P.D. v. Western Assurance Company, 2019 CanLII 58149

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Jonathan Batty, Associate Chair Date: May 27, 2019 File: 17-005066/AABS Case Name: P.D. v Western Assurance Company

Written Submissions By: For the Applicant: G. Joseph Falconeri For the Respondent: Arthur R. Camporese

OVERVIEW

1The respondent submitted a reconsideration request dated April 9, 2018 in respect of the March 19, 2018 decision made by Adjudicator Ferguson, which decided two preliminary issues that could prevent the Tribunal from hearing portions of this appeal relating to specific, substantive benefits.

2Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Schedule 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.

3For the reasons that follow, I grant the respondent’s request for reconsideration.

THE FACTS

4P.D. (“the applicant”) was involved in an automobile accident on October 17, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule --Effective September 1, 2010, O.Reg. 34/10 (the “Schedule”).

5The applicant applied for certain benefits from the respondent and applied to the Tribunal after the disputed were denied. Prior to the matter being heard on its merits, the respondent raised two preliminary issues. When the respondent did so, the applicant conceded that some of her claims were statute-barred and she withdrew an issue. Accordingly, the Tribunal was only required to determine a preliminary motion on the issues of whether the applicant was prevented from proceeding with:

• Five different claims because she failed to file her application with the Tribunal within two years after the respondent refused to pay the benefits requested. The claims respectively concerned one for attendant care benefits, three for medical benefits for various treatments, and the last for a benefit for cost of examination.
• Two claims for medical benefits concerning taxis and transportation services because she failed to file an application with the respondent within the time limit prescribed by the regulation.

6The respondent was successful, in part, on its motion. The adjudicator decided the second preliminary issue wholly in favour of the respondent. As a result the applicant’s two claims for medical benefits concerning taxis and transportation services would not proceed to hearing. In respect of the first preliminary issue, the adjudicator decided only the last claim, the benefit for cost of examination, would not proceed to hearing.

7The applicant did not request reconsideration but the respondent did.

RECONSIDERATIONS

8Under Rule 18 of the Rules of Practice and Procedure, one or more of the following four grounds needs to be established:

1. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
2. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
3. the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,
4. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.

9The respondent has relied on the second ground for requesting reconsideration. It submits the Tribunal erred in finding that the respondent did not issue a “clear and unequivocal denial” in respect of the claims for attendant care benefits and three other medical benefits that the Tribunal decided should proceed to hearing. It also submits that the Tribunal was wrong to find “ambiguity” concerning its communications to the applicant.

ANALYSIS

The Legal Test being Applied

10This reconsideration request hinges on the question as to whether or not four denials were made in a “clear and unequivocal” manner. The respondent does not submit that the adjudicator applied an incorrect legal test, rather it argues that the adjudicator applied the test incorrectly on the facts as found. That is not a question of law, the issue of whether or not a denial is sufficiently clear and unequivocal is one of fact or mixed fact and law. However, the related question of whether the two year limitation period is triggered by the denial of benefits, is a question of law.

11In dealing with such cases on reconsideration, the Tribunal needs to take into account the adjudicator’s findings and whether the applicable law in respect of its home statute was appropriately considered and applied. These cases will be very fact specific and do involve questions of law.

12The Tribunal has encountered these questions before in the reconsideration process. Of note, the Executive Chair laid out some of the governing principles in G.P. and Aviva Insurance Company of Canada, 16-000726/AABS.

13In that matter she set out the relevant principles regarding limitation periods and an insurer’s refusal to pay benefits and noted that while the Tribunal is not bound by FSCO jurisprudence, those principles and the cases from which they arise, can be persuasive and worth highlighting. With reference to what is especially relevant in this appeal, she noted:

• The notice provided to an applicant communicating an insurer’s decision to terminate or refuse accident benefits must be clear and unequivocal, and permit an applicant to decide whether or not to challenge the denial: Turner v. State Farm Mutual Automobile Insurance Company; Zeppieri v. Royal Insurance Co. of Canada; Monks and Dominion of Canada General Insurance Company.
• The notice to an applicant of an insurer’s refusal to pay benefits must also contain, in straightforward and clear language, directed towards an unsophisticated person, a description of the most important points of the dispute resolution process and the relevant time limits that govern the entire process: Smith v. Co-operators General Insurance Co. (“Smith and Co-operators”); Sietzema v. Economical Mutual Insurance Company (“Sietzema”).

14In connection with the first point, the Executive Chair noted the following:

The requirement to provide proper notice of refusal to pay benefits is not dependent on including specific wording such as ‘refusal’ or ‘denial’. A refusal can take various forms. It may be a ‘refusal’ to pay benefits or a ‘termination’ of benefits. It may also be in the form of an explanation that reaffirms the Schedule. It may also refer to a ‘reduction’, a ‘stoppage’, or a ‘suspension’ of benefits.

