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 n^o 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 Date: December 1, 2017 File: 16-001283/AABS Case Name: G.T. v. Unifund Assurance Company

Written Submissions By: For the Applicant: Humberto Geovo For the Respondent: Meredith A. Harper

Overview

1This is a request for reconsideration of a decision of the Licence Appeal Tribunal (the “Tribunal”) arising under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”). The Tribunal’s decision concerns a single benefit that the applicant, G.T., requested under the Schedule from his insurer, Unifund Assurance Company (“Unifund”): the $1,994.72 cost of an orthopaedic assessment. Unifund denied the benefit on the basis that it was covered by OHIP. In response, G.T. applied to the Tribunal, which determined, based on the Schedule, that Unifund was required to pay for the assessment.

2Unifund asks me to reconsider the Tribunal’s decision. As explained below, I deny Unifund’s request.

Background

The benefit in question

3On January 9, 2015, G.T. was injured in a motor vehicle accident. As a result, he submitted an Application for Benefits (OCF-1) dated January 23, 2015 to Unifund, following which he sought a number of benefits under the Schedule. This request for reconsideration focuses on only one of those: the cost of an orthopaedic assessment. That assessment was the subject of a Treatment and Assessment Plan (OCF-18) completed on December 9, 2015 by Dr. Frederic Langer, who recommended the assessment at a cost of $1,994.72.

Unifund’s denial

4Unifund denied G.T. the benefit. By Explanation of Benefits (“EOB”) dated December 22, 2015, it outlined its reasons for doing so in the form’s “Additional Comments” section as follows:

Unifund Assurance Co. does not provide payment for assessments and services that are funded through OHIP pursuant to section 47(2) of the Statutory Accident Benefits Schedule. Should [G.T.] require an Orthopaedic Assessment he should make an appointment with his family physician. Should the family physician feel that an Orthopaedic Assessment is necessary based on [G.T.’s] diagnoses and injury complaints the family physician will refer him an Orthopaedic Assessment funded through OHIP. You [sic] request for an Orthopaedic Assessment in the amount of $1,994.72 is not approved or payable.

5Over six months later, on July 12, 2016, G.T. commenced an application with the Tribunal to dispute his entitlement to the assessment. After the parties attended a case conference, the issue was scheduled for a written hearing on November 28, 2016.

The parties’ positions

6In his submissions filed before the hearing, G.T. argued that, given his condition and the medical attention he already sought and received the assessment was reasonable and necessary. He also argued that Unifund failed to comply with its obligation under s. 38(8) of the Schedule by providing him with the medical and other reasons for its decision.¹

7For its part, Unifund’s submissions relied on three main arguments. First, Unifund argued that G.T. was not entitled to the assessment since, in its view, his injuries fell within the minor injury guideline (“MIG”). Although it implied that it had already paid the maximum benefits allowable under the MIG, Unifund offered no information about what other benefits it had actually provided G.T. Unifund simply argued that G.T. was within the MIG and had the onus of proving otherwise.² Second, and with respect to its EOB, Unifund argued that G.T. raised the issue of non-compliance with s. 38(8) too late and, at any rate, its notice was compliant.³ Lastly, Unifund also argued that the assessment was fully covered under OHIP and that, given G.T.’s failure to lead any evidence to suggest that the assessment was not reasonably available through an OHIP-funded source, the Tribunal was bound to apply s. 47(2),⁴ which reads as follows:

Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

8Importantly, neither party referenced any other disputed benefit or any other related proceeding.

The Tribunal’s decision

9In its decision of March 27, 2017, the Tribunal granted G.T.’s application. In its view, Unifund’s EOB included “only considerations relating to OHIP coverage,” and failed to include any medical reason required by s. 38(8).⁵ Further, the Tribunal held that Unifund also failed to comply with s. 38(9), which required Unifund to advise G.T. that it was relying on the MIG’s applicability. Therefore, the Tribunal held that the consequences outlined in s. 38(11) applied and, thus, Unifund was obligated to pay for the assessment.⁶

10As for Unifund’s argument concerning s. 47(2) of the Schedule, the Tribunal was unpersuaded. It held as follows:

Unifund’s submissions is, essentially, that OHIP qualifies as “any other plan” under s. 47(2). Unifund’s submission only makes sense if s. 47(2) exempts payment for types of benefits that are reasonably available under OHIP. For example, payment for an examination for an orthopaedic assessment, or the assessment itself, would not be required if those services were reasonably available through OHIP. Unifund notes that the applicant has not provided evidence of whether OHIP will cover an orthopaedic assessment, or that he has even applied to OHIP for one.

