[M.P.] v. Aviva General Insurance Canada, 2019 CanLII 119736

Citation: [M.P]. vs. Aviva General Insurance Company, 2019 ONLAT 18-006624/AABS

Date: October 22, 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 General Insurance Canada

Respondent

DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the Applicant: Roger R. Foisey, Counsel

Rusald Laloshi, Paralegal

For the Respondent: Mohamed R. Hashim, Counsel

Heard in Writing: April 1, 2019

OVERVIEW

1The applicant was injured in a motor vehicle accident on October 31, 2017 (“the accident”) and sought accident benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). She applied to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”) on July 30, 2018 after the respondent denied her claims for income replacement benefits, medical benefits and cost of examination expenses.

2The only issue remaining in dispute is the applicant’s claim for an award under O. Reg. 664¹ based on her allegation that the respondent unreasonably withheld or delayed payments.

ISSUES IN DISPUTE

3The issue in dispute is whether the applicant is entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed payments.

4The applicant’s claim for an award is based on the respondent’s alleged denial of the following benefits claimed in the application until days before the parties were scheduled to attend a case conference:

1. Is the applicant entitled to the cost of an examination in the amount of $1,600.00 for an Occupational Therapy Functional In-Home Assessment (“OT assessment”) recommended by Entwistle Power Occupational Therapy in a treatment plan dated February 9, 2018, submitted on February 14, 2018, and denied on February 28, 2018 and April 26, 2018?

2. Is the applicant entitled to a medical benefit in the amount of $3,192.53 for occupational therapy services (“OT services”) recommended by Entwistle Power Occupational Therapy in a treatment plan submitted on March 14, 2018, and denied on April 6, 2018?

3. Is the applicant entitled to the cost of an examination in the amount of $648.83 ($2,144.93 less the $1,496.10 approved) for a Psychological Assessment, recommended by Dr. Bonnie MacDonald in a treatment plan submitted February 20, 2018, denied on February 28, 2018 and partially denied on April 26, 2018?

4. Is the applicant entitled to a medical benefit in the amount of $260.00 ($1,300.00 less the $1,040.00 approved) for chiropractic services recommended by Dr. Ian Miller in a treatment plan submitted on February 7, 2018 and denied on February 23, 2018?

5. Is the applicant entitled to a medical benefit in the amount of $3,250.00 for chiropractic services recommended by Dr. Ian Miller in a treatment plan submitted on June 21, 2018, denied on July 30, 2018, and approved on August 20, 2018?

6. Is the applicant entitled to an income replacement benefits (“IRBs”) in the amount of $372.42 per week, for the period from July 27, 2018 to date and ongoing?

RESULT

5I find that the respondent unreasonably withheld or delayed the payment of some benefits and, therefore, the applicant is entitled to an award in the amount of $1,500.00 plus interest in accordance with s. 10 of O. Reg. 664.

ANALYSIS:

Preliminary Issues

6The respondent raised the following preliminary issues.

Respondent’s request to exclude the applicant’s written submissions

7The respondent takes issue with the fact that the applicant filed her written submissions on March 12, 2019 at 12:00 a.m., rather than by March 11, 2019, as required by the Tribunal’s earlier Order² (“Tribunal Order”). It argues that, given the late filing, the applicant’s materials should not be accepted, and that this application should be dismissed. The applicant does not dispute that she filed her written submissions late. However, she submits that the respondent has not demonstrated any prejudice from the late delivery and, thus, her submissions should be accepted.

8The respondent relies on the Tribunal’s decision in Pagcaliwagan³. In that case, the Tribunal notes that a short extension for filing of documents is routinely granted, subject to any clear evidence of prejudice. That case does not support the respondent’s request. The respondent does not allege, nor is there any evidence of, any prejudice as a result of the late filing.

9The applicant’s submissions and her application should not be dismissed merely because she filed them less than a full day late. The respondent’s request to exclude the applicant’s submissions is denied.

Respondent’s request to exclude the applicant’s counsel’s sworn testimony contained in his affidavit

10The respondent also takes issue with the affidavit sworn by counsel for the applicant⁴ (“the Affidavit”) that was filed with the applicant’s submissions. Although the respondent does not object to the exhibits that are attached to the Affidavit being entered as evidence, it requests that the sworn testimony contained in the Affidavit be excluded for a number of reasons. Firstly, the respondent submits that there was no agreement at the case conference regarding the submission of affidavit evidence. Secondly, the respondent argues that the Affidavit supplements the applicant’s submissions and effectively circumvents the page limits in the Tribunal Order. Finally, the respondent takes issue with the description and characterization of events and documents contained in the Affidavit.

