Licence Appeal Tribunal File Number: 20-009190/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:
Balagowry Sivarajah
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Thamara Jeyakumar, Paralegal
For the Respondent:
Geoffrey Keating, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, B.S., was involved in an automobile accident on May 26, 2020. B.S. sought various benefits from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2B.S. claimed entitlement to additional interest on the income replacement benefit (“IRB”). Unifund denied the claim on the basis that IRBs and interest were paid for the period of entitlement, and no further benefits or interest were owing. B.S. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3The issues to be decided are as follows:
a. Is B.S. entitled to interest in the amount of $50.80 with respect to IRBs?
b. Is B.S. entitled to a special award?
c. Is Unifund entitled to costs?
FINDING
4B.S. is not entitled to interest in the amount of $50.80.
5B.S. is not entitled to a special award.
6Unifund is not entitled to costs.
ANALYSIS
Interest Payable
7Section 51(1) of the Schedule provides that payment of a benefit is overdue if the insurer fails to pay within the time required by the Schedule. Under s. 51(2) if payment is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue. Section 51(3) provides that interest is payable at the rate of 1 per cent per month, compounded monthly, from the date on which the amount becomes overdue until the earlier of the following dates:
a. The date on which the overdue amount is paid.
b. The date, if any, on which interest becomes payable in accordance with subsection (4).
8The onus rests on B.S. to establish entitlement to interest.
9The parties agree that the OCF-3 was submitted on June 26, 2020. B.S. submits that Unifund missed the 10-business day requirement under the Schedule, when it responded to the OCF-3 on July 13, 2020, the 11^th^ business day. On July 13, 2020, Unifund requested that B.S. submit an election form (“OCF-10”), given that the OCF-3 found that she was entitled to both IRBs and non-earner benefits.
10Unifund received the completed OCF-10 on July 29, 2020. B.S. elected IRBs and having calculated the period of entitlement for IRBs to be June 2 to July 13, 2020, Unifund issued payment on August 11, 2020.
11Additionally, interest was calculated by Unifund and based on the $2,400.00 payable for the period, one percent interest totalled $24.00. Compounded at a rate of one percent for five months, the total interest payable (and issued to B.S.) was $25.22.
12Although she raises the issue of the amount of interest payable being $50.80, B.S. provides no analysis as to how this calculation of interest was made.
13With no basis for her claim for the increased amount of interest, I find no grounds to interfere with Unifund’s interest calculation. I find that the amount of interest has been properly calculated at $25.22.
SPECIAL AWARD
14Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e., B.S.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e., Unifund) has “unreasonably” withheld or delayed payments.
15B.S. appears to imply that Unifund’s failure to response to the OCF-3 in the required 10 business days justifies an award. She provides a timeline of submission of documents and dates of responses from Unifund. However, I do not find that she has established that any action on Unifund’s behalf led to an unreasonable withholding or delay of payments.
16I find that B.S. has failed to establish grounds for an award for several reasons. First, missing the 10-business day deadline by one day, is not an unreasonable delay. B.S. has not directed me to any prejudice or undue hardship that she may have suffered as a result of the OCF-10 being responded to on the 11^th^ business day. Second, in responding to the OCF-10, Unifund paid her the full amount of IRBs that was she entitled to, including interest payable, again, without unreasonably delaying or withholding payment. Lastly, having found that she failed to meet her onus to establish that she is entitled to the higher interest amount, makes her claim for an award moot.
17Consequently, I find that an award is not appropriate.
COSTS
18Under Rule 19.1, a party may request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. A cost award under Rule 19 is a discretionary remedy that is made in exceptional circumstances. A cost award is meant to deter and penalize behaviour that goes against the spirit of the resolution process. To receive an award under Rule 19, there must be sufficient evidence that the other party has conducted themselves in the proceeding in a way that is unreasonable, frivolous, vexatious or in bad faith.
19On the evidence, I find that Unifund is not entitled to costs.
20Unifund submits that B.S. failed to comply with the Tribunals orders as follows:
a. Did not submit a case conference summary to the Tribunal pursuant to Rule 20.4; and
b. Failed to produce any of the productions and follow-up enquires have not been responded to.
21Unifund further submits that B.S.’ submissions failed to properly address the issues in dispute. On the whole, its position is that the examples of B.S.’s conduct during the proceeding amounts to unreasonable, frivolous and vexatious behaviour.
22While I agree that B.S.’s failure to produce documents may be a source of frustration for Unifund, I do not find that this behaviour amounts to the level of conduct that justifies a cost award. Those failures only hurt B.S. because, in the end, it is B.S.’s onus in the proceeding, and the onus was not fulfilled because of a lack of documentary proof.
23Despite not having a case conference summary and some of the productions, Unifund was able to calculate the amount of IRB and interest B.S. was entitled to. It was further able to rely on its own evidence in support of its position that B.S. is not entitled to further interest. It did not point me to any evidence that it was prevented from properly responding to the case before it due to any lack of productions.
24The onus is on B.S. to establish her case. Her failure to do so is her own failing and is not a ground for a cost award. As a result, Unifund successfully defended its position, but a successful defence is not the basis for a costs award without more.
CONCLUSION
25B.S. failed to meet her onus to establish that she is entitled to interest on the IRB in the amount of $50.80.
26B.S. is not entitled to an award.
27Unifund is not entitled to costs.
Released: August 17, 2022
__________________________
Derek Grant
Adjudicator