Citation: V.H. vs. Aviva Insurance Company of Canada, 2019 ONLAT 18-009156/AABS
Tribunal File Number: 18-009156/AABS
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:
V. H.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Maria Makarova, Representative
For the Respondent: Cara L. Boddy, Counsel
HEARD: In writing on May 6, 2019
OVERVIEW
1The applicant was injured in an automobile accident on March 31, 2017 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant sought income replacement benefits (IRBs) from the respondent. The respondent agreed the applicant qualified for IRBs. However, the parties disagreed on the quantum of IRBs. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The issues to be determined are as follows:
i) Is the applicant entitled to an income replacement benefit in the amount of $231.86 per week, less amounts already paid by the respondent, for the period from April 8, 2017 to April 9, 2019?
ii) Is the applicant entitled to the cost of an accounting report in the amount of $2,500.00 plus HST, prepared by S & T. Accounting PC, submitted on March 15, 2018?
iii) Is the applicant entitled to interest on any overdue payment of benefits?
iv) Is the applicant entitled to an award under Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4I find as follows:
i) The applicant has not met the evidentiary burden to prove entitlement to an income replacement benefit above what has already been paid.
ii) The respondent agreed to pay for the accounting report submitted on March 15, 2018. The issue is considered resolved.
iii) The applicant is entitled to interest on the overdue payment of the accounting report pursuant to section 51 of the Schedule.
iv) The applicant is entitled to an award in the amount of $500.00 because the respondent unreasonably delayed payment of the accounting report.
BACKGROUND
5The applicant was the driver of a vehicle which was struck on the side by another vehicle while driving on an urban highway. The injuries impaired the applicant’s ability to work as a self-employed painter. This caused the applicant to engage in modified duties and hire replacement workers to help complete ongoing employment obligations. The applicant claims IRBs as a result of the losses sustained from the accident. The respondent agreed the applicant’s injuries met the test for IRBs but disagreed with the applicant about the quantum of IRBs that the applicant should be entitled to.
6The applicant hired the services of S & T Accounting (“S&T”) to help determine the amount of the applicant’s weekly IRBs. S&T reviewed the applicant’s documents and produced a report dated March 9, 2018 (the “S&T Report”). The S&T Report calculated the applicant’s base weekly IRB entitlement based on the 52 weeks immediately preceding the accident.
7The respondent hired the services of Williams & Partners to help determine the quantum of the applicant’s weekly IRBs. Williams & Partners reviewed the applicant’s documents and also produced a report, dated April 25, 2018 (“the Williams Report”). The Williams Report calculated the applicant’s base weekly IRB entitlement based on the applicant’s last completed fiscal year prior to the accident.
8There are two parts to the parties’ disagreement over quantum. First is whether the