Tribunal File Number: 17-002465/AABS
Case Name: 17-002465 v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES
For the applicant: Jacqueline Ozor, Counsel
For Aviva: Chrilia von Buchwald, Counsel
Held by Written Hearing: December 11, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on May 18, 2015. She is seeking payment for a non-earner and medical benefit under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Aviva denied payment for each benefit. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service for payment.
2This is a preliminary issue hearing to determine whether the applicant has fulfilled a statutory requirement for non-earner benefit payment. Aviva General Insurance Company1 claims that the applicant failed to submit a completed disability certificate during the time in which she could be eligible for payment of a non-earner benefit. This claim, if true, precludes the applicant from entitlement to a non-earner benefit. The applicant submits that she did in fact submit a completed disability certificate and, as a result, she is not prevented from entitlement to a non-earner benefit.
ISSUES IN DISPUTE
3The preliminary issue to be determined is whether section 36(2) of the Schedule prevents the applicant from payment for a non-earner benefit.
RESULT
4The applicant has fulfilled the requirements of s. 36(2) of the Schedule. As a result, the applicant is not prevented from payment for a non-earner benefit. Aviva has failed demonstrate that the applicant did not submit a completed disability certificate in May 2015.
5The applicant is not entitled costs under Rule 19 of the LAT Rules because I do not accept that Aviva acted in bad faith.
6The parties are directed to contact the Case Management Officer to schedule a case conference so that they can set a hearing date on the remaining issues in dispute.
FACTS
7The applicant was injured in an accident on May 18, 2015. She submits that on May 29, 2015, Complete Rehab Centre submitted to Aviva a completed disability certificate (OCF-3) for a non-earner benefit. The disability certificate indicated that as a result of the accident the applicant suffers from a complete inability to carry on a normal life
8On the same day Complete Rehab Centre also submitted to Aviva an invoice for the completion of the disability certificate. Unlike the disability certificate, the invoice was sent through the Heath Claims for Auto Insurance system (HCAI). HCAI is an electronic submission service.
9Aviva paid Complete Rehab Centre’s invoice for completing the disability certificate by cheque on November 24, 2015.
10Notwithstanding payment of the invoice, Aviva alleges that it did not receive the completed disability certificate until over two years later, on June 8, 2017, when the applicant’s counsel sent the document as part of dispute resolution. If true, this disentitles the applicant to payment for a non-earner benefit because the disability certificate was submitted well beyond 104-weeks after the accident.
DISCUSSION
11Under s. 36(3) of the Schedule, an applicant must submit a completed disability certificate for entitlement to a non-earner benefit.
12I find that the completed disability certificate was submitted to Aviva on May 29, 2015. As a result, the applicant is not statutorily precluded from entitlement to a non-earner benefit.
13Logically, one of two versions of events have transpired:
- Complete Rehab Centre submitted a completed disability certificate on May 29, 2015, Aviva received the document, and misplaced it; or,
- Complete Rehab Centre did not submit a completed disability certificate on May 29, 2015, and the only time it was submitted to Aviva was on June 8, 2017.
I am not convinced that the second version of events occurred for four reasons.
1. Aviva’s file management suggests that it probably made an error
14In this hearing Aviva has demonstrated a lack of organization with regard to physically handling the applicant’s insurance file. Aviva’s lack of organization prevents me from dismissing the possibility that Aviva received and misplaced completed disability certificate.
15Aviva’s initial written submissions claimed that it did not receive an invoice from Complete Rehab Centre for a completed disability certificate. Aviva asserted that the November 24, 2015 cheque that it issued was for a different invoice for a different, unrelated disability certificate. Aviva relied on the lack of invoice as evidence the applicant did not submit a completed disability certificate.
16The applicant’s response submissions strongly contested Aviva’s claim.
