was not liable to pay IRBs to the applicant “in respect of any period during which you failed to comply with this request…until such time as you do provide the requested information and/or documentation.”
17The letter went on to advise that if the applicant “[did] provide the requested information and/or documentation, we will resume payment of [IRBs] to which you may be entitled.”
18The letter further advised the applicant as follows: “Only the benefits withheld during the period of non-compliance will be considered if you provide a reasonable explanation for the delay in complying with this request…Therefore, if you would like to make a claim for any withheld [IRBs], we will also require that you provide an explanation for the delay.”
May 9, 2016 letter from the respondent to the applicant:
19The respondent subsequently sent a letter dated May 9, 20164 to the applicant. In this letter, the respondent not only requested that the applicant provide the information that had been requested in the respondent’s previous letter of April 12, 2016 letter (i.e. the two forms), but also asked that it be provided with a copy of the applicant’s CPPD file.
20The May 9, 2016, letter indicated that the respondent was seeking the foregoing documentation from the applicant per section 33(1) of the Schedule in order for the respondent to assess the applicant’s (ongoing) entitlement to IRBs. The letter asked that the applicant provide the requested documentation to the respondent by May 31, 2016. The letter noted that “no [IRBs] will be payable for the time period that you do not comply with our request.”
21The respondent again included the following statements: “Only the benefits being withheld during the period of non-compliance will be considered if you provide us with a reasonable explanation for the delay in complying with this request…Therefore, if you would like to make a claim for any withheld [IRBs], we will also require that you provide an explanation for the delay.”
May 20, 2016 letter from applicant’s counsel to the respondent
22Counsel for the applicant sent a letter to the respondent dated May 20, 2016.5
23That letter contained a single sentence, as follows:
“Further to your letter of May 9, 2016, we enclose herewith the requested
signed releases.” [i.e. the two forms]
June 24, 2016 letter from the respondent to the applicant
24The respondent sent a letter to the applicant dated June 24, 20166. In this letter, the respondent referred back to its earlier letter of May 9, 2016 in which the respondent had requested a copy of the applicant’s CPPD file by May 31, 2016. The respondent advised that it had not received or been allowed access to the applicant’s CPPD file, which it had requested in order to assess the applicant’s (ongoing) entitlement to IRBs.
25In this letter, the respondent put the applicant on notice that since the CPPD file had not been received by the May 31, 2016 deadline, the applicant was “now considered in non-compliance” and that her IRB payments would be suspended effective July 13, 2016.
26The letter indicated that if the applicant provided or allowed the respondent access to the CPPD file, the respondent would resume payment of the applicant’s IRBs to which she may be entitled.
27The letter further advised that the IRBs withheld during the period of non-compliance would be considered if the applicant provided a reasonable explanation for the delay in providing the requested documentation.
Other Correspondence
28The applicant’s counsel sent a letter to the federal government dated October 11, 20167 requesting a complete copy of the applicant’s CPP records.
29A letter of response from the federal government dated November 8, 20168 was sent to the applicant’s counsel enclosing the requested records.
30The applicant’s counsel sent a letter to the respondent dated December 14, 20169 enclosing the records received from the federal government.
POSITION OF THE APPLICANT:
31The applicant seeks “retroactive reinstatement” of IRBs for the disputed period, asserting that the respondent “was not entitled to terminate the benefits for a number of reasons”, as summarized below:
i. The applicant contends that the word used in section 33(1) is “eligibility”. Based on this contention, the applicant argues that the respondent is only entitled to obtain information that deals with “eligibility of benefits” which the applicant asserts speaks only to the threshold questions of whether the applicant was employed at the time of the accident and whether the applicant was disabled from working as a result of the accident. The applicant further submits that the respondent’s request for CPPD documentation “was for the purpose of determining quantum of the [IRBs]” and that the request for the CPPD file “was outside the purview of the regulations as the requested information did not deal with the issues of eligibility and rather that of quantum.”
