M. K. v. Aviva Insurance Canada, 2017 CanLII 59502

M. K. v Aviva Insurance Canada

Date: 2017-09-07 Tribunal File Number: 16-003909/AABS Case Name: 16-003909 v Aviva Insurance Canada

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:

M. K.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION ON PRELIMINARY ISSUE

Adjudicator: S. F. Mather

Appearances: For the Applicant: Charles Gluckstein For the Respondent: Joy E. Stothers

Heard in Writing on: July 6, 2017

OVERVIEW

1The applicant is seeking an attendant care benefit in the amount of $3,498.49 per month for the period August 1, 2016 to date and ongoing and interest on any overdue payments pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant is designated catastrophically impaired within the meaning of the Schedule.

2At a Case Conference held on March 16, 2017, a written hearing was ordered to determine the preliminary issue of whether the doctrine of res judicata prevents the applicant from having his application heard by the Licence Appeal Tribunal (“ the LAT”)

3The respondent argues that the applicant’s entitlement to attendant care benefits was fully decided at the Financial Services Commission of Ontario (“FSCO”) by Arbitrator Marcel Mongeon (the “Arbitrator”) in a decision released on October 31, 2016. The respondent argues that the applicant must either appeal or apply to vary the order of the Arbitrator in accordance with the provisions of the Insurance Act¹ which provide for appeals and applications to vary orders of Arbitrators to be heard by the Director of arbitrations.

4The applicant disagrees and argues that the Schedule permits more than one application for attendant care benefits and that the respondent is unnecessarily delaying the proceeding and undermining an expeditious resolution of the applicant’s accident benefit claim.

PRELIMINARY ISSUE TO BE DECIDED

5The preliminary issue to be decided is:

1. Is the issue of entitlement of attendant care benefits subject to res judicata as per Financial Services Commission (FSCO) decision of Arbitrator Mongeon’s dated October 31, 2016?

RESULT

6I find that the issue of the applicant’s entitlement to attendant care benefits and interest for the period August 1, 2016 to date and ongoing is not res judicata and the applicant is entitled to have his claim heard by the LAT.

7The application is adjourned to a full hearing on the merits of the attendant care benefit and interest claims. The hearing date and format of the hearing will be set by the Tribunal at a Case Conference to be scheduled in consultation with the parties.

Analysis

8The applicant was injured in a motor vehicle accident on June 4, 2013. On April 29, 2014 the applicant applied² to FSCO for arbitration of his claim for attendant case benefits, catastrophic impairment designation and housekeeping and home maintenance expenses.

9Relevant to the issue in this proceeding is the dispute over the attendant care benefits which was heard by FSCO on August 16, 17, and 18, 2016.

10The application before the FSCO Arbitrator was for three specified periods of time³:

• June 4, 2013 to July 27, 2013 at $6,000 per month
• July 28, 2013 to December 31, 2013 at $3,526.34 per month
• May 20, 2015 and ongoing at $6,000 per month

11The Arbitrator found as follows: “The applicant is entitled to attendant care benefits at the rate of $ 3,526.34 from September 15, 2013 to December 31, 2013. No other benefit is payable.”

12The respondent argues that the Arbitrator’s statement “No other benefit is payable” is a prospective order and the only remedy available to the applicant to obtain attendant care benefits is to appeal⁴ or seek to vary the order of the Arbitrator⁵.

13The applicant argues that the Arbitrator’s statement is not a prospective order and the Schedule allows the applicant to file another claim for attendant care benefits. The applicant submits that the Arbitrator’s use of the present tense in finding “No further benefit is payable” establishes the scope of the decision.

14The doctrine of res judicata prevents a party from re-litigating a dispute that has already been decided. It is based on the principles of finality in decisions, preventing duplicate litigation, inconsistent decisions, undue costs and inconclusive proceedings. ⁶

15It is generally accepted that there are four prerequisites to be established before a finding of res judicata may be made⁷:

1. The two actions must involve the same parties or their privies;
2. The claim sought to be asserted must have been within the prior court’s jurisdiction;
3. Prior adjudication must have been on the merits;
4. The prior decision must have been a final judgment.

16I find that the doctrine of res judicata does not apply to this LAT application because:

• The applicant’s claim for attendant care benefits for the period from August 01, 2016 and ongoing has not been previously adjudicated on the merits and;
• The decision of the Arbitrator is not a final judgment on the issue of the applicant’s entitlement to future attendant care benefits.

17Res judicata is a discretionary remedy which has limited application in disputes for ongoing benefits under the Schedule because the Schedule allows an insured to file multiple applications for some benefits.

18Section 42 of the Schedule⁸ sets out the rules for attendant care benefit applications. An application must be made on a prescribed form entitled “Assessment of Attendant Care Needs” and known as Form 1⁹. If the insurer denies a Form 1 claim the insured is entitled, subject to some restrictions, to bring an application to the LAT within two years after the refusal to pay the amount claimed.¹⁰

19Section 42(9) provides for a new Form 1 to be submitted to an insurer any time that there are changes that would affect the amount of benefits. There is no limit to the number of Form 1s an insured may submit. Since the applicant has been designated catastrophically impaired within the meaning of the Schedule there is no limit on the length of time the applicant may claim attendant care benefits.¹¹

20Three Form 1s were before the Arbitrator. I am satisfied that they cover a different time period than the Form 1s that are before LAT on this application.

