Citation: Wereszczynska v. Aviva Insurance Company, 2023 ONLAT 20-009682/AABS

Licence Appeal Tribunal File Number: 20-009682/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:

Urszula Wereszczynska

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Urszula Wereszczynska, the applicant, was involved in an automobile accident on January 19, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES – Settlement of Treatment Plans In Dispute

2The application is dismissed because a settlement agreement executed on August 21, 2020, resolved the three treatment plans in dispute, therefore, the Tribunal does not have jurisdiction to address the stand-alone issues of interest and an award when the treatment plans giving rise to the claims were not in dispute when the LAT application was filed. There are no substantive issues in dispute, and no benefits in dispute for which interest and an award can be applied.

3For the purpose of clarity, it is outside the jurisdiction of the License Appeal Tribunal to rule on stand alone issues of interest and an award when the treatment plans giving rise to the claims are not in dispute.

4There are no issues in dispute before the Tribunal except the stand alone issues of interest and an award. At the case conference on March 22, 2021, the respondent raised the preliminary issue, of the previous settlement of the three treatment plans listed below, for the purpose of a previous LAT application. The preliminary issue is whether the applicant is barred from proceeding with her claims for the same three treatment plans, on the basis that the parties settled them, three days prior to when the within application was filed. The issue of the applicant’s entitlement to a non-earner benefit from February 16, 2019, to January 19, 2021, was withdrawn as an issue, at the motion heard and released on October 27, 2022.

5The initial Licence Appeal Tribunal (LAT) application relating to the three treatment plans, received approval by the respondent and a full and final settlement, which included provision for the treatment provider’s payment once treatment was incurred and invoiced through HCAI. The respondent submits that the applicant filed a second application, three days following the final settlement of the three treatment plans. The respondent submits that settlement discussions took place on a without prejudice basis, therefore, the respondent did not include copies of the correspondence outlining the terms of settlement. However, the respondent submits that the terms of settlement did not include the payment of interest nor the consideration of an award. Among the terms of the settlement agreement was the provision that the applicant would advise the treatment provider to submit invoices for payment of any outstanding incurred amount, through HCAI using the “exempt” category. As stated, the agreement was that any portion of the treatment plans incurred, were to be invoiced and paid accordingly. The applicant does not submit that there was any denial of payment, however, for unexplained reasons, the invoicing agreed to by the parties through HCAI never took place.

6To date the respondent submits that the applicant has not submitted invoices in relation to the three approved treatment plans. On January 14, 2021, the applicant wrote to the Tribunal to request that the three treatment plans be added as issues in dispute to the second LAT application filed on August 24, 2020. On January 15, 2021, the respondent wrote to the applicant to advise that the three treatment plans had been resolved as approved by way of full and final settlement, and, therefore, should not be added as issues in dispute. To date the respondent submits that $5,789.80 in medical and rehabilitation treatment expenses has been paid, in addition that $3,389.80 paid to the Alpha-Med Wellness Centre Incorporated.

7The respondent argues that the applicant is barred from proceeding with her claims for the three treatment plans as they have been settled on a full and final basis on August 21, 2020. I agree with respondent. The applicant is not challenging that there was a full and final settlement of the three treatment plans, with the approval by the respondent. The respondent submits that it would be a violation of the principles of procedural fairness for the applicant to be permitted to claim entitlement to interest and an award in relation to issues not properly before the Tribunal and resolved before the subject LAT application, in the context of a previous proceeding.

8The applicant refers to unpaid invoices at tab 1 of its evidence, however, the applicant does not state that the respondent has refused, for any reason, to pay incurred benefits relating to the approved treatment plans. Rather what appears at tab one of the applicant’s evidence, is an email stating on October 1, 2022, that Alpha Med Wellness has an outstanding balance of $2,501.41. However, it is unclear which treatment plans the outstanding balances pertain to and whether the treatment plans are the three treatment plans settled and approved but not invoiced by Alpha Wellness, or another treatment plan that may have been unpaid or denied by the respondent. The balances referred to in the email are not anchored to any OCF-18 in the email dated October 1, 2022. The applicant submits that the three treatment plans were approved and settled and the respondent agreed to a mechanism for payment for services once incurred.

9Therefore, I have not received evidence probative of the respondent being responsible for the overdue payment of benefits in relation to the three treatment plans. Interest is only payable under section 51 of the Schedule when an applicant incurs the cost of a benefit. The Tribunal found in Nijjar vs. Pembridge Insurance Company, 2020 CanLII 101748 (ONLAT), that interest is only payable under section 51 after the benefit has been incurred despite “overdue” not being defined in the Schedule.

