T.A. v. Aviva General Insurance Company, 2020 CanLII 51296

RECONSIDERATION DECISION

Citation: T. A. vs. Aviva General Insurance Company 2020 ONLAT 18-006820/AABS

Before:

Lindsay Lake, Adjudicator

Date:

July 6, 2020

File:

18-006820/AABS

Case Name:

T.A. v. Aviva General Insurance Company

Written Submissions by:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Devon McIntyre, Counsel

Melinda Baxter, Counsel

OVERVIEW

1The respondent, Aviva General Insurance Company (“Aviva”), filed a request for reconsideration of the October 3, 2019 decision (the “decision”)¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2In the decision, I found that the applicant, T.A., was entitled to:

(i) a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period of September 22, 2016 to August 28, 2018, less any amounts previously paid, with interest in accordance with s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”);²

(ii) a treatment plan (“OCF-18”) dated March 2, 2017 for a psychological assessment; and

(iii) an award under O. Reg. 664 for 25% of the amount that T.A. was owed for NEBs from September 22, 2016 to August 28, 2018, and 25% of the OCF-18 for the psychological assessment.

3I also found that T.A. was not entitled to attendant care benefits, to NEBs for the period of August 29, 2018 to date and ongoing, to an unapproved portion of an OCF-18 for physiotherapy and to an OCF-18 for chiropractic services.

4The respondent submits that I made significant errors of fact and law such that I would likely have reached a different decision. First, Aviva argues that I failed to apply the statutorily mandated 26-week waiting period to T.A.’s claim for NEBs.³ Second, Aviva argues that I misconstrued how it handled T.A.’s claim in determining that T.A. was entitled to an award under O. Reg. 664. Third, Aviva argues that I erred in determining that the proposed psychological assessment was reasonable and necessary by giving little weight to an August 16, 2018 Psychiatric Insurer’s Examination (“IE”) Assessment Report by Dr. Velan Sivasubramanian, psychiatrist. As a result, Aviva seeks an order that T.A. is not entitled to:

(i) NEBs for the period of September 22, 2016 to the end of the 26-week waiting period, namely March 17, 2017;

(ii) the psychological assessment; and

(iii) to any award under O. Reg. 664.

5T.A. requests that I deny Aviva’s request for reconsideration but submits that the starting date for which she is entitled to NEBs is October 6, 2016 rather than September 22, 2016.

RESULT

6Aviva’s reconsideration request is granted in part. I erred in determining that T.A. is entitled to NEBs for the period commencing September 22, 2016 and to an award under O. Reg. 664 in the amount of 25% of the total NEBs owing to T.A. Instead, I find that:

(i) T.A. is entitled to NEBs for the period of October 25, 2016 to August 28, 2018 in the amount of $185.00 per week, less any amounts previously paid, plus interest in accordance with s. 51 of the Schedule; and

(ii) T.A. is not entitled to an award under O. Reg. 664 regarding her claim for NEBs.

7The remainder of Aviva’s request for reconsideration is denied.

PROCEDURAL ISSUE: Exclusion of October 25, 2016 Correspondence from Aviva

8In its reconsideration submissions, Aviva included a letter dated October 25, 2016 that was addressed to T.A and copied to T.A.’s counsel’s office. Aviva referenced this correspondence to support its position regarding the timing of T.A.’s potential entitlement to payment of NEBs and to demonstrate that Aviva provided notice to T.A. regarding the date of onset of potential entitlement to funding of NEBs.⁴

9In her responding reconsideration submissions, T.A. sought to exclude Aviva’s October 25, 2016 correspondence as evidence for the reconsideration for the following reasons:

(i) Aviva failed to establish that the October 25, 2016 letter could not have been produced at initial hearing;

(ii) the letter is unreliable; and

(iii) Aviva failed to prove that it ever sent T.A. the October 25, 2016 letter.

10As T.A.’s request to exclude the October 25, 2016 correspondence arose only in her responding submissions to Aviva’s reconsideration request, I issued an Order on April 6, 2020 allowing Aviva to file reply written submissions on the issue of the admissibility of the October 25, 2016 correspondence.

11At the outset, I give no weight to T.A.’s argument that the October 25, 2016 letter was never sent to T.A. Section 64(2)(a) of the Schedule permits service of any document via fax to a person’s solicitor. Aviva included in its April 20, 2020 Reply Submissions a copy of the fax confirmation sheet indicating that the October 25, 2016 letter was faxed on the same date to T.A.’s counsel’s firm.⁵ As such, I find that Aviva served the October 25, 2016 correspondence in accordance with the Schedule.