Unifund’s interpretation of s. 47(2) is too broad. Section 47(2) exempts an insurer from payment for the “portion of an expense for which payment is reasonably available” from OHIP. The relevant question to ask is, will OHIP pay for a portion of the specific examination for an orthopaedic assessment requested by the applicant in the Treatment and Assessment Plan? This is not the same as asking whether OHIP will pay for an examination for an orthopaedic assessment generally. If s. 47(2) is applicable, Unifund is exempted from paying only the portion that OHIP will cover of the specific examination for an orthopaedic assessment that the applicant requested in the Treatment and Assessment Plan dated December 9, 2015.

There is no evidence that OHIP will pay for any portion of the specific orthopaedic assessment requested by the applicant on December 9, 2015.

People involved in motor vehicle accidents need treatment in an expeditious manner, especially in the early time period following their accident. It is difficult to imagine that in drafting s. 47(2) the Legislature desired that insured persons should be required to apply to OHIP for coverage, await a response, receive no or partial payment for an examination for an orthopaedic assessment, and then apply to their insurer for coverage. This is especially so for an insured person who Unifund submits belongs in the Minor Injury Guideline. The applicant is entitled to payment for the cost of the examination for the orthopaedic assessment.⁷

11For those reasons, it granted G.T.’s application, including interest on the outstanding payment.

Issues

12Following its receipt of the Tribunal’s decision, Unifund made this request for reconsideration on April 16, 2017 under Rule 18 of the Tribunal’s Rules of Practice and Procedure. Its request is based on the two main arguments:

• Breach of procedural fairness. According to Unifund, the Tribunal erred in rejecting its submission that the MIG applied. The MIG’s applicability was a live issue that was the subject of a proceeding before the Financial Services Commission of Ontario (“FSCO”) scheduled for hearing on May 10, 2017. For reasons that were “entirely unclear,” the LAT “chose to deal” with G.T.’s application before FSCO determined the “fundamental question” concerning the MIG’s applicability. Denying Unifund the ability to rely on the MIG was procedurally unfair, particularly given G.T.’s knowledge that Unifund was treating him within the MIG, something it explained in a previous EOB dated September 25, 2015.⁸
• Error of law. According to Unifund, the Tribunal also erred in its interpretation of s. 47(2) of the Schedule. Based on a proper interpretation of that section, Unifund is not required to pay for any assessment covered under OHIP.⁹

13I address each of Unifund’s arguments in turn. Before doing so, I pause to note that Unifund also made a request under Rule 17, which allows the Tribunal to correct a typographical error in an order or decision. Unifund points out that the Tribunal erred in para. 5 of its decision in suggesting that the EOB was dated December 22, 2012 as opposed to the correct year, 2015. Given the error’s obviousness, the parties should have contacted the Tribunal’s case management officer to obtain a corrected version of the decision. However, since the parties agree that the decision should read otherwise, and since I am already considering Unifund’s request for reconsideration, I will instruct the Tribunal to issue a revised decision accordingly.

Discussion and Reasons

The alleged breach of procedural fairness

14As mentioned above, Unifund alleges that the Tribunal erred in rejecting its submission that the MIG applied. In its view, the MIG’s applicability was a live issue that the parties were scheduled to argue at FSCO on May 10, 2017, and which should have been determined before the Tribunal disposed of G.T.’s application. Additionally, Unifund claims to have communicated this position to G.T. months before the EOB in question. To this end, it referenced its earlier EOB dated September 25, 2015, included the language therein, though it did not actually provide me with a copy.

15It is not “entirely unclear” to me, as it was to Unifund, why the LAT disposed of G.T.’s application instead of waiting for FSCO’s determination on the MIG issue. To the contrary, the answer is obvious. Unifund’s request for reconsideration contains the first reference to the FSCO proceeding in the Tribunal’s file. After reviewing the Tribunal’s record, I saw no other reference to the FSCO proceeding, nor did I see any reference to Unifund’s EOB dated September 25, 2015 or any other document evincing Unifund’s position that it was already treating G.T. under the MIG.

