J.N. v. Co-operators General Insurance Company, 2020 CanLII 34458

Citation: J.N. vs. Co-operators General Insurance Company, 2020 ONLAT 18-012227/AABS

Released Date: 04/09/2020

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:

[J.N.]

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

PANEL:

Lori Marzinotto, Vice Chair

APPEARANCES:

For the Applicant:

Frank McNally, Counsel

For the Respondent:

Bruce Keay, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on November 19, 2015 (the “Accident”). He applied for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), which were denied by the respondent.

2The applicant subsequently submitted an application dated August 7, 2017 to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the benefits in dispute. The application was assigned file number 17-005144/AABS (“2017 Application”).

3On October 24, 2017, a case conference was held for the 2017 Application and the parties entered into a settlement.

4In 2018, the applicant then filed a second application to the Tribunal concerning the Accident (“2018 Application), after which a case conference was held on April 29, 2019.¹

PRELIMINARY ISSUE

5The parties could not resolve the issues in dispute at the case conference. As a result, the Tribunal ordered (the “Order”)² a preliminary issue hearing in writing to determine the following issue:

i. Is the applicant barred from pursuing his claim for attendant care benefits as a result of the November 21, 2017 release and partial settlement disclosure notice (“SDN”) arising from the 2017 Application?

RESULT

6I find that the applicant is barred from pursuing his claim for attendant care benefits in this 2018 Application as a result of the November 21, 2017 release and partial SDN arising from the 2017 Application.

BACKGROUND & ANALYSIS

7One of the issues in dispute in the 2017 Application was attendant care benefits (“ACBs”). The applicant submits that he did not seek ACBs past November 19, 2017 (two years post accident) in the 2017 Application. The respondent disagrees. It submits that the applicant did seek ACBs in the 2017 Application, specifically from July 5, 2016 to date and ongoing, and, as a result of the settlement reached at the case conference for the 2017 Application, the applicant is now barred from claiming ACBs in the 2018 Application.

8The applicant submits that he did not settle his entitlement to ACBs beyond two years from the date of the Accident and, thus, the SDN following the 2017 Application does not preclude him from proceeding with the 2018 Application.

9Despite the 2017 Application indicating that ACBs were being claimed from “July 5, 2016 and ongoing”³, the applicant submits that he had not been found to have suffered a catastrophic impairment, had not sought such a designation⁴ and, accordingly, ACBs beyond November 19, 2017 were not claimed and therefore not at issue before the LAT.⁵

10The applicant also submits that ACBs were not discussed at the October 24, 2017 case conference.⁶ The respondent submits that ACBs were discussed. While I was not at the case conference, I conclude from the evidence before me that ACBs were discussed. The respondent’s letter to the applicant dated October 25, 2017 specifically references ACBs,⁷ the release dated November 21, 2017 (the “Release”), specifically references ACBs,⁸ and Schedule A to the SDN also specifically references ACBs.⁹

11If ACBs were not discussed and not settled during the October 24, 2017 case conference, the applicant, represented by counsel, could have deleted the notations to settling ACBs in the numerous documents which referenced the settlement of ACBs.

12I disagree that the applicant did not seek benefits beyond November 19, 2017 (two years beyond the date of the accident) in the 2017 Application. The application has a “Time Period in Dispute Section,” where the applicant states the time period he is claiming “From”. In addition, in this section, the applicant is to indicate the date he is claiming benefits “To” or select “Ongoing”. In the application, the applicant clearly chose “Ongoing”. If the applicant was seeking benefits only up to the November 19, 2017 date, the applicant ought to have indicated that date in the application in the “To” section.

13The applicant submits that ACBs beyond two years from the date of accident are only available if the applicant sustained a catastrophic impairment and, since at the time of the 2017 Application, the applicant had not sought a CAT designation, ACBs beyond November 19, 2017 were not at issue in the application before the Tribunal.

14I do not find merit to that submission. The 2017 Application clearly claims ACBs past two years from the date of the Accident. The applicant did not limit his claim for ACBs up until November 19, 2017, the applicant claimed “ongoing” benefits.

15Applicant’s often make claims for accident benefits that they may not be entitled to and the Tribunal decides whether to grant or deny the benefits. In this case, the applicant clearly sought benefits beyond the two years from the date of the accident. Had this file not been settled at the case conference, it would have proceeded to a hearing where an adjudicator would have decided whether the applicant was entitled to ACBs and for what period, including whether the applicant was entitled to ACBs beyond the two year post accident mark.

16The Order dated April 29, 2019 from the case conference in the 2018 Application, lists the substantive issue in dispute as ACBs in the amount of $6,000.00 for the period of July 6, 2016 to date and ongoing. This is essentially the same time period as was claimed in the 2017 Application.¹⁰ However, the $6,000.00 amount claimed signals that the applicant is seeking benefits at the catastrophic determination benefit levels. However, the applicant does not mention in his submissions whether he has now sought a catastrophic impairment determination for the 2018 Application.

Settlement Document Not Ambiguous

17The applicant provides case law for the proposition that any ambiguity in the settlement documents should be resolved against the drafter, in this case the respondent. While I agree with this statement of law, I do not agree that the settlement documents are ambiguous.

18The SDN, Schedule A to the SDN and Release are clear with respect to ACBs.

19The SDN indicates that the applicant was permanently giving up his right to “dispute, litigate, appeal, apply to vary, or to proceed to judicial review by a court, concerning the benefits which are the subject of the settlement.” The SDN further indicates “If you feel your injuries may be catastrophic, you should contact your medical and legal advisors.” Schedule A attached to the SDN clearly includes “Any and all claims for attendant care benefits from July 5, 2016 to date and ongoing.”

