17-006757 v Aviva Insurance Canada, 2018 CanLII 81949

Licence Appeal Tribunal

Date: 2018-06-01

Tribunal File Number: 17-006757/AABS

Case Name: 17-006757 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:

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Cezary Paluch

APPEARANCES:

For the Applicant: David Cararanza, Paralegal

For the Respondent: Alexander Hartwig, Counsel

Heard: Written Hearing: April 3, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on November 13, 2016.¹ He applied to the respondent for non-earner benefits (“NEBs”) and other medical benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The parties participated in a case conference on January 31, 2018, and were able to resolve all of the substantive issues in dispute with respect to the benefits but were unable to resolve the “special award”² and costs of this proceeding. At the hearing, in submissions, the applicant withdrew the costs issue; therefore, this hearing is limited to the consideration of the “special award” only.

ISSUES

3The issues identified in the case conference order are:

a. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

b. Is the applicant entitled to costs?

APPLICANT’S POSITION

4The applicant’s position is that the respondent failed to respond to the treatment plans in accordance with Section 38(8) of the Schedule and did not address to the NEBs in a timely manner. The applicant requests the amount of $4,479.23 (being 50% of the amounts issued in respect of all treatment plans) and the amount of $3,534.61 (being 50% of the amount issued for NEBs).

RESPONDENT’S POSITION

5The respondent’s position is that the Tribunal has no jurisdiction to consider an award when there are no substantive claims for benefits in dispute. Alternatively, if the Tribunal has jurisdiction, the circumstances of this case do not warrant an award or further, the quantum sought by the applicant is excessive.

RESULT

6The applicant is entitled to an award in the amount of $5,896.83. The respondent unreasonably delayed payments to the applicant.

ANALYSIS

Special Award

(i) Jurisdiction

7The preliminary question raised by the respondent is: Does the Tribunal have jurisdiction to make a “special award” order when the substantive issues in dispute related to the benefits sought by the applicant have been resolved at the time of the hearing?

8On April 1, 2016, the accident benefit dispute resolution sections of the Insurance Act were amended to remove the Superior Court’s jurisdiction to hear new disputes related to accident benefits.

9With respect to the Tribunal jurisdiction to resolve accident benefit disputes, this jurisdiction was clearly set out in s. 280 of the Insurance Act:

Resolution of disputes

280. (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

Application to Tribunal

(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).

10From my reading of the above section, although the Tribunal has been given jurisdiction over benefits (which the respondent states have now been settled), s. 280 is silent about the jurisdiction to award a “special award.”³ Previously, the Insurance Act did include s. 280(10) which was regarded as the statutory authority for granting special awards.⁴ This section was repealed with the changes to the Insurance Act in 2016 and replaced by s. 10 of O.Reg. 664 which is almost identical and states:

10. If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. [emphasis added]

11My reading of s. 10 is that where there is a finding of unreasonable delay or withholding of payments, the legislation allows the Tribunal discretion to make a special award. Despite its apparent simplicity, it is in the second part that the language of this provision becomes problematic when that portion is taken on its own. That portion of section 10 dealing with the quantum of the award provides that the Tribunal calculate the award to a maximum of: 50 per cent of the amount to which the person was entitled at the time of the award.

12Taken separately from the rest of the section, this provision appears to imply that there must be an entitlement "at the time of the award" for any amount to be ordered. A strict literal interpretation of this provision means that an insurer could pay up any benefit any time prior to the decision of making the award, with no consequence. This is because a special award can only be made in addition to an award of benefits and interest to which the person is entitled and it is based on the amount to which the person was entitled at the time of the award plus interest on all amount then owing.

13Indeed, the respondent argues that the straightforward reading of the words “at the time of the award” precludes the Tribunal from adjudicating this issue because there are no longer any other benefits in dispute. Here, the evidence shows that the Application was filed with the Tribunal in October 2017. Thereafter, on November 16, 2017, the respondent approved all four treatment plans which were initially in dispute, it also paid the amount of $5,180.00 plus interest for the NEBs and $38.62 for the prescription expenses. When the case conference took place on January 31, 2018, both parties confirmed that all of the issues related to the benefits were resolved. In other words, as I understand the respondent’s position, in the light of the wording of section 10, once the payments are made there can be no foundation for a special award.