10In the present case, there is no controversy that the agreement between the parties executed on August 21, 2020, sets out the manner of payment of the treatment providers, with HCAI being invoiced as prescribed. However, as stated, despite the three treatment plans being approved in a full and final agreement, which addresses the process for invoicing services, to date the applicant has not incurred any benefits in relation to the three treatment plans. The applicant submits that the Tribunal decision Nijjar v. Pembridge Insurance Company, 2020 CanLII 101748 (ONLAT), applies factually in this case. Pursuant to section 51(1) and section 51(2) of the Schedule, an insurer is required to pay interest on any overdue payment of benefits. The insurer in the noted decision maintained that interest is only payable under section 51 of the Schedule when an applicant incurs the cost of a benefit. To support its position, the insurer relied upon the decision J.B. v. Motor Vehicle Accident Claims Fund (MVCAF) 2020 CanLII 37666 (ON LAT), where the Tribunal found that the respondent was only required to reimburse the applicant with interest pursuant to section 51 of the Schedule, once the applicant incurred the costs of the benefits that were found to be reasonable and necessary. The Tribunal found that section 51 only requires interest to be payable if the insurer fails to pay the benefit within “the time required under the Regulation,” which according to section 15, is once a benefit is incurred.

11The respondent submits that the Tribunal decision Nijjar v. Pembridge Insurance Company, 2020 CanLII 101748 (ONLAT), can be distinguished, since Nijjar dealt with benefits that were properly listed in dispute in the LAT application and were only resolved at the case conference with the applicant maintaining the ongoing claim for interest on those issues. In addition, section 51 of the SABS would not apply to the within matter as there is no overdue amount as discussed above.

12As stated, there is no controversy that the agreement between the parties, sets out the manner of payment of the treatment providers, with HCAI being invoiced as prescribed. Despite the three treatment plans being approved in a full and final agreement, to date the applicant has not incurred any benefits in relation to the three treatment plans. To date the applicant has not submitted any invoices to the respondent in relation to the three approved treatment plans, therefore no interest is due as no benefit has been incurred.

13Respecting the issue of an award, in Selvaratnam v. Aviva Insurance Company of Canada, 2020 CanLII 115347 (ONLAT), the issue to be determined was whether the applicant was entitled to an award under section 10 of Reg. 664, in connection with payments pursuant to a partial settlement agreement whereby Aviva agreed to pay the outstanding balances at clinics. Similar to the within case, payments were to be made once expenses were incurred and invoiced on HCAI. The applicant brought a motion to add the issues of interest and an award when the applicant’s view was that Aviva did not comply with the terms of the settlement, by paying the service providers in a timely manner. The parties held conflicting views on the respondent’s conduct and whether section 10 applied, however, Aviva submitted that its obligation to pay was governed by the settlement agreement and was not a matter of entitlement under the Schedule or by something that comes within the ambit of section 10.

14The jurisdiction of the Tribunal is described in section 280 of the Insurance Act, R.S.O. 1990, c. 1.8, which gives the Tribunal jurisdiction to resolve certain disputes and prohibits bringing proceedings in court in relation to other disputes. The entry point to the Tribunal’s jurisdiction is subsection 280(1), which contains the following language:

This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. [emphasis added].

15Subsection 280(2) goes on to confer jurisdiction on the Tribunal to resolve the disputes described in section 280(1): “The insured person or the insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).”

16The Insurance Act is silent about the Tribunal’s jurisdiction to award special awards. However, further guidance on what falls within the Tribunal’s jurisdiction is contained in section 10 of the Automobile Insurance Act, R.R.O. 1990, Reg. 664, which provides as follows:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 percent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

17Similar to this case, the Tribunal found that it lacked jurisdiction in Selvaratnam v. Aviva Insurance Company of Canada, 2020 CanLII 115347 (ONLAT), to make an award by reason of facts relevant to the operation of a private mutual contractual settlement agreement and facts not showing any failure on the insurer’s part to pay benefits. In this case the applicant has not provided evidence or submissions that the respondent delayed or refused payment of benefits, therefore, no interest is owing and clearly the threshold for an award has not been met.

