Licence Appeal Tribunal File Number: 20-014993/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:
John Sturges
Applicant
and
Royal & Sun Alliance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Suhasha Hewagama, Counsel
For the Respondent:
Ken Yip, Counsel
HEARD:
By way of written submissions
OVERVIEW
1John Sturges (“J.S.”), the applicant, was involved in an automobile accident in Nova Scotia on November 23, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). J.S. was denied benefits by the respondent, Royal & Sun Alliance (“RSA”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are:
i. Is RSA liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to J.S.?
ii. Is J.S. entitled to interest on income replacement benefits (“IRBs”) from June 17, 2020 to January 7, 2021?
RESULT
3RSA is not liable to pay an award.
4J.S. is entitled to interest on the IRB for the period of December 12, 2020 to December 15, 2020.
5RSA is not entitled to costs.
BACKGROUND
6The following is a timeline of post-accident events regarding J.S.’s application process in applying for IRBs:
i. June 3, 2020 – J.S. submitted an application for accident benefits (OCF-1), indicating that he was self-employed on a full-time basis and did not have access to collateral benefits. I note that on the OCF-1 he elected to receive WCB yet also disclaimed access to collateral benefits;
ii. June 10, 2020 – RSA letter advising that it had information that could affect J.S.’s entitlement to benefits and that it was investigating his claim. It further advised that any expenses incurred during the investigation, and prior to a final decision, may not be indemnified by RSA;
iii. July 14, 2020 – Disability Certificate (OCF-3) submitted and noted a substantial inability to perform the essential tasks of employment. The OCF-3 further noted the disability duration was expected to be more than 12 weeks;
iv. July 20, 2020 – RSA adjuster’s log notes indicated receipt of a legal opinion regarding J.S.’s claim;
v. July 22, 2020 – RSA requested the Worker’s Compensation Board of Nova Scotia (“WCB”) file, pursuant to s. 33 of the Schedule;
vi. July 24, 2020 – J.S.’ counsel requested the WCB file;
vii. August 4, 2020 – RSA acknowledged receipt of the OCF-3 and reiterated that it required the WCB file;
viii. September 25, 2020 – WCB file provided to RSA;
ix. October 12, 2020 – J.S.’ counsel requested a decision from RSA with respect to entitlement to benefits;
x. October 13, 2020 – RSA advised that it was reviewing entitlement;
xi. October 26, 2020 – J.S.’ counsel made a second request for a decision from RSA regarding entitlement to benefits;
xii. October 28, 2020 – RSA advised that it would provide a response to the OCF-1 in the next few weeks;
xiii. November 6, 2020 – RSA obtained a second legal opinion regarding J.S.’ claim;
xiv. November 12, 2020 – J.S.’ counsel made a third request for a decision, with an explanation for the delay. I note that the adjuster’s log notes indicate that the file was closed “due to inactivity”;
xv. November 16, 2020 – J.S.’ counsel advised RSA that as a result of its failure to comply with the timelines under the Schedule, it was required to pay the IRB pursuant to s. 36(4), (5) and (6) of the Schedule, regardless of entitlement;
xvi. November 16, 2020 – RSA responded that it would provide a decision by the end of the week;
xvii. November 17, 2020 – J.S.’ counsel advised RSA of the obligation under the Schedule to respond within ten business days of receipt of the WCB file, and as a result of the delay, the intention was to make a complaint to the ombudsman. An email was