14The words “at the time of the award”, are not defined in the Schedule, or s. 1 of the Insurance Act. In my view, they appear vague or ambiguous and are capable of being interrupted in different ways. As a result, there is uncertainty as to whether to be entitled to a “special award” there must be substantive benefits in dispute at the time the Tribunal makes its determination. In these cases, it is appropriate to resort to statutory interpretation. There are a number of Supreme Court of Canada cases on statutory interpretation. These cases consistently cite the modern principle, as articulated by Elmer Driedger in his text, Construction of Statutes, as the governing principle of statutory interpretation. The law is succinctly summarized by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex:⁵

Today there is only one principle or approach; namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

15I also note that the rules governing statutory interpretation apply equally to regulations such as Regulation 664. Importantly, a regulation must be read in the context of the enabling Act, having regard to the purpose of the enabling provisions.⁶

16In Ontario, the Legislation Act,⁷ also provides additional guidance regarding the interpretation of legislation. Section 64(1) of the Legislation Act states that “[a]n Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects”. Further, section 64(2) provides that the rule of liberal interpretation also applies to regulations, “in the context of the Act under which [the regulation] is made and to the extent that the regulation is consistent with that Act.”

17In the Reconsideration Decision of M.F.Z. v Aviva Insurance Canada, Executive Chair Lamoureux, in interpreting a provision in the Schedule, explained that the Tribunal’s findings are aligned with the modern approach to statutory interpretation. This modern approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.⁸

18Adopting this purposive and contextual approach to interpreting s. 10, and the words, “at the time of the award”, I do not agree with the respondent that the Tribunal does not have jurisdiction to grant an award in circumstances such as this where benefits were in dispute at the time of the application but were no longer owing by the time of the hearing. I reach this conclusion for the following reasons.

19First, what do the words “at the time of the award” mean? The Black’s Law Dictionary, 6th ed., 1990, defines the noun of the word “award” as “the decision or determination rendered by arbitrators…upon controversy submitted to them.”⁹ Dictionaries are a recognized aid to the courts and tribunals in determining the meaning or common sense of a word used. In this case, the Tribunal has not yet rendered a final decision and disposed of this application so it cannot be said that an “award” on all of the issues has been granted by the Tribunal. The respondent seems to equate the meaning of the word “award” only with the payments that were made by the responded to the applicant related to the benefits in dispute (the treatment plans and NEBs). This interpretation is too narrow and fails to consider that it is the Tribunal that has the power to make the “award” during the proceeding.

20A proceeding ends when there is a notice of withdrawal, all issues in dispute have been resolved, or the Tribunal has given its decision after a hearing.¹⁰ It is clear here that all of the issues have not been resolved and therefore the Tribunal maintains jurisdiction to continue with the hearing and consider the remaining issues. As stated, the only issue remaining is the “special award.”

21Second, I am cognizant that the Insurance Act is consumer protection legislation and provides protection against insurers who unreasonably deny claims. Ample case law supports the proposition that the Schedule constitutes consumer protection legislation and as such must be read generously with any limitations construed narrowly.¹¹ Viewed in this context, I consider it unlikely that the legislature intended to deny consumers the protection of s. 10 by allowing the insurer to unilaterally dispense with its enforcement by virtue of delaying the settlement of the main claims until after a proceeding has been commenced. This would amount to an absurd result where a “special award” is only granted in circumstances where there are ongoing accident benefit issues in dispute. The literal reading of a few words in s.10 should not run counter to both the consumer protection mandate, and the goal of providing accident benefits to injured persons in a timely manner. This would be unreasonable, inequitable and defeat the purpose of the statute. Fairness and not the guise of linguistic reformation must always take primacy.

22This approach is consistent with how the Tribunal has treated “special awards” at the case conference and hearing stage. I note that the Tribunal’s standard Application form enumerates the claim for an award under the ‘Issue in Dispute’ heading as a separate stand-alone issue. Here, when the applicant filed his Application, he checked off “Yes” to the question “Does the claim involve an award for unreasonably held or delayed payments under s 10 of RRO 1990, Reg 664?” and also replied: “Particulars of award to follow”. Perhaps even more important is that when the case conference took place on February 2, 2018, the adjudicator bifurcated the issues that were resolved and the special award and cost issues that remained in dispute and ordered a hearing which both parties appear to have consented to. Indeed, both the Case Conference Report and Order¹² listed the “special award” as a separate issue not conditional or contingent on any other issues in dispute. It is, of course, different if the parties had mutually entered into settlement which terminated all of the proceeding – something that did not happen here.

