K.B. v. TD Insurance Meloche Monnex, 2020 CanLII 47703

Tribunals Ontario Safety, Licensing Appeals and Standards Division 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 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

Citation: K.B. vs. TD Insurance Meloche Monnex, 2020 ONLAT18-008965/AABS

Before: Brian Norris, Adjudicator

Date: July 9, 2020

File: 18-008965AABS

Case Name: K. B. vs. TD Insurance Meloche Monnex

Written Submissions by:

For the Applicant: Julia Vilorio Peruero, Counsel

For the Respondent: Benjamin Hutchinson, Counsel

OVERVIEW

1The Request for Reconsideration was filed by the applicant, K. B. It arises out of a decision which I found the applicant was statute-barred from disputing entitlement to caregiver (“CG”) and housekeeping and home maintenance (“HK”) benefits for failing to file an application within two years of the denial of benefits. The decision found that the respondent’s refusal to pay was clear and unequivocal and included reasons for the refusal. Additionally, I found the respondent was not obligated to send a copy of the insurer’s examination (“IE”) report to any health care provider because the applicant failed to submit an OCF-3 and, therefore, there was no healthcare provider to send the report to.

2The applicant makes the request pursuant to Rule 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (April 2016) (the “LAT Rules”). The applicant submits I acted outside of my jurisdiction and violated the rules of natural justice and procedural fairness and made a significant error of law or fact such that I would likely have reached a different decision.

3In response, the respondent submits the applicant is attempting to re-litigate the same issues which were previously considered in the preliminary hearing. Additionally, the respondent submits the applicant has failed to demonstrate that I acted outside my jurisdiction or violated the rules of natural justice or procedural fairness or that I made a significant error of law or fact such that I would have reached a different decision. In other words, the respondent submits the applicant failed to identify any serious breach of procedural fairness or a significant legal mistake to warrant varying the decision.

THE OPERATION OF SECTION 37 (a) and (b) AND THE RELEVANT CASE LAW

4The applicant submits I erred in law by disregarding Yogesvaran v State Farm Mutual Automobile Insurance Company¹ (“Yogesvaran”) and Roger v The Personal Insurance Company² (“Roger”) which discuss the importance of requesting a disability certificate pursuant to section 37(a), prior to sending the applicant to an insurer’s examination pursuant to section 37(b) and the requirement for reasons in the insurer’s determination. She further submits that I failed to give any reasons for coming to conclusions contradictory to previous decisions referenced in her submissions. Lastly, she submits that I never gave reasons for not allowing the case law outlined in the applicant’s submissions and completely disregarded them.

5The respondent submits that I addressed the disability certificate issue in paragraphs 8 through 10 of the decision. There, I found the respondent discharged its obligation to request a new disability certificate and that the Schedule did not require the respondent to wait for the applicant to produce one before scheduling IEs. The respondent submits the case law was manifestly considered and incorporated into the analysis in the decision. Further, it submits the applicant conflates “request” with “receive”, “produce”, or “submit” and notes Yogesvaran and Roger are distinguishable in that they failed to request new OCF-3s either before or contemporaneously with the IE request. Unlike this matter, where the respondent requested a new OCF-3 when it requested the IE. Yogesvaran specifically notes that the two actions may occur contemporaneously.

6The respondent contends it satisfied its obligation to communicate reasons for the denial by referring to the enclosed IE reports. It submits that I incorporated the principles of Smith v. Co-operators General Insurance Co.³ (“Smith”) and applied them to this matter when I found the respondent made a clear an unequivocal denial and provided reasons. I acknowledged that the denial was not ideal, but sufficient. As Turner v. State Farm Mutual Automobile Insurance Co.⁴ (“Turner”) notes, insurers are not held to a standard of perfection.

7I agree with the respondent and find no error of law in determining that the respondent is permitted to request a disability certificate and an IE in the same notice. To me, section 37(a) and (b) are clear in that an insurer is required to request an updated disability certificate but may also request the applicant attend an IE. As noted in the initial decision, I found no requirement in the Schedule or the case law for the respondent to wait for the applicant to produce a disability certificate before requesting an IE.