ii. The applicant contends that the respondent was already “well aware” that the applicant would not qualify for CPPD, asserting that it “is common ground and well-known to a sophisticated insurance company” that an individual must have worked in Canada and contributed to CPP for at least four years to qualify. The applicant asserts that it was clearly evident from the applicant’s statement dated October 24, 200110 submitted to the respondent that the applicant had “only worked in Canada for three years” and thus would not be entitled to CPPD benefits.
iii. The applicant further contends that awareness that the applicant had not worked for four years in Canada was also apparent from other documentation, referring in particular to “Case Conference Brief at Tab Four, eighth page.”11
iv. The applicant submits that the respondent waited some 15 years after the accident to raise the issue of CPPD and argues that from this delay it can be drawn that the respondent “made the request as a form of harassment or an attempt to terminate the benefits for reasons that are unfounded in fact or law.”
v. In the alternative, the applicant asserts that there was a reasonable explanation for the delay in providing the requested CPPD file. In this connection, it was the applicant’s belief that by providing the two completed forms to the respondent, the applicant had satisfied all of the respondent’s requirements. The applicant contends that, once it became apparent that the respondent “was dissatisfied with the compliance”, the applicant “retained counsel to obtain the [CPPD] file” which confirmed that the applicant was not entitled to CPPD.
vi. In the further alternative, the applicant submits that the respondent “should not be rewarded” for sending the applicant “on a paper chase to obtain the necessary information”, asserting that the respondent could have asked the applicant to execute a release to obtain the CPPD file “as was done with respect to medical records”.
POSITION OF THE RESPONDENT:
32The respondent asserts that the request for the CPPD file was “proper to determine the correct amount of the IRB benefit” to which the applicant is entitled.
33The respondent submits that insurers “are entitled to deduct payments of CPPD from IRB payments” and in this connection cited in its submissions the following provisions of the applicable Schedule in effect at the time of the accident, O. Reg 403/96:
7.(1) Despite subsections 6(1) and (5), but subject to subsection 6(2), the weekly
amount of an income replacement benefit payable to a person shall be the
lesser of the following amount:
- The amount determined under subsections 6(1) and (5), reduced by,
i. net weekly payments for loss of income that are being received by the person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan…[emphasis added by respondent]
2(9) For the purpose of this Regulation, payments for loss of income under an
income continuation benefit plan shall be deemed to include the following
payments:
- Payments of disability pension benefits under the Canada Pension Plan.
34The respondent further asserts that, in view of the provisions it cited in its submissions above, it made a request of the applicant for the CPPD file pursuant to section 33 of the Schedule:
- (1) A person applying for a benefit under this Regulation shall, within
10 business days after receiving a request from the insurer, provide the
insurer with the following:
- Any information reasonably required to assist the insurer in
determining the person’s entitlement to a benefit.
35The respondent went on cite the following additional provisions of the Schedule:
33(2) The insurer is not liable to pay a benefit in respect of any period
during which the insured person failed to comply with subsection (1)
or (1.1)
33(4) If an insured person who failed to comply with subsection (1) or (1.1)
subsequently complies with that subsection, the insurer,
(a) shall resume payment of the benefit, if a benefit was being paid; and
(b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for the delay in complying with the subsection.
36The respondent submits, and has included case law12 in support of its position, that the purpose of section 33 is “to ensure that insured persons facilitate the insurer’s ability to obtain sufficient information to assess a claim for benefits”, and that it “has long been established that these requests include determining quantum.”
37The respondent therefore contends that it was correct in its requests for information from the applicant, including the CPPD file. The respondent further submits that no evidence or law was produced by the applicant to the contrary.
38The respondent asserts that it was therefore entitled to suspend payment of the applicant’s IRB payments until the CPPD documentation it had requested from the applicant had been received.
