W.F. v. Aviva Insurance Canada, 2019 CanLII 146514

W.F v. Aviva Insurance Canada, 2019 ONLAT 18-007724/AABS

Release date: 07/17/2019

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:

W.F.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Christopher A. Ferguson

APPEARANCES:

For the Applicant:

Lisa D. Belcourt, Counsel

For the Respondent:

James M. Brown, Counsel

Christopher Macaulay, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, WF, was involved in a motor vehicle accident on May 20, 2016. He sought benefits pursuant to the Statutory Accident Benefits Schedule –Effective September 1, 2010¹ (“the 'Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when the respondent, “Aviva”, denied his claim.

2WF was paid non-earner benefits (NEBs) by Aviva until June 20, 2018. At that date, Aviva notified WF that it had discontinued NEB payments because of his refusal to provide information requested by Aviva to determine his entitlement thereto.

3It is uncontested that WF failed to provide Aviva with information requested under s.33(1)1 of the Schedule. As a result, Aviva argues, it is not liable to pay claimed NEBs to WF.

ISSUES

4Was the information requested by Aviva from WF “reasonably required” as prescribed by s.33(1)1 of the Schedule?

5Is Aviva relieved of liability to pay WF benefits for the period of June 20, 2018 to the present because WF failed to provide it with requested information as he was required to do by s.33(1)1 of the Schedule?

RESULT

6Aviva’s s.33 request was partially reasonable.

7Aviva is not liable to pay NEBs to WF after October 19, 2018 and until he provides the information described in this decision.

ANALYSIS

Duty to Comply with s.33 Information Requests

8Under s. 33(1)1 of the Schedule, the applicant (the insured person) must provide on request any information reasonably required to assist the insurer in determining his or her entitlement to a benefit. The time period for complying is 10 business days.

9The insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information: s. 33(6). If the applicant eventually complies with the insurer’s request, with a reasonable explanation for the delay, the insurer must pay the withheld benefit: s. 33(8).

Where is the onus of proof in this matter?

10The parties disagree as to who should bear the onus of proof in this preliminary issue hearing and submitted this as a procedural issue in the case conference (CC) for this matter. The CC adjudicator deferred this issue to me.

11Frankly, I find that the parties have argued a distinction without any practical difference. Neither side explained how adopting their point of view would affect how anyone would decide this issue.

12I agree with Aviva that s.33(1)1 of the Schedule imposes a clear, positive obligation of compliance on applicants such as WF. Section 33(6) prescribes an equally clear consequence for non-compliance. The language of s.33(8) is perfectly straightforward that the consequence shall be waived if the applicant eventually complies with the information request and provides a reasonable explanation for the delay. Taken together, I find that this means that once an insurer establishes that requested information was not provided, the onus is on the applicant to provide a reasonable explanation of why before the insurer’s liability to pay can be re-established.

13I agree with WF that s.33(1)1 of the Schedule limits his obligation to provide requested information to information reasonably necessary to determine his entitlement to benefits. I read “reasonably necessary etc.” as the prescribed precondition for both making and for meeting a s.33 information request. I agree with WF that the obvious inferences to be drawn here are that Aviva must, if questioned, show that any s.33 request is reasonably necessary, and that a request for information that is not reasonably necessary may be properly refused.

14WF indicates that he refused most of Aviva’s s.33 request (exceptions noted below) and that this was a deliberate and informed decision. However, he offers a detailed explanation for his refusal, and I agree with him that his explanation requires a persuasive rebuttal from Aviva before I can determine its liability to pay the disputed benefit.

Uncontested Facts

15WF was seriously injured in a previous motor vehicle accident on August 3, 2011 (“the first accident”).

16After the first accident, WF did not return to work until October 2014, and never resumed full time hours or his pre-first accident job duties. He was subsequently approved for CPP disability funding and retired in 2015.