23It seems to me that to do otherwise would be to allow the insurer to delay payments to the insured without consequences. More to the point, it would be patently unfair that an insurer be allowed to be circumvent the mandatory requirements of s. 10 through a non-contextual interpretation in situations where they have unreasonably withheld or delayed payments to then settle the benefits in dispute, perhaps on the eve of a hearing or at the case conference.

24It offends all sense of fairness and is not in keeping with the policy objective that accident victims promptly receive the benefits to which they are entitled under the Act to avoid injustice or hardship. If the legislature had intended such a significant automatic result, it would have certainly said so.

25Against this backdrop, I now turn to the issue of whether the applicant is entitled to a “special award.”

(ii) (Special) Award – Did the respondent unreasonably withhold or delay payments?

26As will be more fully explored below, I find the following actions of the respondent to show that it unreasonably withheld or delayed payment: i. despite clear evidence did not take him out of the MIG, ii. did not respond to correspondence, iii. took inordinate amounts of time to send denials of treatment , and iv. did not consider clear medical evidence, and even when it approved treatment took a long time to make payment.

27The prerequisite to relief under s. 10 is that the respondent has unreasonably withheld or delayed payments.

28A number of tribunal decisions were provided to demonstrate when a “special award” will be ordered, including the leading Financial Service Commission of Ontario (FSCO) case of Plowright and Wellington, which held that the definition of unreasonable was as follows: "Unreasonable behaviour by an insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”¹³

29I agree with this approach and adopt it for the purposes of this case. I also add that unreasonable behaviour in the context of contributing to the overall delay in payments means not acting professionally by not responding to correspondence with reasonable promptness to all professional letters and communications from other medical and legal practitioners that require an answer.

30Based on the definition in Plowright, the applicant submits that he is entitled to a special award with respect to the various benefits which were unreasonably withheld and significantly delayed. The timeline of the disputed benefits is, of course, critically important in assessing the length of any delay of withholding payments as set below¹⁴:

Amount of Plan/ Expense/Benefit	Dated	Submitted	Not Approved15	Approved16	Paid
$3,510.58 (OCF-18)	Nov. 28/16	Nov.28/16	Dec. 12/16	Nov. 16/17	Jan. 24/18
$1,217.00 (OCF-18)	Dec. 2/16	Dec. 2/16	Dec. 16/16	Nov. 16/17	Jan. 24/18
$2,622.15 (OCF-18)	Feb. 1/17	Feb. 3/17	Feb. 17/17	Nov. 16/17	Jan. 24/18
$2,173.72 (OCF-18)	May 31/17	June 10/17	June 26/17	Nov. 16/17	Jan. 24/18
$38.62 (OCF-6)	May 31/17	May 31/17		Nov. 16/17
$5,180.00 (OCF-3)	Nov. 28/1617	Dec. 2/16		Nov. 16/17	Nov.16/17
TOTAL $14,742.07

31“Special awards” continue to be based on the facts of the case, not simply the facts surrounding the particular issue in dispute but the conduct of the insurer throughout the entire adjustment of the claim. Therefore, a finding that the insurer’s actions were unreasonable is a finding of fact based on my review of the evidence.

32On these facts, for the following reasons, it is my finding that Aviva unreasonably delayed payments to the applicant – both treatments, prescriptions and non-earner benefits. The respondent was unable to explain why the treatment plans were not approved – other than through inadvertence or oversight.