17Aviva conducted a file review after reading the applicant’s response submissions. The file review resulted in Aviva finding Complete Rehab Centre’s invoice for the completed disability certificate. In its Reply submissions, Aviva resiled from its initial submission, acknowledging that Complete Rehab Centre did in fact submit an invoice for the completed disability certificate, and that Aviva paid for the invoice by cheque on November 24, 2015.
18Aviva’s Reply submissions included evidence that articulated a new narrative. The evidence explains that Complete Rehab Centre’s invoice could be paid without the disability certificate’s actual submission. The invoice was submitted electronically through HCAI; the completed disability certificate was not.
19Aviva has misplaced one significant document within the time frame of this proceeding, Complete Rehab Centre’s invoice for the disability certificate. It is more probable that Aviva, and not the applicant or Complete Rehab Centre, made an error in handling a second significant document, the completed disability certificate.
2. I do not accept that the applicant is being untruthful
20The applicant strenuously submits that she caused Complete Rehab Centre to submit a completed disability certificate. There is no middle ground in her submission. In order to accept Aviva’s submission that Complete Rehab Centre did not submit a completed disability certificate, I need to accept that the applicant is being untruthful with her submission. Aviva has not persuaded me to doubt or dismiss the applicant’s submission.
3. Fairness
21It is unfair to dismiss the applicant’s non-earner benefit claim on the basis of Aviva’s evidence. Aviva’s main evidence of the completed disability certificate’s non-submission, beyond the fact that Aviva cannot find the document, is that the applicant has not submitted a fax confirmation or affidavit detailing that disability certificate was submitted on May 29, 2015.
22It is important to bear in mind the context in which this hearing occurs: I am considering a preliminary issue. If the matter proceeds to a hearing Aviva still has the ability to dispute the applicant’s entitlement to a non-earner benefit. The Schedule is consumer protection legislation. It should not be interpreted in a manner that dismisses an insured person’s claim because of something that may be a technical error.
4. Aviva’s case law is distinguishable
23Aviva relies on Volpe v. Co-operators General Insurance Co., [2017] O.J. No. 183 as support for its submission that s. 36(3) prevents the applicant’s non-earner benefit claim. In Volpe the insured person did not submit a completed disability certificate to the insurer. Instead, the insured person’s counsel forwarded a letter to the insurer stating that the plaintiff was applying for non-earner benefits: Volpe at paras. 8-22.
24Volpe is distinguishable. Unlike in Volpe, the applicant has actual evidence that she submitted a completed disability certificate to the insurer. The evidence comes by way of Complete Rehab Centre’s invoice for the completed disability certificate and Aviva’s cheque for the invoice. While this evidence may not be conclusive proof that the applicant submitted a completed disability certificate, it distinguishes Volpe.
COSTS
25I decline to issue costs under Rule 19 of the LAT Rules because I do not agree that Aviva has acted in bad faith.
26The applicant submits that Aviva has acted in bad faith in by initially failing to acknowledge its receipt of Complete Rehab Centre’s invoice, and by denying its receipt of the completed disability certificate.
27Aviva’s mishandling of Complete Rehab Centre’s invoice is unfortunate. I would not characterize the error any higher. Aviva misplaced Complete Rehab Centre’s invoice and eventually realized its mistake. Aviva was forthright about its mistake in its Reply submissions. Aviva’s error lacks any quality of bad faith that would bring it within the scope of a Rule 19 costs order.
28Aviva’s denial of the disability certificate similarly lacks the bad faith required to justify a Rule 19 cost order. I accept that Aviva in good faith believes that it did not receive a completed disability certificate in May 2015. While I disagree with Aviva’s belief, I do not question good faith upon which the belief is based.
CONCLUSION
29The applicant his fulfilled the requirements of s. 36(2) of the Schedule and, as a result, is not prevented from payment for a non-earner benefit.
30The applicant is not entitled costs.
31The parties are directed to contact the Case Management Officer to schedule a case conference, to set a date for a hearing on the remaining issues in dispute.
Released: February 5, 2018
__________________
Chris Sewrattan, Adjudicator