11The applicant submits that when the respondent agreed to a written hearing it ought to have expected that affidavit evidence might be filed by her, and that the respondent could have raised the issue of the admissibility of affidavit evidence at the case conference. She further submits that her counsel has direct knowledge of facts contained in the Affidavit, and that there is nothing inappropriate with the content of the Affidavit.

12As neither party referred to paragraph 12 of the Tribunal Order which states that “Both parties will rely upon medical reports/documents in lieu of witness affidavits”, I find that the reference to “witness affidavits” in paragraph 12 of the Tribunal Order is limited to medical witnesses and does not address the issue of the filing of other affidavits as evidence at the written hearing. Therefore, nothing in the Tribunal Order suggests that the parties had turned their minds to the filing of other affidavits by, or on behalf of, the parties.

13Although affidavit evidence is an accepted form of evidence at written hearings, an affidavit sworn by counsel for a party is not. As most of the Affidavit is limited to providing a chronology of events through documents identified in, and attached as exhibits to, the Affidavit, the Affidavit will not be excluded. I have, however, given no weight to the portions of the Affidavit that express opinions or make submissions regarding the information contained in the attached documents, but rather I have considered only the facts established by the documents themselves. In particular, I have given no weight to the portions of paragraphs 36 and 57 that reference and comment on the files of Viewpoint, a healthcare vendor used by the respondent, as Viewpoint’s files were not attached as exhibits to the Affidavit.

Award under Ontario Regulation 664

14Section 10 of O. Reg. 664 gives the Tribunal jurisdiction to make an award. It provides as follows:

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.

15The applicant submits that the respondent’s continued denial of benefits until just days before the scheduled case conference entitles her to an award in the amount of 50% of the value of the issues in dispute at the time she filed her application. The medical benefits and cost of examination expenses in dispute when the application was filed total $8,951.36. There is also a claim for income replacement benefits (“IRBS”). No submissions regarding the value of the IRBs in dispute or the amount of the award sought with respect to the same were made by the applicant.

16The respondent submits that the applicant has not met her evidentiary burden of establishing that an award is warranted, as all disputed medical issues were resolved before the scheduled case conference. It further submits that it had not terminated IRBs, but rather that those benefits were erroneously suspended and then resumed within a month.

17The determination of whether the respondent unreasonably withheld or delayed the payment of any benefits requires a detailed analysis of the information available to the respondent at various stages of the adjusting of the applicant’s claims and the reasons for the respondent’s initial and continued denials.

18The factors and principles relevant to determining whether an insurer has unreasonably withheld or delayed payment of benefits for the purposes of s. 10 of O. Reg. 664 are identified in a number of Tribunal and Financial Service Commission of Ontario (FSCO) decisions. These include the following:

• Determining whether an insurer has unreasonably withheld or delayed payments “entails assessing whether the insurer exceeded the limits of what is reasonable”⁵;

• "Unreasonable behaviour by an insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”⁶;

• An insurer “must carefully consider all of the available information, giving appropriate weight in a fair and even-handed manner”⁷;

• “an insurer has a continuing obligation to adjust a claim”⁸;

• “[T]he insurer’s handling of the claim is not to be held to the standard of perfection and should not be judged with the benefit of hindsight, rather it should be evaluated on the basis of the information available at that time.”⁹

19I find, for the reasons that follow, that the respondent unreasonably withheld or delayed payment of some of the benefits referred to in Issue 1 and those referred to in Issues 2, 3 and 4. I do not find that the respondent unreasonably withheld or delayed payment of IRBs or the medical benefit referred to in Issue 5.

Does section 38(2) of the Schedule apply, and if so, what affect does it have the applicant’s claim for an award under O. Reg. 664?

20Following a review of the parties’ submissions I noted that the OT Functional Assessment Report (“OT Report”)¹⁰ dated March 1, 2018 states that it is based on an OT assessment conducted on February 13, 2018, the day before the treatment plan recommending that assessment was submitted to the respondent. The parties were therefore asked for further written submissions addressing the issues of whether s. 38(2) of the Schedule applies to the applicant’s claim for an award under O. Reg. 664, and if so, what affect does it have thereon.