16On that basis, I would reject this part of Unifund’s argument. Requests for reconsideration are not an opportunity for parties to “have another kick at the can,” patching cracks in their advocacy or evidence that should have already been filled. Unifund could have provided this context to the Tribunal earlier, assuming it would have made a difference. Given its failure to do so, I see no error. The Tribunal correctly applied the relevant law to the otherwise limited facts on hand. From the Tribunal’s vantage, Unifund’s argument that the MIG applied was raised for the first time in its responding submissions filed before the hearing, submissions that did not explicitly reference the FSCO proceeding or include any document or indication that Unifund previously informed G.T. of its view that the MIG applied. The Tribunal also held that the Unifund’s notice was insufficient, a finding that Unifund does not dispute here. In the circumstances, the consequences mandated in s. 38(11) of the Schedule were, as the Tribunal properly observed, a “complete response” to Unifund’s position.¹⁰

17Nevertheless, I thought it prudent to inquire about the FSCO proceeding. Concerned about the administration of justice between the parties, along with the integrity of the Tribunal’s dispute resolution function, I asked the parties for further information. More specifically, I asked them to jointly update me on the FSCO proceeding’s status, as well as to provide me with their pleadings and submissions, including attachments, filed in support of their positions before FSCO.

18In response, the parties informed me that they settled the FSCO proceeding, and that this settlement was “wholly irrelevant to the issue put to [me] by way of reconsideration.” Moreover, although the parties eventually provided me with their pleadings, they refused to provide any further documentation on the basis that those too were irrelevant.

19All told, Unifund based this part of its reconsideration on facts that I am now urged to ignore. At any rate, I see nothing in the parties’ pleadings before FSCO suggesting that Unifund was in fact relying on the MIG, let alone any supporting documentation detailing the nature of its argument. I therefore see nothing related to the FSCO proceeding affecting my conclusion that, in the circumstances, the Tribunal was correct to underscore s. 38(11) of the Schedule.

20Of course, that is not the end of the matter.

The proper interpretive approach to s. 47(2)

21If s. 47(2) applies, then s. 38(11) is irrelevant. As the parties agree, the resulting application of s. 38(11) cannot make payable a benefit that is otherwise not payable under s. 47(2). For ease of reference, I reproduce that section again:

Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

22As the Divisional Court observed, that section “speaks of an exemption for the insurer if the expense is reasonably available ‘under any insurance plan or law or under any other plan or law.’"¹¹ Put another way, it also makes plain that the Schedule is excess insurance, a point that the legislature made explicitly in s. 268 of the Insurance Act, R.S.O. 1990, c I.8:

Statutory accident benefits

268. (1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. 1993, c. 10, s. 26 (1).

Excess insurance

(6) The insurance mentioned in subsection (1) is excess insurance to any other insurance not being automobile insurance of the same type indemnifying the injured person or in respect of a deceased person for the expenses. R.S.O. 1990, c. I.8, s. 268 (6).

Idem

(7) The insurance mentioned in subsection (1) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses. R.S.O. 1990, c. I.8, s. 268 (7).

23Read together, s. 268 of the Insurance Act and s. 47(2) of the Schedule provide that those injured in a motor vehicle accident must first seek coverage through any available collateral benefits provider before relying on the no-fault scheme contained on the Schedule.

24In this case, OHIP – the Ontario Health Insurance Plan – is one such provider. It is obviously an “insurance plan or law” for the purposes of s. 47(2).¹²

25As the Tribunal realized, this conclusion might give rise to practical challenges. Insured persons might first have to “apply to OHIP for coverage, await a response, receive no or partial payment for an examination for an orthopaedic assessment, and then apply to their insurer for coverage.” Nevertheless, that is what s. 47(2) requires in reinforcing the point that the Schedule provides excess insurance. True, the process for determining the extent of one’s coverage under OHIP, as well as obtaining medically necessary benefits from an OHIP-funded source, may take some time. However, those seeking such benefits are not required to jump through inordinately high or narrow hoops to acquire them. The operative test is whether the collateral benefits are “reasonably available.” In my view, that test necessarily requires an insured to use reasonable efforts and accept reasonable delays to obtain the benefits mentioned in s. 47(2) from any available collateral provider before relying on the Schedule. At the same time, that test also places a corresponding obligation on insurers to demand no more than what is reasonable from those they insure.

