Thiyagarajah Balachandran v. Economical Insurance, 2022 CanLII 124644

21-014940/AABS- PI

Licence Appeal Tribunal File Number: 21-014940/AABS

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:

Thiyagarajah Balachandran

Applicant

and

Economical Insurance

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Thiyagarajah Balachandran, Applicant

Patrick Poupore, Counsel

For the Respondent:

Krystle Brazier, Claims Representative

Jonathan Charland, Counsel

HEARD:

By way of written submissions

OVERVIEW

1This proceeding concerns a dispute between an insured person (the “applicant”) and an insurer (the “respondent”) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on September 21, 2021.

2At the case conference before Vice-Chair Campbell, the respondent raised a preliminary issue in relation to the Attendant Care Benefits (“ACB”) in the amount of $1,650.86 per month. The respondent argued that the Tribunal does not have the jurisdiction to hear this matter under section 280 of the Insurance Act, R.S.O. 1990, c. I.8, as the ACB has been approved, and there has been no submission or denial of expenses or benefits.

3I must decide the following:

i. Does the Tribunal have jurisdiction under s. 280 of the Insurance Act, RSO. 1990, c. I.8, in this matter?

BACKGROUND

4The applicant was involved in the subject accident on September 21, 2021. He submitted to the respondent a Form 1 for the ACB dated November 10, 2021 and in the monthly amount of $1,650.86. On November 17, 2021, the respondent agreed to reimburse the incurred expenses for the ACB pursuant to the Form 1 and requested that an expense claim for incurred expenses be submitted.

5The applicant submitted an updated Form 1 in the monthly amount of $1,241.52. The respondent requested that an expense claim be submitted so that the applicant could be reimbursed for his incurred expenses.

6The respondent did not receive from the applicant any expense claims for the ACB and nor has it denied the applicant any incurred expenses for the ACB.

PARTIES’ POSITIONS

7The respondent submitted that Section 280 of the Insurance Act grants the Licence Appeal Tribunal jurisdiction to resolve disputes (i) in respect of an insured person’s entitlement to statutory accident benefits or (ii) in respect of the amount of statutory accident benefits to which an insured person is entitled, in accordance with the Schedule.

8At the time the application was filed with the Tribunal, there was no live dispute with respect to the applicant’s entitlement to statutory accident benefits, specifically the ACB. The respondent agreed that the applicant was entitled to the ACB pursuant to the Form 1s that were submitted by Whitney Martin, OT. However, no attendant care expenses have been submitted. As such, without a live dispute with respect to the entitlement of accident benefits or the amount of accident benefits, the Tribunal does not have jurisdiction to hear this application.

9The applicant is of the view that the Tribunal has jurisdiction as there is a dispute. The applicant submitted that while the amount of the benefit is not in dispute, there is a dispute about the hourly rate at which the ACB will be paid. The applicant stated that:

First, the Guidelines on which Economical is getting their hourly rates from are the same Guidelines that they are choosing to ignore. With all due respect, that is the very nature of a dispute. Economical is cherry picking from the Guideline what suits them (ie, the rate) and ignoring what does not (that the rate is to be used to calculate the monthly total, as opposed to what they are obliged to pay a service provider).

ANALYSIS

10I find that there is no dispute because the insurer has agreed to fund the ACB in full. Neither the applicant’s entitlement to the ACB nor the amount of the ACB is an issue in dispute.

11The Schedule sets out the process of applying for the ACB. Pursuant to section 42(1), an application for the ACB must be in the form of and contain the information required to be provided in the version of the document titled “Assessment of Attendant Care Needs”, also known as the Form 1. It must also be prepared and submitted to the insurer by an occupational therapist or a registered nurse. I am satisfied that the applicant complied with this section. The application was made on an approved Form 1 and prepared by an occupational therapist.

12Pursuant to section 42(3), within 10 business days after receiving the Form 1, the insurer shall give the insured person a notice that specifies the expenses described in Form 1, the expenses the insurer refuses to pay and the medical and any other reasons for the insurer’s decision. I am satisfied that the respondent responded within 10 business days for each Form 1.