21The relevant portion of s. 38(2) of the Schedule states:

“An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan…”

22The respondent submits that because the OT Report is based on an OT assessment that occurred prior to the submission of the treatment plan recommending it, s. 38(2) of the Schedule applies and it had the right to deny the claim for the cost of the OT assessment. The respondent therefore submits that because s. 38(2) of the Schedule applies, a claim of bad faith with respect to the cost of the OT assessment is effectively vitiated. The respondent relies on K.R. v. Unifund Assurance Company¹¹ in support of its position. I do not find that case applicable, as in that case all of the costs claimed were incurred prior to the submission of the treatment plan.

23The applicant submits that because the respondent ultimately approved the treatment plan, the cost of the treatment plan is not in issue and accordingly s. 38(2) of the Schedule has no application. In the alternative, the applicant submits that only the initial assessment occurred prior to the submission of the treatment plan and that the value of the balance of the treatment plan should be considered when making an award under O. Reg. 664. The applicant relies on MG v. Aviva Insurance¹². In that case the evidence established that a portion of the treatment costs were incurred after the submission of the treatment plan, and those costs were allowed.

24Section 38(2) of the Schedule does not state that an insurer is not liable to pay for all services recommended in a treatment plan where some of those services are incurred prior to the treatment plan being submitted. I therefore find that on a plain reading of s. 38(2) of the Schedule, that it does not relieve the insurer of paying for reasonable and necessary treatment costs that were incurred after a treatment plan was submitted, even if some of those costs were incurred prior to the submission date.

25The evidence must, therefore, be analyzed to determine which costs, if any, were incurred after the treatment plan was submitted. The only evidence of when the services other than the assessment were incurred is contained in the treatment plan which estimates that between 20 and 23 hours would be required to complete the assessment and the treatment plan.

26The applicant submits that the only service incurred prior to the submission of the treatment plan was the assessment done on February 13, 2018, and submits that only $299.25, reflecting 3 hours for that assessment (at the approved rate of $99.75¹³) should be deducted from the total cost of the treatment plan. No evidence was filed, however, to support the submission that only 3 hours of service were provided prior to the submission of the treatment plan.

27After considering all of the relevant evidence, I find that there is sufficient evidence to establish that at least some of the services outlined in the treatment plan were incurred after the treatment plan was submitted for the following reason. Even if 8 hours are attributed to services provided on February 13, 2018, the day of the assessment, and another 3.5 hours are attributed to the period on February 14, 2018 prior to the submission of the treatment plan through HCAI at 11:40 am (as noted on the face of the treatment plan), that still leaves approximately one-half of the hours of service that would have been provided after the treatment plan was submitted.

28I therefore find that one-half of the cost of the $1,600.00 treatment plan should be used in calculating the award to which the applicant claims entitlement under O. Reg. 664, if the respondent is found to have unreasonably withheld or delayed payment of the same.

Did the respondent unreasonably withhold or delay payment of the cost of the OT assessment?

29I find, for the reasons that follow, that the respondent’s continued denial of payment for the OT assessment on and after April 27, 2018 was unreasonable. By April 27, 2018 the respondent had concluded that the applicant’s injuries fell outside the Minor Injury Guideline (“MIG”) and that she required attendant care benefits. I find that there was sufficient evidence as of that date to establish that this treatment plan was reasonable and necessary as a result of accident related injuries.

30On February 14, 2018 the applicant submitted the treatment plan for an OT assessment. The respondent denied this treatment plan on the basis that the applicant was subject to the MIG and its monetary limit and advised her that it would schedule psychological and physiatry insurer examinations (“IEs”). I find that the denial on February 28, 2018 was not unreasonable at that the time based on the information then available to the respondent, including the following. The applicant had provided some details of her continuing impairments, medical treatment and her inability to return to work. She had advised that her family doctor had diagnosed her with a concussion and soft tissue injury. On November 24, 2017, she expressed concerns about migraine headaches and was advised by the respondent that it would be best to follow up with her family doctor and get a referral if necessary. On December 12, 2017, she advised that she would be following up with her family doctor that day or the next with regards to anxiety, concussion, and headaches. On January 3, 2018, she provided the respondent with an Attending Physicians Statement dated December 19, 2012. It noted “Concussion (MVA)” as the primary diagnosis and soft tissue injury and migraines as secondary diagnoses. It also noted that her level of function was improving.