39In its submissions, the respondent additionally makes note of the following:
i. The respondent’s letter of May 9, 2016 (in which the request for the CPPD file was originally made) indicated that the applicant’s IRB benefits would be suspended if the requested documentation was not received by May 31, 2016. Notwithstanding the passage of that deadline, the respondent did not immediately suspend the applicant’s IRBs and instead the respondent sent a follow-up letter to the applicant dated June 24, 2016 granting her additional time to provide the requested documentation failing which her IRBs would be suspended effective July 13, 2016. The respondent submits that it received no response from the applicant to its June 24, 2016 letter, “not even an acknowledgement.” The respondent submits that, rather than providing the requested documentation, the applicant proceeded to file an application to the Tribunal.
ii. Once the CPPD file was produced to the respondent “on December 19, 2016, the benefits were duly reinstated.”
iii. The respondent submits that the record shows the applicant and her counsel took no steps to obtain the CPPD file until October 7, 2016, “some 5 months after” the respondent had requested the CPPD file in its May 9, 2016 letter.
iv. The record further shows that the letter sent by the federal government dated November 8, 2016 to the applicant’s counsel enclosing the requested records was date stamped November 22, 2016, but was not sent to the respondent for over three weeks.
v. The respondent contends that no reasonable explanation from the applicant for the delay was provided to the respondent which “could mitigate the suspension.”
40The respondent also disagrees with the applicant’s assertion that the applicant’s statement of October 24, 2001 to the respondent made clear that the applicant had only worked in Canada for three years. The respondent submits that the applicant’s statement “indicates a working history of unknown years, continuous or otherwise”, and does not disclose when the applicant “arrived in Canada and when she commenced work.”
41In response to the issue raised by the applicant as to the passage of 15 years as between the date of the accident and the respondent’s request for the CPPD file, the respondent submits that there is “no prohibition or limitation as to when [insurer’s requests for information] can be made” and that the applicant “refers to no authority to support her argument.”
42In conclusion, the respondent submits that it correctly requested the CPPD file two times, properly suspended the applicant’s IRB when the applicant did not comply with the request and, once the CPPD file had been produced, the respondent reinstated the applicant’s IRBs.
ANALYSIS:
43The onus rests with the applicant to prove, on a balance of probabilities, entitlement to the relief being sought in this application.
44Having considered the submissions and evidence before me, I find that the applicant has failed to meet that onus.
45The following is my analysis and reasons for reaching this conclusion.
Issue 1 - Disputed period of IRBS
46Contrary to the applicant’s submissions, the word contained in section 33(1) is “entitlement”, not “eligibility”. In situations involving an ongoing benefit, such as IRBs, entitlement is not limited to a singular point in time. That is, it is not confined to only the initial determination of entitlement. Rather, “entitlement” in the context of an ongoing benefit extends and continues over time, and a change in circumstance at some later point can affect a person’s ongoing entitlement to the benefit, including the issue of quantum of the ongoing benefit or whether the change in circumstance is such that it warrants complete discontinuation of the ongoing benefit.
47In any event, the applicant presented no evidence or case law to support the contention that section 33(1) is or should be narrowly confined to limit an insurer to requesting only documentation that addresses threshold issues of employment status at the time of the accident and disability arising from the accident.
48In contrast, the respondent presented case law in support of its position that section 33(1) grants an insurer the authority to request information it considers necessary to assess a claim for benefits. While the particular fact patterns of the two cases cited by the respondent differ from the circumstances of the present case, the Arbitrators in both of those cases, when addressing section 33, held that “[the] purpose of section 33 is to ensure that insured persons facilitate the insurer’s ability to obtain sufficient information to assess a claim for benefits.”13 And, as I have noted above, assessing entitlement to ongoing benefits, such as IRBs, extends and continues over time.
49I also disagree with the applicant’s assertion that the applicant’s statement of October 24, 2001 to the respondent clearly demonstrated to the respondent that the applicant had only been working in Canada for three years at the time of the accident and therefore would not be eligible to CPPD in any event. The relevant portion of the applicant’s statement reads as follows14:
“I was employed at the time of the accident with the [RC] as a homemaker. I would work 35 to 40 hours a week. I would work every other
weekend. I have worked with the [RC] for the last six months. Prior to
working with the [RC] I worked at [RHC]. I worked for them part time. I
started with [RHC] almost two years ago. I also cleaned offices through
[HCI]. I worked with [HCI] for about 6 months. I worked there about 6
months ago. That was part time work as well.”
