S.K. v. Aviva Insurance Canada, 2020 CanLII 94744

AMENDED RECONSIDERATION DECISION

Before: Jeffrey Shapiro, Vice-Chair

Date: November 18, 2020

File: 17-006866/AABS

Case Name: S.K. v. Aviva Insurance Canada

and

File: 17-006651/AABS

Case Name: R.K. v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Alon Rooz and Lisa Bishop, Counsel

For the Respondent: Louise Kanary and Michal Baura, Counsel

OVERVIEW

1Aviva seeks reconsideration of Vice-Chair Susan Mather’s June 16, 2020 decision covering both files.¹ The decision (1) ordered the final amount (or “quantum”) of the attendant care benefits (“ACBs”) due under the Schedule² and (2) ordered Aviva to pay an “award” of $1,500 on each file pursuant to Section 10 of O. Reg. 664 due to Aviva having unreasonably withheld or delayed payments. Aviva agrees with the quantum of the ACBs, but requests that I cancel the $1,500 award, for the reasons below.

RESULT

2Aviva’s requests for reconsideration are denied.

BACKGROUND

3To understand Aviva’s argument, the procedural histories are important. The facts in each are very similar and the legal issues identical. In June 29, 2018 decisions³, V.C. Mather found each was entitled to the ACB claimed for 2015 and 2016 and that the services were incurred. The awards were $10,307.56 for S.K. and $9,755.20 for R.K., both plus interest. No award was issued under Reg. 664.

4Aviva sought reconsideration of those decisions, which I granted in part on August 30, 2019⁴. I upheld the findings on hours incurred but agreed the amounts awarded were incorrect. The problem arose because the service providers’ invoices only listed the total hours worked but failed to breakout the services into the 3-skill level tiers and hourly rates provided in the Form-1s and applicable Guideline⁵. The hourly rate charged exceeded all the various Guideline rates. Thus, I noted in S.K.:

24. In this case, there are several possible methods to calculate the amount due, given that the invoices reflect that all the types of services have been performed, but without an exact allocation, and for less than all of the total hours. Given there are several methods, and there may be other methods, the parties should be given the opportunity to make submissions, and thus I remand this matter to the hearing adjudicator to decide that point.

25. To aid that process, I will mention three possible methods to calculate the quantum of the ACB to which S.K. is entitled. First, the Tribunal could attempt an actual allocation. Second, the Tribunal might consider applying a ratio of the Form 1’s allocated hours and rates to the hours preformed. Third, at a minimum, the Tribunal could conclude that although the applicant has established the hours incurred, she failed in her burden to establish the allocation, and thus the order should allocate to the lowest Form 1 rates first. This method produces a minimal award of $5,033.93, as follows… [Emphasis added.]

5The R.K. decision was verbatim except for the last line which simply read “This method produces the least possible amount that R.K. would be entitled to.”

6Aviva did not appeal either decision. A November 22, 2019 case conference did not resolve the case, and January 27, 2020 Motion Order added a special award.

7At the “quantum hearing” addressing both files, Aviva advocated for the third “minimal” approach and even found an error my calculation in S.K. and thus proposed a higher amount. In her June 16, 2020 decision, Adjudicator Mather agreed with Aviva’s submission and rejected the applicant’s ratio approach.

8V.C. Mather, nevertheless, found Aviva unreasonably withheld or delayed payment by “not paying the minimum amount of benefits owing promptly after the release of Vice-Chair’s Shapiro’s [August 20, 2019 reconsideration] decision.”⁶ On this point, V.C. Mather specified at paragraph 45 that she “considered the following facts”:

1. It was over two years ago that Aviva was first ordered to pay ACBs to the applicants;

2. It was over nine months ago that Vice-Chair Shapiro confirmed that Aviva owed the applicants ACBs. Aviva did not seek a review of that decision;

3. Aviva has not submitted any other method to calculate the benefits that would result in lower payments than would the minimum award approach it advocates for at this hearing; and

4. The difference in the ACBs payable under the ratio approach as compared to the minimum award approach is minimal. For S.K., for example, it amounts to less than $600.00 in total and for R.K. less than $200.00 in total…

9In other words, once Aviva did not appeal my reconsideration decision, there was no reason to delay paying the approximately $5,000 ‘minimal’ amount that was not appealed and final, while disputing an additional $200 and $600.

ANALYSIS

10The grounds for a request for reconsideration are in Rule 18.2 of the Tribunal’s Rules of Practice and Procedure.⁷ The relevant criteria Aviva argues is 18.2(b) which is that “the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision”.

11Aviva does not dispute the amount; its objection while stated in different ways boils down to it disagrees that it unreasonably withheld or delayed the payment.

12First, it argues that my reconsideration decision “did not order Aviva to make any payment…pending the final outcome of the quantum hearing” and the “quantum to be paid in attendant care benefits to the Applicant was also not yet decided”.⁸

13I disagree. As the applicants correctly submit, (1) an award does not require a breach of an order for payment, only that the payment be unreasonably withheld or delayed, and (2) Aviva’s argument also ignores the consumer protection context of this legislation. When an amount is settled, it is payable.