31The applicant provided the respondent with the March 1, 2018 OT Report on March 14, 2018. It outlines the applicant’s ongoing symptoms and recommends a monthly attendant care benefit of $1,1645.56.

32By letter dated April 26, 2018, the respondent advised the applicant that as an IE Psychology Assessor had diagnosed her with Adjustment Disorder with Anxiety, her injuries were not considered to fall within the MIG.

33The log notes¹⁴ confirm that by April 27, 2018 at the latest the respondent had considered all the information provided, had reconsidered its position and had concluded that the applicant was in need of attendant care services. The log notes indicate that on April 27, 2018 the adjuster left a message for the applicant advising that the respondent would consider attendant care expenses incurred since February 2018.

34Despite having determined on April 26, 2018 that the applicant’s injuries fell outside the MIG as a result of psychological injuries, and despite having concluded that the applicant was in need of attendant care services and that the respondent would consider paying for incurred attendant care expenses since February 2018, on April 26, 2018 the respondent maintained its denial of the treatment plan recommending an OT assessment based solely on the conclusions of a physiatrist who conducted an IE assessment. He had concluded that from a “strictly musculoskeletal perspective” the applicant’s injuries were predominantly uncomplicated soft tissue injuries of the neck and left hip, were minor and in nature and should be treated within the parameters of the MIG¹⁵. He noted, however, that he was deferring comment on the applicant’s headaches and reported dizziness and light headedness to a neurologist.

35By email dated July 8, 2018¹⁶, applicant’s counsel wrote to the respondent, referred to the neurologist’s clinical notes and records (“CNRs”), noted that the applicant had been taken out of the MIG by the respondent, and referred to the respondent’s decision to consider attendant care expenses. He inquired about whether the respondent would be approving the initial OT assessment and the March 14, 2018 treatment plan for OT services. In its July 30, 2018¹⁷ email, the respondent maintained its denial of these treatment plans, despite acknowledging that the applicant was no longer in the MIG due to a psychological impairment and despite referring to the CNRs of the applicant’s family doctor and neurologist which indicated that the applicant had a concussion and balance/vestibular issues. The basis for the continued denial of these treatment plan, is set out in that July 30, 2018 email which states:

It was determined that from a musculoskeletal standpoint she had MIG injuries and as such, the OCF-18 for $1,600.00 [for an OT assessment] was not reasonable and necessary. Thus, the OCF-18 that was submitted for $3,192.53 (again for OT intervention/same provider) was denied on the basis that she had MIG injuries and the limit cannot accommodate for that….

The above-noted OCF-18’s will remain denied due to the fact that at the time of the assessment, the assessor’s opinion was that she was in the MIG from a physical standpoint.

36After the applicant was removed from the MIG as a result of psychological impairments effective April 26, 2018, the respondent had an obligation to determine whether any treatment plans, relating to physical injuries or psychological injuries, were reasonable and necessary. The reference in the above-noted email to the physiatry assessor’s opinion that the applicant “was in the MIG from a physical standpoint” is not accurate, as the assessor had specifically qualified his opinion by deferring to a neurologist with respect to the applicant’s headaches, dizziness and light-headedness. The respondent’s continued reliance on that physiatry assessor’s opinion to deny the OT assessment on and after August 27, 2018 was not reasonable as the respondent concluded by that time, based in part on the OT assessment itself, that the applicant was in need of attendant care services which the OT assessment had identified and assessed.

37The respondent provided no explanation for its approval of this treatment plan on November 12, 2018, nor refer to any evidence that would explain why the treatment plan for the OT assessment that was found not to be reasonable and necessary on April 26, 2018, was approved on November 12, 2018.

38I find that enough information was available to the respondent by April 27, 2018 to render its continued denial of this treatment plan between April 27, 2018 and November 12, 2018 an unreasonable withholding or delay of payments.

39The treatment plan for OT services in the amount of $3,192.53 was submitted on March 14, 2018 and was denied on April 6, 2018 on the basis that the MIG limit had been reached.

