Date: 2018-02-16

Tribunal File Number: 17-000317/AABS

Case Name: 17-000317 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:

G.A.E.

Applicant

and

Aviva Insurance Canada

Respondent

Decision and Order

Adudicator: S.F. Mather

Appearances:

For the Applicant: Mariya Verkhovets, counsel

For the Respondent: Amit Kwatra, counsel

Heard in writing on: November 27, 2017

DECISION

Overview

1G.A.E. (the “applicant”) was involved in a motor vehicle collision on January 2, 2015 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹ (the “Schedule”) from the Motor Vehicle Accident Claims Fund (“The Fund”), including the approval of eight treatment plans.

2The Fund denied the claim for benefits on the basis that the Application for Accident Benefits was incomplete because the applicant did not provide a “Motor Vehicle Accident (Police) Report” confirming her involvement in the accident.

3The applicant disagreed with The Fund’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on January 17, 2017. The applicant submits that the Treatment and Assessment Plans (“treatment plans”) submitted to The Fund are “deemed approved” because, in the applicant’s view, the individual plans were not properly denied and six out of the eight plans were not responded to within 10 days.

4After the application was filed with the Tribunal, Aviva Insurance Company of Canada (“Aviva”) accepted priority for the claims and was substituted for The Fund as the respondent in this matter. The files were transferred to Aviva on February 6, 2017 and Aviva filed its response on February 28, 2017, maintaining the same defences as The Fund for denying the claim.

5The matter proceeded to a case conference on March 20, 2017. The parties were unable to resolve the issues in dispute and a written hearing was scheduled.

Issues in Dispute

6Before addressing the treatment plans, I must first address the following preliminary issue:

a. Is the applicant barred by s. 55 of the Schedule from commencing an application with the Tribunal?

7If the application is properly before the Tribunal, the issues in dispute before me regarding the individual treatment plans² are:

a. Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated February 6, 2015?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,300.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 14, 2015?

c. Is the applicant entitled to receive a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated July 8, 2015?

d. Is the applicant entitled to receive a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated October 9, 2015?

e. Is the applicant entitled to receive a medical benefit in the amount of $2,789.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated January 21, 2016?

f. Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated July 8, 2015?

g. Is the applicant entitled to receive a medical benefit in the amount of $2,486.00 for an in-home attendant care assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 22, 2015?

h. Is the applicant entitled to receive a medical benefit in the amount of $2,610.30 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 23, 2015?

Result

8I find that:

1. The application is not barred by s. 55 of the Schedule.

2. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

3. The applicant is entitled to the following benefits:

a. a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated October 9, 2015

b. a medical benefit in the amount of $2,789.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated January 21, 2016

c. a medical benefit in the amount of $2,486.00 for an in-home attendant care assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 17, 2015³

d. a medical benefit in the amount of $2, 610.30 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 07, 2015.⁴

4. The applicant is not entitled to the following benefits:

a. a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated February 6, 2015

b. a medical benefit in the amount of $1,300.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 14, 2015

c. a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated July 8, 2015

d. a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated July 8, 2015

Is the applicant barred by s. 55(1) of the Schedule from commencing an application with the Tribunal?

9The respondent raises the issue of whether the applicant is prevented by s. 55 of the Schedule from filing an application with the Tribunal. Section 55 prevents an insured person from filing an application with the Tribunal if certain circumstances exist.

10The respondent argues that the applicant is not entitled to have her application heard because she failed to do the following in contravention of s. 55:

a. notify The Fund of the circumstances giving rise to her claim for benefits within seven days after the accident or as soon as practicable after that day as required by s. 32(1) of the Schedule; and

b. submit her application for benefits within the time prescribed by s. 32 of the Schedule.

11In her materials submitted for the written hearing, the applicant did not provide any evidence to explain why she did not notify the Fund about the January 2, 2015 accident until March 11, 2015 when she filed her application for benefits with The Fund.

12As a result, by an Order released on October 2, 2015, I allowed the applicant an opportunity to provide me with evidence and further submissions (“s. 55 submissions”) on the issue. I also allowed the respondent to respond (“s. 55 response submissions”) to any new evidence filed by the applicant. In addition to the materials filed by the parties in response to my Order, the Tribunal also received:

• A November 6, 2017 letter⁵ from the applicant alleging that the respondent’s counsel violated the Rules of Professional Conduct in its s. 55 response submissions by misstating facts or law, knowingly misstating the contents of documents and knowingly asserting a fact as true when its truth cannot reasonably be supported by the evidence. The letter also included the following further documentary evidence:

• a redacted copy of the applicant’s retainer agreement with her counsel dated January 19, 2015

• an undated copy of a Toronto Police Service Records Release

• a September 15, 2016 copy of a letter from Peel Regional Police stating that because the “client” is not listed on the accident report the police would not release a copy of the accident report without authorization from the driver.

