WF v. Aviva Insurance Company, 2020 CanLII 12738

RECONSIDERATION DECISION

Before: Chloe Lester, Vice-Chair

Date: February 6, 2020

File: 18-007724/AABS

Case Name: WF v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Lisa Belcourt, Counsel

For the Respondent: James Brown and Chris Macaulay, Counsel

OVERVIEW

1The respondent, Aviva, asks for a reconsideration of the Tribunal’s¹ decision released on July 17, 2019, in which Aviva’s s. 33 request was found to be reasonably necessary and thus the Tribunal upheld the suspension of the applicant’s non-earner benefits (NEB).

2However, Aviva filed a request for reconsideration pursuant to Rule 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (February 7, 2019) (the “the Tribunal’s Rules”). Aviva claims that the suspension should have applied for a longer period.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

ISSUES IN DISPUTE

4Aviva alleges that the Tribunal’s decision meets the reconsideration criteria in the following ways:

(i) that the decision at issue is a final decision;

(ii) the Tribunal exceeded its jurisdiction and erred in law when the adjudicator decided the s. 33 notice should have contained more details than what was required under the Schedule;² and

(iii) the Tribunal erred in fact and law in concluding that Aviva’s request for the applicant’s Canadian Pension Plan Disability (CPPD) and Accident Benefit (AB) file were overly broad.

RESULT

5The reconsideration is granted in part.

BACKGROUND

6The applicant was injured in an automobile accident on August 3, 2011 (the first accident) and, as a result, never returned to work. Later that year, he was approved for CPPD.

7The applicant was then injured again in a second accident on May 20, 2016, the accident that is the subject of this application. The applicant applied for, and received, NEBs from Aviva.

8In 2018, Aviva began requesting documents, pursuant to s. 33 of the Schedule, that it required in order to determine the applicant’s continued entitlement to benefits. The applicant disagreed with the request and, over the next few months, tried to negotiate Aviva’s request. Ultimately, because of the applicant’s failure to comply with the request, Aviva suspended his NEBs as of June 20, 2018.

9The Tribunal determined that, for the most part, Aviva’s s. 33 request was reasonably required to determine entitlement to the benefits and that, because of the applicant’s failure to comply, Aviva could suspend the NEBs. However, the Tribunal found that Aviva’s requests for the applicant’s CPPD and AB files were too broad and, thus, restricted the required productions to medical and rehabilitation information contained within the files, and lastly, because the s. 33 notice did not clearly outline the applicant’s rights and responsibilities under the Schedule, Aviva was only entitled to suspend the NEBs beginning October 19, 2018 when the notice finally did outline the applicant’s right under s.33.

ANALYSIS

Final Decision

10As of February 7, 2019, the Tribunal amended its Rules to restrict requests for reconsideration to only a decision that finally disposes of an appeal.

11Aviva argues that this decision finally disposes of an appeal and should be considered for reconsideration. To that same end, Aviva relies on two decisions to support its position that the Tribunal’s decision finally disposed of an appeal.³

12The applicant disagrees. He says that the Tribunal’s decision was interlocutory. In this vein, he relies on Black’s Law Dictionary to interpret the difference between a final and interlocutory order. He argues a final order is defined as one that “terminates the action itself, finally decides some matter litigated by the parties, operates to divest some right; or one which completely disposes of the subject-matter and the rights of the parties.” On the other hand, he argues, an interlocutory order is one that decides some intervening matter that requires further steps for the issue to be adjudicated on its merits. The applicant argues that this definition of an interlocutory order is further supported by the Court of Appeal’s decision in Hendrickson v. Kaillo.⁴

13The decisions relied upon by the parties characterize a final order or, in our case an appeal, as an order that disposes of an issue that would deprive a party to a substantive right that could be determinative of the entire action. On the other hand, the decision defines an interlocutory order would be one that does not determine the real matters in dispute between the parties, for example an order for productions, adjournments, or hearing type.

14In this case, I find the adjudicator’s decision was final since it determined issues that deprive a party of a substantive right: the applicant applied to claim NEBs; the Tribunal’s decision allows for a suspension of the benefit from October 19, 2018 to date and ongoing until he complies with Aviva’s s. 33 request. In this respect, I note that the term “appeal” in the Tribunal’s Rules includes “a claim”⁵ Given that the Tribunal’s decision effectively denied the applicant’s claim for NEBs, Aviva is within in its rights to request a reconsideration.