40I find the respondent’s continued denial of this treatment plan, after the respondent had concluded on April 26, 2018 that the MIG did not apply, was unreasonable. I find that there was sufficient evidence at that time to establish that the OT services recommended were reasonable and necessary.

41Following its determination that the MIG did not apply the respondent was required to reconsider its original denial of April 6, 2018 with a view to determining whether the treatment plan was reasonable and necessary. As noted above, by April 27, 2018 at the latest, the respondent had concluded that the applicant was in need of attendant care services and had advised her that it would consider attendant care expenses incurred since February 2018. The treatment plan refers to and relies upon the March 1, 2018 OT Report which recommends the OT services referred to in the treatment plan. The treatment plan states that OT intervention is necessary given the applicant’s ongoing functional impairments related to injuries sustained in the accident.

42This treatment plan was approved along with the other outstanding treatment plans on November 12, 2018. No explanation for why the respondent changed its position on the denial of this treatment plan was provided.

43I find that the respondent’s continued denial of this treatment plan between April 27, 2018 and November 12, 2018 was an unreasonable withholding or delay of payments.

44The treatment plan for the cost of a psychological assessment was submitted February 20, 2018 and denied on February 28, 2018 pending an IE assessment. Based on the information available to the respondent at that time, I do not find its denial pending receipt of the psychological IE to have been unreasonable. I do, however, find the applicant’s continued refusal to approve this treatment plan in full after April 26, 2018 was unreasonable for the following reasons.

45The applicant was advised on April 26, 2018 that as the IE psychology assessor had diagnosed her with Adjustment Disorder with Anxiety¹⁸, her injuries were not considered to fall within the MIG. At the same time, she was advised that this treatment plan for $2,144.93 would be partially approved in the amount of $1,496.10. The basis for the partial denial was the IE psychology assessor’s conclusion that the assessment could be completed in 8-10 hours, rather than the 14 hours claimed in the treatment plan. There is, however, no analysis by the IE psychology assessor of how 8-10 hours was determined to be sufficient or why 14 hours was found to be excessive.

46I find that the absence of any explanation of the basis on which the IE psychology assessor concluded that the 14 hours claimed to conduct the assessment was not reasonable or necessary, together with the respondent’s subsequent approval of the outstanding amount on November 12, 2018 without further explanation, is sufficient to establish that the respondent unreasonably withheld or delayed payment of this benefit after April 26, 2018.

47The treatment plan for chiropractic services in the amount of $1,300.00 was submitted on February 7, 2018, and was partially approved up to the MIG limit, in the amount of $1,040.00. The remaining $260.00 was denied. The respondent maintained this denial until November 12, 2018, despite approving a subsequent treatment plan for chiropractic services on April 27, 2018¹⁹.

48Given the absence of any explanation for the continued denial of this treatment plan after April 26, 2018, when the applicant was no longer subject to the MIG limit, and when another chiropractic treatment plan had been approved, I find that the respondent unreasonably withheld or delayed payment of this benefit between April 27, 2018 and November 12, 2018.

49A treatment plan in the amount of $3,250.00 for chiropractic services was submitted on June 21, 2018, and denied in letters dated July 9, 2018²⁰ and July 30, 2018²¹. At the time of this denial, the respondent advised that it was unable to determine whether the treatment was reasonable and necessary for the injuries sustained in the accident and that physiatry and neurological IE assessments would be scheduled.

50By letter dated August 20, 2018²², the respondent confirmed that the applicant had already attended the necessary IE assessments, and after apologizing for the applicant not having received proper notification of the respondent’s decision to request IE assessments with respect to this treatment plan, advised that this treatment plan was approved.

51Insurers are not held to the standard of perfection when adjusting claims. Given the relatively short delay resulting from the respondent’s error and as it is unclear from the evidence precisely what the problem was with the notification to the applicant or why this treatment plan was not approved until August 20, 2018, I find that there is insufficient evidence to establish that the respondent unreasonably withheld or delayed payments relating to this benefit.

Income Replacement Benefits (Issue 6)

52The applicant claims entitlement to IRBs for the period commencing July 27, 2018. The applicant’s submissions do not provide particulars of when, or for how long, her IRBs were suspended. The respondent submits that benefits were briefly suspended and that payments resumed within approximately one month.