• A November 8, 2017 letter⁶ from the respondent objecting to the applicant’s allegations of fraud or illegal conduct. The respondent argues that because reply submissions are not provided for in my Order I should not consider the submissions in the applicant’s letter.

In the alternative the respondent asks me to give the applicant’s letter little weight. The respondent also submits that the applicant’s statement in her application for benefits that the information contained in her application is true and correct is a misrepresentation because the date on the application is wrong.

13While the respondent is correct in its submission that my October 2, 2017 Order did not provide for the applicant to submit reply submissions to the respondent’s s. 55 response submissions, procedural fairness requires that I consider her further submissions for the reason that the respondent filed documentary evidence with its reply that the applicant must have an opportunity to respond to.

14I give both the November 6th and November 8th letters little weight for the reason that they do not contain anything that will assist me in deciding the issues before me. While the retainer agreement confirms the date that the applicant retained counsel, the letters from the Toronto and Peel Police do not identify the applicant as the client whose request for a copy of an accident report was being denied.

15While I agree with the applicant’s allegations that there are misstatements of facts in the respondent’s s. 55 submissions⁷, I do not rely on these facts and repeat what I stated in the reasons for the Order:

“Facts in submissions drafted by counsel are not evidence unless they are agreed to by the other party to be evidence or supported, in the case of a written hearing, by other written evidence.”

16In her s. 55 submissions, the applicant argues that the s.55 issue is improperly raised as it was not identified as an issue in the Order made at the Case Conference. In the reasons for my Order allowing the applicant the opportunity to file further evidence, I determined that the issue must be heard. The issue is clearly raised in the respondent’s response to the application and in the respondent’s submissions for the hearing. The applicant did not object to the issue being raised in her reply submissions for the hearing and in fact addresses the issue in the first paragraph of her reply submissions.⁸

17I allowed the applicant to file further evidence on the issue to ensure that there is no prejudice to her by the fact that it was not set out in the Order made at the Case Conference.

(a) Notification to Insurer

19I am satisfied on the balance of probabilities that the applicant notified The Fund as soon as practicable by filing her application for benefits on March 11, 2015. I find that upon receipt of the application, The Fund received the required notice of the applicant’s intention to apply for benefits.

20The evidence I rely on to make my finding is found in the statement⁹ that the applicant provided to Claimspro Inc. (the adjuster for The Fund) on June 30, 2015; her affidavit¹⁰ sworn October 20, 2017 and the affidavit of D. S., a legal assistant with Kalsi & Associates, sworn October 23, 2017.

21These statements confirm that the applicant retained legal counsel to represent her in her claims arising from the accident on January 19, 2015 and detail the steps taken by the applicant and her counsel between January 19, 2015 and March 11, 2015 to obtain the licence plate number of the car and the name and address of the owner of the vehicle.

22I base my conclusion that the applicant gave the notice required by s. 32(1) “as soon as reasonably practicable” on the following evidence:

• The applicant arrived in Canada from Cameroon on a student visa less than three weeks before the accident. She shared an apartment with N.F. who was a “friend of a friend”.

• At the time of the accident the applicant was in the rear seat and N.F. was in the front seat of a car driven by K.J., who was the girlfriend of N.F.

• The applicant did not know K.J. or N. F. well. She had met K.J. only four or five times prior to the accident and did not know N.F. before she arrived in Canada.

• The applicant was injured in the accident and an ambulance attended at the scene. She did not obtain any information at the accident scene with respect to the identity of the driver of the other vehicle, insurance particulars, which police department attended at the scene, the officer’s name, the officer’s badge number or incident number.¹¹

• At the time she retained legal counsel, the applicant did not know who the owner of the vehicle was¹² and had no insurance information for the vehicle.¹³

• It was not until mid-February 2015 that the applicant obtained the address of the driver.¹⁴

• It was not until mid-March 2015 that the applicant obtained the licence plate number for the vehicle.¹⁵ It was not March 6, 2015 that the applicant’s counsel obtained the name of the owner of the vehicle.¹⁶ It was not until March 11, 2015 that the applicant’s counsel obtained the address for the owner of the vehicle.¹⁷

23Based on this evidence, I am satisfied that the applicant’s counsel took reasonable steps to determine enough details of the accident to report the accident to an insurer. I am also satisfied that the decision made on March 11, 2015 to file the application with The Fund gave the Fund notice of the applicant’s intention to claim benefits as soon as practicable in the circumstances.

Respondent’s Arguments

24The respondent takes great issue with the fact that the application for benefits that was submitted on March 11, 2015 is dated January 2, 2015, the same day as the accident. In the respondent’s view, if the application was completed on the same day of the accident, there is no excuse for The Fund not being notified until three months later. The respondent first raised this issue in its initial submissions for the hearing.

