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
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
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: D. Gregory Flude, Vice-Chair
File: 17-007962/AABS
Case Name: N.S. v. Scottish & York
Written Submissions By:
For the Applicant: Dale Rosenberg, Counsel
For the Respondent: Robert Rogers, Counsel
BACKGROUND
1The Respondent, Scottish & York ("Scottish & York"), requests a reconsideration of the decision of the Tribunal dated August 1, 2018, under section 18.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (hereinafter "the Rules")
2The applicant (“N.S.”) was injured in an automobile accident on October 16, 2014 and sought benefits from Scottish & York pursuant to the Statutory Accident Benefits Schedule – Accidents September 1, 2010, O. Reg. 34/10 (the “Schedule”). The dispute before the Tribunal focused on the question of funding for catastrophic impairment assessments. To understand that dispute, it is necessary to first briefly review the coverage limitations in the Schedule at the relevant time.
3Absent the purchase of optional benefits by an insured, section 18 of the Schedule provides for three levels of monetary limits for medical and rehabilitation benefits, depending on the severity of the impairments caused by the accident:
i. The first monetary limit of $3,500 applies to persons who have sustained minor injuries, a term defined in s. 3 to include soft tissue injuries such as sprains, strains, whiplash, bruises and cuts. It is not a factor in this case.
ii. The second monetary limit applicable to this proceeding for more serious injuries is $50,000. The applicant submits that, if payment for catastrophic impairment assessments is to be paid from the $50,000 limit, then the $50,000 will be severely depleted or exhausted since she has already consumed approximately $30,000 in benefits.
iii. The third and final monetary limit for medical and rehabilitation benefits for the most seriously impaired individuals is $1 million for catastrophically impaired individuals. The term “catastrophic impairment” is defined in s. 3(2) of the Schedule. While in some cases the criteria for catastrophic impairment set out in s. 3(2) may be clear cut, such as paraplegia or quadriplegia, loss of a limb, or loss of vision in both eyes, there are other criteria that may require a multidisciplinary assessment involving several medical experts. These assessments are expensive.
4In this case, the applicant seeks $18,534 for a multidisciplinary assessment to determine whether she has suffered a catastrophic impairment. Scottish & York has already approved the assessment; however, an issue arose around the $50,000 monetary limit for those with non-catastrophic injuries. Specifically, the question is whether cost of the assessment is included in the $50,000 or, instead, is Scottish & York liable to pay for it in excess of the $50,000. The Tribunal held the latter: Scottish & York had to fund a catastrophic impairment assessment over and above the $50,000 limit for medical and rehabilitation benefits. The respondent seeks a reconsideration of that decision.
ONUS AND GROUNDS
5According to Rule 18.1 of the Tribunal’s Rules, Scottish & York is required to identify the applicable criterion for this request for reconsideration. Scottish & York relies on 18.2(b), which, at the relevant time, allowed for a reconsideration where the Tribunal made “a significant error of law or fact such that the Tribunal would likely have reached a different decision.”
6The Tribunal’s adjudicator had before him a preliminary issue hearing and made his decision based on the law as presented by the parties. Similarly, the reconsideration was argued on a question of law only. According to Rule 18.2(b), the onus is squarely on Scottish & York to point to a significant error of law that impacted the decision’s outcome. Only if the Tribunal’s interpretation of the law is significantly in error should I interfere. Conversely, if the adjudicator’s interpretation of the law shows no significant error, then his decision must be allowed to stand.
RESULT
7I find that the Tribunal did not make any significant error of law. Read as a whole, it is clear that the Tribunal considered all of the legal issues in dispute and appropriately interpreted the statutory provisions and the case law in coming to his conclusion. Indeed, I agree with his interpretation of the Schedule that catastrophic assessments are not included in the $50,000 medical benefit limit. Thus, I confirm the decision.
ANALYSIS
8The starting point for my analysis is the wording of s. 18(5). In paragraph [3] above I set out the applicable monetary limits established in s. 18. Section 18(5) addresses the application of those limits in the following words:
(5) For the purposes of subsections (1) [$3,500 limit] and (3), medical and rehabilitation benefits payable in respect of an insured person include all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person under this Regulation…[emphasis added]
9This section raises the question: is a catastrophic impairment assessment one that is “in connection with any benefit or payment?”