12I also do not agree with the test for admissibility of new evidence as advanced by T.A. The test for new evidence is set out in Rule 18.2(d) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”): “There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.” Therefore, I do not agree that Aviva is required to prove that the document is reliable as suggested by T.A., but rather that the document would likely have affected the result of the hearing.

13It is undisputed that the October 25, 2016 correspondence does not meet the first two parts of the new evidence admissibility test. Aviva did not deny that the October 25, 2016 correspondence was in existence at the time of the hearing and acknowledged that the correspondence was not before me when I rendered my initial hearing decision.

14However, I find that the inclusion of the October 25, 2016 letter in the hearing evidence would likely have affected the following results of the hearing:

(i) the period for which Aviva was required to pay NEBs to T.A., discussed in paragraphs [32] to [36] below; and

(ii) my decision to order an award under O. Reg. 664 regarding T.A.’s claim for NEBs, discussed in paragraphs [46] to [48] below.

15Therefore, while the October 25, 2016 correspondence does not meet the first two prongs of the new evidence admissibility test under Rule 18.2(d), I am waiving the requirements of the first two parts of the test on my own initiative pursuant to Rule 3.1 of the Rules to ensure a substantively fair process and result, as I find that the October 25, 2016 correspondence would have affected the original hearing results on more than one issue. As such, T.A.’s request to exclude the October 25, 2016 letter from the evidence for the reconsideration is denied.

ANALYSIS

16The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Rules. The ground that Aviva submits applies in this matter is Rule 18.2(b), that I made errors of fact and law.

17In order to interfere with a decision under Rule 18.2(b), I must not only have made an error of law or fact, but that error of law or fact must be enough that, if corrected, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

18Aviva argues that I made the following three errors of fact and/or law in the decision:

(i) I failed to consider or apply the statutorily mandated 26-week waiting period applicable to T.A.’s claim for NEBs;

(ii) I concluded that the delay within the waiting period in adjusting T.A.’s NEB claim was unreasonable and, as a result, ordered an award under O. Reg. 664; and

(iii) I misapprehended the evidence and facts leading to a determination that T.A. was entitled to the proposed psychological assessment and resulting award for same under O. Reg. 664.

19I agree with Aviva that I erred in determining that T.A. is entitled to NEBs for the period commencing September 22, 2016. However, I do not agree that this error was as a result of failing to apply or to consider the 26-week waiting period set out in the Schedule, or that this waiting period applies. Rather, I find that T.A. is entitled to NEBs for the period of October 25, 2016 to August 28, 2018 in the amount of $185.00 per week, less any amounts previously paid, plus interest in accordance with s. 51 of the Schedule.

20I also find that I erred in determining that T.A. was entitled to an award under O. Reg. 664 in the amount of 25% of the total NEBs owing.

21I find that I made no other errors in the decision such that I would have likely come to a different outcome.

NEBs: The 26-week waiting period and s. 36 of the Schedule

22In the decision, I found that T.A.’s application for NEBs was complete as of September 22, 2016.⁶ I further found that Aviva provided no notice of its denial to pay NEBs to T.A. that complied with s. 36(4) of the Schedule until August 28, 2018. As a result of the consequences set out in s. 36(6) of the Schedule, I held that Aviva was required to pay NEBs to T.A. for the period of September 22, 2016 to August 28, 2018 in the amount of $185.00 per week, less any amounts previously paid, plus interest.

23Aviva submitted that I erred in determining that it was required to pay T.A. NEBs for the period of September 22, 2016 to March 17, 2017 because:

(i) the issues in dispute clearly identified the period in dispute for NEBs as March 17, 2017 to date and ongoing; and

(ii) Section 12(4)(a) of the Schedule, “mandates that an Insurer is not required to pay NEBs for the first 26 weeks after the onset of the complete inability to carry on a normal life.”⁷

24Aviva also asserted that I did not provide any discussion as to why NEBs might be payable beginning on September 22, 2016, rather than 26-weeks after T.A. “could become eligible.”⁸ Aviva argued that changing the applicable period in dispute for NEBs without consulting the parties constituted a breach of procedural fairness and resulted in both parties incurring additional costs to file and respond to a request for reconsideration.

25I agree with Aviva that I made an error regarding the period for which it is liable for payment of NEBs to T.A.; however, I do not agree with Aviva’s submission that T.A. is only entitled to NEBs commencing on March 17, 2017.