25While the applicant does not address the issue of the date on the application in her affidavit, I do have evidence that the applicant did not retain counsel until January 19, 2015 which satisfies me that the date on the application is in error.

26I have reviewed the application for benefits¹⁸ and note that the application lists B.M. as counsel for the applicant and includes the name of the owner and the licence number of the vehicle.

27In my view it would have been impossible for the applicant to have retained counsel and complete an application for benefits on the night of the accident. The following evidence of D.S., a legal assistant with Kalsi & Associates, satisfies me that the application is incorrectly dated:¹⁹

• The applicant did not retain the law firm until January 19, 2015.

• The law firm did not obtain the licence plate number for the vehicle until sometime around March 6, 2015.

• The law firm obtained the name of the owner of the vehicle on March 6, 2015.

• D.S. was instructed by B.M. on March 11, 2015 to prepare and submit an application to The Fund for benefits.

28The respondent argues that the applicant had plenty of missed opportunities to provide notice to The Fund. The Fund is the “last resort” for victims of motor vehicle accidents when there is no insurance coverage. An applicant is expected to have investigated the possibility of insurance and discovered that there was no recourse before applying to the Fund.²⁰ In my view, it was reasonable that the applicant obtain the licence plate number of the car and the name and owner of the driver before notifying The Fund of her intention to claim benefits.

29The respondent also argues that the affidavit evidence of the applicant is not credible and has blatant discrepancies which are an attempt to revise the history of her accident benefit and tort claims. The inconsistencies highlighted by the respondent are:

• The applicant swears in her October 20, 2017 affidavit that she does not recall the location of the accident while earlier documents signed by the applicant include the location of the accident.

• The applicant swears that she was unaware of the legal regime in Canada while she retained legal counsel the night of the accident.

• The fact that the application for benefits submitted to The Fund is dated January 2, 2015, the same day as the accident.

30The respondent submits that the case of Faryna v. Chorney²¹ establishes the test for credibility of a witness: “[a witness] must reasonably subject his story to an examination of its consistency with the probabilities that surround the current easing conditions. In short, the real test of the truth of the story or a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and conditions.”

31While the comments in Faryna v. Chorney are made with respect to oral evidence, they are helpful in considering the written affidavits before me. Given the circumstances of this accident and the circumstances of the applicant at the time of the accident, I do not find that the statements made in the affidavit of the applicant to be unreasonable.

32It is reasonable in my view that the applicant, having only been in the Canada for less than three weeks prior to the accident, would not have detailed knowledge of the accident location or the home address of the driver K.J. It is also reasonable that, at the time of the accident, she would not have had any knowledge of the automobile accident insurance scheme in the province of Ontario. In my view, she did well in seeking legal advice by January 19, 2015.

33The respondent also argues that the evidence the applicant relies on is evidence of steps taken with respect to her possible tort action and not evidence of steps taken by the applicant and her counsel with respect to her claim for automobile accident benefits. In making this argument, the respondent refers to the letters to the driver and the owner of the vehicle attached as exhibits to the affidavit of D.S.

34In my view, what is important is that, following the accident, the applicant and her counsel took steps to determine who the owner and insurer of the vehicle were. It does not matter that the letters sent by the applicant’s counsel to the driver and the owner of the vehicle were sent for the purpose of the tort action because the end goal was the same – to obtain the information necessary to notify the insurer of an intention to make a claim.

(b) Timeliness of Application

35Upon being notified of a person’s intention to apply for one or more benefits, the insurer is required to promptly provide the person with the appropriate application forms and other information.²² An applicant is required to submit a completed and signed application form to the insurer within 30 days after receiving the forms.²³ If an application is incomplete, the insurer must notify the applicant within 10 business days after receiving the application²⁴.

36In this case, the applicant “skipped” the step of notifying the insurer and waiting for an application form and instead submitted an incomplete application to The Fund on March 11, 2015, which she relies upon as her notice of intention to claim a benefit.

37Because The Fund did not provide the application forms to the applicant as is contemplated by s. 32(2) of the Schedule, a finding of whether the application was made within the 30 days does not decide the issue.

38I find that the applicant complied with the requirements of the Schedule when she submitted her application to The Fund on March 11, 2015 (albeit incomplete). Significantly, The Fund acknowledged receipt of the application and requested further documents from the applicant.²⁵

39The Schedule distinguishes between a late application²⁶ and an incomplete application. The remedy for a delay in submitting a completed application is found in s. 32(8), not s. 55(1) of the Schedule. Section 32(8) of the Schedule provides that no benefit is payable before an applicant provides the missing information. Section 55(1) only bars a claim to the Tribunal if the insured person has not notified the insurer of the claim for benefit or has not submitted an application for the benefit within the time period prescribed by the Schedule. It does not bar an applicant from filing an application with the Tribunal if an application is incomplete or unsigned.

