S.M. vs. Wawanesa Mutual Insurance Company, 2020 CanLII 80285

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: S.M. vs. Wawanesa Mutual Insurance Company, 2020 ONLAT18-008474/AABS

Before: Sandeep Johal, Adjudicator

Date: September 17, 2020

File: 18-008474/AABS

Case Name: S.M. vs. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Nick De Koning, Counsel

For the Respondent: Amanda M. Lennox, Counsel Rebecca J. Brown, Counsel

OVERVIEW

1The applicant filed a Request for Reconsideration from a decision dated January 7, 2020 ("Original Decision") in which I found the applicant to be entitled to 120 minutes of intermittent attendant care ("ACB"); 60 minutes per week for assistance with financial affairs and interest in accordance with the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule").

2I found that the applicant was not entitled a retroactive Form 1 for ACB's; 24 hour, 7 days a week supervisory care, 30 minutes per day of assistance with exercise and stretching nor an award. I further found that the definition of incurred expenses from the 2010 version of the Schedule applied to the applicant's case.

3The applicant submits I erred in law when; (1) I found that the applicant was not entitled to submit a retroactive Form 1; (2) that I erred in finding that the definition of "incurred" of the 2010 Schedule applies when the accident occurred prior to the 2010 Schedule coming into force; (3) that I erred in concluding that the interest rate on any overdue benefits is as set out in the 2010 Schedule; and (4) that I erred in law and fact by misapprehending all of the evidence regarding the safety concerns of the applicant and his request for 24 hour, 7 days a week supervisory attendant care.

4The applicant requests that the original decision be varied so that the applicant is entitled to claim for attendant care retroactively, the interest rate is amended to 2% per month; the applicant is not bound by the statutory definition of "incurred" in s. 3(7) of the 2010 Schedule; and that the applicant's ACB in the amount of $5,263.20 per month be allowed.

RESULT

5The applicant's Request for Reconsideration is denied.

ANALYSIS

6The grounds for a Request for Reconsideration are contained in Rule 18.2 of the Tribunal's Common Rules of Practice and Procedure.² A request for reconsideration will not be granted unless one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d. 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.

7The applicant relies upon Rule 18.2(b) that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made

(1) No error of law with respect to a retroactive Form 1 for ACB's

8The applicant submits that in my Original Decision I erred in law when I found that the applicant must meet a standard of impossibility, impracticability or urgency in regard to claiming entitlement to a retroactive Form 1.

9The respondent submits that the applicant's submissions are largely a recitation of the arguments contained in his original written submissions on the preliminary issue hearing. The respondent's position is that I considered the decisions the applicant relied upon and rejected them in favour of more recent and relevant jurisprudence from the Tribunal. The fact that in my original decision I did not agree with the applicant's submissions does not result in a finding that I erred in law.

10In the Original Decision, I stated as follows in paragraph 13:

Based on a review of the case law submitted by the parties, there is no strict bar against filing an application for ACB's on a retroactive basis and the respondent concedes that a retroactive Form 1 can be submitted and considered if it is reasonable and necessary and where there is evidence of urgency or a need and/or impossibility/impracticability of compliance with the requirements of the Schedule.³

8In paragraph 16, I stated as follows:

The applicant has not provided any submissions or evidence on why a retroactive Form 1 is required other than to state the case law supports that retroactive Form 1s are permissible. The onus is on the applicant and I have not been satisfied on a balance of probabilities that the applicant requires the ACB to be retroactive to October 14, 2015 or why section 42(5) of the Schedule could not be complied with.⁴

11I am not persuaded on a balance of probabilities that I erred in law in my Original Decision. I agree with the applicant that a retroactive Form 1 is permissible, however as stated in my Original Decision, the applicant has not provided any submissions or evidence on why a retroactive Form 1 is required other than to rely on case law that supports his position that retroactive Form 1's are permissible.

12Section 42 of the Schedule sets out the requirement for making a claim for an ACB. As stated in my Original Decision in paragraph 14, a right to a retroactive Form 1 is not an unqualified right, if it was, it would render s. 42 meaningless.