53Based on the evidence presented, I find that the suspension of IRBs was for a short period. The applicant claims IRBs commencing July 27, 2018. The respondent’s August 20, 2018 letter states that as of that date IRBs were ongoing. There is insufficient evidence to establish the circumstances surrounding the short suspension of benefits or that the same constitutes an unreasonable delay or withholding of the applicant’s IRBs.

Should an award be made in this case?

54The applicant submits that the respondent unreasonably withheld or delayed payments until shortly before the case conference and that an award should, therefore, be granted.

55The respondent submits that to make an award based on a without prejudice payment of a benefit prior to a case conference “would create a chilling industry result for early resolutions”²³. There is, however, no evidence that the respondent’s November 12, 2018 approval of the treatment plans was made on a without prejudice basis.

56There in no evidence that explains why the respondent waited until just days before the case conference to “update” its decision and approve the treatment plans.

57The fact that the respondent approved all the disputed benefits shortly before the scheduled case conference does not shield the respondent from an award if the respondent unreasonably withheld or delayed the payment of benefits prior thereto, unless the applicant agrees that her entitlement to an award was included as part of a settlement that resulted in the November 12, 2018 approvals. The respondent does not allege that the applicant’s claim for an award was settled. The applicant specifically denies that it was²⁴.

58As I have found that the respondent unreasonably delayed or withheld payment of some of the benefits claimed by the applicant for a period of over 6 months between April 27, 2018 and November 12, 2018, I find that it is appropriate for me to exercise my discretion and make an award.

What is the appropriate quantum of an award in this case?

59Section 10 of O. Reg. 664 gives the Tribunal the discretion to make an award in the amount “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”.

60The applicant requests an award in the amount of 50% of the value of the issues in dispute when the application was filed.

61In 17-006757²⁵, as in this case, the only issue remaining in dispute at the time of the hearing was whether the applicant was entitled to an award. In determining how to interpret what is meant by “50 per cent of the amount to which the person was entitled at the time of the award”, the Tribunal held that the amount in dispute when the application was filed should be considered. I agree and adopt the same approach here.

62As I have found that payment of one-half of the amount claimed for the OT assessment referred to in Issue 1 and payments for the treatments plans referred to in Issues 2, 3 and 4 were unreasonably delayed or withheld by the respondent, I will use the total amount of those benefits ($4,901.36) as a starting point for determining the amount of the award in this case. The maximum award that can be made in this case is, therefore, $2,450.68, 50% of that amount.

63Relevant factors to consider when making an award were reviewed in the Tribunal’s decision in 17-006757, and include the blameworthiness of the insurer’s conduct, the harm or potential harm directed at the insured person, the need for deterrence and the overall length of delay.

64The applicant submits that in exercising my discretion I should consider the respondent’s conduct in the dispute resolution process. This application was filed on July 30, 2018. A case conference was scheduled for November 23, 2018. By letter dated November 12, 2018, the respondent advised that it had “updated” its decision and fully approved the treatment plans referred to in Issues 1 to 4. No further details regarding the basis for the change in the respondent’s position were provided in that correspondence or in the submissions or evidence filed by the respondent at this hearing.

65The respondent relies on the Tribunal’s decision in 16-004312²⁶. In that case, the Tribunal notes an insurer’s continuing obligation to adjust claims. The Tribunal accepted, based on the evidence, that the respondent had reasonable grounds to doubt the applicant’s credibility. The Tribunal therefore found that the respondent had not unreasonably withheld or delayed the payment of benefits, despite only agreeing to pay a number of benefits immediately after the applicant testified at the hearing, finding that it was only then that the respondent had an opportunity to assess the applicant’s credibility. The facts in 16-004312 are distinguishable from the facts in this case. In this case, there is no evidence that suggests that there was any reasonable basis for the continued denial of the treatment plans referred to in Issues 1 to 4. Specifically, there is no evidence that the respondent received any new information after April 26, 2018 that caused it to “update” its position and approve the claims at a point when the parties were approaching the case conference stage of the Tribunal’s process.

