Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-006932/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:
Javaid Samson
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Andrea Reid
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel Naman Nanda, Articling Student
For the Respondent:
Candace Mak, Counsel
HEARD: In Writing
September 18, 2023
OVERVIEW
1Javaid Samson, the applicant, was involved in an automobile accident on July 20, 2017, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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?
ii. Is the respondent liable to pay costs of $1,000.00?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is entitled to an award.
4The applicant is not entitled to costs or further interest.
5The application is partially dismissed.
ANALYSIS
6Since the filing of the LAT application, the respondent approved $3,335.98 for psychological services in a treatment plan submitted by Downsview Healthcare Inc. on October 18, 2019, initially denied on March 1, 2019. The respondent also approved $2,000.00 for a psychological assessment in a plan submitted by Downsview Healthcare Inc. on February 21, 2019, initially denied on October 24, 2019. At the date of the case conference, May 16, 2021, these items had not yet been paid.
7Between the case conference and the submissions deadline date for this hearing, the respondent paid the outstanding psychological treatment plan and psychological assessment. On December 31, 2022, the respondent also paid an additional $216.16 towards interest due as a result of late payment. As these have been approved and paid by the insurer, they will no longer be considered issues in dispute for this hearing.
The applicant is entitled to a Section 10 under O. Reg 664
8I find that the applicant is entitled to a Section 10 award because the respondent unreasonable delayed payments to the applicant.
9The onus of proving entitlement to an award under s. 10 of O. Reg 664 rests with the applicant. Section 10 states that an amount of up to 50 percent with interest on all amounts owing may be awarded if an insurer unreasonably withheld or delayed payments. The test for a special award was laid out in M.P. v. Aviva General Insurance Company, 2019 CanLII 119736 (ON LAT) and is whether the insurer “carefully consider[ed] all of the available information, giving appropriate weight in a fair and even-handed manner,” while adjusting the claim for Statutory Accident Benefits.
10The applicant submits that the respondent unreasonably withheld payment for the approved treatment and assessment plans. The applicant further submits that the claimant was prejudiced in accessing treatments as a result of the respondent’s actions. The applicant points to the timing of the respondent’s approval of these plans which occurred after the applicant filed the LAT Application. The applicant further points to the fact that the respondent waited four months to pay the plans once approved. The applicant seeks a Section 10 award for delay of payment by the respondent.
11The respondent submits that the applicant failed to submit evidence that the treatment plans in dispute were unreasonably withheld or denied. The respondent further submits that the applicant was not prejudiced since all benefits were approved and paid for, with interest, in advance of the written hearing. The respondent maintains that it acted in good faith and did not unreasonable withhold payment. The respondent denies it is liable to pay an award.
12I find that the applicant has proved entitlement to a Section 10 award. Both parties point to Plowright and Wellington Insurance Company, 1993 CarswellOnt 4786, OIC A-003985, which stated “unreasonable behavior by an insurer in withholding or delaying benefits can be seen as behavior, which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” I am persuaded by the evidence put forward by the applicant to support that the respondent met this standard of “unreasonable behavior.”
13The respondent put the applicant in a difficult position to carry the risk of incurred amounts sought for reasonable treatment. Additionally, the respondent delayed in approving the treatment and assessment plans. Even after said plans were approved, the respondent delayed in paying them. The respondent submitted that the delay in payment was due to a delay on part of the clinic in submitting invoices to the respondent. However, it took the respondent four months after the receipt of the invoices to provide payment. The respondent’s obligation to pay arose as soon as the treatment plans were approved and property invoiced. The respondent has not provided adequate evidence to support a reasonable explanation for these delays. This amounts to bad faith and warrants an award in this case.
14The applicant made no submissions regarding the quantum of the proposed s. 10 award. The insurer submits that if an award is granted, it should be reduced to reflect that the insurer acted in good faith and approved and paid for the benefits in dispute in advance of this hearing. The insurer further submits that the applicant was not put to the expenses or burden of proving entitlement before this Tribunal.
15I agree with the respondent that the award should not be at the high end of the scale. I also agree that the award should be calculated solely on the value of the psychological treatment plan submitted on October 8, 2019 and not on the psychological assessment from February 21, 2019. The insurer acted on a good faith basis and approved the cost of the assessment even though it was not required by law per Section 38.2 of the Schedule.
16I find that the applicant is entitled to a Section 10 award in the amount of $333.60 which is 10% of the value of the psychological treatment plan ($3,335.98) submitted October 8, 2019.
The applicant is not entitled to costs
17I find costs are not warranted in the circumstances.
18The applicant submits the respondent’s conduct in this case amounts to conduct specifically contemplated by Rule 19 of the Rules and supports the applicant’s claim for costs. The applicant further submits that the respondent acted unreasonably, frivolously, vexatiously and in bad faith while delaying payment of the already approved treatment and assessment plans. The applicant seeks the full $1,000.00 allowable for costs on the ground that the respondent acted in bad faith.
19The respondent submits that there is no evidence showing the insurer acted unreasonably, frivolously, vexatiously or in bad faith. The respondent further submits that the applicant’s submissions on costs speak to issues in dispute and not to the parties’ actions during the LAT dispute. The respondent states there is no evidence to demonstrate the respondent’s behavior during the LAT dispute was unreasonable. The respondent seeks the request for this relief be dismissed.
20I find the applicant has failed to provide evidence that costs are warranted in this case. Costs are awarded where a party has acted unreasonably during the proceeding. Rule 19 of the Common Rules of Practice and Procedure (Rules) set out that in awarding costs the Tribunal shall consider all relevant factors including:
i. The seriousness of the misconduct;
ii. Whether the conduct was in a breach of a direction or order issued by the Tribunal;
iii. Whether of not a party’s behavior interfered with the Tribunal’s ability to carry out a fair, efficient and effective process;
iv. Prejudice to other parties; and
v. The potential impact an order for costs would have on individuals accessing the Tribunal system.
21I am not persuaded by the arguments put forward by the applicant regarding the aforementioned factors. The applicant submits that the respondent’s behavior caused unnecessary psychological burden on the applicant who was waiting for payment for the treatment and assessment plans. I see no evidence that points to any psychological impairment resulting from the delay. Further, I do not find evidence that the insurer’s submissions were made with deliberate intent to mislead and deceive the Tribunal.
22Based on these reasons, I find costs are not warranted in these circumstances.
No further Interest is owed to the applicant.
23The applicant was paid $216.16 in interest with respect to the delay in payment between September 9, 2022 and December 31, 2022. I find no further interest is owed to the applicant.
ORDER
24I find the following:
i. The respondent is liable to pay an award under s. 10 of O. Reg 664 in the amount of $333.60 for unreasonable delay of payment.
ii. The respondent is not liable to pay costs.
iii. The applicant is not entitled to interest.
Released: October 19, 2023
Andrea Reid
Adjudicator