14Aviva’s position also ignores context. While the reconsideration did not explicitly say “and Aviva shall immediately pay that amount”, it also does not say, “and payment is stayed until a final hearing.” More importantly, the reconsideration sets a process for the amounts still in dispute but is essentially a final decision regarding the “minimal” amount – which in this case is the overwhelming amount in issue. In other words, it’s an appellate decision that Aviva accepted and which finally determined a sum-certain (or provides a formula) that is due from an insurer to an applicant. There is no risk of overpayment. There is no reasonable basis to delay it.

15Second, Aviva argues that it simply “followed the procedure” of the Reconsideration Decision and “it should not be penalized with a Special Award for following the procedure set out by the Tribunal” contending “no Orders were breached.”⁹

16I disagree. The procedure simply provides a basis to resolve amounts that remain in dispute after the reconsideration, but roughly $5,000 was not in dispute as a result of the reconsideration and still not paid despite being incurred several years earlier. Aviva does not show how following a procedure to address amounts still in dispute and paying amounts settled are mutually exclusive. Again, to reach Aviva’s result requires ignoring the insurer relationship – one of the utmost good faith – governed by the Schedule and reading the order as if is a corporate dispute. The bottom line is the reconsideration decision settled a minimum – and significant – amount due. As the applicants submit, “There was no justified reason to withhold the payments, on the lowest scale, especially in light of the positive obligation on insurers to pay on a timely basis in a system that is governed by consumer protection legislation.”

17Third, Aviva cites caselaw that it should not to be held to a “standard of perfection.” I agree, but V.C. Mather did not use that standard. The quantum decision refers to unreasonable delay and similar words, and the reasons reflect that Aviva acted unreasonably. As the applicants correctly submit, Aviva did not comply with the “minimum expectation that an insurer will pay any/all benefits it determines/knows are payable to the Applicant without unnecessary delay. Here, the insurer had an understanding of a minimum amount payable to each Applicant but chose instead to wait 10 months from August 2019 until the decision in June 2020 to pay the Applicant, in so doing causing difficulty and stress to the Applicants given that these awards are owing to their Attendant Care Service provider.”

18Fourth, Aviva argues that when an Order is appealed, typically there is an automatic stay. In support, Aviva cites section 5(5) of the Licence Appeal Tribunal Act, 1999 that provides for an appeal to the Divisional Court and allows for a stay until the appeal is finally disposed.

19Again, I find that concept misapplied. This was a reconsideration, not an appeal to the Divisional Court, so that section does not apply. Even if section 5(5) did apply, it provides a “court may grant a stay”, but is not automatic.¹⁰ At that, Aviva did not seek a stay, nor would it have made any sense as the unreasonably delayed amount was not subject to dispute – it has been finally adjudicated in the reconsideration and Aviva had accepted the decision. In fact, even if a stay applied, this would be a case to lift the stay as to the $5,000 not in dispute.

CONCLUSION AND ORDER

20As the applicants correctly argue, “there was a clear [reconsideration] decision that AC benefits were determined payable…, and nothing to suggest that the minimum shouldn’t be paid by means of any of the calculation options noted therein, at any time prior to a final decision on the quantum (knowing that at least the minimum amount for each would be ordered payable by the Tribunal).” Particularly, given the insurer-insured relationship, I find no error in the V.C.’s conclusion that it was unreasonable for Aviva to delay paying the settled “minimal” amount. The Tribunal’s June 16, 2020 decision issued by Vice-Chair S. Mather stands. Aviva’s request for reconsideration is dismissed.

Footnotes

1. 1S.K. vs. Aviva Insurance Canada 2020 CanLII 43700 (ON LAT). I note the decision itself lists the respondent in 17-006651/R.K. as RBC General Insurance Company; the respondent is Aviva in both.
2. 2Statutory Accidents Benefits Schedule, O. Reg. 34/10.
3. 317-006866 [S.K.] v Aviva Insurance Company, 2018 CanLII 95549 (ON LAT); 17-006651 [R.K.] v Aviva Insurance Company, 2018 CanLII 95570 (ON LAT), both dated June 29, 2018.
4. 4S.K. v. Aviva Insurance Canada, 2019 CanLII 94065 (ON LAT) and R.K. v. Aviva Insurance Canada, 2019 CanLII 94062 (ON LAT), both dated August 30, 2019.
5. 5Attendant Care Hourly Rate Guideline (October 2015), Superintendent’s Guideline No. 02/15.
6. 6S.K. vs. Aviva Ins. Ca. 2020 CanLII 43700 at paras 59 and 46 (June 16, 2020).
7. 7Licence Appeal Tribunal, Animal; Care Review Board, and Fire Safety Commission Rules of Practice and Procedure, October 2, 2017, as amended.
8. 8Requests for Reconsideration by the Insurer, for each file, at paras 15-18.
9. 9Requests for Reconsideration by the Insurer, for each file, at paras 19-20.
10. 10The full text of section 5(5) states: “An order of the Tribunal takes effect immediately unless the order provides otherwise but if section 11 allows for an appeal to the Divisional Court and such appeal is made, that court may grant a stay of the order until the appeal has been disposed of.” [Emphasis added.]```