40Being satisfied that the applicant notified The Fund of the circumstances giving rise to her claim for benefits as soon as practicable and that the application was submitted within the times prescribed by the Schedule, I find that the applicant is not barred from commencing a proceeding before the Tribunal.

Is the Application for Benefits Complete?

41Part VIII of the Schedule prescribes the procedures for claiming benefits and the responsibilities of the applicant and insurer. If an application is incomplete, the insurer is required to give notice to the applicant advising the applicant of the missing information that is required or that the applicant’s signature is missing, as appropriate.²⁷

42Section 10 of the Application for Benefits Form (OCF-1) provides that for applications to The Fund, the application will not be considered complete until the applicant provides the three additional forms:

• NOTICE OF COLLECTION OF PERSONAL INFORMATION FORM;

• Form 3 – Section 6 MVACF Application for Statutory Accident Benefits;

• Motor Vehicle Accident (Police) Report (“Police Report”).

43The application The Fund received on March 11, 2015 was incomplete because it was not signed by the applicant and did not include the three additional forms required for applications to The Fund.

44The Fund gave notice to the applicant that the application was incomplete by its letter dated March 19, 2015²⁸ requesting the three additional forms required for an application to the Fund and that the application be signed.

45By letter dated August 20, 2015, the applicant provided the respondent with a signed application, the Notice of Collection of Personal Information Form and a Form 3, but did not provide a copy of a Police Report.²⁹

46An Explanation of Benefits form dated August 25, 2015 confirms that by that date the respondent was in receipt of a signed application, the Notice of Collection of Personal Information Form and a Form 3 and was only missing the Police Report.³⁰

47The applicant argues that a copy of a Police Report is not mandatory for an application for benefits to be complete. The applicant relies on the decision of the Financial Services Commission of Ontario (“FSCO”) in Motor Vehicle Accident Claims Fund v. Berta Avdeeva (“Avdeeva”)³¹ to support his position.

48In Avdeeva, the issue was whether the failure by the applicant to provide a Motor Vehicle Accident Report³² barred a claim against The Fund. The appellant claimed that the wording in the OCF-1, which requires that the applicant applying to The Fund for benefits “MUST INCLUDE” a copy of the Motor Vehicle Accident Report form with the application, made the form mandatory. The Director’s Delegate found that the Motor Vehicle Accident Report is not mandatory when a police report did not exist.

49The respondent argues³³ that this case may be distinguished from Avdeeva because in this case a Police Report was prepared.³⁴ The respondent argues that the applicant was required to make efforts to obtain a copy of the report and that there is no evidence that she did so. In the respondent’s view, the application remains incomplete until the applicant provides a Police Report or she provides evidence that she applied for and was unable to obtain a report.

50The applicant argues that passengers are not always listed in a Police Report and that she did not have sufficient information about the accident to obtain a copy of the report. The applicant has not provided any evidence that she or her counsel made any attempt to obtain a Police Report for this accident. The applicant relies on the affidavit evidence of D.S., who states in his affidavit³⁵ that it is common in his experience, that passengers are not listed on a Police Report, and that the police will not release a report without the authorization of the driver or owner of the vehicle. D.S. further states that the police require, among other information, the occurrence number, the exact location of the accident, and the attending officer’s name and badge number.

51In its response to the applicant’s s. 55 submissions, the respondent includes a York Regional Police web page³⁶ providing information on obtaining accident reports, a web page from the Ontario Provincial Police referring to accident reports³⁷ and a web page from Service Ontario referring to accident reports.³⁸ This evidence does not support the respondent’s position that the applicant would have been successful in obtaining a copy of the Police Report with the information in her possession.³⁹

52Based on the evidence of both the applicant and respondent on this issue, I am satisfied that, in this case, a Police Report is not required to complete the application.

53I accept the evidence of the applicant that she did not obtain any details at the accident scene and that K.J. was completely uncooperative in providing any details of the accident, including the insurance coverage. I also accept the evidence of D.S., a legal assistant with experience in obtaining Police reports, who confirms that the information itemized on the York Regional Police website is required. In my view, the facts in this case are exceptional in that the applicant was a passenger in a vehicle driven by an acquaintance who refused to co-operate by refusing to provide insurance details or the name and address of the owner of the vehicle.

54I am satisfied that the applicant did her best to obtain the vehicle information that she did obtain. In these exceptional circumstances, I do not agree that she must provide evidence of an attempt to obtain a Police Report when the evidence before me satisfies me that she did not have enough information to complete an application for a Police Report from either York Regional Police or the OPP.

55Having determined that on the facts of this case a copy of the Police Report is not mandatory, I must still determine if the application is complete.

56Section 36(7) of the Schedule is the key to determining what information is mandatory for an application to be complete.⁴⁰ This subsection provides that an insurer may not give notice of an incomplete application unless the insurer, after a reasonable review of the application, is unable to determine without the missing information whether a benefit is payable.