13Section 42(5) sets out that the insurer may, but is not required to, pay an expense incurred before a Form 1 that complies with this section is submitted to the insurer. In my view, the wording of the section provides the insurer with discretion. If the insurer is to consider paying an ACB expense that does not comply with the section, there must be a reason for the delay or non-compliance in order for the insurer to exercise that discretion.

14In the Financial Services Commission of Ontario ("FSCO") case of Kelly v. Guarantee Company⁵ that the applicant relies upon, Ms. Kelly had a reason for a retroactive Form 1 and her non-compliance with the Schedule, which was because she was in the hospital with life threatening injuries. Furthermore, Ms. Kelly was either physically or even legally incapable of instructing an occupational therapist in initiate a Form 1 examination during the initial period of her claim.⁶

15In paragraph 15 of the original decision, the Tribunal case of T.K. v. Unica Insurance,⁷ was referenced and its reasoning was adopted for the purposes of the Original Decision. In T.K. it was noted that the Kelly case allowed a retroactive Form 1 in a specific situation – i.e. where urgency and impracticability prevented compliance with s. 42(5).⁸ The Adjudicator in T.K. found that the factors from the Kelly case were not present in T.K. to allow a retroactive Form 1 over the language in s. 42(5) as the Form 1 did not establish a retroactive need for ACB's.⁹ Second, the Adjudicator found that there was no urgency, impossibility or impracticability of compliance with s. 42(5).¹⁰

16I agree with the rational and reasoning in T.K. and I adopted it for the purposes of the Original Decision. A reason was required for the delay in filing a retroactive Form 1 and that reason should explain the urgency, impossibility or impracticability of compliance with s. 42(5) of the Schedule. The applicant in the present case did not do so and as a result, the Original Decision found, based on the evidence, the applicant did not satisfy his onus in support of filing a retroactive Form 1. As a result, I find no error in law such that I would likely have reached a different result had the error not been made.

(2) No error of law in finding that the definition of "incurred" applies to the applicant's claim

17The applicant submits that I erred in law in finding that the "incurred" definition from s. 3(7) of the 2010 Schedule applied to his claim. It is the applicant's position that the "incurred" definition only applies to accidents that occurred on or after September 1, 2010.

18Furthermore, the applicant argues that my Original Decision misinterpreted the transitional provisions from the 2010 Schedule and the 1996 Schedule and that it was not necessary for an analysis of vested rights at page 16 of the Original Decision.

19The respondent submits the Original Decision took into account the applicant's submissions on the transitional provisions in the 2010 Schedule as well as the relevance of the McMichael v. Belair Insurance¹¹ line of cases which were decided under the 1996 Schedule and the applicant's arguments were rejected which does not result in an error of law.

20According to the respondent, in paragraphs 51-64 of the Original Decision, I went through the previous jurisprudence from the Tribunal and found at paragraph 57 that "rights are based on what is set out in the [Insurance Act] and regulations at the time of a claim rather than the date of the accident." (emphasis in original) The respondent also noted, as stated in paragraph 58 of the Original Decision, that I was bound by the Court of Appeal decision in Beattie v. National Frontier Insurance Co.,¹² where the Court of Appeal held that by virtue of s. 268.(1) of the Insurance Act an insured person's policy is amended to incorporate the benefits and exclusions contained in the new version of the Schedule when one comes into force.¹³

21It is the respondent's position that the Original Decision's reliance on previous Tribunal jurisprudence was reasonable and the statement that I was bound by the Court of Appeal's decision was correct. As a result, the respondent submits that I did not make any legal errors in the Original Decision as it relates to s. 3(7) of the 2010 Schedule and there were no errors that would likely have led the Tribunal to have reached a different result.

22The applicant relies upon the same arguments as in the Original Decision and the McMichael case. In paragraphs 59 and 60 of the Original Decision I provided my reasons for distinguishing the McMichael case and why I did not find it the applicant's argument persuasive.

23Furthermore, the applicant has not provided any submissions on the more recent cases from the Tribunal the respondent refers to; 18-001406 V. Certas Home and Auto Insurance Company;¹⁴ and 17-005604 v. Wawanesa Mutual Insurance Company.¹⁵ The applicant also does not address the respondent's submissions on the FSCO case of Barnes,¹⁶ the Court of Appeal case of Beattie and s. 268(1) of the Insurance Act.