33From my review of the documentation, I note a consistent pattern of lateness in responding to treatment plans and other requested benefits. A key concept in accident benefits is prompt payment of benefits. As just one example, section 38(8) of the Schedule, imposes multiple procedural requirements on an insurer after receiving a treatment plan: it must respond within 10 business days; state what benefits it will pay or not pay for; and, if it refuses to pay for any benefit, provide the medical and all other reasons why the insurer considers the treatment (or assessment) not to be reasonable or necessary. Further, as per Section 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment expenses until such time that it gives proper notice. It appears none of the four treatment plans were responded to within this timeline nor were there reasons for the denial of the requested benefits. Even more alarming, when the respondent filed its Response to the Tribunal in October 31, 2017 it indicated that the applicant’s related injuries can be treated under the Minor Injury Guideline, clearly in violation of s. 38(11) and the procedural requirements in the Schedule.

34In support of his claim for a non-earner benefit, the applicant sent an Application for Accident Benefits to the respondent on November 25, 2016. Shortly after, on December 2, 2016, a Disability Certificate (OCF-3) was completed by Dr. K. Patel, OT, that indicated that the applicant suffers a complete inability to carry on a normal life and “is unable to lift, carry, bend, twist, squat, stand for prolonged amount of time, use his lower extremities, kneel, work overhead, and walk on uneven surfaces.” In Part 6 of the Disability Certificate, Dr. Patel indicated that the applicant met the test for a non-earner benefit for a duration of more than 12 weeks since the applicant has a history of prostate cancer, hypertension and high cholesterol and these factors prolong time to recover. Normally, after a positive Disability Certificate is provided, as here, the insurer will provide to the applicant an Explanation of Benefits (OCF-9) indicating whether they qualified for a NEB. The respondent did not have any explanation why the NEB was not paid after submission of the OCF-3. This did not happen and applicant’s representative properly followed up on behalf of his elderly client. He left a message on May 25, 2017, wrote to the respondent on May 31, 2017, June 15, 2017 and July 20, 2017 requesting payment of NEB’s - all which apparently were unanswered. The NEB’s were not approved until approximately a year after the accident in November 2017 without any explanation whatsoever for the delay other than to say it was a “situation of inadvertence” and not a deliberate decision. Certainly, it is clear to me that the respondent did not give reasonable consideration to all the information, including the positive Disability Certificate, available to them as early as December 2016 in assessing this claim. This is an unreasonable withholding of benefits.

35A further aggravating factor which added further proof of inflexible and unyielding behaviour on the part of Aviva was that even after the expenses were approved in November 16, 2017, the applicant still had to wait over 2 months to have the treatment paid to the service providers. The explanation for this delay was that Aviva required appropriate confirmation from the treating clinics that treatment was, in fact, incurred. The information before me was that the respondent was provided with invoices from the service providers several months earlier on May 23, 2017, May 31, 2017 and October 23, 2017.¹⁸ This additional delay in making these payments was especially egregious. I also do not accept the respondent’s explanation that they have already been penalized by paying interest and this is an adequate penalty in circumstances of this delay. The applicant is automatically entitled to interest pursuant to s. 51 of the Schedule and this is a separate issue.

36It is a well-accepted principle that an insurer has an ongoing duty to assess and reassess a claim as new information is available. In the adjustment process this means that an insurer must make its decisions on the best available evidence. Here critical new medical information was provided to the adjuster on: March 23, 2017, pictures of the applicant’s injuries were sent to the respondent; May 31, 2017, the applicant was referred for an MRI on his right shoulder; June 15, 2017, MRI results and notes from Dr. Rasaratnam were provided that reveal a complete tear of right supraspinatus; and November 2, 2017, the respondent was scheduled to undergo surgery on his right shoulder on November 30, 2017 at Markham Hospital (while at this time the respondent curiously attempted to schedule an insurer’s examination on November 13, 2017, mere days before the applicant’s surgery). All of this information, if reviewed in a timely manner, could have removed the applicant from the Minor Injury Guideline much earlier. Here, the applicant was only taken out of the Minor Injury Guideline on December 7, 2017. Notably, after the application to the Tribunal has already been filed and over a year after his accident. Yes, I agree, that it is well established that an insurer can be wrong in its assessment of a particular claim – but here the respondent appears to have ignored the claim entirely for some time. Therefore, it is my finding that Aviva acted in a manner that was imprudent, stubborn, inflexible, and unyielding with respect to the benefits claimed, and thus unreasonably delayed payments to [the applicant].

