A.S. v. Aviva Canada Inc., 2018 CanLII 132572

Date: 2018-10-12 Tribunal File Number: 18-001273/AABS Case Name: 18-001273 v Aviva Canada Inc.

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:

A.S. Applicant

and

Aviva Canada Inc. Respondent

DECISION

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES: For the applicant: Michael Ferrante, Licensed Paralegal For the respondent: Kimberley Tye, Counsel

HEARD in Written on: July 30, 2018

OVERVIEW

1A.S. (the "applicant") was injured in an automobile accident ("accident") on December 11, 2017, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule"). The respondent denied her claims for benefits. The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

2The parties attended a case conference before this Tribunal and did not resolve the application at that time. They proceeded to a hearing in writing before me.

ISSUES

3By the time of the hearing before me, only the following issue remained in dispute:

(a) Is the applicant entitled to an award under Section 10 of Ontario Regulation 664² because the respondent unreasonably withheld or delayed payment of benefits to the applicant?

RESULT

4I find, on a balance of probabilities, that the respondent did not unreasonably withhold or delay payments to the applicant. Therefore, the applicant is not entitled to an award under Section 10 of Ontario Regulation 664.

REASONS

Factual Background

5In order to assess whether the respondent unreasonably withheld or delayed payments to the applicant, I have reviewed the sequence of events that took place during the respondent's adjustment of the applicant's claim file.

6After the accident, the applicant submitted an Application for Accident Benefits (OCF-1) on December 21, 2017.

7On January 3, 2018, the respondent sent a letter acknowledging receipt of the applicant's OCF-1.

8On January 16, 2018, the applicant submitted a Disability Certificate (OCF-3) to the respondent. This OCF-3 was completed by Dr. Alex Rovos, a chiropractor. Mr. Rovos provided the following information on the OCF-3:

(a) On page 3 of the form, next to the question "is the applicant substantially unable to perform the essential tasks of his/her employment at the time of the accident as a result of and within 104 weeks of the accident?" Mr. Rovos checked off "yes".

(b) On the same page, next to the question "does the applicant suffer a complete inability to carry on a normal life? (i.e., has the applicant sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?)", Mr. Rovos checked off "yes".

9On January 29, 2018, the applicant submitted to the respondent an Employer's Confirmation Form (OCF-2).

10On January 30, 2018, the respondent sent the applicant a letter indicating that the applicant may be eligible for the income replacement benefit (IRB) or the non-earner benefit (NEB), and that an OCF-10 must submitted in 30 days to elect between the two types of benefits.

11The OCF-10 form, a standard Financial Services Commission of Ontario (FSCO) form, indicates: "Although you may be eligible for the Income Replacement Benefit, Non-Earner Benefit and/or the Caregiver Benefit, you can only receive one of these benefits. You much choose which benefit you wish to receive. […] Return this form no later than 30 days from the day you received it."

12The applicant takes the position on pages 2 and 3 of her submissions that the OCF-10 was not required because she qualified for income replacement benefits. However, by this point in time (i.e., around January 30, 2018), I do not see any determination that the applicant qualified for income replacement benefits.

13Rather, I see that an OCF-3 and OCF-2 were submitted on behalf of the applicant, and the respondent had a reasonable question as to the applicant potentially qualifying for more than one type of benefit. The respondent then acted in accordance with Section 35(1) of the Schedule and asked the applicant to complete and submit the OCF-10 election form. Asking for the election when faced with this information was not an act on the part of the respondent that caused an unreasonable delay.

14The applicant wrote to the respondent as follows on January 31, 2018:

While we agree that the OCF-3 supports both an IRB and NEB, the legislation is clear that if you qualify for the IRB you cannot claim the NEB.

In our client's case, she is eligible for the IRB and continues to be disabled; therefore, no election is required.

Given that you have received the OCF-1, OCF-2, and OCF-3, you are obligated to either start paying the benefit or arrange an IE.

15The premise of this letter seems to be that the applicant "qualifies" for the IRB because the OCF-2 was submitted subsequent to the OCF-3. Submitting the forms alone, however, is not sufficient to result in entitlement to a benefit. Numerous provisions of the Schedule make this clear.

16Under the Schedule, the respondent has a right, for example, to:

(a) require documentary and other information from the applicant (Section 33);

(b) conduct an examination under oath of the applicant to determine ongoing entitlement to benefits (Section 37); and

17At this point in time, near the end of January 2018, the respondent was of the view that the applicant "may qualify" for more than one benefit. This was a reasonable view to take, given the contents of the various forms received by the respondent in this case.