17WF sustained serious injuries in the accident of May 20, 2016 (“the subject accident”) and after the subject accident Aviva began paying NEBs to him.

18WF was still recovering from injuries sustained in the first accident when the second accident happened.

19On January 23, 2017 Aviva sent WF a letter requesting the following information:

i. clinical notes and records (CNRs) from Dr. Gair, WF’s family physician, pre-dating the subject accident up the date of the request;

ii. a complete copy of the accident benefits claim (ABC) file arising from the first accident; and,

iii. a complete copy of WF’s CPP disability file.

20WF has not provided either the ABC or the CPP disability file to Aviva. He has provided redacted CNRs for the period of less than one year prior to the subject accident. However, in a letter dated March 16, 2017, WF offered to provide CNRs for the three-years prior to the subject accident.

21WF’s counsel has expressly refused to provide the additional information requested by Aviva.

22Aviva issued a request on April 4, 2018 with a warning that WF’s NEBs would be discontinued if the requested information was not provided within the ten days prescribed by the Schedule. As noted, Aviva stopped NEB payments by letter dated June 20, 2018.

23Aviva sent a final letter dated October 19, 2018 in which it reiterated its request, stated WF’s non-compliance with previous requests as the reason for suspending his benefit payments and advised him that suspended benefits were payable if he had a reasonable explanation for the delay in providing the required information.

Was the information requested by Aviva under s.33 reasonably required?

24Section 12(1) of the Schedule prescribes the test for NEB eligibility as a complete inability to carry on a normal life as a result of the second accident. This is defined by s.3(7)(a) of the Schedule as “an impairment that continuously prevents an applicant from engaging in substantially all of the activities in which he or she ordinarily engaged before an accident.”

25In this case, to be clear, “before the accident” would refer to the period before the subject accident. And it would include the 4-year, 10-month period between accidents.

26Aviva submits that the information it requests is reasonably necessary to determine WF’s entitlement to NEBs because it needs to assess causation. While there is no doubt that both accidents caused injuries, Aviva submits that it needs to assess whether WF’s inability to carry on a normal life existed before the subject accident and as a result of the first accident. Aviva argues that this is consistent with the direction of the Court of Appeal in Heath that an insurer reasonably needs (and is entitled) to assess an applicant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.²

27Aviva argues that WF’s CPP Disability file is required because WF was approved for CPP Disability benefits against a prescribed standard of “severe and prolonged physical or mental disability … of indefinite duration … [that] rendered him incapable of pursuing substantially any gainful occupation.”³ Given the nature of the test for entitlement for CPP Disability benefits and his acceptance for such benefits, the contents of the CPP Disability benefits file will contain information on the WF's level of activity and life circumstances prior to the subject accident, making these records reasonably required to determine WF’s entitlement to NEBs.

28Similar arguments are made with respect to the ABC file from the first accident. Information in that file may speak to causation and ongoing impairments relevant to an assessment of “pre v. post” subject accident activity. Aviva contends it is entitled to assess this information.

29Aviva refers to evidence from the incomplete CNRs that WF was undergoing treatment and experiencing ongoing impairments arising from the first accident. In its view, this points to the necessity of getting full, unredacted CNRs to complete the assessment picture.

30WF’s submissions skirt Aviva’s causation concerns, instead focussing on the information needed to compare WF’s impairments and capabilities before and after the subject accident, a focus that would be appropriate had the first accident not occurred or had it been shown to be irrelevant. As a result, WF fails to persuade me that Aviva’s requests were in their entirety unreasonable and unnecessary.

31WF also takes the position that, having approved WF for NEBs – they were being paid when the s.33 request was made – Aviva was somehow precluded from seeking information to confirm his entitlement, as the issue was decided. I find this position unpersuasive. It fails to account for an insurer’s right to seek information in order to determine whether an insured person remains entitled to benefits. There is no basis that I am aware of for suggesting that a s.33 request may not be made after an applicant has been approved for a benefit, in order to determine whether or not he is still entitled. Language in s.38(8) about resuming payment suggests otherwise.

