Rogh v. Aviva Insurance Canada, 2023 CanLII 40141

Licence Appeal Tribunal

Citation: Rogh v. Aviva Insurance Canada, 2023 ONLAT 20-014823/AABS

Licence Appeal Tribunal File Number: 20-014823/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:

Wais Rogh Applicant

and

Aviva Insurance Canada Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Jessie V. Tran, Paralegal

For the Respondent: April C. Snow, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Wais Rogh (the "applicant") was involved in a motor vehicle accident on September 24, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Aviva Insurance Canada (the "respondent") denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant submits that the accident exacerbated a prior psychological condition and caused chronic pain, both of which warrant treatment outside of the Minor Injury Guideline ("MIG") and its $3,500.00 limit. He also claims income replacement benefits ("IRB"), as well as entitlement to the cost of a forensic accounting IRB report, interest, and an award due to the insurer's unreasonable withholding of benefits.

3Aviva responds that the Tribunal has no jurisdiction to determine the applicant's MIG status as this is a standalone issue with no connected and dependent claims for benefits. The respondent also argues that the applicant submitted his Disability Certificate/OCF-3 after the time period he is claiming for IRB and is therefore not entitled to this benefit. Further, the respondent submits that the applicant has failed to demonstrate that he suffers from injuries that are non-minor in nature, that he has not substantiated his IRB claim, and that he has not shown the forensic accounting report in dispute to be reasonable and necessary. As the respondent holds that no benefits are owing, it also denies interest and the award claim.

4As both the MIG and the IRB issues raised by the respondent require preliminary decisions to determine whether the substantive merits of these claims need to be considered, I address those matters first in the following decision.

ISSUES IN DISPUTE

5The following issues are in dispute:

1. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
2. Is the applicant entitled to IRB in the amount of $73.69 per week from October 1, 2018 to October 22, 2018?
3. Is the applicant entitled to $2,825.00 for the cost of examination for a forensic accounting report, recommended by ADS Forensic Accountants in a report dated June 17, 2019?
4. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

6I find that:

i. The Tribunal does not have jurisdiction to determine the applicant's MIG status in the absence of an underlying and connected dispute pertaining to a claim for medical benefits. As a result, I have not considered the MIG issue in this decision. ii. The applicant is not entitled to IRB, as he submitted his Disability Certificate/OCF-3 after the time period he is claiming for this benefit. As a result, I have not considered the IRB dispute in this decision. iii. The applicant is not entitled to the cost of the forensic accounting report. iv. As no benefits are owing, the respondent is not liable to pay an award. v. As no benefits are owing, interest is not applicable.

ANALYSIS

Preliminary Issues

Does the Tribunal have jurisdiction to make a MIG determination?

7I find that the Tribunal does not have jurisdiction to make a MIG determination in this matter. Although there are additional issues in this application for IRB and the forensic accounting report, neither is an underlying dispute relating to a benefit that is itself dependent on a determination of whether the MIG applies or not. The MIG is therefore a standalone issue here, not a dispute over which the Tribunal has jurisdiction.

8Aviva argues that the Tribunal does not have jurisdiction to hear this matter because the MIG is not a benefit and it is not related to the IRB or forensic accounting report also in dispute in this application. The insurer relies on A.S. v. Aviva Insurance Canada, 2019 CanLII 51335 (ON LAT), in which Adjudicator Fricot noted that the Tribunal's jurisdiction is limited to what is stated in s. 280(1) of the Insurance Act, namely that "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."

9Adjudicator Fricot further observed that since there is no provision in the Schedule that entitles an insured person to apply for a MIG determination, the denial of a MIG determination is not a denial of an entitlement under the Schedule that gives rise to a dispute over which the Tribunal has jurisdiction. She also found that MIG determination as a standalone issue was distinguishable from a standalone Catastrophic Impairment ("CAT") determination. Adjudicator Fricot differentiated the two with reference to s. 45 of the Schedule. She noted that this section allows an insured person to apply for a CAT determination on its own, whereas there is no similar provision in the Schedule for a standalone MIG determination.

10In short, Aviva argues that any application for a MIG determination must be accompanied with a related claim for entitlement to a statutory benefit that is itself reliant on that MIG ruling. Without such a claim, there is no dispute. And without a dispute, the Tribunal has no jurisdiction.

