D.Y. v. Aviva General Insurance, 2020 CanLII 94780

RECONSIDERATION DECISION

Citation: D.Y. vs. Aviva General Insurance, 2020 ONLAT 18-011171/AABS

Before: Heather Trojek, Vice Chair

File: 18-011171/AABS

Case Name: D.Y. vs. Aviva General Insurance

Written Submissions by:

For the Applicant: Clifford Singh, Masgras Professional Corporation

For the Respondent: Catherine Zingg, Flaherty, McCarthy LLP

OVERVIEW

1This request for reconsideration was filed by the respondent, Aviva General Insurance. It arises out of an accident which occurred on November 16, 2016.

2In the decision under reconsideration, the Tribunal found that the applicant was entitled to non-earner benefits (NEBs) from July 27, 2017 to November 16, 2016 or $3,052.00 ($18.500.00 payable to 2 years post-accident less $15,447.50 paid by Aviva) plus interest¹. Aviva takes most issue with the award the Tribunal granted under s. 10 of O. Reg. 664².

3Aviva submits that the Tribunal acted outside of its jurisdiction and erred in fact when rendering its decision. Based on these errors, Aviva requests that the Tribunal’s entire decision be cancelled, and a new hearing be conducted.

4The applicant argues that the Tribunal reached the correct decision, and, as a result, Aviva’s request for reconsideration should be denied in full or at least in part.

5Pursuant to Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Common Rules”)., I have been delegated responsibility to reconsider this matter.

6For efficiency, I have, where applicable, set aside and made my own determination on several issues decided by the Tribunal.

RESULT

7Aviva’s request for reconsideration is granted in part.

8I grant Aviva’s request for reconsideration and set aside the Tribunal’s decision as it relates to the applicant’s entitlement to the following:

a) an award under s. 10 of O. Reg. 664;

b) $4,457.53 for concussion management recommended by Spinetec;

c) interest on NEBs ongoing from October 2017.

9Based on the evidence before me, I find that the applicant is not entitled to an award under s. 10 of O. Reg. 664 or to $4,457.53 for concussion management.

10I also find that the applicant is entitled to interest in accordance with s. 51 of the Schedule on NEBs from July 27, 2018 until the parties reached a settlement.

ANALYSIS

11The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one 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 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.

NEBs, Interest and Award

12In its decision, the Tribunal found that the applicant was entitled to NEBs from July 27, 2018 to November 16, 2018 plus interest owing as of October 2017. Aviva argues that the Tribunal acted outside its jurisdiction with respect to NEBs and related interest because the parties resolved the issue of NEBs between themselves before the written hearing was conducted. Aviva argues that the Tribunal’s decision in relation to NEBs and associated interest and award should be struck because the settlement reached by the parties renders them moot.

13In their reconsideration submissions, the parties both confirm that they did not inform the Tribunal that they resolved NEBs prior to the hearing and/or before the Tribunal’s decision was rendered. The applicant asserts and Aviva does not refute that the settlement reached by the parties was in relation to NEBs only and does not include associated interest and/or entitlement to an award.

14I am not persuaded by Aviva’s argument regarding the settlement. I find that the Tribunal made no error in rendering a decision regarding the applicant’s ongoing entitlement to NEBs. At the time its decision was rendered, the Tribunal had no knowledge that a settlement had been reached by the parties. The Tribunal therefore made no error in law in terms of acting outside of its jurisdiction.

15In this case, both parties failed to advise the Tribunal that they had resolved the issue of NEBs before it had rendered its decision. The error in this case does not lie with the Tribunal but with the parties.

Interest on NEBs

16In its decision, the Tribunal found that the applicant is entitled to interest on NEBs ongoing from October 2017.

17The respondent argues that the Tribunal made an error in law in awarding interest because the applicant’s entitlement to NEBs was resolved prior to the hearing. I have already determined that the Tribunal made no error in this regard.

18The respondent also argues that the Tribunal erred in law because it did not mention that Aviva paid $15,447.50 in NEBs to the applicant before terminating them. I do not agree. In paragraph [19] of its decision, the Tribunal states that Aviva paid NEBs to the applicant in the early summer of 2018. The evidence confirms that no NEBs were paid to the applicant prior to the summer of 2018. In this regard, Aviva has failed to demonstrate that the Tribunal made an error in law such that its decision regarding interest on NEBs should be overturned.

19Aviva further argues that the Tribunal made an error in law because it failed to provide reasons why it ordered interest to be payable on NEBs as of October 2017. I agree. Nowhere in its decision does the Tribunal explain why it ordered interest in NEBs payable as of October 2017. Failure to provide reasons is clearly an error in law. As a result, I set aside the Tribunal’s decision to award interest on NEBs.

