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: 16-001144/AABS
Case Name: 16-001144 v. Aviva Insurance Company
Written Submissions By:
For the applicant: N/A
For the respondent: Cara L. Boddy and Andrew M. Baerg, Evans, Philp LLP
Introduction
On February 2, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter. In its decision, the Tribunal determined that the applicant was entitled to income replacement benefits (“IRBs”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from February 11, 2016 to June 5, 2017.
On February 21, 2017, the respondent requested a reconsideration of the Tribunal’s decision. The respondent takes issue with the fact that the Tribunal’s order makes an award of benefits payable until a future specified date. It also argues that the Tribunal erred in the manner in which it determined the quantum of these benefits.
For the reasons that follow, I grant the respondent’s request.
The Facts
On June 4, 2015, the applicant was injured in a motor vehicle accident. As a result, he sought IRBs under the Schedule.
The respondent paid the applicant IRBs at a rate of $184.13 per week from October 19, 2015 to February 23, 2016. Thereafter, the respondent denied them based on several insurer examination reports suggesting that the applicant did not satisfy the test required by ss. 5(1)1.i of the Schedule, namely that he suffered a “substantial inability to perform the essential tasks of [his] employment.”
On July 6, 2016, the applicant applied to the Tribunal, claiming his entitlement to IRBs to the present. In its final decision, the Tribunal framed the main issue between the parties as whether the applicant was entitled to IRBs “at a rate of $184.13 per week from February 11, 2016, to date and ongoing”: see para. 15.
The Tribunal held that the applicant satisfied the Schedule’s threshold for the payment of IRBs. However, the Tribunal did not order that the applicant receive IRBs from February 11, 2016 “to date and ongoing.” Rather, it ordered that the applicant receive them “from February 11, 2016 to June 5, 2017.”
Issues
The respondent asks that I reconsider two aspects of the Tribunal’s decision.
First, the respondent argues that the Tribunal erred in ordering IRBs payable until June 5, 2017. Invoking Rules 18.2(a) and (b), the respondent asserts that this was a significant error of law that, if corrected, would likely result in a different decision.
Second, the respondent argues that the Tribunal’s finding that the proper quantum of IRBs is $184.13 per week was also mistaken. Specifically, the respondent argues that Tribunal misunderstood the evidence before it. The respondent argues that this was also an error for which a reconsideration should be granted.
On February 23, 2017, the Tribunal’s counsel invited the applicant’s counsel to make submissions in response to the respondent’s request for reconsideration. The Tribunal received no answer.
Analysis
The respondent’s first argument
I agree with the respondent’s first argument. The Tribunal’s order that the applicant be paid IRBs until June 5, 2017 was a significant error of law that should be corrected.
The June 5, 2017 date appears to represent the two-year or 104-week anniversary of the applicant’s accident. (On the record before me, the applicant was actually injured on June 4, 2015.) After this two-year anniversary, the Schedule’s test for eligibility for IRBs changes. The Tribunal appears to have assumed that, having satisfied the current test to receive IRBs, the applicant would continue to be eligible to receive them until the test changes at this two-year marker.
However, ss. 6(1) of the Schedule makes clear that, generally speaking, IRBs are payable “for the period” in which an injured period continues to meet the applicable threshold. That is to say, entitlement to IRBs is a point-in-time inquiry. As the respondent argues, simply because an injured person meets the test for eligibility at a particular point in time does not necessarily mean that he or she will continue to qualify for IRBs at any particular point in the future.
Thus, given the Schedule’s wording, along with the respondent’s ongoing obligation to continue to adjust the applicant’s file, the Tribunal’s order extends too far. The Tribunal’s decision should, at the very least, be varied to make clear that IRBs are payable from February 11, 2016 and ongoing, thereby allowing the respondent to adjust the file as necessary.
The respondent’s second argument
I also agree with the respondent’s second argument.
As mentioned above, the respondent takes issue with the manner in which the Tribunal calculated the quantum of the applicant’s IRBs. In short, the respondent argues that the Tribunal misunderstood the evidence before it.
This appears true. The Tribunal dealt with a preliminary issue, which it described as follows:
Should a letter and enclosures dated November 14, 2016 and an accountant’s report by McCully and Associates dated September 26, 2016 be admitted into evidence?
The Tribunal then described how “[t]he Respondent wanted to admit new information regarding the Applicant’s employment, which changed the Respondent’s calculation of the Applicant’s IRBs.” The Tribunal admitted this evidence but explicitly decided to give it little weight.
Problematically, the Tribunal’s discussion suggests that it thought that the McCully and Associates report was the respondent’s evidence. It was not. The report was actually filed by the applicant as part of his response to the respondent’s hearing submissions.
More importantly, this report – the applicant’s own evidence – appears to suggest that McCully and Associates revised its initial calculation of the applicant’s IRBs from $184.13 per week to a lower amount. This begs the question of how the Tribunal calculated the appropriate quantum of IRBs as $184.13 per week. I am unable to answer that question since the Tribunal’s decision contains no analysis on the issue: it offers no reasons on how it calculated IRBs, despite the respondent offering multiple arguments in its hearing submissions that the applicant failed to substantiate the quantum of IRBs to which he is entitled.
In the absence of any analysis, and based on the Tribunal’s description of the issue and parties’ submissions, I can only conclude that the Tribunal misapprehended the evidence on the point. Properly understood, this evidence would have, in the wording of Rule 18.2(b), also likely resulted in the Tribunal’s reaching a different decision.
Decision
I therefore order the Tribunal to hear the issue of the appropriate quantum of the applicant’s IRBs. For the reasons above, any quantum that the Tribunal ultimately orders should be payable on an ongoing basis and should not include a specified future date.
To be clear, this is not to presume how the matter should be determined. The Tribunal may very well decide that the applicant is entitled to receive IRBs in an amount of $184.13 per week. Such a decision, however, must be based on an accurate appreciation of the parties’ evidence, and supported by transparent and intelligible reasons.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: March 21, 2017