24As stated in Barnes, s. 268(1) establishes three principles. First it displaces the concept of a motor vehicle liability policy as a private agreement between an insurer and its insured. The terms of the agreement are set by the legislation. Second, it makes the Schedule a part of every policy. Third, it makes all amendments to the Schedule a part of every policy, including all terms, conditions, provisions, exclusions and limits.¹⁷

25As a result, I found that the "incurred" definition applied to the applicant's case and I do not find there to be an error of law or fact in the Original Decision, such that I likely would have reached a different result.

(3) Applicable Interest Rate

26The applicant submits the Tribunal failed to observe the rules of procedural fairness by making a conclusion on interest without calling on the parties to provide written or verbal submissions on the issue.

27Furthermore, the applicant submits that the Original Decision failed to observe the binding decision of the Divisional Court in State Farm Mutual Automobile Insurance Company v. Federico,¹⁸ and Kulaveerasingam v. State Farm,¹⁹ where it was held that the applicant was entitled to interest at the "old" rate of two percent per month and the transitional provisions applied to claims arising from accidents between November 1, 1996 and September 1, 2010.

28The respondent takes the position that there was no breach of procedural fairness as the Tribunal Order dated December 12, 2018 listed as an issue; "what rate of interest applies to this case?" According to the respondent, the applicant's failure to persuade the Tribunal that the applicable interest rate should be 2% as opposed to 1% does not result in a breach of procedural fairness or an that an error of law was made in the Original Decision.

29In my view, there was no breach of procedural fairness. The original hearing took place over 4 days in-person and included oral submissions as well as written submissions from the parties on the issues in dispute. The applicant knew what the issues were before the in-person hearing took place and before the written submissions were due. The applicant was provided an opportunity to address this issue and as a result, I do not find there to be any breach of procedural fairness.

30The applicant for the first time and for the purposes of the reconsideration provides submissions and case law in support of his position. The respondent provided submissions in response and although a reconsideration is not the forum to raise new issues that were not addressed in the hearing, I find that for the sake of completeness, I will address the issue of interest as part of this reconsideration decision.

31The applicant relies upon the Federico and Kulaveerasingam cases from 2014 and 2017 respectively. However, as stated in the Original Decision at paragraphs 56-58, s. 268(1) of the Insurance Act, the FSCO case of Barnes, and the Court of Appeal case of Beattie, state that when a new version of the Schedule comes into force, the insured's policy of insurance is amended to incorporate the benefits and exclusions contained in the regulations.

32In the Original Decision I preferred the more recent decisions of the Tribunal in 18-001406,²⁰ and 17-005604.²¹ The FSCO case of Barnes and the Court of Appeal case of Beattie. All of them specifically addressed s. 268(1) of the Insurance Act in arriving at their conclusion. In Barnes, the Arbitrator went through the case law, s. 268(1) of the Insurance Act, the transitional rules in both Schedules and the FSCO bulletin and found that the in the Federico decision, the Arbitrator did not consider the effect of s. 268(1) of the Insurance Act or the Beattie case from the Court of Appeal. In Barnes it was held that the Federico approach is inconsistent with s. 268(1) of the Insurance Act and incompatible with the history of frequent amendments to the Schedule.

33I pause to note that the Barnes case was appealed to the Divisional Court for a judicial review and the judicial review was dismissed on the grounds that the issue was moot as the parties settled their claim with respect to whether the attendant care provider had sustained an economic loss. As a result, the finding of the Arbitrator in Barnes was not disturbed and I find his analysis persuasive.

34In conclusion, in the Original Decision, I found that as a result of s. 268(1) of the Insurance Act, the persuasiveness of Barnes and the Tribunal cases of 18-001406 and 17-005604, as well as the binding Court of Appeal case of Beattie, the applicable interest rate was in accordance with the 2010 Schedule. I do not find that to be an error of law such that the Tribunal would likely have reached a different result had the error not been made.