26In the decision, I correctly identified the issue in dispute between the parties regarding NEBs.⁹ However, T.A. also clearly raised the issue of the timing and sufficiency of Aviva’s notice of its denial for NEBs within her hearing submissions for an award.¹⁰ In response to the issue raised by T.A., I examined all of the evidence before me regarding the timeliness and sufficiency of Aviva’s responses in light of its obligations under s. 36 of the Schedule. As such, I do not agree with Aviva’s reconsideration submission that I failed to provide any discussion as to why T.A. was entitled to NEBs for the period beginning on September 22, 2016. This discussion can be found at paragraphs [6] through [16] of the decision.

27Once I determined that Aviva’s notices were deficient, the only place to go to determine the period for which T.A. was entitled to NEBs was s. 36 of the Schedule. Simply because this section was not specifically identified by T.A.’s counsel does not mean that it can be ignored. After all, s. 280(4) of the Insurance Act¹¹ mandates the resolution of the parties’ disputes in accordance with the Schedule.

28Nevertheless, on June 3, 2020 I requested further submissions from the parties in relation to paragraphs [9] to [16] of the decision on the intersection of s. 36 and s. 12 of the Schedule in light of the Tribunal’s reconsideration decision in T.H. v. Aviva Insurance Company of Canada.¹² In T.H. v. Aviva, Adjudicator Jovanovic stated:

In M.F.Z. v. Aviva, 2017 CanLII 63632 (ONLAT) at paragraph 39 of the decision the Executive Chair of the Tribunal wrote the following in interpreting sections of the Schedule:

The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [citation omitted]. This approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.

In my view, applying the modern approach to statutory interpretation, the respondent would have been required by section 36(6) of the Schedule to pay the non-earner benefit until such time as it complied with section 36(4)(b). There is no other reasonable interpretation of section 36(6). Otherwise, the “shall pay” provision would be rendered meaningless (my emphasis added).¹³

29In response to my request, Aviva first argued that T.H. v. Aviva was irrelevant because Aviva was not disputing my finding that T.A. was entitled to NEBs, whether proper notice was provided and when, or even, the date to which NEBs should be funded.¹⁴ Alternatively, Aviva argued that s. 36(6) of the Schedule does not preclude adherence to s. 12 of the Schedule. Rather, Aviva argued that s. 12 and s. 36 work in conjunction but then failed to provide any discussion or analysis on this point and simply reiterated its initial position that the earliest date upon which T.A. could be entitled to payment of NEBs would be at the conclusion of the mandatory 26-week waiting period. Aviva relied upon three previous decisions of the Tribunal to support its position.¹⁵ These decisions, however, only address the 26-week waiting period without addressing s. 12 in light of notice issues and s. 36(6) of the Schedule.

30I disagree with Aviva’s first argument that the decision in T.H. v. Aviva is irrelevant to this reconsideration. In fact, T.H. v. Aviva supports my initial finding that Aviva is obliged to pay NEBs to T.A. prior to the 26-week waiting period based on the combined language of s. 36(4) and s. 36(6) of the Schedule. In applying the modern approach to statutory interpretation, s. 36(6) of the Schedule requires Aviva to pay NEBs until such time that it complied with s. 36(4). To accept Aviva’s position that it was somehow not required to respond to T.A.’s completed application for NEBs prior to 26 weeks after the accident is contrary to the mandatory language in s. 36(4) of “shall” and, in effect, would render its obligations in s. 36(4), and resulting repercussions in s. 36(6), meaningless. Moreover, s. 36(6) requires payment of a specified benefit for the period starting on the day the insurer receives an Application for Accident Benefits (“OCF-1”) and a completed Disability Certificate (“OCF-3”) if an insurer fails to comply with subsection (4) “within the applicable time limit” of 10 business days. Aviva did not dispute my finding that it only complied with its obligations under s. 36(4) of the Schedule on August 18, 2018. There is simply no other reasonable interpretation of s. 36(6) except to find that Aviva is required to pay NEBs to T.A. from the date that it received T.A.’s completed OCF-1 and OCF-3 until August 28, 2018, when Aviva finally complied with s. 36(4)(b) of the Schedule.

