Michael D. Dewson v. Aviva General Insurance Company, 2023 CanLII 72654

Licence Appeal Tribunal

Citation: Dewson v. Aviva General Insurance Company, 2023 ONLAT 22-002555/AABS-PI

Licence Appeal Tribunal File Number: 22-002555/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:

Michael D. Dewson Applicant

and

Aviva General Insurance Company Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Tina Lubman, Paralegal

For the Respondent: Stanford Cummings, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Michael Dewson, the applicant, was involved in an accident on March 2, 2020 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 General Insurance Company ("Aviva"), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided as listed in the Case Conference Report and Order dated February 27, 2023 is as follows:

i. Is the applicant barred from to [sic] a hearing for the following benefits(s) because the applicant failed to attend an insurer's examination? Is the applicant entitled to a non-earner benefit of $185.00 per week from March 30, 2020 to ongoing?

3Upon reviewing the parties' submissions and evidence, I note that there are couple of issues. I have addressed them as follows.

ANALYSIS

Issues with the preliminary issue

4The respondent asserts that there are errors in the case conference report and order ("CCR/O") with respect to the preliminary issues. According to the respondent, the CCR/O is inaccurate and does not reflect that they are moving for the dismissal of the NEB because the applicant failed to submit a completed Election of Benefits ("OCF-10"), as obligated by section 35(1) of the Schedule. He failed to provide the OCF-10, despite numerous requests from the insurer pursuant to section 33 of the Schedule.

5The question that is before the Tribunal in this preliminary issue hearing is a very narrow one. Entitlement and the liability to pay are two distinct issues. For example, an individual might be entitled to a benefit, but a respondent might not be liable to pay for a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2) of section 33. Similarly, an individual may be entitled to funding for a treatment plan because the insurer's denial was noncompliant with section 38, and was never cured by the time the Tribunal decides the dispute. In that situation; the insurer cannot cure their defective notice and shall pay for the treatment plan in accordance with s. 38(11), but it is not yet liable to pay for the treatment plan until it receives the invoice demonstrating that the treatment plan has since been incurred, (see Aviva v Suarez, 2021 ONSC 6200 at para. 37-39; section. 38(15) of the Schedule).

6In my view, the respondent is raising an issue that is not properly before the Tribunal. If other issues are to be added, or the CCR/O has an error, parties must follow the appropriate procedure, such as filing a motion to add any additional issues or seek an amendment of the CCR/O. Neither have been done in this case. In my view, the issue that the respondent seeks a determination on is not properly before the Tribunal.

The preliminary issue to be decided: section 44 non-attendance

7The failure to attend an insurer's examination is listed as a preliminary issue. I have reviewed the evidence and submissions from both parties, and I find that neither of the parties have provided the Tribunal with submissions or evidence regarding this issue. As the respondent raised the preliminary issue, it was their onus to prove that the applicant should be barred from proceeding with her application due to non-compliance. Instead, the respondent made submissions on an issue that is not properly before the Tribunal.

8Without submissions on the preliminary issue that was ordered, I find that the respondent did not meet their onus. I therefore decline to order a remedy sought by the respondent. As such, the matter will proceed to the substantive issue hearing. If any party wishes to have the Tribunal decide an issue that is not currently before it, then they may wish to consider their options to ensure that such issue is properly before the Tribunal and adjudicated.

ORDER

9The preliminary issue motion is dismissed, without prejudice to the respondent to raise it properly before the Tribunal. The matter will proceed to the substantive issue hearing scheduled for November 3, 2023.