20The Tribunal was asked to determine the applicant’s entitlement to interest on any overdue payment of benefits. The applicant concedes that she was paid NEBs up until July 26, 2018. In her hearing submissions, the applicant provides no arguments regarding her entitlement to interest prior to that date.

21As I have not set aside the Tribunal’s decisions regarding the applicant’s entitlement to NEBs from July 27, 2018 to November 16, 2018, I find that the applicant is entitled to interest on NEBs ongoing from July 27, 2018 in accordance with s. 51 of the Schedule up until the date that the parties settled the issue of NEBs.

Concussion Management

22The Tribunal found that the applicant is entitled to $4,457.15 for concussion management recommended by Spinetec Healthcare.

23In its hearing submissions, Aviva argued that the applicant was not entitled to this treatment because she failed to submit a treatment plan (OCF-18) as required by s.38(2) of the Schedule. Aviva submits that the Tribunal made an error in law because it failed to address this issue which Aviva raised in paragraph [80] of its hearing submissions. I agree.

24In her reconsideration submissions, the applicant concedes that she did not submit an OCF-18 for concussion management to Aviva. The applicant also concedes that the Tribunal failed to address this issue in its decision.

25Based on the submissions of the parties, I find that it was an error in law for the Tribunal to consider whether concussion management treatment was reasonable and necessary without first addressing whether the applicant had failed to comply with the section 38(2) of Schedule in not submitting an OCF-18. Section 38(2) is clear. If an insurer cannot be liable to pay an expense before a proper OCF-18 is submitted (subject to the prescribed exceptions), the Tribunal likewise cannot order the insurer to pay that expense in disregard of s. 38(2).

26In her reconsideration submissions, the applicant argues that the Tribunal’s decision should not be overturned for the following reasons:

a) Aviva did not raise the non-submission of the OCF-18 as a preliminary issue at the case conference; and

b) An OCF-18 for the same treatment was subsequently submitted to Aviva in accordance with the Tribunal’s decision.

27I was not persuaded by any of the arguments advanced by the applicant for the following reasons:

a. What was or was not discussed by the parties at the case conference is confidential;

b. The applicant was given the right to reply to the submissions made by the respondent regarding her failure to submit an OCF-18. The applicant however, chose not to file a reply. This would have been the correct avenue for the applicant to respond to this issue rather than raising it in response to Aviva’s request for reconsideration; and

c. If Aviva, in fact, failed to raise this issue at the case conference, it does not prevent Aviva from raising it at the hearing or absolve the Tribunal from addressing it. I am persuaded by the reconsideration decision of Linda Lamoureux in M.B. v. Aviva Insurance Canada³. In that case, the Executive Chair found that the Tribunal erred in law because it failed to consider an argument advanced by the applicant on the grounds that it was not raised at the case conference. This is analogous to what the applicant alleges occurred in this case.

28I reject the applicant’s argument that the Tribunal’s decision should not be overturned because the applicant has now complied with the Schedule and submitted an OCF-18 for concussion management. This is completely irrelevant and does not in any way change the fact the Tribunal made an error.

29Based on the evidence before the Tribunal, I find that the applicant failed to comply with the Schedule in not submitting an OCF-18 and as a result is not entitled to the treatment plan in question. For clarification, decision does not relate to the OCF-18 which was subsequently submitted by the applicant.

Section 10 award

30I grant Aviva’s request for reconsideration regarding the applicant’s entitlement to an award. I set aside the Tribunal’s decision for two reasons. First, I find that the Tribunal misapplied the test for granting a s. 10 award and, second, I find the Tribunal made a factual error, which, had it not been made, likely would have resulted in it making a different decision.

31Based on my review the evidence and submissions, or lack thereof, made at the hearing, I am not persuaded that Aviva unreasonably delayed or withheld payment of a benefit to the applicant. The applicant is therefore not entitled to an award.

The wrong test was applied

32In paragraph 57 (e) of its decision, the Tribunal states that an award is ordered in “cases where the conduct of the insurer has been unreasonable or wrongly motivated”. This is not the correct test. The criteria for granting an award is set out in Section 10 of O.Reg. 664, which provides that the Tribunal may grant an award if it finds that the insurer has “unreasonably withheld or delayed the payment of benefits”.

33The applicant argues that the Tribunal applied the correct test for granting an award and was just summarizing the test in its own words. This may be true. However, the Tribunal’s error in misstating the test was compounded with the fact that the Tribunal did not appear to have a sound understanding of the test or the case law relating to it.