31I also do not agree with Aviva’s second argument that s. 12 and s. 36 of the Schedule work in conjunction to support its original position that the earliest date upon which T.A. could be entitled to payment of NEBs would be at the conclusion of the mandatory 26-week waiting period. As stated above, Aviva provided no analysis or discussion to support this position. The repercussions set out in s. 36(6) of the Schedule, as discussed in the decision at paragraph [10], arise after the insurer receives a completed application for NEBs, not after the 26-week waiting period set out in s. 12(4)(a).

32I do find, however, that I erred in determining that T.A.’s NEB application was complete as of September 22, 2016.¹⁶ In the decision, I confirmed that a completed application for NEBs included an OCF-1 and an OCF-3, and that it is this completed application that triggers the 10-day period set out in s. 36(4) of the Schedule for the insurer to respond.

33As part of its reconsideration submissions, Aviva submitted that T.A.’s OCF-1 was dated September 20, 2016 but submitted that it only received the OCF-3 on October 11, 2016.¹⁷ The date that Aviva received the OCF-3, however, is nowhere to be found in the evidence and Aviva’s submission on this issue does not constitute evidence. The parties also failed to provide me with information on this very issue when I requested particulars as part of my April 6, 2020 Order.

34The only documentary evidence before that confirms a date as to when T.A.’s application for NEBs was complete is Aviva’s October 25, 2016 correspondence. While this letter does not provide the specific date that the OCF-3 was submitted to Aviva, it does confirm that Aviva had received both the OCF-1 and OCF-3 at least by October 25, 2016.

35I also do not agree with T.A.’s reconsideration submissions that the correct date for the commencement of payment of NEBs is October 6, 2016, which was 10 days after the date of the OCF-3 of September 22, 2016. The 10-day period provided for in s. 36(4) of the Schedule concerns the period for which an insurer has to respond to an OCF-1 and OCF-3 and has no impact on the date that an insurer becomes liable for payment under s. 36(6).

36Therefore, based on all of the reasons set out above, the only evidence that I have before me is the October 25, 2016 correspondence that confirms that, as of this date, T.A. had submitted both her OCF-1 and OCF-3 to Aviva. As s. 36(6) of the Schedule obliges an insurer to pay NEBs for the period starting on the day the insurer receives the OCF-1 and OCF-3 if it fails to comply with its obligations under s. 36(4), I erred in the decision by finding that T.A.’s application for NEBs was complete as of September 22, 2016. I find that the correct period for which T.A. is entitled to payment of NEBs in the amount of $185.00 per week is from October 25, 2016 until August 28, 2018, less any amounts paid, with interest in accordance with s. 51 of the Schedule.

The Psychological Assessment

37Aviva submitted that I erred in giving little weight to the Dr. Sivasubramanian’s August 16, 2018 Psychiatric IE Assessment Report in determining T.A.’s entitlement to a psychological assessment. Aviva argues that I made the following errors regarding Dr. Sivasubramanian’s report:

(i) affording little weight to the report because Dr. Sivasubramanian did not review pre-accident treatment records from Mackenzie Health, which Aviva submits were not available to provide to Dr. Sivasubramanian at the time of the assessment as a result of T.A.’s own actions;

(ii) exhibiting bias in my treatment of Dr. Sivasubramanian’s report in comparison to my treatment of the psychological pre-screen report included on the disputed OCF-18 and Dr. Aghamohseni’s October 19, 2018 Psychological Assessment Report because Dr. Aghamohseni also did not have T.A.’s pre-accident treatment records from Mackenzie Health for the completion of either report;

(iii) misreading Dr. Sivasubramanian’s report by finding that Dr. Sivasubramanian opined as to the reasonableness and necessity of psychological treatment as opposed to a psychological assessment; and

(iv) finding that Dr. Sivasubramanian’s report was completed well over two years after the submission of the OCF-18 seeking a psychological assessment when it was, in fact, completed one year and five months after the submission of the treatment plan.

38I disagree with Aviva that I made any error regarding Dr. Sivasubramanian’s report such that I would likely have come to a different decision regarding the psychological assessment. In the decision, I afforded little weight to Dr. Sivasubramanian’s report because it was not in existence in or about the time that the OCF-18 for a psychological assessment was submitted for consideration to Aviva. I agree that I erred in finding that Dr. Sivasubramanian’s report was completed well over two years after the submission of the OCF-18, but I do not agree that this error would have changed the outcome. As Aviva concedes, that the report was still completed well after the submission of the OCF-18 at one year and five months. Therefore, I find that, had this error not been made, I would not have likely come to a different decision because the fact remains that the report was not in existence at, or in existence reasonably close to, the time Aviva denied the proposed psychological assessment.