57I am satisfied that by August 25, 2015, The Fund, after a reasonable review of the application, was in a position to determine whether a benefit was payable. By August 25, 2015, The Fund had taken the opportunity to examine the applicant under oath and was aware that the applicant had received no cooperation from the driver in obtaining insurance details. The Fund had also received the applicant’s Form 3, which provides the licence plate number of the vehicle and the names and addresses of the driver and owner of the vehicle.

Are Benefits Payable?

58An insurer is required to pay medical and rehabilitation benefits to insured persons who sustain an impairment as a result of an accident.⁴¹ Impairment is defined in the Schedule to mean a loss or abnormality of a psychological, physiological or anatomical structure or function⁴².

59An Insurer is not required to pay a benefit before an applicant provides missing information to complete an application and before an application is signed.⁴³ The Schedule allows an insurer to delay the payment of a benefit in the following circumstances:

• when an applicant fails without reasonable explanation to notify an insurer of their intention to claim benefits within seven days after the circumstances arose that give rise to the entitlement to the benefit, or so soon as practicable after that;⁴⁴ and,

• in respect of any period during which an insured person fails to comply with an insurer’s request to provide reasonable information to assist the insurer in determining the insured’s entitlement to a benefit.⁴⁵

60The respondent raises several arguments with respect to the issue of entitlement to benefits. It argues:

• That because the applicant did not notify The Fund of her intention to claim benefits within the time period required by s. 32(1) of the Schedule and because the she did not provide a reasonable explanation for the delay, The Fund was permitted under s. 32(10) to delay determining both the applicant’s entitlement to a benefit and the payment of the benefit.

• That benefits are not payable because the applicant did not provide The Fund with her Ontario Health Insurance Plan (“OHIP”) records which were required to reasonably assist it in determining the applicant’s entitlement to a benefit.

• The applicant is not entitled to medical benefits because she did not suffer any accident-related impairments.⁴⁶

S. 32(10) Delay Determining Entitlement to and Payment of Benefits

61Having already determined that The Fund was notified as soon as practicable after the collision, I find that s. 32(10) does not apply in this case because I have already determined that the applicant notified the insurer as soon as reasonably practicable which is within the time limit found in s. 32(1).

62Once her application was complete on August 25, 2015 The Fund was not entitled to delay the determination of the applicant’s entitlement to benefits or to delay payment of the benefits for 45 days after it received the application.

S. 33(6) Requests for Information

63On June 18, 2015,⁴⁷ The Fund first asked the applicant to sign an OHIP consent form to allow it to obtain her OHIP records for the purpose of assessing her initial and ongoing entitlement to benefits. On June 30, 2015, in her statement⁴⁸ to The Fund, the applicant stated that of as of March 10, 2015, she was eligible to apply for OHIP but had not yet done so. Despite numerous requests from The Fund for confirmation that she had applied for OHIP, it was not until November 25, 2015⁴⁹ that the applicant advised The Fund she had applied for an OHIP card. I have no evidence to confirm the date she applied for coverage or the date that she received the card.

64In my view the status of the applicant’s OHIP application was information reasonably required for The Fund to determine the applicant’s entitlement to a medical benefit. The difficulty for the respondent, however, is that The Fund did not deny payment of the benefits based on the lack of OHIP information. The sole reason The Fund provided for denying the benefits was the missing Police Report.

65There is no evidence before me of The Fund requesting any other information aside from the Police Report to complete the application and the OHIP records.

S. 38 Claims for Medical and Rehabilitation Benefits

66As of August 25, 2015, once her application for benefits was complete, the applicant was in a position to apply for medical and rehabilitation benefits and for payment of the costs of examinations and assessments.

67Section 38 of the Schedule sets out the procedures that both insurers and insured persons must follow when a claim is made for medical and rehabilitation benefits or approvals of assessments or examinations.⁵⁰ Section 38(8) of the Schedule requires an insurer to respond to a treatment plan within 10 business days and prescribes the notice and information that must be provided to an applicant when a claim for goods, services, assessments or examinations in a treatment plan is denied.

68If an insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice required under s. 38(8) must also let the insured person know that it is taking the position that the Guideline applies.⁵¹

69An insurer who does not give notice in compliance with the Schedule⁵² faces the consequences set out in s. 38(11) of the Schedule which are:

• The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

• The insurer is obligated to pay for all goods and services, assessment and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the application and ending on the day that the insurer gives a notice that complies with s. 38(8).

70The Explanation of Benefit forms (“EOBs”)⁵³ the respondent issued for all of the treatment plans in issue provide that the applicant’s failure to provide a copy of the Police Report as a reason for not assessing the applicant’s claim for benefits. After August 25, 2015, the only reason the benefits were denied was the applicant’s failure to provide a copy of the Police Report.

