Released Date: December 4, 2019
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:
[M.P.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Fawad Siddiqui, Counsel
For the Respondent:
Monica Pathak, Counsel
HEARD: In Writing
November 26, 2018
OVERVIEW:
1This matter arises as a result of a motor vehicle accident that occurred on March 15, 2017, after which the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and, thus, applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties agreed on the income replacement benefit (“IRB”) payable to the applicant. I must now decide if the applicant is entitled to payment of interest on the IRB or an award pursuant to s. 10 of O. Reg. 664.
ISSUES IN DISPUTE:
3On March 19, 2018, the applicant submitted an application to the Tribunal seeking the following:
i. IRBs from January 22, 2018 to date and ongoing and interest.
ii. An award for unreasonably held or delayed payments under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits.
4However, in her written submissions, the applicant seeks a different relief than what is stated above. The applicant states that the issue is whether or not she is entitled to interest on overdue IRBs for the period of April 28, 2017 to December 4, 2017.
5The respondent’s position differs, and they state that the present matter is based, on an application wherein the applicant sought IRBs from a later period, January 22, 2018 ongoing, and interest thereon.
RESULT:
6For the reasons below I find as follows:
i. The applicant is not entitled to interest on IRBs from January 22, 2018 until payment.
ii. The applicant has not put the issue of interest for overdue payments of benefits from April 28, 2017 to December 4, 2017 properly before the Tribunal.
iii. The applicant is not entitled to an award pursuant to O. Reg. 664.
ANALYSIS:
Is the claim for interest from April to December 2017 properly before the Tribunal?
7I find that the issue of interest payable from April 28, 2017 to December 4, 2017 (the “Interest Issue”) is not a proper issue before the Tribunal, for the below reasons.
8The applicant stated in her submissions that she was seeking interest on overdue IRB payments for the period of April 22, 2017 until December 4, 2017 because the respondent failed to pay the initial IRB until January 4, 2018. She further submits that when the payment was made on January 4, 2018 for the above time period of 2017, it was paid without interest.
9The application before the Tribunal is for IRBs from January 22, 2018 (when IRBs were suspended) to date and ongoing plus interest on that benefit as stated in the application filed. The application makes no mention of any other time period for which interest is sought.1
10The Order from the case conference of July 24, 2018 states the following:
i. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
ii. Is the applicant entitled to receive a weekly income replacement, in the amount of $91.54 for the period of January 22, 2018 to date and ongoing, denied on January 17, 2018? This issue was resolved at the case conference. 2
iii. Is the applicant entitled to interest on any overdue payment of benefits?
11Since the issue of IRBs was resolved at the case conference, the issue that remained following the case conference was the interest for that benefit from January 22, 2018 to the date of payment.
12The applicant never sought to add the Interest Issue to this hearing.
13I find that the proper issue in dispute is whether the applicant is entitled to interest on IRBs from January 22, 2018 to the date of payment.
14The applicant in her submissions on the Interest Issue has provided no evidence that she told the respondent that the Interest Issue would be an issue to be decided at the hearing. The applicant submits that the Interest Issue was known to the respondent but, provides no evidence of this. Further, given that the respondent failed to even acknowledge the Interest Issue framed by the applicant, I find that, on a balance of probabilities, the notice the respondent had with respect to the Interest Issue being an issue in dispute in this hearing was upon receipt of the applicant’s submissions.
15It would be procedurally unfair to decide an issue that is not properly before the Tribunal to which the respondent was not advised that they would have to respond to.
16It should be noted that my decision with respect to the Interest Issue is limited to it not being a proper issue in dispute at this hearing. My decision does not decide the merits of the Interest Issue nor prevents the Interest Issue from coming before the Tribunal through a separate application.
Is the applicant entitled to interest from January 22, 2018?
17The respondent suspended the applicant’s IRBs on January 22, 2018. The respondent submits, that it suspended the IRBs as per section 33 of the Schedule because the applicant did not provide the information requested on January 8, 20183 until July 16, 2018.
18The respondent further submits that on or about July 24, 2018 the respondent paid or agreed to pay the IRBs from January 22, 2018 until July 29, 2018 but did not pay interest on these IRBs as the applicant failed to comply with the request for the documents in a timely manner.
19The applicant made no submissions and provided no evidence that the requests for the documents made by the respondent were unreasonable or that she had provided the information requested in a timely manner. Therefore, I find that the applicant has not met her burden to demonstrate that she is entitled to interest for any overdue income replacement benefits from January 22, 2018 to the date of payment.
Award
20The applicant is seeking an award pursuant to O. Reg. 664, which provides certain relief if an applicant establishes that a benefit was unreasonably withheld or delayed. The applicant has made no submissions with respect to the insurer unreasonably withholding or delaying the benefit owing from January 22, 2018 to date and ongoing. Thus, I find that the applicant is not entitled to an award.
CONCLUSION:
21I find that the issue in dispute before the Tribunal was whether the applicant was entitled to interest on IRBs from January 22, 2018 to date and ongoing. Regarding that period, I find that the applicant is not entitled to interest and the applicant is not entitled to an award under Ontario Regulation 664.
Released: December 4, 2019
Monica Chakravarti
Adjudicator