37I also note a near total disregard in responding to written and verbal correspondence directly from the applicant’s treating medical and legal professionals, in my view, added to Aviva’s unreasonable behavior. The insurer, through its employees, has a duty to the insured to a standard of care to take reasonable, careful and timely steps similar to that a reasonably prudent and careful claims adjuster would take. The applicant was Aviva’s customer. Here, the documentary evidence shows that as early as January 16, 2017, Dr. Patel wrote to the adjuster advising that the applicant has seen a respiratory specialist and was experiencing pain when breathing and should be taken out of the MIG. On January 25, 2017 an email was sent to the adjuster indicating that Dr. Patel tried to contact the adjuster on the telephone but the voicemail was full and that the applicant needed medical attention. The applicant’s counsel also called the adjuster several times and wrote letters in which no response was received.

38Finally, the fact that after the filing of the application to the Tribunal, the respondent consented to settle the accident benefits issues in the dispute, establishes that its initial decision to deny the benefits was incorrect.

39For all of the above reasons, I exercise my discretion to award the applicant a “special award.”

(iii) Quantum - Factors affecting the amount of the special award in this case

40The applicant is particularly vulnerable. He is a 78 year old individual with a history of cancer and other serious medical ailments. This alone should have prompted the respondent to pay the utmost care and due diligence to the handling of his file. Unfortunately this did not happen in this case.

41The applicant seeks 50% of the amount issued to Health One Markham which is $4,479.23 and 50% of the amount paid for the non-earner benefit which is $3,534.61 for a total of $8,013.84. The respondent submits that this is not a situation that warrants the maximum amount because there is no evidence to frustrate the applicant’s access to benefits and once the Application was filed to the Tribunal, Aviva did everything to rectify the situation and settled all of the benefits in dispute.

42The respondent relies on B.H. v. Belair Direct Insurance¹⁹ for the proposition that voluntary payment of benefits and settlement prior to a hearing is a mitigating factor. Also, that this case is in contrast to G.V. v. Northbridge General Insurance²⁰ where after receipt of the applicant’s submissions at a written hearing the applicant’s injuries were no longer considered ‘minor’ thus effectively resolving the issue in dispute at a very late stage of the proceedings.

43The proper approach to fixing the amount of a special award under the former s. 282(10) of the Insurance Act was established in Persofsky v. Liberty Mutual Insurance Company.²¹ As has been made clear on a number of occasions, the Tribunal is not bound by FSCO jurisprudence. However, FSCO jurisprudence may be, and in fact is often, persuasive.²² I have not been referred to any decisions of the Tribunal that have established detailed factors to be considered in fixing the quantum of an award. I also note that the Tribunal has awarded a special award only on rare occasions.²³

44The Director’s Delegate stated in Persofsky that the amount of the special award should be considered within the context of the Insurance Act, but according to the principles of: rationality and proportionality. Rationality refers to the need to relate the particular facts of the case to the underlying purposes of the legislation. In other words, what amount is large enough to further the goals of punishment and deterrence, but no larger than is needed to serve that purpose? Proportionality refers to the need to ensure that the consequences imposed on the insurer are rationally related to the misconduct at issue. The award should be proportionate to the following six factors:

i. the blameworthiness of the insurer's conduct;

ii. the vulnerability of the insured person;

iii. the harm or potential harm directed at the insured person;

iv. the need for deterrence;

v. the advantage wrongfully gained by the insurer from the misconduct; and

vi. take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

45I adopt the above six factors and also add an additional seventh to this group being the overall length of the delay to the general suggested methodology to be used by an adjudicator in assessing the quantum. In my view, the longer the delay the more likely that prejudice to the claimant can be inferred. This approach is in keeping with the consumer protection mandate of the Insurance Act by focusing on the insurer’s conduct and their undisputed obligation to expedite the assessment of claims while at the same time protecting a claimant’s individual rights.

46With respect to the length of the delay in this case, the Application for Accident Benefits was provided to the respondent on November 25, 2016 with the first treatment plan submitted on November 28, 2016. The payment for the treatment plans (including the first one) was received on January 24, 2018. Therefore the length of the delay was 422 days (or approximately 14 months). In my view, even if I account for a reasonable period of intake of 1-2 months, the overall length of the delay is still of sufficient length and exceptional to raise an issue as to its reasonableness.