32WF argues that Aviva’s request should be restricted to a period of a year prior to the accident. Under the circumstances of this case, I find that to be an unreasonable restriction. WF cites the Dispute Resolution Practice Code⁴ (“the Practice Code”) which indicates that CNRs and hospital records for the year before an accident may assist in resolving disputes.⁵ I do not interpret Practice Note 4 as setting a binding “one-year pre-accident” standard on medical documentation because the Note expressly states that it “offers general guidelines” [emphasis mine] and expressly states that “in certain cases, documents relating to a period more than one year prior to the accident may be relevant and ought to be produced”⁶. This fails to support WF’s contention I should rely on the Practice Code to characterize Aviva’s requests as “unreasonable” or impose a one-year limit on them, and it is certainly not the foundation for a blunt rejection of a request for documentation.

33In my view, it is only necessary for me to determine that one element of Aviva’s s.33 request was reasonably necessary to determine that WF failed to comply with s.33(1)1 and that Aviva is not liable to pay the disputed NEBs by operation of s.33(6). Once I have made that determination with respect to one element of the request, it is not necessary for me to determine whether any of the other elements of Aviva’s information request were reasonably necessary to make a finding on liability.

34I find that the CNRs requested by Aviva were reasonably necessary to determine WF’s entitlement to NEBs under the circumstances of this case. The CNRs of Dr. Gair are reasonably necessary to establish the level of WF’s ongoing disability caused by the first accident. Because of the causation issue, I find it plausible that records going back to before the first accident are reasonably necessary. The CNRs should not have been redacted, and certainly not without explanation. Aviva may properly use this information to assess whether or not WF’s inability to carry on a normal life were the result of the subject accident.

35I do not find that WF has provided the reasonable explanation, with respect to CNRs, as required by s.33(8) of the Schedule to reimpose on Aviva the liability on to pay NEBs. I agree with Aviva that simple disagreement or even an offer to negotiate limits on the information to be provided does not constitute “reasonable explanation”: WF had to show that all elements of Aviva’s s.33 were not reasonably necessary and he failed to do so.

36As the result of my findings, Aviva is not liable to pay NEBs to WF by operation of s.33(6) of the Schedule. I will address the duration of the “non-liability period” below.

The remainder of the s.33 request

37I decided to assess the other elements of the request in order to resolve outstanding compliance issues in this matter and guide the parties going forward.

38I find that the CPP Disability file and the ABC claim from the first accident are reasonably necessary in this case as well, and for the same reason as the CNRs: they contain information about WF’s continuing impairments from the first accident that can help Aviva determine the interplay between the two accidents in causing WF’s inability to carry on a normal life.

39I reject WF’s objection that the CPP Disability standard’s difference from the NEB standard of impairment renders the information in that file irrelevant or useless. It is not clear to me that medical information on functional impairment impacting a person’s job might not be relevant to the same impairments that affect other aspects of life, especially where an issue is the cause of those impairments.

40I agree with Aviva that the ABC file from the first accident is likely to contain highly relevant information such as medical assessments and insurer’s examination reports that could help to resolve issues around the link between WF’s inability to carry on a normal life and the first, as opposed to the second, accident.

41I also reject WF’s contention these files are unnecessary because Aviva already has plenty of medical information with which to determine WF’s entitlement – he gives examples of various assessment reports. I do not believe that the “reasonably necessary” standard in s.33(1)1 implies that an applicant can decide whether and when the insurer has enough information to adjust a file.

42As I note above, I am not persuaded by WF’s arguments with respect to pre-accident time limits on information provided.

43While the CPP Disability and ABC file are reasonably necessary, I find that Aviva does not address all of WF’s concerns about privacy or the relevance of non-medical information included in those files, and as a result I find that requesting these files in their entirety as parts of its information request is too broad. WF submits that if these files are determined to be reasonable and necessary, only the medical and rehabilitation information contained in these files should be included in the s.33 information package. I agree with him.