8While I agree that I did not clearly refer to the case law cited by the applicant, I find no error in law because I provided the requisite reasons for my decision. Noting the relevant cases cited by the parties can be a clear indication they were considered however, it is not required. Regardless, the cases submitted by the applicant in the preliminary hearing were not supportive of her claim. Rogers and Yogeswaren both involved situations where the insurer failed to request a disability certificate entirely. Moreover, as submitted by the respondent, Yogeswaren notes that an insurer’s request for an IE may be contemporaneous with the mandatory requirement of requesting a new disability certificate.

9I considered Smith when I determined whether the respondent provided reasons for denying the benefits, despite not specifically referring to it. Evidence of the clear an unequivocal principle is in paragraph 14 of the preliminary decision where I found the respondent clearly advise(d) the applicant that caregiving and housekeeping and home maintenance benefits will be stopped. Further, in paragraphs 14 and 15 of the initial decision, I considered the applicant’s notice, together with the accompanying IE report(s), and found that they included sufficient medical and other reasons for the denial. I found that letter clearly stated that the applicant was not entitled to CG and HK and the reasons were contained in the enclosed IE reports. Contrary to the applicant’s submissions, I find the insurer was responsible for adjusting the applicant’s claim; it made the determination on the applicant’s entitlement to the benefits claimed and relied on the assessors’ opinions as the reasons for the decision.

MUST THE IE REPORT HAVE BEEN SENT TO THE APPLICANT’S DOCTOR?

10The applicant submits I erred in law by finding the respondent was not required to send the IE report to the applicant’s health practitioner. She submits this is contradictory to my finding that the respondent was compliant with the SABS when it requested a new OCF-3 at the same time it arranged an IE. The applicant submits section 37(5) is nullified if the IE report is not required to be sent to the applicant’s health practitioner. She submits section 37(5) includes mandatory language directing the respondent to send the report to the health care provider. Lastly, she submits the timing of the respondent’s requests make it impossible for the applicant to comply and produce a disability certificate prior to the IE because the IE was scheduled for May 4, 2011 and the disability certificate was due by May 20, 2011.

11The respondent submits I rightly considered section 37(5) in noting that “the disability certificate” in the section must logically refer to the newly requested disability certificate mandated in section 37(1)(a). It further submits that I rightly concluded there was no healthcare practitioner to send the IE report to since the applicant failed to produce a new one in the first place.

12I maintain that there is no requirement to send an IE report to a health practitioner if no OCF-3 is submitted in response to the request. As noted in paragraph 18 of the decision, I found that the provision in section 37(5) applies to the disability certificate that is provided after the request for one to determine ongoing entitlement to the benefits. In the applicant’s case, she never produced a disability certificate and, therefore, there was no health practitioner to send a copy of the IE report to.

13Lastly, I find no evidence showing the applicant was unable to deliver the disability certificate, either before or after the IE. While the deadline to submit the disability certificate was May 20, 2011, which fell after the scheduled IE, the applicant may submit the disability certificate prior to the deadline. Further, the principles noted in Yogesvaran permit the respondent to request a new OCF-3 at the same time it requests an IE.

14For these reasons, I see no error in law of fact occurred in determining that the respondent may request a new disability certificate at the same time is schedules an IE or that it is not required to send the IE report to the applicant’s health practitioner because she never submitted a disability certificate following the request.

CONCLUSION

15I reviewed the applicant’s request for reconsideration, her evidence, and case law and find no breach of procedural fairness or error of law or fact which would affect the result of the decision. For these reasons and those noted above, I deny the applicant’s request for reconsideration.

Footnotes

1. 12009 FSCO A08-001142.
2. 22014 ONSC 1964.
3. 32002 SCC 30.
4. 4Appeal Order P00-00046.