47I have considered the amount of the benefits that the respondent unreasonably withheld from the applicant and the length of time that payment of those benefits had been withheld. I have taken into account the applicant’s age and the importance of providing him with services during a very difficult time of his life when he waiting for surgery. I considered that he was forced to stop receiving treatment even though his treating physician recommended continuing with it. Notwithstanding that there was no direct evidence of a conscious decision to withhold or delay benefits, there was evidence that the respondent did not respond with reasonable promptness to correspondence from the applicant’s medical practitioners that clearly required an answer. This indifference contributed to the delay.

48After considering these factors, I find that the appropriate quantum of the award is 40% per cent of the maximum special award, namely $5,896.83 (being 40% of $14,742.07 which was my calculation of the amounts of the treatments plans and NEBS in the chart at para. 31 plus interest, if any, in accordance with Reg. 664. I leave the exact calculation of the interest to the parties and if there is disagreement in the calculation of this amount either party may schedule a case conference with me within 30 days of the release of this decision. I would have allowed the maximum amount of 50% except that the respondent did settle all of the substantive issues in dispute at or prior to the case conference and formal hearing was not required. Thus, I have considered this as a mitigating factor in this case.

COSTS

49The applicant has not made any submissions on costs. In his reply submission, at paragraph 26, the respondent states that he is no longer seeking costs. Therefore this issue has been withdrawn and will not be addressed.

ORDER

50Having considered the evidence and the submissions of the parties, I order:

i. The applicant is entitled to an award of $5,896.83 plus interest according to s. 10 of O.Reg 664; and

ii. the applicant is not entitled to costs.

Footnotes

1. 1The Application received by the Tribunal on October 6, 2017 and the Case Conference Report dated February 2, 2018 state that the accident was November 16, 2016 but applicant’s submissions state it was November 13, 2016.
2. 2R.R.O. 1990, REGULATION 664. This has been commonly referred to as a “special award” as that was the term used in an earlier version of the regulation. I refer to an “award” and “special award” interchangeably.
3. 3In 16-002858 v State Farm Insurance Company, 2017 CanLII 85692 (ON LAT), Adjudicator Johal did not agree with the respondent’s submission that the Tribunal does not have jurisdiction to provide an award on the basis that the statutory power to do so that existed previously in s. 282(10) of the Act was repealed.
4. 4Section 282(10) was enacted by the Ontario Motorists Protection Act (Bill 68) in 1990. Prior to that, the only remedy available to an insured against the insurer for unreasonable conduct was a claim for punitive damages for bad faith.
5. 5[2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 26-30.
6. 6Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789, at para. 27.
7. 72006, S.O. 2006, c. 21.
8. 8M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) para. 39.
9. 9Black Law Dictionary, 6th ed, St. Paul, Minn. West Publishing Co. 1990, p. 137.
10. 1016-000041 v Intact Insurance, 2016 CanLII 60729 (ON LAT) para. 22.
11. 11Smith V. Co-Operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129
12. 12Tab 1 and 2 of Applicant’s Submissions.
13. 13Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) page 17.
14. 14I have relied on the HCAI Logs for these dates attached as exhibits to the Applicant’s submissions.
15. 15HCAI Logs.
16. 16Explanation of Benefits dated November 16, 2017.
17. 17Refers to the Disability Certificate (OCF-3) prepared by K. Patel that stated the applicant suffers a complete inability to carry on a normal life.
18. 18Applicant’s Submissions Tab 11, 12 and 19.
19. 192017 CanLii 70668 (ON LAT) para. 65.
20. 202017 CanLii 77389 (ON LAT) para 30 and 31.
21. 21FSCO P00-0041, January 31, 2003.
22. 2216-001976 v. Co-operators General Insurance Company, 2017 CanLII 39602 (ON LAT) para. 24.
23. 23See 16-002861 v Aviva Insurance Company 2017 CanLII 62160 (ON LAT) where Adjudicator Treksler awarded 50% of the treatment plans plus interest and 16-001698 v Northbridge General Insurance 2017 CanLII 77389 (ON LAT) where Vice-Chair White awarded 50% of the invoiced treatment plan.```