11In reply submissions, the applicant submits that the MIG should not be viewed as a standalone issue in this instance because of the IRB and forensic accounting report disputes. He states that he understood that the MIG dispute would be heard here because of these additional issues. The applicant claims that this view is supported by Bobak v. Travelers Insurance, 2022 CanLII 146 (ON LAT), where Vice-Chair Lester dismissed an application for MIG determination because this was the only issue in dispute and that it would be a "waste of the Tribunal's time to decide a standalone issue without any benefits being tied to it." He further relies on three Tribunal decisions where a MIG determination was made alongside an IRB matter, even though there were no medical benefits in dispute connected to the MIG in those proceedings: S.S. v. The Personal Insurance Company, 2020 CanLII 63541 (ON LAT); T.A. v. TD Insurance Meloche Monnex, 2020 CanLII 80280 (ON LAT); and Jeong v. Aviva Insurance of Canada, 2021 CanLII 110984 (ON LAT).

12I agree with the respondent, for the reasons outlined below.

13First, the wording of both the Insurance Act and the Schedule is clear. The Tribunal's jurisdiction under the Insurance Act is limited in s. 280(1) to the "resolution of disputes" regarding an insured person's "entitlement" to benefits. The Schedule defines the MIG at s. 3(1) as a "guideline." The Schedule does not entitle an insured person to apply for a MIG determination on its own. Therefore, the MIG is not an entitlement. As such, a MIG determination is not a dispute that can be adjudicated by this Tribunal as a standalone matter. In order for the Tribunal to have jurisdiction, a MIG application must be accompanied by a related dispute for an entitlement to statutory accident benefits that requires a MIG determination.

14Second, the IRB and forensic accounting report issues are unrelated to the MIG determination. I am not persuaded by the applicant's argument that the inclusion of these two items is sufficient to provide the Tribunal with jurisdiction over the MIG. There are no disputes here involving entitlement to statutory benefits that would require me to render a decision on the applicant's MIG standing. The MIG is not connected to either of these other matters save through the applicant and the accident itself. Any determination regarding the MIG that I might consider here would not have any impact on the applicant's IRB and forensic accounting claims whatsoever. Correspondingly, the MIG in this application is a standalone issue that I do not have the jurisdiction to adjudicate.

15In addition, I agree with Adjudicator Fricot's decision regarding the differences between MIG and CAT determinations. The two issues are addressed quite differently in the Schedule, with s. 45 establishing that an insured person can apply for a CAT determination as a standalone matter and also providing a set list of rules governing how such applications are made. There is no similar section in the Schedule on the MIG, which leads me to the same conclusion as Adjudicator Fricot—that the Tribunal being able to make a CAT determination as a standalone issue does not afford the Tribunal the same jurisdiction over a standalone MIG determination.

16Lastly, I am not bound by other decisions of this Tribunal. I acknowledge that other adjudicators have rendered MIG decisions as part of proceedings that otherwise involved only IRB claims. I also note that I reviewed the three decisions that the applicant referred to in his reply submissions. However, I do not find these decisions entirely relevant, as no consideration is given within them to the matter at hand here—namely, whether the Tribunal has jurisdiction over the MIG as a standalone issue. The jurisdiction question is not mentioned in any of these decisions, which consist of straightforward MIG and IRB analyses and decisions. On the other hand, Adjudicator Fricot and Vice-Chair Lester specifically do contemplate this question in their decisions. As a result, I favour them in comparison with the three other decisions relied upon by the applicant.

17Accordingly, I find that the Tribunal does not have jurisdiction to make a MIG determination in this application.

Is the applicant entitled to IRB due to the timing of his OCF-3 submission?

18I find that the applicant is not entitled to IRB for the period of time between October 1, 2018 and October 22, 2018, as he did not submit a Disability Certificate/OCF-3 to Aviva until February 4, 2019.

19Section 36(2) of the Schedule holds that an applicant for "a specified benefit shall submit a completed disability certificate with his or her application." And s. 36(3) of the Schedule states that "An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted."

20The respondent submits that that the applicant is not eligible for IRB before February 4, 2019, as this was the date that the applicant submitted his OCF-3 to Aviva. Since the applicant is only applying for IRB for the period of time between October 1, 2018 and October 22, 2018, he is therefore not eligible for the benefit claimed, in accordance with s. 36(3) of the Schedule. The respondent has also submitted the OCF-3 in question clearly showing that it was completed on January 25, 2019 by Dr. San Bui, chiropractor, of the Pain Rehabilitation Clinic, and that it was faxed from that clinic to Aviva on February 4, 2019.

21The applicant does not refer to the OCF-3 in his initial submissions or include the form in his document brief. The applicant also does not provide any comment in reply submissions to address the respondent's claims about the late submission of the OCF-3, leaving the matter unchallenged.