10On May 14, 2019, I released my reconsideration decision in J.M. v. Aviva General Insurance, 2019 CanLII 51309 (ON LAT) (“J.M.”). The issue in that case was identical to the issue in this case – are catastrophic assessments deductible from the $50,000 medical and rehabilitation coverage limit set out in s. 18(3) of the Schedule. I found that the provisions of s. 18(5) exclude the cost of catastrophic impairment assessments from the $50,000 coverage limit. I sent a copy of the J.M. decision to the parties and gave them a timetable for making further submissions, should they choose to do so. Scottish & York made submissions, N.S. chose not to.
11In J.M., I held that it is clear from a reading of s. 18(5) that assessments are caught if they are “in connection with any benefit or payment.” Critically, catastrophic impairment is a designation not a benefit. As such, it does not entitle N.S. to further treatment unless that treatment is reasonable and necessary. From this fact, it follows that a catastrophic impairment assessment is not “in connection with any benefit or payment” and therefore not caught by s. 18(5). I adopt the same reasoning here and would add one further consideration. For the reasons set out below, if I were to accept Scottish & York’s submission, it would render the words “in connection with any benefit or payment” superfluous.
12An insurer’s obligation to pay for the cost of assessments or examinations is set out in s. 25. This section provides that an insurer “shall pay” for various expenses, including fees charged for the preparation of disability certificates, treatment and assessment plans, assessments of attendant care needs, and catastrophic assessments. Except for catastrophic assessments, the other items listed in s. 25 all relate to an application for a benefit. Thus, if the legislature had intended for all of the items listed in s. 25 to be subject to the limits in s. 18(3), it would not have included the words “in connection with any benefit or payment.” Section 18(5) could have simply included all assessments under s. 25 without the limiting language.
13It is a basic tenet of statutory interpretation that the words of the legislation are to be given their plain and ordinary meaning consistent with the purposes of the legislation. I cannot agree with the submission that the words “in connection with” should be interpreted in such a manner that they would add nothing to the interpretation of s. 18(5).
14I also disagree with Scottish & York’s submission that “in connection with” is identical to “in respect of.” In my view, the latter phrase is much broader in its scope. The use of the term “connection” limits the scope of the phrase used in s. 18(3) to something that must be connected to a benefit. The term, “in respect of” would catch any procedure that was in any manner related to a benefit.
15In Arsenault v. Dumfries Mutual Insurance Company 2002 CanLII 23580 (ON CA), 57 O.R. (3d) 625 (“Arsenault”), relied on by Scottish & York, the Court of Appeal applied a broad interpretation of the phrase “in respect of” to confirm a lower court finding that the plaintiff had commenced the action beyond the limitation period. The plaintiff argued that she was not seeking to enforce entitlement to a benefit but was seeking damages for bad faith dealings on the part of the insurer because of the manner in which it terminated the benefits. The Court of Appeal held that the widest possible scope was to be attributed to the term “in respect of.” It was, thus, broad enough to catch any dealings between an insurer and an insured dealing with entitlement to benefits, including tort allegations that might arise out of the manner in which the insurer handled the claim.
16Arsenault is clearly distinguishable for the current case. Not only is the phrase in question different, but the issue concerned the applicability of a limitation period. The current case concerns the scope of insurance coverage and funding in the context of consumer protection legislation designed to provide medical and other benefits expeditiously to persons in need. Rather than give the widest possible scope to language that would limit access to benefits, the consumer protection aspect of the legislation argues for a broad and liberal interpretation. The current fact situation is almost the complete antithesis of the facts in Arsenault and I find Arsenault of no assistance in this matter.
17In addition, the Tribunal’s approach is consistent with the Legislation Act, 2006, S.O. 2006, c. 21 that states:
- (1) An 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.
The Tribunal correctly accepted that statutory accident benefits are remedial in nature and should receive "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". Smith and Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129 at paragraph 22.
DECISION
18Having considered the submissions of the parties, I find that Scottish & York has failed to establish that the Tribunal made a significant error of law such that the Tribunal would likely have reached a different decision. Having reconsidered the Tribunal’s decision, I confirm it.
D. Gregory Flude, Vice-Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: November 26, 2019