71The applicant argues that all of the treatment and assessment plans in issue are deemed payable by the Schedule⁵⁴ for the reason that the respondent did not properly deny the plans. The applicant argues that the insurer did not place the applicant within the Minor Injury Guideline and did not provide any medical reasons⁵⁵ for denying the benefits. The applicant also argues that The Fund did not respond to six of the eight plans in issue within the 10 days, as required by the Schedule.

72The respondent submits that the notices were all delivered within 10 days⁵⁶ of the Health Care Claims for Auto Insurance (“HACI”) submission and argues that inadequate notice does not automatically entitle an insured to payment of benefits.⁵⁷

73The respondent argues that the applicant is still required to prove all required elements of the claim and that I must consider if the treatment plans are “reasonable and necessary.”⁵⁸

74I have reviewed the notices provided by the respondent for each treatment plan⁵⁹ in issue and I find that the notices do not comply with the requirement in s. 38(8) for three reasons:

• The notices do not advise the applicant that the respondent is taking the position that the Minor Injury Guideline applies as required by s. 38(9) of the Schedule.

• The notices do not provide any medical reasons.

• The notices do not provide any other reasons why the services, assessment or examination were not reasonable and necessary.

75The notices only advise the applicant that The Fund considered the application to be incomplete and it would not assess the claim or pay benefits until the applicant’s application package was complete.

76Once the application was complete on August 25, 2015, the respondent was required to comply with the requirements of s. 38(8) when providing the notices that are required by that section and it did not do so.

77Having determined that the notices do not comply with the Schedule, I find:

• The respondent is prohibited from taking the position that the insured person suffered an impairment to which the Minor Injury Guideline applies.

• The respondent must pay for the goods, services, assessment and examinations described in the treatment plans before me.

78The respondent argues that a technical breach of the Schedule does not mean that a treatment plan that is deemed approved must be paid by the insurer.⁶⁰ The respondent relies on the Ontario Court of Appeal decision in Stranges v. Allstate⁶¹ (“Stranges”) and the Financial Services Commission of Ontario (“FSCO”) decisions in Chen and State Farm (“Chen”)⁶² and Sadozai and State Farm (“Sadozai”)⁶³ as the authorities for its position that it is a precondition that expenses claimed be reasonable and necessary.

79In her reply submissions, the applicant argues that the respondent selectively reviewed the FSCO decision in Sadozai and that the mandatory payment provision was not put to the arbitrator as an argument and was not considered at the appeal.

80The applicant relies on a decision of this Tribunal in R.H. v. TD Insurance Meloche Monnex (“T.D. Insurance”) which concluded that the applicant was entitled to the payment of the entire treatment plans under s. 38(11) of the Schedule.⁶⁴

81The Stranges case may be distinguished from this case on the facts because it dealt with the inadequacy of a notice of termination of income replacement benefits. It did not deal with s. 38(11) of the Schedule and the requirement that a benefit be paid if the s. 38(8) notice is not proper.

82The Chen case did consider the meaning of s. 38(11). The FSCO arbitrator found that once a treatment plan is deemed to be approved, an insurer may still validly resist payment of the benefit if the treatment plan was not reasonable and necessary. The arbitrator in Chen reviewed the provisions in the Schedule dealing with payments of medical benefits. His starting point is s. 15 of the Schedule which requires the insurer to pay for reasonable and necessary medical benefits. The arbitrator found that the provision in s. 38(11) of the Schedule was a pay pending provision that obligates an insurer to pay the benefit pending resolution of any dispute as to whether they are reasonable and necessary. The Chen decision was followed in the Sadozai case which is a February 2017 decision on an appeal to the Director’s Delegate. The Director’s Delegate preferred the analysis in the Chen decision and found that it is a precondition for expenses to be payable that they be “reasonable and necessary”.⁶⁵

83I am not bound by decisions of FSCO arbitrators and Director’s Delegates. In my view, the use of the word “shall” makes the requirement to pay in s. 38(11)2 mandatory and an insurer is obligated to pay for a treatment plan until the insurer cures the defective notice.

84There is no evidence before me that the respondent issued any further notices to deny the treatment plans in issue. While s. 15 of the Schedule requires the insurer to pay for all reasonable and necessary expenses incurred there is no reasonable and necessary requirement in s. 38(11). The requirement is simply to pay for all goods, services, assessments and examination described in the treatment plan.

85The purpose of this section of the Schedule is to require an insurer to respond immediately to a treatment plan in order to provide the insured timely access to treatment. There would be no incentive for an insurer to properly deny treatment and assessment plans if they were not immediately payable under s. 38(11)2. This approach to the interpretation of s. 38(11) is the same approach that was recognized in TD Insurance, a decision of this Tribunal relied upon by the applicant. A recent Reconsideration Decision⁶⁶ of the Executive Chair of SLASTO⁶⁷ confirmed this approach to the interpretation of s. 38(11).

