Rida v. Wawanesa Mutual Insurance Company, 2021 CanLII 33695

Citation: Rida v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-013934AABS

Released Date: 04/20/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Hiam Rida

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Christopher A. Obagi, Counsel

For the Respondent:

James Schmidt, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Hiam Rida (“applicant”) was involved in an automobile accident on January 3, 2011 (“accident”) and subsequently declared catastrophically impaired on May 25, 2018. The applicant sought payment of attendant care benefits and housekeeping benefits provided by her daughters (“Zeinab” and “Rayan”) from Wawanesa Mutual Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Benefits were denied by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to receive attendant care benefit in the amount of $1,553.71 per month from August 1, 2019 to date and ongoing?

ii. Is the applicant entitled to receive housekeeping and home maintenance expenses in the amount of $100.00 per week from August 1, 2019 to date and ongoing?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4The respondent shall pay on account of issues i and ii above $3,771.14 for Zeinab’s services and $4,031.69 for Rayan’s services from August 1, 2019 to March 18, 2020, if not already paid. Interest is payable on any overdue payment of benefits pursuant to s. 51 of the Schedule. No award is made.

LAW

5Section 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by an aide or attendant.

ANALYSIS

Positions of the Parties

6The applicant submits that there is no dispute with entitlement to benefits² and the applicant does not take issue with the quantification of the loss.³ However, the applicant seeks payment in the amount of $3,771.14 plus interest from November 14, 2019 at 2 percent per month compounded monthly for Zeinab’s services and $4,031.69 plus interest from February 10, 2020 at 2 percent per month compounded monthly for Rayan’s services and a special award in the maximum amount.

7The respondent submits that it has paid or is in the process of paying the amounts for Zeinab and Rayan’s services and that the only remaining issue in dispute is the special award. The respondent takes the position that the applicant is not entitled to a special award and the Tribunal has no jurisdiction to make an award given that benefits are not in dispute.

8In reply, the applicant submits that interest and the special award remain unresolved issues and the Tribunal should render a decision on these issues.

Quantum

9It is clear from the submissions and emails between the parties that both parties have agreed on payment for Zeinab’s services in the amount of $3,771.14 and for Rayan’s services in the amount of $4,031.69.

10Based on this agreement I find that the respondent shall pay $3,771.14 for Zeinab’s services and $4,031.69 for Rayan’s services from August 1, 2019 to March 18, 2020⁴, if not already paid.

Interest

11Interest is payable on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Special Award

12Section 10 of Regulation 664 provides that the Tribunal may make a special award in addition to awarding benefits and interest if the respondent has unreasonably withheld or delayed payments.

13I disagree with the respondent’s submission that the Tribunal has no jurisdiction to make an award given that benefits are not in dispute. As there is no evidence before me that the benefits agreed to be paid have in fact been paid, the issue of payment and interest were outstanding at the commencement of this hearing and have been determined by me above. As a result, it is open to me to determine the special award issue.

14The applicant takes issue with the unreasonable delay by the respondent in adjudicating this relatively modest claim which includes unreasonable requests for information and unreasonable delays in quantifying the benefit which have led to an unreasonable withholding of benefits. The respondent denies any unreasonable withholding of payment and delay.

15I find that there was no payment unreasonably withheld or delayed because there is no evidence of this.

16The respondent requested affidavit evidence to prove that Zeinab and Rayan had provided the services for which payment was requested and retained accountants to estimate their economic loss as a result of providing care to their mother from August 1, 2019 to March 18, 2020, subject to the policy maximum. The request for affidavit evidence proved reasonable and prudent. Errors came to light when the affidavit evidence was compared to earlier information provided by the applicant.

17Although the accountants requested more information, the respondent overrode this request and required its accountants to calculate the economic loss. Retaining accountants to estimate the economic loss and the attendant delays in payment does not constitute unreasonable withholding or delaying of payment by the respondent. Once the quantum was agreed to, the respondent’s email of October 26, 2020 shows that the respondent sought to expedite payment.

18I find unpersuasive the applicant’s submission that financial hardship occurred because of the time the respondent took to accurately calculate the correct quantum because the applicant put forward no evidence to establish this. I also find unpersuasive the applicant’s submission that for the respondent to take 21 days or more to simply draft a cheque, when delay is at the crux of the issue in dispute, demonstrates the respondent’s complete indifference to the process and is contrary to the Unfair or Deceptive Acts of Practices, Ontario Regulation 7/00.⁵ I cannot find based on the evidence before me that the respondent’s conduct was contrary to O. Reg. 7/00.

19For these reasons, there is no award.

ORDER

20For the reasons outlined above, the respondent shall pay on account of issues i and ii in paragraph [3] above $3,771.14 for Zeinab’s services and $4,031.69 for Rayan’s services from August 1, 2019 to March 18, 2020, if not already paid. Interest is payable on any overdue payment of benefits pursuant to s. 51 of the Schedule. No award is made.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant’s submissions dated October 19, 2020, para. 1.
3. 3Applicant’s submissions dated October 19, 20201, para 5.
4. 4Applicant’s submissions dated October 19, 2020, para. 1.
5. 5Unfair or Deceptive Acts of Practices, O.Reg. 7/00, s. 1.9.