21The most recent Form 1 before the Arbitrator is dated July 1, 2014. He determined than an attendant care benefit was only payable for a short period of time in 2013. He clearly finds that there was no up-to-date Form 1 for the period from May 20, 2015 to the start of the hearing. The Arbitrator suggests in his decision that an up-to-date Form 1 would be required before any attendant care benefits would become payable.

22The attendant care benefit application before LAT was made on November 11, 2016 and is based on two Form 1s dated August 9, 2016¹² and September 12, 2016¹³. The application claims benefits for the period August 1, 2016 and ongoing. ¹⁴

23Significantly, on page 8 of his decision the Arbitrator acknowledges that the respondent conducted an Insurer’s examination shortly before the August 2016 hearing. He states that both the results of the examination and the Form 1 were not available to him at the time of the hearing.

24In my view this statement confirms that the August 9, 2016 Form 1 was not heard on its merits by FSCO. The September 12, 2016 Form 1 was not submitted until after the FSCO hearing ended and for that reason could not have been considered by the Arbitrator.

25I agree with the applicant that the Arbitrator’s statement that “No other benefit is payable” is not a prospective order. In my view it is simply a statement that no further benefits claimed in the application for arbitration before him were payable. The Arbitrator found that as of the date of the hearing the applicant did not meet the test for attendant care benefits beyond December 31, 2013.

26The Arbitrator expressed his view that each time the applicant’s living arrangement changed it was appropriate to submit a new Form 1. He concluded that there was no appropriate Form 1 before him after July 1, 2014 to base a decision on the amount of attendant care required.

27In my view, each time a Form 1 is submitted the mechanisms in s. 42¹⁵ are triggered and an insured has the opportunity to file a dispute if the benefit is denied by the insurer. The respondent relies on the FSCO case of Michael and Belair Insurance¹⁶ as authority for its position that the applicant must apply to vary the Arbitrator’s order. While I am not bound by a decision of the Director’s Delegate the Michael and Belair Insurance case may be distinguished from the case before me.

28In Michael and Belair Insurance the respondent argued that the FSCO arbitrator did not have the authority to order that attendant care benefits be paid beyond the date of the hearing. The Director’s Delegate determined that the arbitrator did have the authority to make the order and found that the remedy available to the insurance company if circumstances changed was to apply under S. 284¹⁷ of the Insurance Act to vary the order.

29In this case there are no benefits to vary or revoke as the Arbitrator found on the basis of the evidence before him that no benefits were payable from May 15, 2015 to the date of the hearing. The applicant accepts the order of the Arbitrator and now claims benefits from August 1, 2016 to date and ongoing. In my view there is no basis for requiring the applicant to appeal the decision or bring a section 284 application.¹⁸ The applicant may bring his dispute to LAT as permitted by s. 280(2) of the Insurance Act. ¹⁹

30I am also satisfied that the decision of the Arbitrator was not a final decision on the applicant’s future entitlement to attendant care benefits. Section 42 of the Schedule provides for ongoing applications for attendant care benefits. The Schedule recognizes that circumstances change and provides for new assessments (applications) being submitted at any time there is a change that would affect the amount of the benefit. The attendant care benefit issue before the Arbitrator and now LAT is an ongoing issue and the applicant is entitled by s. 42(9) of the Schedule to submit new assessments of attendant care needs to the respondent at any time there are changes that would affect the amount of benefits. Since the applicant is designated as catastrophically impaired ²⁰he is entitled to submit new assessments to the respondent until such time as he has exhausted the monetary limit in the Schedule. ²¹

Order

31For the reasons given above I Order:

1. The application may proceed at LAT.
2. The application is adjourned to a full hearing on the merits of the attendant care benefit and interest claims.
3. The hearing date and format of the hearing will be set at a Case Conference to be scheduled in consultation with the parties.

Footnotes

1. 1S. 283(1), 284(1) , Insurance Act, R.S.O. 1990, c. I.8,
2. 2Tab 2, Respondent’s written submissions
3. 3The applicant did not apply for benefits for the period January 1, 2014 to May 19, 2015 because he was incarcerated as a result of the criminal charges that were laid against him after the accident.
4. 4S. 283, the Insurance Act, R.S.O. 1990, C. I.8 (Repealed April 1, 2016)
5. 5S. 284, the Insurance Act, R.S.O. 1990, C. I.8 (Repealed April 1, 2016)
6. 6Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44, 2991 CSC 44 2001, paragraph 18
7. 7The Civil Litigation Process: Cases and Materials, Janet Walker et al, (Toronto” Edmund Montgomery Publications Limited, 2005) p. 440
8. 8O. Reg. 34/10
9. 9S. 42(1) O .Reg. 282/98
10. 10S. 56(1) O. Reg. 34/10
11. 11S. 20 (3)(a) O .Reg. 34/10
12. 12Tab 1 Applicant’s submissions
13. 13Tab 2 Applicant’s submissions
14. 14Tab 10, Respondent’s submissions
15. 15O. Reg. 34/10
16. 162006 CarswellOnt, 1674; O.F.S.C.D. No. 36 (Appeal from the order of an FSCO arbitrator to the Director’s Delegate)
17. 17Insurance Act, R.S. O. 1990, c. I.8 (Note: This section has been repealed)
18. 18Insurance Act, R.S. O. 1990, c. I.8 (Note: This section has been repealed)
19. 19s. 280(2), R.S.O. 1990, c. I.8
20. 20S. 20(2)(3)(a) O.Reg. 34/10
21. 21S. 19(3)2. O. Reg. 34/10