20The Release “releases all aforesaid claims in respect of the following benefits: i) Attendant care benefits from July 5, 2016 and ongoing, as described in Licence Appeal Tribunal File No. 17-005144;”

21The day after the case conference and prior to executing the SDN and the Release, the respondent sent correspondence to the applicant outlining and confirming the terms of the settlement.

22The respondent’s letter dated October 25, 2017, also indicates that the applicant “agreed to a lump sum payment in the amount of $11,000.00 in settlement of the following issues and on the following terms: 1. Any and all claims for attendant care benefits from July 5, 2016 to date and ongoing.” The letter also lists the medical benefits that were included in the settlement.

23The applicant further submits that the SDN was titled “Partial Settlement” and the applicant was not releasing the respondent from future benefits. I disagree. It is clear that the settlement was not a full and final settlement for some benefits because it specifically provided for future claims for specific medical benefits, namely, occupational therapy services, speech pathology services, or optometric services. However, the settlement did not include a provision to allow for further ACB claims. If further ACB claims were anticipated, a provision for them could have been indicated in the respondent’s letter. If the applicant did not agree with what was in the letter, the SDN, Schedule A to the SDN or the Release, the applicant could and should have written back to the respondent indicating that the settlement allowed the applicant to claim for further attendant care. Instead, the applicant signed the settlement documents on November 21, 2019 which brought any claims for ACBs to an end.

24The applicant relies on Llyod v. Economical Mutual Insurance Co. 2007CarswellOnt 79 (SCJ). However, I do not find that it assists the applicant. In Lloyd, the insurer brought a summary judgment motion and argued that the release barred the applicant’s claim for attendant care services. The court dismissed the insurer’s motion. In that case, it did not appear that the settlement dealt with all of the issues. An important distinguishing fact in Lloyd is that neither the minutes of settlement nor the release mentioned the plaintiff’s claim for attendant care benefits.

25The applicant submits that Schedule A does not refer to future benefits. Again, I disagree. While Schedule A does not use the word “future,” it does use the words “to date and ongoing”. “Ongoing” from “to date” can only mean into the future. The dictionary meaning of “ongoing” provided by the respondent means “going on; in process”.¹¹ The applicant has not provided me with any authority to suggest otherwise.

26The applicant further submits that $0.00 was paid to the applicant for ACBs and would never have settled the ACBs for $0.00.¹² The respondent has indicated that the applicant had acknowledged that ACBs had never been incurred by him and that he applied to the Tribunal to preserve a limitation period in the event that he was determined to be catastrophically impaired.¹³

27It is important to note that the 2017 Application was filed before the Court of Appeal for Ontario’s decision in Tomec v. Economical. Before the Tomec decision, the applicant would have had to apply to the Tribunal to preserve the limitation period for benefits he may have been denied even prior to being deemed catastrophically impaired. However, this case is not Tomec. In this case, the applicant claimed benefits on an “ongoing” basis and thereafter settled his entitlement to any and all ACBs from “July 5, 2016 and ongoing”.

28The applicant accepted a lump sum payment for ACBs and the medical benefits listed in Schedule A of the SDN. If it was the applicant’s position that he would never have settled the ACBs for $0.00, the SDN could have been corrected. Schedule A of the SDN clearly states that the insurer agreed to pay $11,000.00 in settlement of ACBs from July 5, 2016 to date and ongoing in addition to the medical benefits listed.

29If the applicant did not agree with the settlement or the settlement reflected in the settlement documents, he should not have executed the settlement documents. In addition, pursuant to s. 9.1(4) of Ontario Regulation 664, which governs these types of settlements, the applicant could have rescinded the settlement within two business days after the later of signing the SDN and Release. In this case, the SDN and Release were sent to the applicant the day after the settlement was reached. The SDN and Release were not signed until November 21, 2017.

30The respondent submits that the applicant did not rescind the settlement nor did he return the settlement funds as is required by s.9.1(7).

31Settlements are a mechanism by which people can get on with their lives. Settlements regularly settle any future claims people have, even ones that may not have crystalized on the date of settlement. Settlements are a way of bringing finality to the situation. Individuals do not need to qualify for a benefit before being able to settle them. Settling future claims is part of the cost / benefit analysis. It is part of the risk that parties weigh and decide whether to take when entering into negotiated settlements.

32In this case, I find that the settlement was clear and the related documents unambiguous.

CONCLUSION / ORDER

33I find that the applicant is barred from pursuing his claim for attendant care benefits in this 2018 Application as a result of the November 21, 2017 Release and SDN concerning the 2017 Application.

34Given that there are no other benefits other than ACBs being claimed in the 2018 Application, I order that the application be dismissed.

Footnotes

1. 1The parties did not provide me with the 2018 Application.
2. 2Order dated April 29, 2019.
3. 3Written Submissions of the Respondent, Tab 2.
4. 4I assume that the applicant means that at the time of his 2017 Application to the date of the case conference he had not been found to be catastrophically impaired nor sought a catastrophic impairment designation. I also have not been provided with submissions to indicate the applicant has been designated catastrophically impaired or has sought a catastrophic impairment designation.
5. 5In the 17-005144/AABS application to the Tribunal, applicant claimed ACB in the amount of $723.78 per month from July 5, 2016 to ongoing.
6. 6Written Submissions of the Applicant, paragraph 5.
7. 7Written Submissions of the Respondent, Tab 5.
8. 8Written Submissions of the Respondent, Tab 3.
9. 9Written Submissions of the Respondent, Tab 4.
10. 10The 2017 LAT Application claimed from July 5, 2016 and the 2018 LAT Application claimed from July 6, 2016.
11. 11Reply Submissions of Respondent, Tab 2.
12. 12Written Submissions of the Applicant, paragraphs 24, 25.
13. 13Written Submissions of the Respondent, paragraph 11.