13Upon review of the notices sent out by the respondent in relation to each Form 1 submitted by the applicant, I find there is nothing that indicates that there is a denial. Rather, each notice indicates a clear approval for the amount in full claimed by the applicant. The respondent did request that the applicant provide his expense forms so that the applicant can be reimbursed for the incurred expenses, which I find consistent with s. 19(1) of the Schedule. I also find that the amounts that are found in both Form 1s have been determined in accordance with the requirements set out in section 19(2) of the Schedule.

14The applicant conceded that the amount is not in dispute. Rather, the applicant submits that the issue is the rate at which the applicant seeks to consume for the “amount of statutory accident benefits to which [the applicant] is entitled.” The applicant contends that there is a dispute because the respondent insists that they will pay the hourly rate set out in the Guideline and not the rate of the service provider of the applicant’s choice.

15The applicant relies on T.N. v TD Insurance Company, 2020 CanLII 27380 (ON LAT) (‘T.N.’). I find T.N. to be distinguishable from the facts before me. In T.N., the Form 1 was not approved in its entirety. In T.N., the dispute arose with respect to the quantum. In this case, the respondent approved each of the Form 1s in full. There is no dispute with respect to the quantum. I do not find this case to be persuasive.

16The respondent relies on, and I am persuaded by, the reasoning in J.R. v. Primmum Insurance, 2018 CanLII 140991 (ON LAT) where Vice-Chair Flude stated:

Section 280 [of the Insurance Act] provides that either the applicant or

respondent may apply to the Tribunal to resolve a dispute over the applicant’s entitlement to a statutory accident benefit or the amount of the benefit. In my view, there must be a dispute at the time of application. The Tribunal’s jurisdiction over a matter is determined as of the date upon which the Notice of Application for Dispute Resolution is first filed with the Tribunal. If, at that date, there is a dispute over entitlement to or the quantum of a benefit, then the Tribunal has jurisdiction. If there is not, then the application has no validity and must be dismissed because of a lack of jurisdiction.

17He found that the Tribunal had jurisdiction because the issue of entitlement to the income replacement benefit was still in dispute at the time when the application was filed with the Tribunal. The difference in this case is the fact that there was no dispute to entitlement or quantum because the respondent agreed to pay for the ACB pursuant to the Form 1s that were submitted.

18I am not persuaded by the applicant’s position. Section 280(1) of the Insurance Act confers the jurisdiction on the Tribunal in relation to the resolution of disputes that are with respect to an insured person’s entitlement to statutory accident benefits or the amount of statutory accident benefits to which an insured person is entitled to.

19There is no dispute with respect to the applicant’s entitlement to a statutory accident benefit (i.e., the ACB), or in respect of the amount of that statutory accident benefit. Each of the Form 1s was approved in full by the respondent. There is no denial in the notices sent out by the respondent. If there is no denial, then there is no dispute. If there is no dispute, then the LAT has no jurisdiction.

20It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. Had the legislature intended that the Tribunal resolve disputes on the rate of consumption of the amount of the statutory accident benefits that have been approved by the respondent, then it would have been reflected in the legislation. The legislature specifically notes entitlement and the amount to statutory benefits in s. 280 but has not included the issue of the rate consumption. This must be taken as intentional.

21I note that the Tribunal has adjudicated matters where the hourly rate has affected the total amount of statutory accident benefits that the applicant has claimed and denied by the respondent. However, I find that the Tribunal has jurisdiction in those cases because their issues pertain to the amount of statutory accident benefits to which the insured person is entitled, consistent with s. 280 of the Insurance Act. In this case, there is no dispute with respect to the entitlement or the amount of the ACB as both have been approved by the respondent.

CONCLUSION

22I find that the Tribunal does not have the jurisdiction to hear this application.

ORDER

23I order the application is dismissed as the Tribunal does not have the jurisdiction.