I.A. v. TTC Insurance Company Limited, 2019 CanLII 63358

Licence Appeal Tribunal

Citation: I.A. vs. TTC Insurance Company Limited, 2019 ONLAT 18-004128/AABS

Date: June 12, 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:

IA

Appellant

and

TTC Insurance Company Limited

Respondent

DECISION

PANEL: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Michael Lee

For the Respondent: Tamara Broder

HEARD: In Writing on: January 14, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, IA, was struck by a public transit bus while walking on the sidewalk on August 8, 2015 (“the accident”). As a result, she sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''the Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when the respondent, TTCICL, denied her claim.

2IA seeks attendant care benefits (ACBs) and non-earner benefits (NEBs) from TTCICL.

3The TTCICL has raised a number of preliminary issues, set put below, which allege non-compliance with the Schedule. If TTCICL’s position on these issues is correct, then IA will be prevented from proceeding will her appeal on some or all of her claims.

4On November 13, 2018, the Tribunal ordered on consent that the preliminary issues be heard prior to the substantive issues. The order specified that, if IA’s position on any of these issues is found to be correct, the parties may contact the Tribunal within 30 days of the release of the decision on the preliminary issue to schedule a resumption of the case conference.

ISSUES

5The issues in dispute are:

1. Is IA barred from proceeding with her claim for attendant care benefits (ACBs) for non-compliance with ss. 3(7)(e), 33, 37(1), and 42(7) of the Schedule?
2. Is IA barred from proceeding with her claim for non-earner benefits (NEBs) for non-compliance with ss. 33, and 37(1) of the Schedule?
3. Is IA barred from proceeding with her claim for ACBs in excess of $6,000.00 despite s.19(3)1 of the Schedule?
4. Is IA barred from proceeding with her claim for ACBs prior to January 12, 2016 for non-compliance with s.42(5) of the Schedule?

6IA withdrew issue 3 in her submissions.

RESULT

7TTCICL is not liable to pay the disputed ACBs and NEB to IA. IA’s appeal is accordingly dismissed, and this proceeding concluded.

ANALYSIS

8Under s. 33(1)1 of the Schedule, an insured person must provide on request any information reasonably required to assist the insurer in determining the applicant’s 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).

10Under s. 37(1) of the Schedule, the insurer may request a new disability certificate (“OCF-3”) from the insured person in order to determine if he or she is still entitled to a “specified benefit”.² The insurer is not liable to pay specified benefits for any period during which an insured person has failed to provide an OCF-3.

11Under s. 42(7) of the Schedule, the insurer may request a new assessment of attendant care needs (“Form 1”) from the insured person in order to determine if he or she is still entitled to an ACB. The insurer is not liable to pay ACBs for any period during which an insured person has failed to provide a Form 1: s. 42(5).

12It is uncontested that IA attend four insurer’s examinations (IEs) scheduled by TTCICL in April – May 2016 to assess her medical eligibility for the disputed benefits.

13It is also uncontested that IA provided information requested by TTCICL on November 28, 2018, after this proceeding had progressed to the case management stage.

The Parties’ Positions

14TTCICL paints a picture of complete non-compliance by IA. It relies on an affidavit sworn by its Claims Manager, dated November 23, 2018, that in the three years from the accident until that time, IA has failed to:

1. provide any [insurer’s emphasis] of the information requested by TTCICL pursuant to s. 33(1) in relation to both NEB and ACB claims;
2. return a completed Form 1 as required by s. 37(1);
3. submit a new Form 1 pursuant to s. 42(7);
4. submit any incurred ACBs, or evidence of any kind required by s.3(7)(e);
5. provide any clinical notes or records (CNRs) from a hospital, doctor or treatment facility;
6. provide any evidence of efforts to obtain the information and documentation since it was requested by TTCICL more than 3 years ago; or
7. provide any explanation, “let alone a reasonable one”, for her non-compliance with various sections of the Schedule.

15IA rebuts TTCICL’s position by characterizing its information requests as unreasonable, and her non-compliance as insufficient reason to effectively extinguish her claim. To support her own position, IA submits that:

i. She attended four IEs in April-May 2016 and at no point did any of the assessors request or require further medical documentation to complete their examinations. ii. At no time when scheduling IEs or denying benefits did TTCICL mention IA’s non-compliance as a reason. Its denial notice dated May 24, 2016 indicated that refusal to pay IA’s claims was based on the results of its IEs. iii. TTCICL demanded IA’s family physician’s CNRs, medical records, hospital records and OHIP summaries for three years preceding the accident. IA argues that this is unreasonable. IA cites the Dispute Resolution Practice Code³ (“the Practice Code”) in effect at the time TTCICL made its information requests. The Code indicates that CNRs and hospital records for the year before an accident may assist in resolving disputes.⁴ IA argues that she “is entitled to rely on directions given by the Practice Code which would have dealt directly with this matter […] at the time TTCICL made its information request.” TTCICL’s request was three times the pre-accident time frame defined as reasonable by the Practice Code. iv. Even if the information requests were reasonable, IA’s reliance on the Practice Code represents a reasonable explanation, as prescribed by s. 33(8) for not providing them; therefore, the denied benefits are payable. v. At no time has TTCICL made a motion to FSCO or the Tribunal under Rule 9.3(e)⁵ for an order for the more extensive documentation it seeks. It could easily have done this without taking away IA’s right to a hearing on the substantive issues in dispute.