Exceeded Jurisdiction and Erred in Law

15Aviva argues that the Tribunal exceeded its jurisdiction and erred in law when it ordered that Aviva ought to have outlined requirements in the s. 33 notice that were in fact not required under the Schedule. Aviva asserts that the decision found the documents requested under s. 33 reasonably required and agreed that it could suspend the benefits. The issue to be decided in this reconsideration is whether the adjudicator had the authority or made an error in law by deciding that the suspension of benefits could only begin as of October 19, 2018 and not, as Aviva requested, June 20, 2018 because, as the Tribunal found, Aviva failed to advise the applicant of his rights and responsibilities under the Schedule, namely, s. 33(8). This section advises the applicant of what would happen if he eventually complied with the request and how he may be paid retroactively for the benefit. Aviva disagrees with that characterization because it claims that s. 33 does not obligate it to advise the applicant of those rights. In any event, Aviva focuses its arguments on the fact that advising the applicant of this right was immaterial because he never ended up complying with the request.

16The applicant argues that the adjudicator did not exceed its jurisdiction because it based its decision on case law⁶ that, in summary, requires Aviva to provide clear and unambiguous information about the applicant’s rights and obligations under the Schedule. He argues this would include information about how he may be paid for the benefit if he eventually does comply with the request and provides a reasonable explanation for the delay.

17In review of the party’s submissions and case law, I find that, s. 33 does not prescribe the requirements of the notice. I agree that case law is clear that a letter from the insurer must be clear and unambiguous. The letters should be so easy to follow that an unsophisticated person would understand their rights, obligations, and the potential repercussions, regardless of whether they are represented or not. That being said, the case law relied upon by the applicant that allegedly obligates the insured to include information about how he may be eventually paid for the benefit, namely s. 33(8), is a Financial Services Commission of Ontario decision. The Tribunal is not bound by that decision. The information contained in the letters from Aviva had enough information to supply the applicant with their obligations under the Schedule. Had the applicant complied with the request, then at that time, Aviva ought to have informed the applicant that there is a possibility of being paid retroactively if they provide a reasonable explanation for the delay.

18I find that the Tribunal made an error in law by obligating Aviva to include information in the s. 33 notice that is not detailed in the Schedule. In this case, the applicant did not comply with the request in its entirety and therefore Aviva had suspended the benefits as of June 20, 2018.

Erred in Fact

19Aviva also argues that the Tribunal’s decision erred in fact when it decided that the request for CPPD and AB file was too broad and ordered that the request be limited to the medical and rehabilitation information contained within those files. In its reconsideration submissions, Aviva argues the reasons why the documents are relevant and that previous decisions have found those files to be relevant in their entirety.

20The applicant submits that the Tribunal’s decision is clear and found that the other documents contained in the file would not be relevant to the issues in dispute.

21I find the Tribunal’s decision was clear as to why it found only part of those files relevant to the issues in dispute. It noted that only the medical and rehabilitation information contained in the files would be relevant for determining the pre-accident condition of the applicant. The decision states that the applicant brought up privacy concerns and argued the other documents, not related to the impairments of the applicant, would not be relevant to the hearing. The Tribunal’s decision goes on to say that Aviva did not express how the other documents would be relevant and, as a result, decided to limit the disclosure. Aviva is attempting to re-argue the same points and introduce new arguments that were not before the original adjudicator. On that basis, Aviva has not pointed to where the Tribunal’s decision erred in fact and the request to reconsider this part of the decision is dismissed.

22Lastly, Aviva suggests that, if I determine the Tribunal’s decision stands, I should clarify the order to prevent further disagreements between the parties. I decline. I find the decision clear: the CPPD and AB file is limited to the documents relating to medical and rehabilitation information. I do not see any ambiguity.

23In conclusion, Aviva has partly met the criteria for reconsideration. It may suspend the benefits as of June 20, 2018 as per its original letter to the applicant for failing to comply with the s. 33 request. All other requests for reconsideration are denied.

Footnotes

1. 1Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2. 2Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”).
3. 32441472 Ontario Inc. v. Co/licutt Energy Services, 2017 ONCA 452, Tab 18, at para. 9.; Ball v. Donais, 1993 CarswellOnt 23 (C.A.), Tab 19, at para 3.
4. 41932 canlll 123 (ON CA)
5. 5The Tribunal’s Rules of Practice and Procedure Rule 2.1
6. 6Little v. Pembridge General Insurance Company, (FSCO), 2016 CarswellOnt 2683 and Smith and Co-Operators General Insurance Company, 2002 SCC 30, [2002] 2 S.C.R. 129 (S.C.C)