50In my view, the above passage from the applicant’s statement does not clearly show that the applicant had only worked in Canada for three years when the accident happened. It is not clear from that statement whether the applicant was describing her entire employment history, or only her employment positions in the time most contemporaneous to the accident. The statement does not clearly articulate when [i.e. what year] the applicant first came to Canada, or the year she first obtained employment in Canada.
51In view of my findings above, the remaining issues for me to decide are (1) whether the respondent’s request for the CPPD file was reasonably required as per section 33(1) of the Schedule, and (2) whether the applicant has, as per section 33(4) (b) of the Schedule, provided a reasonable explanation for the delay in providing the CPPD file to the respondent. I will address each of these issues below.
52The respondent submits that its request for the CPPD file was properly made, and in support of its position cited section 2(9) of the Schedule, which specifically identifies CPPD benefits as an “income continuation benefit plan” that can reduce the amount of IRBs payable to an insured under section 7(1).
53I note that the respondent has however overlooked in its submissions reference to section 2(10), which provides as follows:
2(10) Subsection (9) only applies in respect of accidents that occur on or after
January 1, 2002
54The accident in which the applicant was injured happened on October 9, 2001. This was before CPPD was specifically and explicitly identified as an “income continuation benefit plan” subject to reduction from IRBs under section 7(1). This does not, however, end my analysis or cause me to automatically find that the respondent was altogether precluded from requesting the applicant’s CPPD file.
55Before section 2(9) was added making clear that CPPD was a collateral benefit to be deducted from IRBs, it was left open to interpretation and argument as to whether, in the circumstances of a particular case, CPPD benefits should or should not be deducted when assessing IRBs. The onus rests with the applicant to prove her case that the respondent’s request for her CPPD file was not reasonably required. The respondent contends that its request for the applicant’s CPPD file was reasonably made. The applicant did not submit a reply or any case law in response to the respondent’s submissions to persuade me otherwise. Accordingly, I find that the applicant has failed to prove that the respondent’s request for the CPPD file was not reasonably required.
56I now turn to the second remaining issue, that being whether the applicant has provided a reasonable explanation for the delay in providing the CPPD file to the respondent.
57The evidence before me shows that the respondent first asked for the applicant’s CPPD file in its letter to the applicant dated May 9, 2016. When the respondent did not receive the CPPD file by the deadline date stipulated in that letter, it did not immediately suspend the applicant’s IRBs and instead sent a follow-up letter to the applicant dated June 24, 2016. In its submissions, the respondent contends that it did not receive a response from the applicant or the applicant’s counsel, or even acknowledgement, to the June 24, 2016 letter. The applicant has not adduced any evidence or documentation to dispute the respondent’s assertion in that respect.
58The applicant contends in its submissions that there is a reasonable explanation for the delay in providing the CPPD file to the respondent. In this connection, the applicant points to the respondent’s letter of April 12, 2016 in which the respondent asked the applicant to return the two forms to the respondent. In the submissions, it is contended that the applicant was of the belief that, having subsequently provided those two forms, the applicant had satisfied “all” of the respondent’s requirements. The applicant’s submissions suggest that it was only after the respondent’s June 24, 2016 letter that the applicant became aware that the respondent was dissatisfied with the documentation that had been provided to that point, and that once that became apparent the applicant “retained counsel to obtain the [CPPD] file.” The applicant further submits that the respondent could have asked the applicant to sign a release allowing the respondent access to the CPPD file rather than sending the applicant “on a paper chase” to obtain that documentation.
59I find a number of problems with the applicant’s submissions on the reasonable delay issue. First, it is clear from the evidence on record that the applicant’s counsel had been acting for the applicant even before the respondent sent its June 24, 2016 letter. The applicant’s counsel wrote to the respondent on May 20, 2016 and in that letter directly referred to the respondent’s letter of May 9, 2016, which was, notably, when the respondent specifically requested the applicant’s CPPD file.