16TTCICL contends that IA’s position is untenable because:

i. Six requests were made between September 2015 and April 2016, and IA simply failed to respond to any of them. ii. At no point prior to delivery of her preliminary issue submissions on December 13, 2018 did IA ever advise TTCICL that she objected to providing any of the requested documents. At no point prior to December 13, 2018 did she or her representative ever inform TTCICL of any "firm policies" related to the execution of an authorization or OCF-5. iii. In the three years and over three months that passed since the initial s. 33 request, neither IA nor her representative made any mention of, or reference to, the documents requested by TTCICL. iv. IA failed to provide any of the information requested by TTCICL: she did not send in medical information for the period of one year prior to the accident and she failed to provide post-accident medical information. v. In summary, IA simply ignored the s. 33 requests and, in doing so, she not only breached her obligations under s. 33(1) of the Schedule but also her reciprocal duty of good faith⁶ as an accident benefits claimant.

17TTCICL characterizes IA’s position as “nothing more than an after-the-fact attempt to justify for her failure to comply with the [Schedule].” It points out that there is no evidence from anyone involved in adjusting this file before 2018 that speaks to IA or her representatives’ thinking or reasoning in ignoring TTCICL’s requests and it asserts – with documentary evidence to support its assertion -- that IA actually had most if not all of the medical records in her possession long before she submitted them.

18In reaching my findings, I noted that the facts as set out in TTCICL’s affidavit are uncontested. In fact, IA acknowledges refusing to meet specific requests for information from TTCICL, without any communication to TTCICL about the reasons why. As noted, IA eventually provided the requested medical documentation – in her own words “hesitantly” – on November 28, 2018, after her appeal was underway. Her submission makes it clear that she did this under the pressure of the appeal proceeding and to stave off the termination of the proceeding.

19I find that IA did not comply with s. 33 of the Schedule, and is thus disentitled to the disputed benefits, because:

i. IA’s failure to supply any of the medical documents requested by TTCICL is a clear breach of s. 33 of the Schedule. IA’s purported explanation does not cover medical documentation for up to 1 year pre-accident or for post-accident. By her own definition, this information was covered by the Practice Code’s description of “reasonable”. ii. IA’s affidavit evidence⁷ that her law firm had a “policy to not produce OCF-5s⁸ executed by our clients to insurance providers when they have asked for productions preceding more than a year of the accident [sic]” fails on several counts: a. It does not cover or explain the failure to provide information not excluded by the affiant’s law firm’s policy. It does not explain how or why a less objectionable OCF-5 couldn’t have been proposed. There was zero effort to comply with the prescribed standard of reasonable production. b. It does not address IA’s failure to communicate its objections to TTCICL’s s. 33 requests, which in my view undermines the credibility of this explanation for non-compliance. The affiant provides no clear statement that this policy actually determined her law firm’s actions in this case. In my view, to be credible, a reasonable excuse is one that is offered as soon as possible after it arises, and not one that is proffered only after an appeal proceeding is underway. c. I agree with TTCICL that IA’s conduct (or those of her legal representatives) is a breach of a claimant’s obligation to deal with her insurer in good faith. I reject the implicit assertion that a law firm’s “policy” is any basis on which IA could wilfully and totally ignore s. 33 requests without consequence. iii. 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”⁹. This fails to support IA’s contention that she was entitled to rely on the Practice Code to characterize TTCICL’s requests as “unreasonable” and it is certainly not the foundation for a blunt rejection, without any communication of objections, to provide requested documentation. iv. IA’s submissions include a proposition that TTCICL’s decision to schedule IEs, her decision to attend them, and TTCICL’s conclusion that IE results support refusal to pay the disputed claims somehow eliminate the prescribed consequences of her non-compliance with s. 33. IA does not point me to any authority to find this proposition tenable. TTCICL’s continuing efforts to adjust IA’s NEB and ACB claim in good faith, notwithstanding IA’s non-compliance, does not in my view constitute some form of waiver that would strip it of its right to rely on s. 33 to get information it believes is relevant. v. IA’s submissions suggest that TTCICL’s requests were unclear as to the consequences of non-compliance: this is untrue. Three of TTCICL’s requests¹⁰ cited s. 33 of the Schedule and mentioned potential consequences of non-compliance in language that I consider clear. They would trigger a response from any reasonable person, especially one with legal representation. vi. IA’s suggestion that TTCICL should have made a motion under Rule 9.3(e) for an order for the more extensive documentation it seeks lacks merit. It does not provide cover for wilful non-compliance without any attempt to explain or work through disagreement with TTCICL. The onus is on IA to prove entitlement and to comply – or at least attempt to comply -- with the Schedule.

20TTCICL is not liable to pay the disputed benefits as a result of IA’s non-compliance with s. 33. As a result of this finding, it is unnecessary for make findings on any other issue, although I would note that I could find no reasonable explanation for failures or delays in providing any of the documentation requested by TTCICL in this matter.

CONCLUSION

21TTCICL’s request for a finding that it is not liable to pay the disputed benefits is granted.

Footnotes

1. 1O.Reg. 34/10.
2. 2NEBs are defined as “specified benefits by s.36 of the Schedule.
3. 3Dispute Resolution Practice Code - Financial Services Commission of Ontario -, Fourth Edition, January 2014
4. 4Ibid, Section C, Practice Note 4, Subsection A: Documents
5. 5All references to a “Rule” are made to the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)
6. 6As set out in RBC General Insurance Co. v. Field, 2016 ONSC 5584, 2016 CarswellOnt 15039, (Ont. SJC) led by TTCICL
7. 7Affidavit of L.A., law clerk at the law firm representing IA throughout the adjustment of her claim, dated December 13, 2018.
8. 8OCF-5 is the form entitled Permission to Disclose Health Information
9. 9Dispute Resolution Practice Code - Financial Services Commission of Ontario, Fourth Edition, January 2014, p.104.
10. 10Dated September 15, 2015, January 8, 2016 and March 17, 2016 respectively, from TTCICL’s claims adjuster and sent to IA’s legal representatives.