15Regarding the second point, the Divisional Court has turned its mind to how the Tribunal ought to deal with these questions in Tomec v. Economical Mutual Insurance Company, 2018 ONSC 5664. I find this decision of particular relevance in this matter.

The Decision at Issue

16The adjudicator’s decision is clearly written. The live question in this reconsideration concerns whether or not four claims are statute-barred. The decision cites the leading jurisprudence on this question. The decision explains that to rely on the two year limitation period, the insurer must provide a valid explanation of benefits (“EOB”) that: states a clear and unequivocal denial; must give reasons for the denial; and must provide a description of the dispute resolution process.

17The adjudicator considers what unequivocal means and finds that it means “clear, plain; capable of being understood in only one way, or as clearly demonstrated; free from uncertainty, or without doubt”.

18Citing Smith v. Co-operators General Insurance Co., 2002 SCC 30 the adjudicator notes that a denial notice must be “in straightforward and clear language, directed towards an unsophisticated person” and that an insurer has the onus of establishing that an applicant received the notice and that it was “clear and unequivocal.” The onus is tested on the balance of probabilities.

19After reviewing the submissions of both parties on the facts and applicable law, the adjudicator found the onus was not met in four of the five claims where the respondent seeks to rely on the two year limitation period to bar the claim.

20As the adjudicator noted, the applicant had submitted other claims to the insurer that were not being appealed. In addition to making claims for attendant care benefits, the applicant had also previously made claims for housekeeping/home maintenance benefits. Those benefits were denied. The applicant did not take issue with that denial. In fact, the applicant relies on that denial to support the assertion that in contrast the four claims in issue were not denied in a clear and equivocal way. That is unusual.

21The uncontested denial of housekeeping/home maintenance benefits stated that those benefits could only be provided to those found to have been catastrophically impaired, which the applicant had not been. As the applicant notes the insurer further provided, in connection with that denial, the necessary “right to dispute information.” For that reason, the applicant acknowledged that the notice requirements in Smith v. Cooperators were met. However, the applicant submits that the EOBs for the four claims for different benefits at issue in this reconsideration did not meet those requirements as the denials were not “clear and unequivocal” because the insurer included the OCF-19 application for CAT impairment. The adjudicator agreed with that argument. In these circumstances, I find that an error as I think it is wrong to conclude an unsophisticated person would parse out information in that way.

22I find that the applicant did receive clear and unequivocal notice from the respondent about the four claims in issue in this reconsideration. The January 25, 2012 EOB for medical and rehabilitation benefits (the fourth and last EOB in connection with those benefits) and attendant care benefits (the second EOB in connection with those benefits), noted the applicant had reached her policy limits because she had not been determined to be catastrophically impaired. She was then specifically advised “[s]hould you feel that you have obtained a Catastrophic Impairment, please submit the attached Application for Determination of Catastrophic Impairment (OCF-19) for our consideration.” As the adjudicator notes, that EOB included “a standard-form disclosure of the applicant’s right of appeal, including the two-year limitation period.”

23The adjudicator finds that the inclusion of the information and application form for CAT impairment in the January 25, 2012 EOB might create confusion in the mind of an unsophisticated recipient as to whether or not a limitation period had begun for attendant care benefits or whether she could refile her claim as part of a CAT application. However, I do not think that ordinary individuals think and respond in that way. I believe that if someone with serious health issues is seeking a needed medical or attendant care benefit from an insurer and is told her benefits are exhausted, and is then supplied a CAT form to fill out by the insurer, the more natural approach would be to somehow act on that information – especially when also given notice about the right to appeal and a time limit to do so (albeit in a standard form).

24In the months that followed the January 2012 denial, the applicant received three other EOBs denying attendant care benefits which again included OCF-19s and the standard-form disclosure of the applicant’s right of appeal, including notification the two-year limitation period. While the applicant submits these were not “clear and unequivocal” denials, I find that they actually reinforce the fact the earlier denial was “clear and unequivocal.” The standard-form disclosure of the applicant’s right of appeal, including the two-year limitation period, did provide the information she required -- and it is highlighted in bold lettering to emphasize its importance.

25For these reasons, I do not see that much turns on the submissions made by the applicant with respect to either the insurer’s conduct or on the submissions made by the respondent with respect to a “purpose test.”

CONCLUSION

26Based on this analysis, I find that the adjudicator did make a significant error of law or fact such that the Tribunal would likely have reached a different decision. Accordingly, I grant the relief requested by the respondent and dismiss the applicant’s claim for the following benefits:

a. Attendant Care Benefits from December 1, 2010 to date and ongoing. b. Treatment Plan of Foundations for Movement dated June 22, 2011 for physical rehabilitation in the amount of $8,112.20. c. Treatment Plan of Network Niagara dated August 24, 2011 for massage therapy in the amount of $4,247.20. d. Treatment Plan of Penny Doncaster Occupational Therapy Services for assistive devices in the amount of $7,273.50

Jonathan Batty Associate Chair Tribunals Ontario - Safety, Licensing Appeals and Standards Division