(4) No factual error as to the amount of amount attendant care

35The applicant submits I failed to give appropriate weight to the applicant's occupational therapist and her observations that the applicant requires more supervisory care. Furthermore, the applicant claims that I misapprehended and or disregarded the evidence of the applicant's friend, his niece and of the applicant himself.

36The respondent submits the Original Decision considered all of the evidence and determined that the applicant did not require the increased attendant care recommended in the Form 1. The respondent notes the Original Decision considered the following evidence in arriving at its conclusion:

a. The applicant's testimony showed that he had adequately responded to a novel situation in the past (para. 28);

b. The applicant's niece's testimony that the applicant would respond appropriately if faced with an emergency situation, such as a fire (para. 27);

c. The applicant's treating occupational therapist for six years prior to the submission of the new Form 1, Ellen Pellet, did not observe any behaviour to show that the applicant required supervisory care or was a danger to himself (paras. 30 and 36);

d. The respondent's assessing occupational therapist, Tracy Shaw, had met with the applicant on four separate occasions and determined that the applicant did not require constant supervisory care based on the responses to the emergency related questions (paras. 31-36); and,

e. The applicant's new assessing occupational therapist, Larisa Kalins, only met with the applicant on one occasion and based her opinion that the applicant required constant supervisory care in response to one incident involving a faulty carbon monoxide detector (paras. 26, 27, 29, and 36).

37According to the respondent, the above evidence as noted in the Original Decision supported the conclusion that the applicant was not entitled to increased attendant care. Other than the one incident of a faulty carbon monoxide detector which in the Original Decision was found not to be an unreasonable reaction, the occupational therapist did not provide any other meaningful examples to suggest the applicant was a danger to himself or others to justify his need for constant supervisory care. Furthermore, based on the testimony of the applicant, his friend and his niece, the evidence did not establish that the applicant required constant supervisory care or that he was a danger to himself.²²

38I agree with the respondent. Ms. Kalins' testimony was just one piece of evidence and I found based on the totally of the evidence that the applicant does not require constant supervisory care. Having reviewed the decision, I am satisfied that no such errors of law or fact were made.

39The applicant is essentially asking the Tribunal on this reconsideration to re-weigh the evidence. The findings of fact were made based on the testimony of the witnesses and conclusions were reached based on that evidence. Although the applicant may not agree with the Tribunal's reasoning or finding, this is not a ground upon which a reconsideration can be granted. After reviewing the decision, I find that the Original Decision provided sufficient reasons and explanations for weighing the evidence the way that it did. It is not the role of a reconsideration to re-weigh evidence that has already been properly considered in the Original Decision; that role is to be determined by the hearing adjudicator and entitled to deference. As a result, I do not find there to be an error in fact or law as alleged by the applicant.

CONCLUSION

40For the reasons noted above, I dismiss the applicant's Request for Reconsideration.

Footnotes

1. 1O. Reg 34/10.
2. 2Effective February 7, 2019.
3. 3S.M. v Wawanesa Mutual Insurance Company, 2020 CanLII 14420 (ON LAT) at para. 13. ("Original Decision")
4. 4Ibid at para. 16.
5. 5FSCO A12-006663 ("Kelly").
6. 6Kelly at page 6.
7. 72017 CanLII 15385 (ON LAT) ("T.K.").
8. 8T.K. at para 39.
9. 9Ibid at para. 40.
10. 10Ibid at para. 41.
11. 112007 CanLII 17630 (ON SCDC) ("McMichael").
12. 122003 CanLII 2715 (ON CA) ("Beattie").
13. 13Paragraph 58 of the original decision.
14. 142018 CanLII 132564 (ON LAT). ("18-001406").
15. 152018 CanLII 140989 (ON LAT). ("17-005604").
16. 16Motor Vehicle Accident Claims Fund v. Barnes, 2017, FSCO P16-00087 ("Barnes").
17. 17Barnes at pg. 6.
18. 182014 ONSC 109 ("Federico")
19. 192017 ONSC 6278 (Kulaveerasingam')
20. 20Supra Note 14.
21. 21Supra Note 15.
22. 22Supra Note 3, Original Decision dated January 7, 2020 at paras. 27, 28, 41-43.