Y.D. v. Aviva Insurance Canada, 2017 CanLII 84463

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 13, 2017

File: 16-001810/AABS

Case Name: Y.D. v. Aviva Insurance Canada

Written Submissions By:

For the Applicant: Jasmine Daya

For the Respondent: Shivani Mehta and Michelle Friedman

Overview

1In this request for reconsideration, Y.D. argues that the Licence Appeal Tribunal (the “Tribunal”) erred in deciding that it did not have equitable jurisdiction to relieve against the otherwise mandatory language of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). She asks me to find otherwise. For the following reasons, I deny her request.

The Facts

The accident

2In December 2015, a tow truck ran over Y.D.’s foot. As a result, she applied to Aviva Insurance (“Aviva”) for certain benefits under the Schedule. One of those benefits was an attendant care benefit (“ACB”).

Aviva’s approves the application for ACBs

3As part of her application for ACBs, Y.D. relied on an Assessment of Attendant Care Needs (“Form 1”) completed by an occupational therapist, Ashok Jain. The Form 1 assessed Y.D.’s monthly need for an ACB at $9,081.36.

4Aviva approved Y.D.’s application. Thus, in January 2016, it began paying her a monthly ACB of $3000, the standard rate payable under the Schedule for someone who sustained non-catastrophic injuries.

5Y.D. received attendant care. She received that care from her husband, S.D., a licensed physician with a specialty in obstetrics and gynecology.

Aviva asks for further information

6Three months later, in April 2016, Aviva wrote to Y.D. Aviva explained to her that ACBs are payable only for those expenses that are properly “incurred” within the meaning of s. 3(7)(e) of the Schedule. Further, it explained that, in order for her attendant care expenses to be properly “incurred,” S.D. must have sustained an economic loss as a result of providing her that care. Aviva therefore requested employment information or pay stubs proving S.D.’s economic loss.

7Y.D. did not forward that information. Rather, Y.D.’s counsel responded days later to inform Aviva that S.D. “is a medical doctor and more than qualified to provide attendant care services to [Y.D.].” In this respect, Y.D.’s counsel appeared to suggest that Y.D.’s expenses were properly “incurred” on the basis that they satisfied s. 3(7)(e)(iii)(A) of the Schedule – that is, that S.D. provided her care in the course of the profession in which he would ordinarily have been engaged but for S.D.’s accident.

Aviva doubles the ACB

8Aviva appeared to accept this explanation. The following day, it wrote to Y.D., saying nothing related to whether her attendant care expenses were properly “incurred.” Instead, Aviva explained that it erred in processing Y.D.’s application and that, given her additional coverage, she was entitled to a monthly ACB of $6,000, not $3,000. For that reason, it enclosed a cheque covering the past shortfall. It also notified Y.D. that it was scheduling an insurer’s examination (“IE”).

Aviva terminates the ACB

9That IE was conducted on May 30, 2016 by an occupational therapist, Dr. Harish Sharma. In short, Dr. Sharma concluded that Y.D. did not require an ACB. Based on this opinion, Aviva wrote to Y.D. on June 14, 2016, informing her that it would not pay for any ACBs beyond June 30, 2016.

Y.D. submits a new Form 1

10In response, Y.D. consulted a different occupational therapist, Lani Legaspi, who completed a new Form 1 on July 27, 2016 assessing Y.D.’s monthly need for an ACB at $9,081.36.

11Days later, Y.D. made further claims for ACBs related to her care between May 23 and June 22, 2016. She also later asked Aviva to pay the $1,971.78 cost of her examination by Ms. Legaspi. Aviva denied both. With respect to her claim for ACBs, Aviva explained by letter of August 9, 2016 that these did not appear to be “incurred” within the meaning of the Schedule.

12All told, Aviva provided Y.D. with over $30,000 in ACBs before terminating the benefit.

The Tribunal’s decision

13Y.D.’s application to the Tribunal raised three main issues, all three of which the Tribunal resolved in Aviva’s favour. More specifically, the Tribunal’s decision of June 22, 2017 held as follows:

• ACBs. Y.D. argued that she was entitled to a monthly ACB of $6,000 from May 23 to July 27, 2016, after which she was entitled to a monthly ACB of $1,797 until December 31, 2016. Refusing Y.D.’s claim, the Tribunal’s analysis focused on the definition of “incurred” in s. 3(7)(e) of the Schedule. That definition sets out three independent requirements that Y.D. had to satisfy in order to establish that ACBs were payable: she received attendant care services to which her expenses relate; she was legally obligated to pay for those services; and S.D. provided those services in the normal course of his profession but for the accident or, alternatively, that he sustained an economic loss as a result of providing those services. The Tribunal held that Y.D. failed to satisfy all three of these requirements.
• The cost of examination. Y.D. argued that she was entitled to the $1,971.78 cost of her examination by Ms. Legaspi. The Tribunal held that this expense was not reasonable or necessary, offering four reasons for its conclusion.
• Equitable jurisdiction. Lastly, Y.D. argued that the Tribunal should apply the equitable doctrine of estoppel by convention to require Aviva to continue to pay her ACBs. In her view, “it would be inequitable to permit the Insurer to seek to change the status quo” by, in essence, terminating her ACBs after paying them for months. The Tribunal held that it did not have the jurisdiction to apply rules of equity.

14Y.D. now asks that I reconsider the Tribunal’s decision.

Decision and Reasons

15Critically, Y.D. raises no challenge to the Tribunal’s analysis concerning whether her attendant care expenses were properly “incurred” within the meaning of the Schedule. Nor does she challenge the Tribunal’s analysis concerning her entitlement to the cost of her examination by Ms. Legaspi. Her argument is narrower. It rests entirely on her claim that the Tribunal has an equitable jurisdiction that it should have applied to require Aviva to continue to pay her ACBs. I disagree.

16Section 282(4) of the Insurance Act, R.S.O., c. I.8 required the Tribunal to resolve the parties’ disputes “in accordance with the [Schedule].” It did so. Section 19(1) of the Schedule provides that ACBs are payable for all reasonable and necessary expenses that are “incurred” by an insured person, a term defined, in turn, in s. 3(7)(e). The Tribunal found that Y.D. failed to satisfy any of the definition’s three requirements. Allowing Y.D. to rely on estoppel would not only override the Schedule but, more importantly, undermine the very purpose underlying s. 3(7)(e), namely to “provide a check on payments to family care-givers.”¹ The province implemented that section to target situations like the very one here. Thus, even if I were to accept that equity could in certain rare instances relieve against a statutory requirement in order to produce a just result, this case is not one of them.

17Moreover, and again assuming that I can grant the requested relief, Y.D.’s case falls short of the test outlined in Ryan v Moore, 2005 SCC 38, [2005] 2 S.C.R. 53. In that case, the Supreme Court of Canada outlined, at para. 59, the following three criteria for the application of estoppel by convention:

(1) The parties' dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

18The Court also explained that the “critical requirement” for estoppel by convention is that at the material time both parties must be of “a like mind,” that there is a “mutual assent” in the sense that “each is aware of the assumption of each other:” see para. 61-2.

19In this case, the parties were never of “a like mind.” Y.D.’s case before the Tribunal was premised, in large part, on the argument that she is entitled to ACBs under the Schedule. Conversely, Aviva’s initial determination that Y.D. was entitled to ACBs was the result of a mistake. As the Tribunal found, at para. 6:

One significant point in this case is that the respondent has acknowledged that the initial adjuster on the file incorrectly handled the applicant’s file by misinterpreting s. 3(7)(e) of the Schedule and agreeing to fund the monthly ACBs which were paid from December 23, 2015, until May 22, 2016. Several months later, upon further review of the file, the respondent changed its position and held that the submitted expenses did not meet the definition of an incurred expenses in s. 3(7)(e) of the Schedule.

20Based on my review of the Supreme Court’s decision, Aviva’s initial but mistaken determination does not give rise to the sort of mutually shared assumption that estoppel by convention was intended to enforce.

21At any rate, I fail to see how Y.D. changed her legal position as a result of Aviva’s initial determination, or how she suffered any detriment as a result of Aviva adjusting that determination. Y.D.’s evidence was that she preferred to receive assistance from S.D. “over an outsider” and, accordingly, she received no assistance from anyone else, whether before or after Aviva changed its position. In other words, her choice of caregiver was unconnected to Aviva’s initial determination. Moreover, S.D.’s evidence was that Y.D. never paid him for his services and, indeed, that he had no expectation of any payment: see paras. 41-2. That is to say, Y.D. never had any attendant care expenses for which she should have been reimbursed through ACBs. In this light, Y.D.’s plea for equity is brazen, to say the least. Not satisfied with having already received almost $30,000 in ACBs for services that her husband provided her for free, she now demands that Aviva continue to fund the same windfall. Equity has no role to play on these facts.

Conclusion

22This request for reconsideration is denied.

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

Footnotes

1. 1Henry v. Gore Mutual Insurance Company, 2013 ONCA 480 at para. 26.