18On February 9, 2018, the applicant commenced this application with the Tribunal.

19On February 28, 2018, the applicant submitted to the respondent an election (OCF-10) for income replacement benefits.

20The applicant claims that she was placed under undue hardship due to the requirement to complete and submit this OCF-10. I have not been provided with any evidence in support of this claim of undue hardship.

21On March 1, 2018, the respondent wrote to the applicant, indicating that:

(a) the OCF-2 that had been submitted was incomplete;

(b) the OCF-10 election was received;

(d) a notice of examination will go out to the applicant on a later date.

This correspondence did not cause unreasonable delay, as it was proper for the respondent to advise of any deficiencies in the form, and to advise that it will be exercising its rights under Section 44 of the Schedule.

22On March 29, 2018, the respondent wrote a letter to the applicant indicating that the IRB will be paid to the applicant as of January 16, 2018, being the date of the OCF-3.

23The applicant disagreed with the respondent's position because it demanded the IRB start from one week post-accident instead. The shortfall in IRBs was approximately four (4) weeks at $255.02 a week.

24The respondent's position on March 29, 2018, while different from that of the applicant, appears to have been based on Section 36(3) of the Schedule, which states that an applicant who fails to submit a completed disability certificate (OCF-3) is not entitled to a specified benefit for any period before the completed disability certificate is submitted. Given the language of Section 36(3), I find that the respondent's position in paying the applicant from the date of the OCF-3 onwards was not unreasonable.

25On May 23, 2018, the parties attended a case conference before the Tribunal. Since they were unable to resolve the matter, they scheduled this hearing as well as a timetable for the exchange of submissions.

26On June 20, 2018, before the first set of written submissions were due, the respondent confirmed to the applicant that it will pay the remainder of the IRBs being claimed, dating back to one week after the accident, and accrued interest.

Analysis of Circumstances and the Award under Section 10 of Regulation 664

27Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

28The applicant requests an award under Section 10 of Regulation 664 because the respondent should have made its decision of June 20, 2018 at a much earlier point in time, without having to prolong the proceedings or cause the applicant to file an application.

29I appreciate the applicant's concern. Nonetheless, I see that the applicant submitted her OCF-3 on January 16, 2018. Just over three months later, on March 29, 2018, the applicant received confirmation that she would be paid an IRB as of January 16, 2018. This leaves about 4 weeks of IRBs that were then paid to the applicant three months later.

30The applicant relies on Sections 5, 12, 32, and 35 of the Schedule in support of her position that these payments on the part of the respondent were unreasonably delayed.

31Unfortunately, these sections do not assist the applicant's submission for an award under Section 10 of Regulation 664. Sections 5 and 12 speak to eligibility for the IRB and the NEB. Section 32 speaks to the duty to provide information on the applicant's part. Section 35 speaks to the requirement for the OCF-10.

32Based on the events that took place during the respondent's adjustment of the applicant's claims, I do not see a reason to invoke the Tribunal's discretion under Section 10 of Regulation 664.

33While the respondent's position was at odds with that of the applicant, and subsequently revised, the respondent appears to have been acting at all material times in a manner consistent with the everyday interpretation of the legislation.

34Requiring the election from the applicant was not, in and of itself, unreasonable. This is also supported by the case of Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508 (Ont. C.A.), which I was asked to consider as part of the applicant's submissions. In Galdamez, the injured plaintiff was working at the time of the accident, and made an application for non-earner benefits on the basis of her OCF-3. The judge in the first instance held that the applicant could not qualify for non-earner benefits given that she was working at the time of the accident. The Court of Appeal found that this analysis was incorrect. The mere fact that an applicant is working at the time of the accident is not sufficient to entitle that applicant to income replacement benefits. The applicant still has to meet the relevant disability standard (see paras. 29, 31, 47-48 of Galdamez).

35Since it is not a given that an applicant qualifies for income replacement benefits simply because he or she was working at the time of the accident, and if the forms submitted raise a question as to which of the two types of benefits can be claimed, I find that asking for an election was appropriate.

36Furthermore, while the applicant has claimed undue financial hardship caused by the respondent's actions, I have no evidence before me in this regard.

37I also find that the delay leading up to the respondent's March 29, 2018 decision, and the subsequent delay between its March 29, 2018 decision and its June 20, 2018 decision were not so unreasonable as to merit the award under Section 10 of Regulation 664.

CONCLUSION

38For the above reasons, I find that the award under Section 10 of Regulation 664 is not payable in this case.

Released: October 12, 2018

Nidhi Punyarthi Adjudicator