Stewart v. Travelers Canada
Licence Appeal Tribunal File Number: 21-008891/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:
Rosemarie Stewart
Applicant
and
Travelers Canada
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Rosemarie Stewart, Applicant
Erin Neal, Counsel
For the Respondent:
Paul Clouthier, Adjuster
Jane Cvijan, Counsel
Held in writing
OVERVIEW
1The applicant was injured in a motor vehicle accident (“the accident”) on March 15, 2018. She applied to the respondent for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (“Schedule”).
2This application has a long history at the Tribunal. The applicant applied for Attendant Care Benefits (“ACBs”), treatment plans, and prescription expenses. A case conference was scheduled for March 4, 2022. On September 15, 2021, the respondent filed a notice of motion seeking an order to dismiss the appeal without a hearing with respect to the ACBs. It was alleged that the applicant failed to comply with section 46.2 of the Schedule because she did not provide key information required to determine whether the ACB was payable. The Tribunal stayed the application for a period of sixty days and imposed a condition that the applicant would provide the outstanding information by January 8, 2022. This included information regarding incurred benefits, details regarding the services provided, and hourly rates.
3The case conference scheduled for March 4, 2022 was rescheduled by the Tribunal to October 22, 2022. On August 17, 2022, the respondent filed a notice of motion seeking an order barring the applicant’s application for attendant care benefits from proceeding, pursuant to section 55(1)3 of the Schedule based on an alleged breach of section 46.2(1) of the Schedule. The respondent submitted that the additional information provided was insufficient, and the applicant remained non-compliant with section 46.2(1) of the Schedule.
4The Tribunal determined that the respondent’s motion was premature, and it would be procedurally unfair to the applicant to have the issue of whether she is entitled to advance a claim for attendant care benefits determined prior to the case conference. However, the Tribunal ordered the applicant to provide documents that were required by the respondent. The Tribunal also stated that if the applicant remained non-compliant with section 46.2(1) of the Schedule, the respondent could renew the motion to dismiss for a third and final time.
5At the case conference, the respondent agreed to pay for all of the treatment plans in dispute. The applicant withdrew the prescription expense. The remaining issues in dispute were the ACBs, interest and an award.
6On October 25, 2022, the respondent filed a notice of motion seeking a dismissal of the application without a hearing because it was filed in contravention of section 55(1)3, and the applicant has failed to comply with two Orders issued by the Tribunal intended to remedy her section 46.2(1) breach of the Schedule. On December 22, 2022, the applicant filed a notice of motion to have the matter heard via videoconference. The motion was denied.
ISSUE
7I must decide the following issue:
- Is the applicant barred from proceeding to a hearing under s.55(3) of the Tribunal rules due to her failure to comply with s.46.2 of the Schedule?
RESULT
8The applicant is not barred from proceeding to a hearing.
ANALYSIS
Preliminary Issue: Is the applicant barred from proceeding to a hearing under s.55(3) of the Tribunal rules due to failure to comply with s.46.2 of the Schedule?
Relevant Statutory Provisions
9Under section 46.2(1) of the Schedule, an insurer may request any information from a provider that the insurer requires, acting reasonably, to determine its liability for the payment, including access to inspect and copy the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment.
10The same provision also allows the insurer to request the provider’s statutory declaration as to the circumstances that gave rise to the invoice, including particulars of the goods and services provided. In addition, s.46.2(2) mandates the provider to give the information requested by the insurer within 10 business days after receiving the request.
11Another provision relevant to this matter is s.55(1) of the Schedule, which bars an insured person from applying to this Tribunal if, among other circumstances, the issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that:
i. the insurer requested information from a provider under subsection 46.2(1), and
ii. the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.
12In an email dated October 19, 2022, the applicant produced Ms. Delores James’ PSW certificate, together with an amendment to her Statutory Declaration wherein Ms. James advised she did not recall the particulars of her job applications, and she did not possess a written record. Ms. James similarly advised she could not recall the specific dates/times of the attendant care services she provided and, instead, applied lump sum times for each date noting services were provided over the course of three hours on any given day. To date, the respondent alleges that they have not received a curriculum vitae for Ms. James, tax returns, HST number, breakdown of attendant care services as stipulated in the Order, or applications/emails confirming job applications.
13The respondent takes the position that the ACBs are premature. The respondent submitted that the applicant remains non-compliant with s.46.2(1) and has already been given two opportunities in the last year to remedy this breach but failed to do so. It is highly prejudicial to the respondent to allow the applicant to continue with the application given the ample opportunity she has had to remedy the s.46.2(1) breach. The applicant’s inability to remedy this breach and produce the relevant information, which was specifically outlined in the Order of Adjudicator Jarda, proves she cannot prove entitlement to attendant care with evidence of incurred and hourly rates, thereby rendering the need for a hearing moot.
14The applicant submits that there has not been non-compliance with section 46.2(1) of the Schedule. The applicant takes the position that the respondent has been provided with sufficient information to determine that the ACBs have been incurred and has provided the hourly rates of the provider Ms. James. In the alternative, if it is found that the applicant has been non-compliant with section 46.2(1) of the Schedule, it is respectfully submitted that the ACB claim should not be dismissed pursuant to section 55(1)3 of the Schedule as section 55(2) and 55(3) apply.
ANALYSIS
15In order to determine whether or not the information requested by the respondent is reasonably required, and if so, whether it has been provided, I begin my analysis by looking at the information that has been provided by the provider. In my view, I find there is sufficient information provided for the respondent to determine the ACBs that have been incurred. The provider broke down the types of services she provided and the duration of each service.
16The respondent has been provided with the outstanding documents and information such as her curriculum vitae, a breakdown of the ACB services and information regarding her job applications as well as the fact that she does not have a HST number. Based on my review, the only outstanding documents are the tax returns. I note that the Tribunal ordered that the tax returns be produced in the motion order dated September 20, 2022. The applicant had consented to producing the tax returns at the case conference. However, the applicant’s position now is that the tax returns are not required to prove incurred under section 3(7)(e)(iii)(a) of the Schedule.
17Based on the respondent’s submissions, it appears that the tax returns would assist in proving the provider’s active employment versus her retirement status. There seems to be some ambiguity as the statutory declaration notes that she was retired. However, the provider provided information in her statutory declarations that she was actively seeking employment as a personal support worker. The facts do not suggest that this is someone who is retired. Moreover, the respondent has not articulated how the tax returns fall within the criteria under section 46.2(1) of the Schedule. Furthermore, the tax returns would not specify whether she was retired or employed. The tax returns would only specify how much income was made in any particular year. I am satisfied with the applicant’s submission that the tax returns are not required because they are not relevant. Therefore, they do not need to be produced.
18I agree that the applicant must co-operate with the respondent so that the respondent has the information necessary to determine entitlement as noted in Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563. However, the respondent also has a duty to co-operate with the applicant. Based on the submissions, it appears that there was a lack of communication between the parties in relation to the information that was required, which could have been avoided if the parties had simply communicated with one another rather than filing motions with the Tribunal. I am not persuaded that the respondent would be prejudiced by allowing this application to proceed as there is information to calculate the ACBs. The matter will proceed to a hearing on the substantive issues.
ORDER
19I order that the applicant may proceed before the Tribunal.
20Except for the provisions contained is this order, all previous orders made by the Tribunal remain in full force and effect.
Released: February 3, 2023
Tavlin Kaur
Adjudicator