Safety, Licensing Appeals and Standards Tribunal 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:

Jonathan Batty, Associate Chair

Date:

June 7, 2018

File:

16-001698/AABS

Case Name:

G.V. v. Northbridge General Insurance

Written Submissions By:

For the Applicant:

David J. Levy, Counsel

For the Respondent:

Shikha Sharma, Counsel

Overview

1. The respondent, Northbridge General Insurance Corporation (“Northbridge”), requests reconsideration of a decision of the Licence Appeal Tribunal (the “Tribunal”) in which it found that the applicant, G.V., is entitled to an award of $1,232.14 because Northbridge unreasonably delayed payment of benefits under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”).

2. Section 10 of the regulation Automobile Insurance, R.R.O. 1990, Reg. 664 (the “Regulation”), states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may, in addition to awarding the benefits and interest, award a lump sum of up to 50% of the amount to which the person was entitled (“s. 10 award”). Northbridge submits that the Tribunal erred in law and violated the rules of procedural fairness in granting an award under s. 10 of the Regulation.

3. Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this request.

4. For the reasons that follow, I grant Northbridge’s request for reconsideration and vary the decision to cancel the order granting an award of $1,232.14 under s. 10 of the Regulation.

BACKGROUND

5. G.V. was involved in an automobile accident on August 18, 2013. He claimed benefits from Northbridge pursuant to the Schedule. Northbridge paid him some medical benefits but denied him entitlement to medical benefits beyond the limit for predominantly minor injuries as defined in the Schedule and administered under the Minor Injury Guideline (“MIG”). Northbridge also denied G.V.’s claim for Non-Earner Benefits.

6. G.V. applied to the Tribunal for dispute resolution on July 28, 2016. A case conference was held on October 27, 2016. In the Case Conference Order, the issues for the hearing were set out, and did not include the issue of whether a s. 10 award should be granted. The Order also set out a timeline for G.V.’s submissions, Northbridge’s responding submissions and G.V.’s reply submissions.

7. In his submissions for the hearing dated December 16, 2016, G.V. included additional medical documentation that had not been produced earlier. In its responding submissions dated January 9, 2017, Northbridge indicated that it had removed G.V. from the MIG and had approved the treatment plan in dispute and that therefore the only remaining issue was entitlement to Non-Earner Benefits. In G.V.’s reply submissions, G.V. submitted that he was entitled to a “special award” because of Northbridge’s decision to remove G.V. from the MIG three and a half years after the accident and only after he had been compelled to dispute his claim at the Tribunal.

8. The Tribunal found that G.V. had not established entitlement to Non-Earner Benefits. However, the Tribunal determined that G.V. was entitled to an award of 50% of the value of the treatment plan that Northbridge initially denied and then allowed. The Tribunal found that Northbridge’s decision at the time of its responding submissions to remove G.V. from the MIG was a “questionable practice” and “regrettable”. The Tribunal stated:

The respondent advised the applicant and the Tribunal by a covering letter attached to its submissions that they had removed the applicant from the MIG and paid the treatment plan in dispute, without including any reasons for this reversal. The absence of a more timely consideration of this issue left this injured and senior applicant in a position in which he was disallowed payment of medical benefits for over two years prior to the insurer’s last minute change of heart.

I find this entitles the applicant to an award of 50% of the value of the treatment plan submitted by GTA Chiropractic Centre in the amount of $2,464.28, because the insurer unreasonably withheld or delayed payments of the treatment plans submitted to the respondent. The amount of the award would thus be $1,232.14.

9. Northbridge submits that the Tribunal erred in law and violated the rules of procedural fairness by granting an award for unreasonably delaying payments.

Analysis

10. Northbridge requests reconsideration based on the following grounds set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016) (the “Rules”):

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

Error of law

11. Northbridge submits that the Tribunal’s reasons do not explain why it ordered a s. 10 award, other than the fact that Northbridge agreed to pay the treatment plan shortly before the hearing. Northbridge submits that the settlement of an issue immediately before a hearing is not on its own sufficient to prove entitlement to a s. 10 award. Rather the applicant must prove that the insurer unreasonably withheld or delayed payments. Northbridge submits that it decided to pay the treatment plan in reliance on the medical documentation produced by G.V. on December 19, 2016.

12. G.V. submits that Northbridge has provided no basis for overturning the special award. G.V. submits that the medical documentation it produced on December 16, 2016 had already been provided to Northbridge on October 25, 2016.

13. I am satisfied that the Tribunal made a significant error of law by ordering a s. 10 award solely on the basis that Northbridge decided to pay the benefit in question shortly before the hearing commenced. In order to establish a claim for a s. 10 award, an applicant is required to prove, on the evidence, that the insurer has “unreasonably withheld or delayed payments”. The Tribunal’s reasons provide no explanation of how Northbridge acted unreasonably in withholding or delaying payment.

14. Northbridge stated in its response to G.V.’s application that it relied on two medical assessments in determining that G.V.’s injuries fell within the MIG. The Tribunal’s reasons do not address whether Northbridge was unreasonable in relying on those assessments or whether it otherwise mishandled G.V.’s accident benefits file. The fact that Northbridge reversed its position shortly before the hearing is not sufficient to establish that it acted unreasonably in denying the benefit. This point has been made in the case law of the Financial Services Commission of Ontario, with which I agree (see Husein v. State Farm Mutual Automobile Insurance Company, FSCO Appeal P16-00060 at 7-8).

15. Northbridge may very well have reversed its position based on information contained in the medical documents that G.V. produced in December 2016. Even if the documents were produced in October 2016, as G.V. asserts that they were, there was no evidence before the Tribunal that could support a finding that Northbridge acted unreasonably in withholding or delaying payment.

Procedural fairness

16. Northbridge also submits that in ordering a s. 10 award, the Tribunal violated the rules of procedural fairness and natural justice. Northbridge submits that because G.V. did not make a claim for a special award until his reply submissions, Northbridge was not given an opportunity to respond to the claim. Northbridge submits that the Tribunal ought to have provided Northbridge with an opportunity to respond to the claim for a s. 10 award, in which case Northbridge would have prepared submissions on the timing of medical documentation. G.V. did not respond to this issue in his submissions.

17. I find that the Tribunal ought to have provided Northbridge with an opportunity to make submissions on whether it unreasonably withheld or delayed payments before making an order under s. 10 of the Regulation. In his reply submissions, G.V. added an issue to those that had been agreed upon for the hearing. If the Tribunal was of the view that those submissions had merit and was considering making the requested order, Northbridge should have had an opportunity to respond. If provided with the opportunity, Northbridge could have explained why it initially found G.V.’s injuries fell within the MIG and on what basis it changed its position. It could also have made the submission, as it did on reconsideration, that G.V. provided no evidence that Northbridge acted unreasonably in denying the benefit.

Order

18. For the reasons set out above, I grant Northbridge’s request for reconsideration and cancel the order granting an award of $1,232.14 under s. 10 of the Regulation.

Jonathan Batty

Associate Chair, Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: June 7, 2018