86Regrettably, the respondent is left in the shoes of The Fund and must suffer the consequences of The Fund’s decisions with respect to the applicant’s claim for benefits.

87The Order made at the Case Conference identified eight treatment plans as being in dispute. After reviewing the evidence of both parties, I am unable to find a treatment plan (OCF-23) for physiotherapy treatment dated July 8, 2015 and for this reason I deny the applicant’s claim for this benefit. There is a treatment plan dated July 8, 2015 for Chiro, Physio and Massage included in the respondent’s documents⁶⁸ which I have considered in my deliberations.

88The chart below sets out the details of the treatment plans in issue, the dates of the plans, the dates of submission and the dates of denial that I have found in the documents submitted by the parties.⁶⁹ The applicant has not provided any evidence with respect to the dates that the treatment plans were submitted to The Fund and for this reason I rely on the evidence of the respondent with respect to the dates of submission.

Date of Plan	Service or Assessment	Date of Submission	Date of Denial	Days to Respond
06/Feb/15*	Physio/OCF 23	23/June/15	25/June/15*	2
14/April/15*	Physiotherapy	23/June/15	25/June/15*	2
8/July/15	Chiro/Physio/Massage	15/July/15	14/July/15	unknown
17/July/15*	Attendant Care Assessment	28/August/15	8/Sept/15*	11
07/July/15*	Psychological Assessment	2/Sept/15	8/Sept/15*	6
09/Oct/15*	Chiro/Physio/Massage	10/Nov/15	10/Nov/15*	Same day
21/Jan/16*	Chiro/Physio/Massage	26/Jan/16	27/Jan/15*	1

*evidence that is agreed upon

89The burden of proof rests with the applicant to show that the treatment plans were submitted and improperly denied. The only evidence with respect to the treatment plans and denials that I have received from the applicant is six EOBs included in her written submissions for the hearing. I have reviewed the EOB’s and determined that they only cover six treatment plans, as the EOB’s found at Tab 2 and Tab 3 of her documents are the same.

90While the applicant argues that six of eight treatment plans were not responded to within eight days, she does not provide any evidence to support this contention.

91I find that the applicant is not entitled to payment of the treatment plan for physio therapy dated July 8, 2015 and denied on July 14, 2015 because she has not provided any evidence of either the treatment plan or the denial of the plan.

92The applicant is entitled to payment of the treatment plans that were submitted after August 25, 2015 for the reason that they were not properly denied and I have no evidence that the respondent has subsequently provided a proper notice under s. 38(8) of the Schedule.

ORDER

93For the reasons set out above, I Order that:

1. The applicant is not barred by s. 55(1) from proceeding with this application.

2. The respondent is prohibited from taking the position that the applicant has an impairment to which the Minor Injury Guideline applies.

3. The applicant is not entitled to receive the following medical benefits:

a. a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated February 6, 2015.

b. a medical benefit in the amount of $1,300.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 14, 2015.

c. a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated July 8, 2015.

d. a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated July 8, 2015.

4. The applicant is entitled to receive the following medical benefits:

a. a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated October 9, 2015.

b. a medical benefit in the amount of $2,789.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated January 21, 2016.

c. a medical benefit in the amount of $2,486.00 for an in-home attendant care assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 17, 2015.

d. a medical benefit in the amount of $2,610.30 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 07, 2015.