18There is insufficient evidence that the respondent delayed or refused payment of benefits, therefore aside from the question of the applicant being barred from raising interest and an award as stand-alone issues, there is no interest owing and no denial of payment since the three treatment plans have not been invoiced through HCAI. In addition, I agree with the respondent’s submissions that it is clearly appropriate for the Tribunal to dismiss the application since it is outside the jurisdiction of the License Appeal Tribunal to rule on stand alone issues of interest and an award when the treatment plans giving rise to the claims were not in dispute when the LAT application was filed. As there are no substantive issues in dispute, there is no benefit for which interest and an award can be applied.

ISSUES

19The issues in dispute are:

i. Is the applicant entitled to $3,643.76 for physiotherapy services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated January 22, 2019, denied by the respondent on August 7, 2019?

ii. Is the applicant entitled to $238.93 ($1,318.73 less $1,079.80 approved) for physiotherapy services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/OCF-18 dated April 30, 2019?

iii. Is the applicant entitled to $2,590.84 for physiotherapy services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated May 28, 2019, submitted on May 30, 2019, denied by the respondent on August 7, 2019?

iv. Is the respondent liable to pay an award under Section 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

20The application is dismissed as the settlement agreement arrived at by the parties on August 21, 2020, resolved the three treatment plans in dispute, therefore, the Tribunal does not have jurisdiction to address the stand-alone issues of interest and an award when the treatment plans giving rise to the claims were not appropriately in dispute at the time when the LAT application was filed. There are no substantive issues in dispute, and there are no benefits in dispute for which interest and an award can be applied.

INTEREST

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. In this case the applicant has not provided evidence or submissions that the respondent delayed or refused payment of benefits, therefore, no interest is owing and clearly the threshold for an award has not been met.

AWARD

22The applicant submits an award should be imposed against the respondent for its improper withholding of the benefits pursuant to the Schedule and the policy and consumer protection objectives of insurance law.

23For the reasons described in the preliminary issues section, the applicant’s request for an award is denied. Regulation 664 under the Insurance Act states that the Tribunal may award a lump sum of up to 50 percent of the amount to which the applicant was entitled if the respondent unreasonably withheld or delayed the payment of benefits.

24However, the applicant has not provided any submissions or evidence of unreasonable withholding or delayed payment of benefits by the respondent.

25The onus is on the applicant to prove on a balance of probabilities an award is owing, and the applicant has not done so in this case; therefore, no award is payable.

COSTS

26The respondent submits that it is entitled to costs in the proceeding since the applicant acted in a manner which has been unreasonable, frivolous and vexatious. The respondent submits that the applicant acted in an unreasonable and frivolous manner in bringing the LAT application to hearing as she was aware by the time of the case conference that the three treatment plans that were previously approved in a prior LAT proceeding, had already been approved in full by the respondent and were not properly in dispute. The respondent submits that the applicant knew or should have known that her right to pursue interest and an award in relation to the three treatment plans was subsequently surrendered upon the agreed settlement of the issues and the withdrawal of the initial LAT application.

27The respondent submits that the applicant’s submissions did not include any evidence to support their claim for interest, as no invoices related to the three OCF-18’s have ever been submitted to the respondent and there is no overdue payment.

28Section 17.1 of the Statutory Powers and Procedures Act (“SPPA”); and Rule 19.1 of the Common Rules of Practice and Procedure empower the Tribunal to order a party to pay another party’s costs in a proceeding according to the rules made under section 17.1(4). Section 17.1(2) states, the Tribunal shall not order a party to pay costs unless the conduct or course of conduct of that party has been unreasonable, frivolous or vexatious, or the party has acted in bad faith.

29I do not find that the applicant’s conduct or course of action demonstrates being unreasonable, frivolous or vexatious nor has the applicant acted in bad faith. I have no basis for a finding that the applicant’s submissions and evidence showed that the applicant acted in bad faith, nor in an unreasonable, frivolous or vexatious manner. The applicant presented its case relating to the stand-alone issues of interest and an award but did not present evidence to support its claims. In my view that does not amount to conduct that is unreasonable, frivolous and vexatious or acting in bad faith. The respondent’s application for costs is dismissed.

ORDER

30The application is dismissed as the settlement agreement arrived at by the parties on August 21, 2020, resolved the three treatment plans in dispute, therefore, the Tribunal does not have jurisdiction to address the stand-alone issues of interest and an award when the treatment plans giving rise to the claims are not appropriately in dispute at the time when the LAT application was filed. There are no substantive issues in dispute, and there are no benefits in dispute for which interest and an award can be applied.