34The test for granting an award is very specific and has been the subject of much consideration. The case law confirms that the bar for granting an award is very high. The conduct of the insurer must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”⁴ An award should not be ordered simply because an adjudicator finds that an insurer made an incorrect decision. This, however, is exactly what the Tribunal did in this case.

35In paragraph 57(e) of its decision, the Tribunal found the applicant entitled to an award because it found that Aviva had, in its opinion, enough evidence by mid-2019 to pay for everything rather than waiting for the results of a hearing. The Tribunal goes on to state that it has “no doubt” that the applicant’s “complete recovery has been adversely impacted by this”. The Tribunal also points to the fact that the applicant has also had “the expense of retaining a lawyer to present her case”.

36It is clear to me that the Tribunal did not understand and misapplied the test for granting the applicant entitlement to a s. 10 award. Not only did the Tribunal misquote the test, its reasons show that it did not appreciate that the applicant must demonstrate that Aviva’s conduct in adjusting her claim was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” I find that the primary reason that the Tribunal granted the applicant a s. 10 award was that, in its opinion, Aviva made the wrong decision and should not have required the applicant to hire a lawyer and attend a hearing. As noted above, this reasoning runs counter to established case law.

The decision was based on a factual error

37I also find that the Tribunal’s decision was based on factual error. In paragraph 18 of its decision, the Tribunal states that the “insurer paid less than $1,000.00 in medical benefits notwithstanding having recognized that her injuries fall outside the minor injury guideline”.

38In paragraph 12 of its hearing submissions, Aviva confirms that it in fact paid a total of $7,716.47 in medical and rehabilitation benefits to the applicant. The applicant concedes in her reconsideration submissions that the Tribunal made an error in finding that Aviva paid $1,000.00 in medical and rehabilitation benefits to the applicant. The applicant, however, argues that this was not a significant error. I do not agree.

39I agree with Aviva that the Tribunal put significant weight on this fact in reaching its decision to grant an award to the applicant. The Tribunal’s use of the word “notwithstanding,” when stating how much Aviva paid in medical and rehabilitation benefits, implies that the Tribunal viewed Aviva’s conduct negatively. I find that the Tribunal’s assessment of Aviva’s conduct was based on a significant error in fact.

40I also find the Tribunal’s decision contained contradictory findings with regards to how much Aviva paid in medical and rehabilitation benefits. In paragraph 11 of its decision, the Tribunal states that Aviva paid $1,000.00 in medical and rehabilitation benefits, yet in paragraph 12 it states that the applicant is entitled to an award equal to a 1/3 of $21,167.13, which is the amount of medical and rehabilitation benefits and assessments approved by the insurer’s assessors.

41Based on the inaccurate and contradictory findings noted above and the fact the Tribunal clearly applied the wrong test, I agree that the Tribunal erred and set aside its decision to grant the applicant an award.

42The applicant’s entitlement to an award will not be sent back to a hearing. Having reviewed the evidence and submissions made by the parties, I find no evidence that Aviva was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” when adjusting the applicant’s claim.

ORDER

43For all the foregoing reasons, Aviva’s request for reconsideration is granted in part as follows:

a) I set aside the Tribunal’s award under s. 10 of O. Reg. 664.

b) I set aside the Tribunal’s decision to grant the applicant entitlement to the concussion management treatment plan. The applicant is not entitled to the treatment plan in question for non-compliance with s. 38(2) of the Schedule and I make no decision in respect of the treatment plan that the applicant subsequently submitted.

c) I set aside the Tribunal’s decision granting interest on NEBs. Instead, I order the applicant is entitled to interest on NEBs ongoing from July 26, 2018 in accordance with s. 51 of the Schedule until the parties reached a settlement on the issue of NEBs.

d) All other decisions made by the Tribunal in this matter remain in full force and effect.

e) This matter will not be sent back to a hearing.

Footnotes

1. 1The Tribunal also found the applicant to be entitled to additional treatment and several medical assessments.
2. 2O. Reg. 34/10, as amended
3. 3M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), paragraphs 13-19.
4. 4Plowright and Wellington Insurance Company, OIC File No.: A-003985, 1993 CarswellOnt 4786, [1993] O.I.C.D. No. 62) ["Plowright"]. See also: S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT); Applicant v. Aviva Insurance Canada, 2018 CanLII 39473 (ON LAT); and Applicant v. State Farm, 2017 CanLII 85692 (ON LAT).