22As a result, I agree with the respondent. I find that the applicant did not submit an OCF-3 to Aviva until February 4, 2019. He is therefore not eligible to IRB before this date, pursuant to s. 36(3) of the Schedule.

Substantive Issues

Does the applicant suffer from non-minor injuries that warrant removal from the MIG?

23As I have found that the Tribunal has no jurisdiction to make a MIG determination in the absence of a related claim for entitlement to benefits that requires such a MIG determination, I have not considered the MIG issue in this decision.

Is the applicant entitled to IRB?

24I have found that the applicant submitted his OCF-3 on February 4, 2019, well after the October 1, 2018 to October 28, 2018 time period that he is claiming for IRB. Therefore, he is not entitled to IRB pursuant to s. 36(3) of the Schedule. Correspondingly, I have not considered the IRB dispute in this decision.

Is the applicant entitled to the forensic accounting report?

25I find the applicant is not entitled to the amount of the forensic accounting report, as he has not demonstrated it to be reasonable and necessary.

26According to s. 7(4) of the Schedule:

(4) The insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person's income from employment or self-employment if all of the following conditions are satisfied:

1. The insured person is applying for an income replacement benefit under this Part that is based on the employment or self-employment considered in the report.
2. The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.
3. The expense is reasonable and necessary for the purpose of determining the insured person's entitlement to an income replacement benefit.

27Section 7(5) of the Schedule states that an insurer "is not required to pay more than a total of $2,500.00 for the preparation of one or more reports" described under s. 7(4).

28In dispute is a Forensic Accounting Income Replacement Report in the amount of $2,825.00 completed by ADS Forensics Accounting dated June 17, 2019. It covers a period of time between September 25, 2018 and March 6, 2019 and concludes that the IRB owing is $220.73 per week (70 per cent of the applicant's gross pre-accident income). This does not match the amount specified on the Case Conference Report and Order ("CCRO") dated July 14, 2021 that set this matter down for a hearing, which listed $73.69 per week in IRB.

29The applicant submits that the forensic report was reasonable and necessary to accurately determine the payable IRB. He further notes that the high cost of the report was due to his self-employed status at the time of the accident, which made the IRB calculation more complicated. He clarifies in submissions that the $73.69 listed in his application and the CCRO should be superseded by the accounting report, so he is claiming $220.73 per week for October 1, 2018 to October 22, 2018. This comes to a total IRB claim of $662.19 plus interest.

30The respondent does not dispute that the applicant has met the first two tests of s. 7(4) but does claim that he has not met the third test, as the expense of the report is too high to be reasonable. Aviva also notes that the total cost of the report is above the $2,500.00 limit mandated in s. 7(5).

31I agree with the respondent. At a cost of $2,825.00, the report is worth more than four times the base amount of $662.19 IRB that the applicant is claiming. The report also covers considerably more of the calendar than the three-week IRB period claimed by the applicant, ranging from September 2018 to March 2019. The respondent accuses the applicant of commissioning this wide-ranging report for the purposes of dealing with claims involving a second unrelated accident that took place in early 2019. The applicant denies this, claiming in reply submissions that ADS reviewed the added months only because he submitted these records to the accounting firm. While I have no comment on the respondent's accusations, I also find the applicant's explanations less than satisfying. It defies common sense to incur a $2,825.00 expense to recoup a maximum of $662.19. Further, I fail to understand how the applicant required a forensic accounting examination of any sort. The applicant worked for just two companies in Uber and Lyft, and as the numbers noted above demonstrate, the calculations needed to determine the IRB claim could surely not have been as "complex" as claimed.

32Given the above rationale, the applicant is not entitled to the cost of the forensic accounting report, nor interest.

AWARD AND INTEREST

33As no benefits are owing, it follows that the applicant is not entitled to interest and the respondent is not liable to pay an award.

ORDER

34I find that:

i. The Tribunal does not have jurisdiction to determine the applicant's MIG status in the absence of an underlying and connected dispute pertaining to a claim for medical benefits. As a result, I have not considered the MIG issue in this decision. ii. The applicant is not entitled to IRB, as he failed to submit a Disability Certificate/OCF-3 in accordance with s. 36(2) and (3) of the Schedule. As a result, I have not considered the IRB dispute in this decision. iii. The applicant is not entitled to the cost of the forensic accounting report. iv. As no benefits are owing, the respondent is not liable to pay an award. v. As no benefits are owing, the applicant is not entitled to interest.

35The application is dismissed.