Footnotes

1. 1O. Reg. 34/10 [The Schedule].
2. 2Treatment plans in dispute identified in Order made at March 20, 2017 Case Conference.
3. 3The Case Conference Order incorrectly stated the date of this plan was July, 22, 2015.
4. 4The Case Conference Order incorrectly stated the date of this plan was July 23, 2015.
5. 5Applicant’s Letter to the Tribunal dated November 6, 2017, Tribunal File.
6. 6Respondent’s Letter to the Tribunal dated November 8, 2017 Tribunal File.
7. 7For example, the respondent’s s. 55 submissions incorrectly state that the applicant did not provide the Notice of Collection of Personal Information, Form 3 and a signed OCF-1 until October 13, 2015. The evidence provided by the respondent with its initial submissions establishes that the respondent was in possession of these documents by August 25, 2015.
8. 8Applicant’s Reply Submissions, at para. 1.
9. 9Tab 2, s.55 Response Submission dated November 2, 2017.
10. 10Tab 3, Applicant’s s. 55 Submissions dated October 23, 2017.
11. 11Page 11, Statement of the Applicant, Tab 2, Respondent’s s.55 Response Submissions. Tab 3, Applicant’s s. 55 Submissions.
12. 12Affidavit of G.A.E. sworn October 20, 2017 Paragraph 8, Tab 3, Applicant’s s. 55 Submissions.
13. 13Affidavit of G.A.E. sworn October 20, 2017, Paragraph 9, Tab 3, Applicant’s s. 55 Submissions.
14. 14Affidavit of D.S. sworn October 23, 2017 Paragraph 7, Tab 4, Applicant’s s. 55 Submissions.
15. 15Affidavit of D.S. sworn October 23, 2017 Paragraph 10, Tab 4, Applicant’s s. 55 Submissions.
16. 16Affidavit of D.S. sworn October 23, 2017 Paragraph 10, Tab 4, Applicant’s s. 55 Submissions.
17. 17Affidavit of D.S. sworn October 23, 2017, Paragraph 11, Tab 4, Applicant’s s. 55 Submissions.
18. 18Tab 1, Insurer’s Book of Documents Further to Order of Adjudicator dated October 2, 2017.
19. 19Affidavit of D.S. sworn October 23, 2017, Tab 4, Applicant’s s. 55 Submissions.
20. 20Part 10, OCF-1, Tab 1, Insurer’s Brief of Documents.
21. 211951 CanLII 252 (BC CA), [1951] B.C.J. No. 152; [1951] 2 D.L.R. 354; 951 CarswellBC 133, B.C.C.A.
22. 22S. 32(2) O. Reg. 34/10.
23. 23S. 32(5) O. Reg. 34/10.
24. 24S. 32(6) O. Reg. 34/10.
25. 25Tab 3, Insurer’s Brief of Documents.
26. 26S. 32(6)-(8) O. Reg. 34/10.
27. 27S. 36(6) O. Reg. 34/10.
28. 28Tab, 3 Insurer’s Brief of Documents.
29. 29Tab 8, Applicant’s Submissions.
30. 30Page 31, Tab 4, Insurer’s Brief of Documents.
31. 31FSCO Appeal P11-000004, November 10, 2011.
32. 32Motor Vehicle Accident Report is referred to by The Fund in this case as the “Police Report”.
33. 33Paragraph 24, Insurer’s Written Submissions.
34. 34Paragraph 26, Insurer’s Written Submission.
35. 35Affidavit of D.S. sworn October 23, 2017, Tab 4, Applicant’s s. 55 Submissions.
36. 36Tab 4, Insurer’ Book of Documents Further to Order of Adjudicator dated October 2, 2017.
37. 37Tab 5, Insurer’ Book of Documents Further to Order of Adjudicator dated October 2, 2017.
38. 38Tab 6, Insurer’ Book of Documents Further to Order of Adjudicator dated October 2, 2017.
39. 39York Regional Police requires lawyers to include both the accident or incident number and the attending officer’s badge number as information in their request for a report; The Ontario Provincial Police requires a signed authorization letter from the insured person to obtain a report; The Service Ontario web page states what information an accident report will contain but does not set out the information required to obtain the report.
40. 40S. 36(7) O. Reg. 34/10.
41. 41S. 14(1) O. Reg. 34/10.
42. 42S. 3(1) O. Reg. 34/10.
43. 43S. 32(8) O. Reg. 34/10.
44. 44S. 32(10) O. Reg. 34/10.
45. 45S. 33(6) O. Reg. 34/10.
46. 46Paragraphs 16, 18 Insurer’s Written Submissions.
47. 47Tab 7, Insurer’s Brief of Documents.
48. 48Tab 2, Insurer’s Book of Documents Further to the Order of Adjudicator Dated October 17, 2017.
49. 49Tab 19, Insurer’s Book of Documents Further to the Order of Adjudicator Dated October 17, 2017.
50. 50S. 38(1) O. Reg. 34/10.
51. 51S. 38(9) O. Reg. 34/10.
52. 52S. 38(8) O. Reg. 34/10.
53. 53Tab 5, Insurer’s Brief of Documents.
54. 54S. 38(11)1 O. Reg. 34/10.
55. 55Page 3, Applicant’s Reply.
56. 56Paragraph 19, Insurer’s Written Submissions.
57. 57Paragraph 21, Insurer’s Written Submissions.
58. 58Paragraph 21, Insurer’s Written Submissions.
59. 59Tab 9, Insurer’s Brief of Documents.
60. 60Paragraph 30, Insurer’s Brief of Documents.
61. 612010 ONCA 457, Tab E Insurer’s Book of Documents.
62. 62FSCO A13-003892 , May 30, 2016.
63. 63FSCO P16-00002, Feb. 22, 2017.
64. 64R.H. v. TD Insurance Meloche Monnex, Licence Appeal Tribunal, 16-000634, January 17, 2017.
65. 65Page 4, FSCO Appeal Order P16-00002.
66. 66M.F.Z. and Aviva Insurance Canada, 16-000517/AABS and J.C.C. and Aviva Insurance Company of Canada, 16-000663/AABS, September 22, 2017
67. 67Safety, Licencing, Appeals & Standards Tribunal of Ontario
68. 68Tab 16, Insurer’s Brief of Documents.
69. 69Tab 16, Insurer’s Brief of Documents, Tabs 1-6, Applicant’s Documents.