Was Aviva’s s.33 request deficient?

44The contents of a s.33(1)1 request are not prescribed: detailed notice requirements are conspicuously absent from s.33, in contrast to the prescribed details of notices for insurer’s examinations in s.44(5) and explanations of benefits in s.38(8) of the Schedule.

45WF cites Little⁷ in submitting that before an insurer can rely on s.33(6) of the Schedule to claim that it is not liable to pay benefits during a period of non-compliance by the applicant, it has a duty to provide clear, unambiguous information about the applicant’s responsibilities and rights under s.33, including:

i. the insurer’s right to request and the applicant’s obligation to provide requested information within ten business days;

ii. the consequences under s.33(6) of failing to comply, namely that specific, named benefits may withheld or suspended (or that the insurer is not liable to pay) if the request is not met within ten business days;

iii. notice that, under s.33(8) suspended benefits must be paid if the applicant provides the requested information and gives a reasonable explanation for the delay (referred to as “the saving provision”).

46I find Little persuasive and helpful in determining a fair standard for notice in making s.33 requests. The elements set out in Little strike me as readily doable for insurers, consistent with notice provisions in the Schedule and consistent with the consumer protection objectives of insurance regulation. I note that the obligation to meet this standard applies regardless of whether the applicant was represented and of other circumstances.⁸

47As the insurer did in Little, Aviva issued a series of more detailed requests culminating in a letter of October 19, 2018, which in my view covered all of the required elements of disclosure and went on to express Aviva’s concerns about causation – a detailed “why” for the request. However, until October 19, 2018, Aviva’s notices never included information about the saving provision, which means that until October 19, 2018, Aviva’s notices were insufficient for the purposes of removing its liability to pay NEBs during the disputed period. The letter of October 19, 2018 cannot breathe life into the previous deficient notices⁹; however, I find that taken with all previous letters it served to finally ensure that WF finally had sufficient notice.

48As the result of my findings on notice, I find that Aviva is liable to pay NEBs to WF between June 20, 2018 and October 19, 2018.

Conclusion

49The CNRs requested by Aviva under s.33(1)1 were reasonably necessary for it to determine WF’s entitlement to NEBs.

50The s.33 requests for WF’s CPP Disability file and ABC file from the first accident are overly broad. However, the medical and rehabilitation records and notes from those files are reasonably necessary, and WF is obliged to provide them pursuant to s.33(1)1 of the Schedule. This shall be done within ten business days of a fresh request by Aviva.

51The information requests issued by Aviva were deficient until October 19, 2018. They did not meet the standard required to relieve Aviva of liability to pay benefits after June 20, 2018.

52Aviva is liable to pay benefits from June 20, 2018 to October 19, 2018. Aviva is not liable to pay benefits to WF from October 19, 2018 until the date WF provides the information as described in this decision.

Footnotes

1. 1O.Reg. 34/10
2. 2Heath v. Economical Mutual Insurance Co., 2009 ONCA 391, at para. 50.
3. 3Canada Pension Plan, R.S.C. 1985, c. C-8, s. 42(2).
4. 4Dispute Resolution Practice Code - Financial Services Commission of Ontario -, Fourth Edition, January 2014
5. 5Ibid, Section C, Practice Note 4, Subsection A: Documents
6. 6Dispute Resolution Practice Code - Financial Services Commission of Ontario, Fourth Edition, Jan 2014, p.104.
7. 7Little v. Pembridge General Insurance Company, (FSCO), 2016 CarswellOnt 2683
8. 8Little, para. 12, citing Smith v. Co-operators General Insurance Company, 2002 SCC 30, [2002] 2 S.C.R. 129 (S.C.C)
9. 9Little v. Pembridge General Insurance Company, (FSCO), 2016 CarswellOnt 2683, para 22.