26My difficulty is that I have little, if any, information on the extent to which OHIP would pay for the assessment at issue. G.T. maintains that it was Unifund’s obligation to evidence OHIP’s coverage. As he puts it, “if the insurer believed that the cost of the assessment was covered under OHIP, they had the burden to demonstrate that coverage was available either in full or in part.”¹³ Conversely, Unifund repeats, as it did before the hearing, that G.T. led no evidence that OHIP would not cover the assessment.¹⁴

27The rule that has often been applied is these circumstances is that, once the existence of a collateral insurance policy has been established, the insured bears the legal burden of proving what benefits were reasonably available in the circumstances.¹⁵ I would adopt this same approach, but add the following clarification. Since the insurer would benefit from its applicability, s. 47(2) first requires that an insurer put the section in play. This is analogous to the approach that the courts have taken to the deduction of collateral benefits from tort awards under s. 267.8 of the Insurance Act.¹⁶ How does an insurer satisfy that onus? I need not offer a comprehensive statement of the law. At the very least, an insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue, whether in whole or in part, was reasonably available to the insured from a collateral provider. If an insurer has satisfied that onus, the burden then shifts to the insured to prove that the benefit at issue was not in fact reasonably available.

28Applying this approach here, I am not satisfied that Unifund has discharged its onus.

29In its brief submissions filed before the hearing, it offered the bare assertion that an orthopaedic assessment was reasonably available under OHIP.¹⁷ In its request for reconsideration, it added to this by simply saying that OHIP covers “all insured medically necessary services provided by physicians,” a statement taken from an Ontario government website that no longer appears to contain the statement.¹⁸ However, aside from the fact that this statement begs the very question it was intended to answer – i.e., what services are insured under OHIP? – I have difficulty with Unifund’s position.

30Like the Tribunal, I was told nothing about how OHIP actually operates or, more to the point, how it would cover the assessment at issue. OHIP is obviously a first payer for health care services, but is a large and complicated scheme involving some relationship with automobile insurers. It may very well be that a typical orthopaedic assessment, like the one at issue in this case, provided by a physician such as Dr. Langer would be an insured service covered by OHIP. However, Unifund offered the Tribunal and me nothing, aside from a bare assertion that OHIP applies, to actually establish that fact. As a result, its argument here must fail.

Decision

31I therefore deny this request for reconsideration.

Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1Applicant’s Submissions dated October 26, 2016 at p. 4.
2. 2Factum of the Insurer dated November 17, 2016 at paras. 8-12.
3. 3Ibid. at paras. 25-6.
4. 4Ibid. at paras. 30-3.
5. 5Tribunal’s Reasons at para. 15.
6. 6Ibid. at paras. 16-9.
7. 7Ibid. at paras. 21-4.
8. 8Request for Reconsideration dated April 16, 2017 at paras. 7-11.
9. 9Ibid. at paras. 13-7.
10. 10Tribunal’s Reasons at para. 19.
11. 11Allstate Insurance Company of Canada v. Da Rosa, 2008 CanLII 29592 (ON SCDC) at para. 21.
12. 12See also Tang v. Coachman Insurance Company, FSCO A01-000956 at p. 11-3.; Frederico v. State Farm Mutual Automobile Insurance Company, FSCO P12-00022 p. 4-5; Putter v. Allstate Insurance Company of Canada, FSCO P00-00068 at p. 9-13; Luong v. Allstate Insurance Company of Canada, FSCO P14-00015 at p. 2; Pereira v. Allstate Insurance Company of Canada, FSCO A01-000231 at p. 2.
13. 13Applicant’s Additional Response to Respondent’s Request for Correction and Reconsideration dated May 31, 2017 at para. 8.
14. 14Factum of the Insurer dated November 17, 2016 at para. 25.
15. 15Pereira v. Allstate Insurance Company of Canada, FSCO A01-000231 at p. 7; Tang v. Coachman Insurance Company, FSCO A01-000956 at p. 13; Frederico v. State Farm Mutual Automobile Insurance Company, FSCO P12-00022
16. 16See, e.g., Basandra v. Sforza, 2016 ONCA 251 at para. 4.
17. 17Factum of the Insurer dated November 17, 2016 at para. 32.
18. 18Request for Reconsideration dated April 16, 2017 at para. 14.