39Even if I was wrong in not attributing weight to Dr. Sivasubramanian’s report, I provided further reasons for preferring and ultimately relying upon Dr. Aghamohseni’s initial pre-screen report included in the OCF-18 over that of Dr. Sivasubramanian’s report. For example, regardless of the reasons why Dr. Sivasubramanian did not have the records from Mackenzie Health, Dr. Sivasubramanian still opined that T.A.’s group therapy was meeting T.A.’s needs following any accident-related mental health conditions without these records. In my view, I made no error in this reasonable criticism of Dr. Sivasubramanian’s report or in any of the other further reasons that I provided for preferring Dr. Aghamohseni’s initial pre-screen report over that of Dr. Sivasubramanian’s report.

40The remainder of Aviva’s submissions regarding Dr. Sivasubramanian’s report requests that it be weighed differently, which is not the purpose of a reconsideration. However, for completeness, I also find that I was not biased in my consideration of Dr. Sivasubramanian’s report when compared to Dr. Aghamohseni’s October 19, 2018 Psychological Assessment Report. I ultimately gave Dr. Aghamohseni’s October 19, 2018 report little weight as well when determining T.A.’s entitlement to the proposed psychological assessment because Dr. Aghamohseni’s October 19, 2018 report was, like Dr. Sivasibramanian’s report, not in existence in or about the time the OCF-18 was submitted to Aviva for consideration. Finally, I agree with T.A. that the excerpt cited by Aviva to challenge my finding that Dr. Sivasubramanian opined as to the reasonableness and necessity of psychological treatment as opposed to a psychological assessment is nowhere to be found on page 4 in Dr. Sivasubramanian’s report.

41For all of the reasons set out above, I find that Aviva failed to prove on a balance of probabilities that I made an error such that I would have likely come to a different decision regarding the little weight that I afforded to Dr. Sivasubramanian’s report in ultimately determining that T.A. was entitled to the psychological assessment.

The Award

42For the reasons that follow, I find that I erred in finding Aviva liable to pay an award under O. Reg. 664 to T.A. regarding her claim for NEBs. I find that I made no error of law or fact such that I would have come to a different decision in ordering an award to T.A. regarding the psychological assessment.

The Award and NEBs

43Aviva argued that I erred in finding that it delayed addressing T.A.’s NEB claim and, as a result, I erred in ordering an award in the amount of 25% of the total NEBs owing to T.A.

44T.A. argued that Aviva had not provided any arguments against my initial hearing findings regarding the deficiencies of Aviva’s notices or delay in adjusting T.A.’s claim for NEBs and that I made no error of fact or law to warrant reconsideration on this issue.

45In the decision, I found that Aviva was liable to pay an award to T.A. in relation to her claim for NEBs because there were several occasions that Aviva failed to comply with its obligations under the Schedule regarding notices and denials of benefits. Further, in determining the appropriate amount of the award, I was critical of Aviva not responding to T.A.’s claim for benefits with reasonable promptness.¹⁸

46I agree with Aviva that I erred in finding that it delayed addressing T.A.’s claim for NEBs because I did not have the October 25, 2016 correspondence before me. At paragraph [12] of the decision, I clearly stated, “Aviva’s first response to T.A.s application for NEBs was on March 2, 2017 via a Notice of IE.” This is incorrect. The October 25, 2016 letter was a response to T.A.’s claim for NEBs as it confirmed receipt of T.A.’s OCF-1 and OCF-3, it explained how to qualify for NEBs and referred to the 26-week waiting period. Therefore, I find that the first response from Aviva to T.A.’s claim for NEBs was on October 25, 2016 and not on March 2, 2017 as I originally stated.

47Moreover, simply because I found that none of Aviva’s denials of NEBs complied with s. 36(4) of the Schedule until its August 28, 2018 letter, which includes Aviva’s October 25, 2016 correspondence as it too failed to provide any medical and any other reasons as to why Aviva believed that T.A. was not entitled to NEBs, does not in and of itself amount to an unreasonable withholding or delay of payment of NEBs. At first instance, I placed significant weight on the timing of Aviva’s responses to T.A. in making my order for an award regarding T.A.’s claim for NEBs. It is clear that, while Aviva’s October 25, 2016 letter was deficient, it was nonetheless a timely response and no evidence was submitted at the hearing or for this reconsideration that T.A.’s counsel ever followed up with Aviva following its October 25, 2016 letter requesting clarification or further information.

