O'Brien v. Intact Insurance Company, 2022 CanLII 33200

Citation: O'Brien v. Intact Insurance Company, 2022 ONLAT 20-003729/AABS

Licence Appeal Tribunal File Number: 20-003729/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:

David O'Brien

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: David O'Brien, Applicant Randy F. Knight, Counsel

For the Respondent: Leanne Zawadzki, Counsel

Heard by way of written submissions

OVERVIEW

1The Applicant’s father was fatally injured in an automobile accident on April 25, 2010. As a result of the tragic passing of his father, the Applicant developed psychological injuries and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996.

2Certain issues arose during the adjusting of the Applicant’s claim and, as a result, he claims entitlement to an award, which the Respondent disputes. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

3The Parties’ exchanged affidavits for this hearing, then submitted sequential written submissions.

ISSUES

4The sole issue in dispute for this hearing is whether the Applicant is entitled to an award pursuant to section 10 of Reg. 664 because the Respondent unreasonably withheld or delayed payment of a benefit.

RESULT

5The Applicant is not entitled to an award. His application is dismissed. No costs are payable.

BACKGROUND

6The Applicant developed psychological injuries following his father’s passing in the subject accident. As a result, he sought psychological treatment and submitted a treatment plan for same, dated April 3, 2018 (“the treatment plan”). In response to the treatment plan, the Respondent sought an insurer’s examination (“IE”), pursuant to section 44 of the Schedule.

7The Applicant attended at and participated in the IE on June 1, 2018, and a corresponding report was issued on June 7, 2018. The IE assessor concluded that the psychological treatment sought by the Applicant was reasonable and necessary. Thus, the Respondent agreed to fund the treatment plan.

8However, the Applicant, through his counsel, asserts that no response was ever provided. According to submissions by counsel for the Applicant, the Tribunal must find in his favour and grant an award if it accepts that it is unclear whether the Respondent provided a copy of the Approval to him and his counsel. The Applicant submitted an affidavit of Gordon Harris to support his claims.

9The Respondent agrees that it erred and used the incorrect fax number when it sent the IE report and explanation of benefits approving the treatment plan. It also agrees that it incorrectly listed the email address for counsel for the Applicant as gharris@hurtline.com, instead of the correct email of gharris@harrishurtline.com and incorrectly named the office as Graves Richard Harris, instead of the correct name of Harris Law.

10The Respondent submits that it faxed the report and approval to the Applicant’s service provider and mailed the documents to the Applicant at his last known address and his counsel. The Respondent submitted an affidavit of Pearl Jin to support its claims.

ANALYSIS

11Pursuant to section 10 of O. Reg. 664, the Applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. An award may be granted where an insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

12The onus is on the Applicant to prove entitlement to the benefits claimed. In order to be successful in his claim for this hearing, the Applicant must show that the Respondent’s actions unreasonably withheld or delayed payment of a benefit.

13The Applicant has not met his onus. Here, the Applicant and his counsel provided no submissions or evidence to indicate that the Respondent unreasonably withheld or delayed payment of a benefit. Instead, they assert that they are entitled to an award of an unspecified amount simply because the Applicant never received the IE report and subsequent approval of a treatment plan. Indeed, the Respondent made errors in addressing documents but, an award can not be granted when there is no evidence or submissions that confirm that payment of a benefit was unreasonably withheld or delayed. Therefore, even if I were to accept that no approval ever made it to the Applicant, there remains no evidence showing that payment of the benefit was unreasonably withheld or delayed.

14It has long been established that insurers are not held to a standard of perfection. Mistakes, such as mislabelling a firm name and emailing or faxing a document to an incorrect address, are not errors that warrant an award be granted. This is because an award is intrinsically connected to the withholding or delay of payment of a benefit and such errors do not automatically cause a withholding or delay.

15To me, the proper procedure for this issue between the parties is outlined in section 38(11) of the Schedule. In the event of an untimely or absent response to a treatment and assessment plan, section 38 permits the Applicant to consume the goods and services listed in the treatment plan and the Respondent is liable to pay for same starting on the 11th day after the treatment plan was submitted and ending on the day when a valid response is provided. If no response to the treatment plan was ever provided, the Applicant was permitted to incur the goods and services outlined in it, as noted in section 38(11). Yet in this case, there is no evidence that shows the Applicant incurred any of the goods or services listed in the treatment plan.

COSTS

16The Respondent claims an unspecified amount of costs in this matter. It submits that the Applicant’s claim has no merit and that he has acted unreasonably and vexatiously in bringing this matter to a hearing. The Applicant submits that a cost award would reward the Respondent for its errors.

17I find that no party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding. Thus, each party must bear their costs of the proceeding.

18There is no evidence to show that the Applicant acted in a manner which warrants a cost award. While the Respondent submits that the Applicant acted unreasonably, it provides no example of any unreasonable behaviour exhibited by the Applicant.

19While the Applicant was unsuccessful in his claim, it is not without merit. The Applicant had a legitimate grievance with respect to the handling of his claim. The evidence shows that the Respondent made errors and, although it was mistaken, it is reasonable for the Applicant to seek restitution as a result of those errors.

CONCLUSION

20The Applicant sustained psychological injuries as a result of his father’s passing in a motor vehicle accident. The evidence shows that the Respondent committed errors during the adjusting of the Applicant’s claim. However, those errors did not result in the unreasonable withholding or delay of payment of a benefit.

21Thus, the Applicant is not entitled to an award pursuant to section 10 of Reg. 664 and his Application is dismissed.