C.A. v. Intact Insurance Company, 2019 CanLII 101845

RECONSIDERATION DECISION

Before: Chloe Lester, Adjudicator

Date: September 3, 2019

File: 18-000579/AABS

Case Name: C.A. v. Intact Insurance Company

Written Submissions by:

For the Applicant: Lawson Hennick, Counsel

For the Respondent: Saro Setrakian, Counsel

OVERVIEW

1The applicant was injured in a motor vehicle accident on February 3, 2015 and sought benefits pursuant to the Statutory Accident Benefit Schedule (the “Schedule”)¹. The applicant applied to the respondent for payment for the cost of catastrophic assessments in the amount of $16, 272.00. The respondent denied the benefits and the applicant applied to the Licence Appeal Tribunal’s (the “Tribunal”) for dispute resolution.

2The Tribunal held that the applicant was not entitled to catastrophic determination assessments because they were not reasonable and necessary.

3The applicant seeks a reconsideration of the December 24, 2018 decision on the basis that the adjudicator made significant errors of law and/or fact such that the Tribunal would have likely reached a different decision. The applicant does not specify the redress sought other than that the decision be reconsidered.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal. For the reasons below, I deny the request for reconsideration.

DECISION AND REASONS

5The applicant seeks reconsideration under Rule 18.2 (b)². Rule 18.2(b) requires that I be satisfied that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different conclusion had the error not been made.

6The applicant argues that the Tribunal’s decision wrongly interprets the law, specifically the FSCO³ decision in Henderson v. Wawanesa Mutual Insurance Company (“Henderson”)⁴ and the application of section 25 (1) of the Schedule. The applicant argues that both Henderson and the Schedule are clear that section 25 (1) obligates the insurer to pay for the catastrophic assessments and that the funds to pay for those assessments do not come from the medical/rehabilitation benefit limits. They claim the reasonable and necessity test does not apply and that is where the Tribunal erred in its decision.

7The respondent submits the decision is free of error and should be confirmed. If the reconsideration is allowed, it would result in very costly assessments with no repercussions for the applicant and a great waste for the insurance company. The respondent argues that the Tribunal considered the applicant’s arguments in Henderson and rejected them. The respondent submits that entitlement to a catastrophic assessment is dependant on reasonableness and necessity, which has been upheld in this decision and numerous other decisions from FSCO and the Tribunal. In the alternative, the respondent claims that section 25 (1) cannot be applied because the applicant failed to apply for a catastrophic determination with the proper application (OCF-19).

The Tribunal did not err

8The applicant applied for this reconsideration on a very narrow basis, specifically, that the Tribunal failed to properly assess Henderson in interpreting section 25 (1) of the Schedule. The applicant’s submissions did not detail how the error was allegedly committed other than arguing that Henderson obligates the insurer to pay for the catastrophic assessments and the Tribunal’s decision analyzes entitlement based on the reasonable and necessary test.

9I disagree with the applicant’s arguments. The Tribunal considered the non-binding case law and rejected it. The decision is well reasoned and analyzed. I see no fault in the hearing adjudicator’s interpretation. She also considered the parties’ submissions and case law and determined the issue before her. I see no reason to interfere.

10In support of the Tribunal’s position, section 25(1)(5) obligates the insurance company to pay for expenses incurred on behalf of the applicant for reasonable fees charged for preparing the application for a catastrophic determination under section 45. In other words, the obligation is on the insurance company to pay for fees in connection with filling out the application for catastrophic determination, that is the OCF-19, not the catastrophic assessments itself. This is akin to section 25(1)(1) where the insurance company is obligated to pay for reasonable fees in connection with preparing a disability certificate (OCF-3). This is commonly paid by insurance companies at rate of no more than $200.00.

11I agree with the respondent that it does not seem in line with the Schedule that there would be no test for entitlement to catastrophic assessments as long as the fees charged were reasonable. Although section 45 does not stipulate a test for determining entitlement to the catastrophic assessment, it is only reasonable to conclude, on the balance of probabilities, that reasonableness and necessity would be the appropriate test. This is the test consistently used in the Schedule for determinations of entitlements for assessments.

CONCLUSION

12For the reasons noted above, the request for reconsideration is denied. The Tribunal’s decision dated December 24, 2018 is confirmed.

Chloe Lester Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Licence Appeal Tribunal’s Common Rules of Practice and Procedure
3. 3Financial Services Commission of Ontario (“FSCO”)
4. 42015 CarswellOnt 11184