48Based on all of the reasons set out above, I erred in finding that Aviva was liable to pay an award under O. Reg. 664 to T.A. regarding her claim for NEBs because, based on the evidence that is now before me, Aviva did respond promptly to T.A. and an insurer will not face a special award just because it misapplied the Schedule and “got it wrong.”¹⁹ An award under O. Reg. 664 is reserved for conduct that is unreasonable. Based on the record before me, I do not see that threshold having been crossed.

The Award and the Psychological Assessment

49I find no error in my decision to order an award to T.A. in the amount of 25% of the OCF-18 amount for the psychological assessment.

50Aviva submits that I erred in determining that T.A. was entitled to an award regarding the psychological assessment on the basis that T.A. had pre-existing psychological issues because, “the extent of these issues were not known at the time that the OCF-18 was submitted.”²⁰ I disagree. The OCF-18 clearly identified chronic schizophrenia as any disease, condition or injury that could affect T.A.’s response to treatment for her injuries in addition to setting out T.A.’s further psychological complaints at that time of anxiety, sleep difficulties, nightmares, accident flashbacks, feelings of isolation and disconnection, worried for her future and patterns of avoidance as a driver and passenger which contribute to a reduced sense of independence, decreased socialization and increased withdrawal and isolation. The OCF-3 dated September 22, 2016 also listed chronic schizophrenia as a prior condition.²¹ Additionally, Aviva submitted no evidence to support its position that it was not aware of T.A.’s pre-existing psychological issues at the time that the OCF-18 was submitted.

CONCLUSION

51For the reasons outlined above, Aviva’s reconsideration request is granted in part. I find that I erred in determining that T.A. was entitled to NEBs for the period commencing September 22, 2016. Instead, I find that T.A. is entitled to NEBs for the period of October 25, 2016 to August 28, 2018 in the amount of $185.00 per week, less any amounts previously paid, plus interest in accordance with s. 51 of the Schedule.

52I also find that I erred in finding that Aviva was liable to pay an award in the amount of 25% to T.A. regarding her claim for NEBs under O. Reg. 664. As a result, T.A. is not entitled to this amount.

53The remainder of Aviva’s request for reconsideration is denied.

Footnotes

1. 1T.A. vs. Aviva General Insurance Company, 2019 CanLII 110080 (ON LAT).
2. 2O. Reg. 34/10.
3. 3Although the accident in this matter occurred on September 17, 2016, T.A.’s insurance policy was entered into prior to June 1, 2016 and after September 1, 2010. Section 2(1.2) of the Schedule states that provisions of s. 12, as they read immediately before O. Reg. 251/15 came into force on June 1, 2016, apply in respect of contracts entered into or renewed on or after September 1, 2010 and before June 1, 2016. As such, s. 12(4)(a) as it read immediately before O. Reg. 251/15 came into effect provided that an insurer is not required to pay a NEB for the first 26 weeks after the onset of the complete inability to carry on a normal life.
4. 4Reply Submissions by the Respondent dated April 20, 2020, paras. 3 and 11.
5. 5Reply Reconsideration Submissions by the Respondent, tab C.
6. 6Supra note 1 at para. 11.
7. 7Request for Reconsideration by the Respondent, at para. 23.
8. 8Ibid. at para. 26.
9. 9Supra note 1 at para. 4.
10. 10Hearing Submissions of the Applicant, page 14.
11. 11R.S.O. 1990, c. I.8.
12. 122019 CanLII 77003 (ON LAT) (“T.H. v. Aviva”).
13. 13Ibid. at paras. 38-39.
14. 14Submissions by the Respondent dated June 10, 2020, paras. 3-4.
15. 1516-002892 v Allstate Canada Group, 2017 CanLII 39722 (ON LAT) at para. 46, 17-005228 v Toronto Transit Commission, 2018 CanLII 112108 (ON LAT) at para. 17 and 17-001363 v Allstate Canada, 2018 CanLII 39453 (ON LAT) at para. 19.
16. 16Supra note 1 at para. 11.
17. 17Supra note 7 at para. 49.
18. 18Supra note 1 at paras. 80 and 82.
19. 19See 16-002346 v. Unifund Assurance Company, 2017 CanLII 81583 (ON LAT) at para. 29.
20. 20Supra note 7 at para. 53.
21. 21Applicant’s Book of Exhibits, tab 8, page 95.