66I find that an award in the amount of $1,500.00 plus interest in accordance with O. Reg. 664, is appropriate for the following reasons. In this case payments were withheld for a period of over 6 months. During that period the applicant was off work as a result of accident-related injuries and the respondent’s continued withholding of payments placed an additional financial burden on the applicant. A significant factor in this case is the respondent’s continued denial of the claims in dispute until after an application was filed with the Tribunal and had progressed to the case conference stage. It was not until then that the respondent appears to have “updated” its position and approved the claims in dispute. Although there is no evidence of a conscious decision by the respondent to withhold or delay payments, there is also no evidence that any additional information was received after the application was filed on July 30, 2018 that caused the respondent to change its position. That, together with the absence of any explanation for why the respondent waited until shortly before the case conference to “update” its position, suggests that the respondent was not paying sufficient attention to the adjustment of these claims. Deterring this type of unreasonable delay resulting from a failure by the respondent to consider all relevant information in a timely fashion is a factor that has been considered in determining the quantum of the award in this case. Applicants should not need to commence a Tribunal application in order to force an insurer consider all relevant information and comply with its ongoing obligation to adjust claims.

ORDER

67I order that that the applicant is entitled to an award of $1,500.00 plus interest in accordance with s. 10 of O. Reg. 664.

Footnotes

1. 1Ontario Regulation 664, R.R.O. 1990.
2. 2Respondent’s Arbitration Brief, Tab 1, Tribunal Order, dated November 27, 2018.
3. 3Respondent’s Book of Authorities, Tab A, Pagcaliwagan v. Aviva Insurance Company, 2018 CanLII 8104.
4. 4Affidavit of Roger R. Foisey, Sworn March 11, 2019 (“Affidavit”), Exhibit A, Application dated July 30, 2018.
5. 5Respondent’s Book of Authorities, Tab 2, Reconsideration Decision in F.P. v. Pilot Insurance Company, 16-002861/AABS, March 29, 2018), at paragraph 26.
6. 6Applicant’s Written Submissions, Tab 4, 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) at paragraph 28 citing Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) page 17.
7. 7Applicant’s Written Submissions, Tab 5, Melchiorre and Wawanesa Mutual Insurance Company, (FSCO P07-00014, April 25, 2008) at page 2.
8. 8Respondent’s Book of Authorities, Tab 4, Applicant v. Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at paragraph 58, (“16-004312”).
9. 9Respondent’s Book of Authorities, Tab 3, J. G. v. Travelers Canada, 2018 CanLII 76431 (ON LAT) (“17-001630”).
10. 10Affidavit, Exhibit S, Occupational Therapy Functional Assessment Report, dated March 1, 2018.
11. 11Additional Written Submissions of the Respondent, dated September 23, 2019, [The Applicant] by his Guardian, K.R. v. Unifund Assurance Company, 2019 ONLAT 18-001957/AABS.
12. 12Applicant’s Book of Authorities, dated September 30, 2019, MG. v. Aviva Insurance Canada, 2019 ONLAT 18-001568/AABS.
13. 13Superintendent’s Guideline No. 03/14.
14. 14Affidavit, Exhibit C, Aviva’s Claim Log Notes dated November 1, 2017 to July 31, 2018, pages 24-34.
15. 15Respondent’s Arbitration Brief, Tab D at pages 129-140, Physiatry Assessment Report, Dr. Syed Hossein Hosseini, dated April 9, 2018.
16. 16Affidavit, Exhibit DD, Email to the respondent dated July 8, 2018.
17. 17Affidavit, Exhibit II, Email to the applicant’s counsel dated July 30, 2018.
18. 18Respondent’s Arbitration Brief, Tab D at pages 116-128, Psychological Assessment Report, Dr. Bonnie MacDonald, dated April 9, 2018.
19. 19Respondent’s Arbitration Brief, Tab C at pages 114, Letter dated April 27, 2018 approving Treatment Plan dated April 11, 2018.
20. 20Affidavit, Exhibit EE, Letter to the applicant, dated July 9, 2018.
21. 21Respondent’s Arbitration Brief, Tab B at pages 103-105, Letter to the Applicant dated July 30, 2018.
22. 22Respondent’s Arbitration Brief, Tab B at pages 111-114, Letter to the Applicant dated August 20, 2018.
23. 23Respondent’s Written Submissions, dated March 21, 2019, at paragraph 35.
24. 24Applicant’s Reply Submissions, dated March 26, 2019, at paragraph 21.
25. 25Applicant’s Written Submissions, Tab 9, 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT).
26. 26Respondent’s Book of Authorities, Tab 4, Applicant v. Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at paragraph 58, (“16-004312”).