K.W. v. Aviva Insurance Canada, 2020 CanLII 117350

Licence Appeal Tribunal

Citation: K.W. v. Aviva Insurance Canada, 2021 ONLAT 18-006959/AABS

Released Date: 06/14/2021

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:

[K.W.]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Gus Triantafillopoulos, Counsel

For the Respondent:

Andy Smith, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The [K.W.] (“applicant”) was injured in an automobile accident on June 27, 2015 and sought benefits from Aviva Insurance Canada (“respondent”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ When the benefits were denied, the applicant filed an application before the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

2As set out in the Tribunal’s Order dated February 24, 2021, all issues in the applicant’s application have been determined except for an award and interest, which were not part of the applicant’s initial application.

3The applicant cross-examined the respondent’s representative Natasha Vujovic on November 19, 2020, at the videoconference portion of the hearing pursuant to the Tribunal’s Order dated August 26, 2020.

4Following completion of the cross-examination, both parties filed with the Tribunal their respective submissions for the written part of the hearing as set out in the Tribunal’s Order dated August 26, 2020.

BACKGROUND

5On January 27, 2020, the Tribunal issued a Decision ordering the respondent to pay $2,685.71 in income replacement benefits (“IRB”) plus interest for the period July 5, 2016 to September 9, 2016 and from February 28, 2018 to April 15, 2018 (“Decision”). The respondent filed a request for reconsideration.

6On June 24, 2020 the applicant filed a motion with the Tribunal to enforce payment of the IRB and for the award sought in this hearing. Upon receipt of the motion, the respondent alleges it issued payment in the amount of $3,506.03 to the applicant and sent the payment to an address in Richmond Hill, Ontario that was not the applicant’s Richmond Hill address (“Richmond Hill address”). At the hearing of the motion in July 2020, applicant’s counsel advised the respondent that she had not received the IRB payment and if sent, the payment had been sent to the wrong address.

7The respondent’s request for reconsideration was dismissed by the Tribunal on July 20, 2020.

8The applicant submits that she has still not received the IRB payment as of the date of her reply submissions for this hearing, December 21, 2020.

ISSUE

9The issue to be decided in this hearing is:

i. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payment of the income replacement benefit in the amount of $2,685.71, plus interest as per the Order of Adjudicator Watt dated January 27, 2020?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10The applicant is not entitled to an award. The applicant is entitled to interest pursuant to s. 51 of the Schedule commencing June 25, 2020 on $3,506.03 to the date of payment to the applicant.

LAW

11Section 10 of Regulation 664 provides that the Tribunal may make a special award in addition to awarding benefits and interest if the respondent has unreasonably withheld or delayed payments. Section 51 of the Schedule provides for interest on overdue payments.

ANALYSIS

Positions of the Parties

12The applicant submits that the respondent has unreasonably withheld payment of the applicant’s IRB despite being ordered to pay by the Tribunal and has failed to provide any explanation for failing to pay. The applicant also submits that it would have been reasonable for the respondent to find out that the cheque sent out had not been cashed, and call the applicant or her counsel, or check with the accounting department to make sure the cheque had been mailed out correctly.

13The respondent submits that the Decision was stayed pending reconsideration, and in the alternative, the conduct of the respondent does not warrant a special award.

Testimony

14Natasha Vujovic, respondent’s adjuster, was cross-examined on November 18, 2020 and testified that she did not issue the IRB payment upon receiving the Decision because of the reconsideration request. Ms. Vujovic obtained legal advice. Payment was issued June 24, 2020 on the advice of counsel for $3,506.03 being the amount ordered to be paid plus interest, from July 2016 to June 2020. Interest was calculated to June 2020 because this is when the payment was sent out.

15Ms. Vujovic admitted that the IRB payment was sent out several times to the wrong address. Ms. Vujovic said the first time payment was sent to the Richmond Hill address because the change of address letter from the applicant advising of her new address in Aurora (“Aurora address”) was not in her file.

16Ms. Vujovic admitted that payment sent out again later to the applicant, but to a different address in Aurora, Ontario, not the applicant’s Aurora address. She agreed payment should have gone to the applicant’s correct address and cannot explain why it went to an incorrect address.

17Ms. Vujovic said she tried to correct this error by sending the IRB payment to the applicant’s counsel. However, she could not produce a letter showing the payment was sent to counsel.

18Ms. Vujovic said three different attempts were made to send the payment to the applicant. Each time a new cheque was sent out the old cheque was voided. During her cross-examination in November 2020, Ms. Vujovic said that she would re-issue the payment.

19I find that the applicant’s IRB payment was not unreasonably withheld or delayed based on the inability of the respondent to send the payment to the applicant’s correct address, or alternatively, to provide the payment to applicant’s counsel as it said it attempted to do. Although the respondent made attempts to send the payment, it was unable to do so correctly which tends to indicate a lack competence or efficiency on the part of the respondent, but not an unreasonable withholding or delay. In my view the respondent’s conduct does not rise to the level of unreasonableness contemplated by s. 10 of Regulation 664 and the case law.

20I disagree with the respondent that the Decision was stayed by the filing of a reconsideration request. Despite s. 25 (1) of the Statutory Powers Procedure Act,² s. 5 (5) of the Licence Appeal Tribunal Act³ provides that an order of the Tribunal takes effect immediately unless the order provides otherwise but if s. 11 allows an appeal to the Divisional Court and an appeal is made, that court may grant a stay of the order until the appeal has been disposed of. There is no evidence before me that the Divisional Court has granted a stay of the Decision in the applicant’s pending appeal. As a result, the IRB payment was due in January 2020 when the Decision was released.

21However, I agree with the respondent that the conduct of the respondent does not warrant a special award. The respondent acknowledges that the IRB payment was sent to the applicant’s prior address in error.⁴ The testimony of Ms. Vujovic was clear that the payment had been sent in error more than once and she could not give a reasonable explanation for this, except deficient record keeping.

22I do not fault the respondent’s representative for seeking legal counsel regarding payment in the face of a request for reconsideration.

23For these reasons, I decline to make an award in addition to the amounts ordered to be paid in the Decision.

Interest

24Section 51 of the Schedule provides for interest on overdue payments. Therefore I award interest pursuant to s. 51 commencing June 25, 2020 on $3,506.03 to the date of payment to the applicant.

ORDER

25For the reasons outlined above, no award is made. The applicant is entitled to interest under s. 51 commencing June 25, 2020 on $3,506.03 to the date of payment to the applicant.

Footnotes

1. 1O.Reg. 34/10
2. 2Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.
3. 3Licence Appeal Tribunal Act, 1999, S.O. 1990, c. 12, Sched. G.
4. 4Respondents submissions dated December 11, 2020, para 10.