60I note further that the respondent’s letters of May 9, 2016 and June 24, 2016 both explicitly afforded the applicant the opportunity to provide reasons to the respondent for any delay in obtaining the CPPD file. I have no evidence before me to show that the applicant contacted or corresponded with the respondent to advise the respondent about any delay in obtaining the CPPD file.
61Further, the applicant has provided absolutely no explanation as to why the CPPD file was not requested until October 7, 2016 (some five months after the respondent first requested it in the May 9, 2016 letter, and more than three months after the respondent’s follow-up letter of June 24, 2016). Nor has any explanation been provided as to why, having received the CPPD file on or about November 22, 2016, it was not forwarded to the respondent for a further three weeks until mid-December 2016.
62For all of the foregoing reasons, I find that the applicant has failed to prove that the respondent’s request for her CPPD file was not reasonably required. I further find that the applicant has failed to provide a reasonable explanation for the delay in producing her CPPD file to the respondent. Accordingly, I find that the applicant has not proven, on a balance of probabilities, that she is entitled to IRBs for the disputed period.
Issue 2 - Costs
63Rule 19.1 of the Tribunal’s Rules of Practice and Procedure (the “Rules”) provides that a party may make a request to the Tribunal for costs where it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith [emphasis added]. Rule 2.17 of the Rules defines a “proceeding” as being “the entire Tribunal process from the start of an appeal to the time the matter is finally resolved.”
64Rule 19.4 further sets out a requirement that a party’s submission on costs shall “set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.”
65The applicant did not include a separate section in its submissions specifically addressing the issue of costs. The applicant made assertions elsewhere in the submissions alleging, for example, that the respondent’s request for information from the applicant was “a form of harassment” and alleging that the respondent sent the applicant on a “paper chase” to obtain the information.
66The foregoing statements and allegations made by the applicant concern the respondent’s handling of the applicant’s accident benefits file prior to the Tribunal’s proceedings. The applicant has provided no submissions regarding the respondent’s conduct in the proceeding before the Tribunal.
67Accordingly, the applicant’s claim for costs is denied.
CONCLUSION:
68For reasons outlined above, I find that:
i. The applicant is not entitled to IRBs for the disputed period.
ii. The applicant is not entitled to costs of the proceeding.
Released: August 11, 2017
___________________________
Gemma Harmison, Adjudicator
Kassa.
Footnotes
- O. Reg. 403/96
- I have slightly reframed the first issue for the purposes of this hearing. That issue had not been fully identified in the case conference Order, in particular with respect to the specific date of onset of the disputed period. Although the date of onset was more clearly identified in the case conference report, it included reference to the weekly amount of IRBs ($145.00) which differed from the weekly amount of IRBs as indicated in the respondent’s submissions for the hearing ($185.00). Based on my review of the parties’ submissions and the evidence before me at this hearing, I find that the key issue for me to decide is not the actual weekly amount of the IRBs, but rather whether the applicant is entitled to receive IRBs for the disputed period.
- Applicant’s Submissions, Tab 3
- Applicant’s Submissions, Tab 2
- Applicant’s Submissions, Tab 4
- Respondent’s Submissions, Tab C
- Respondent’s Submissions, Tab E
- Respondent’s Submissions, Tab D
- Applicant’s Submissions, Tab 5
- Applicant’s Submissions, Tab 6
- That evidence was not before me. As was indicated in the case conference report, documents filed by the parties for the purposes of the case conference would not be before the hearing adjudicator and would have to be resubmitted for use at the hearing. This was also indicated at paragraph 5 of the case conference Order.
- Kassa v. Economical Mutual Insurance Co., 2000 CarswellOnt 3506 (affirmed 2001 CarswellOnt 6103) at Tab F of the Respondent’s submissions, and Tesfay v. Allstate Insurance Co. of Canada, 1999 CarswellOnt 5569 (affirmed 1999 CarswellOnt 5625) at Tab G of the Respondent’s submissions.
- As held by Arbitrator Joachim in Tesfay, and as subsequently agreed to and cited by Arbitrator Allen in
- I have replaced the names of the applicant’s employer’s with initials only.