Steven Ross v. Aviva General Insurance, 2024 CanLII 43457

Citation: Ross v. Aviva General Insurance, 2024 ONLAT 22-002558/AABS- R

RECONSIDERATION DECISION

Before: Kate Grieves

Licence Appeal Tribunal File Number: 22-002558/AABS

Case Name: Steven Ross v. Aviva General Insurance

Written Submissions by:

For the Applicant: Roger R. Foisy, Counsel Rutumi Tank, Counsel Rusald Laloshi, Paralegal

For the Respondent: Kevin Griffiths, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant in this matter. It arises out of a December 14, 2023 decision (“decision”) in which I found that the applicant was entitled to an award for unreasonably withheld non-earner benefits in the amount of $5,550.00, plus interest under the Schedule, plus compound interest calculated as per s. 10 of Regulation 664.

2Because this reconsideration involves a decision released on or after August 21, 2023, the Licence Appeal Tribunal Rules, 2023 (“Rules”) apply to this request. The grounds for a request for reconsideration are found in Rule 18.2 of the Rules. To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

(c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

3The applicant advances his request for reconsideration pursuant to criteria 18.2(b). The applicant submits that I made errors of fact and law, such that absent these errors, I might have arrived at a different conclusion.

4The applicant seeks an order varying the amount of the award, and a determination on the amount of interest payable.

RESULT

5The applicant’s request for reconsideration is granted.

ANALYSIS

6The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

7In his original submissions, the applicant argued that he was entitled to an award because the respondent unreasonably withheld non-earner benefits (NEB). He argued that there were three periods of delay: the first period from March 25, 2016 when benefits were first denied until October 22, 2020 when he submits there were many documents provided to the respondent that should have prompted it to reconsider its denial. The second period of delay was from October 22, 2020 to October 5, 2021 when it should have reconsidered the benefit after it accepted that the applicant was catastrophically impaired. The third delay period occurred from October 5, 2021 when the respondent advised it would reinstate the benefits, to April 5, 2022 when the respondent finally reinstated the benefits.

8The respondent conceded that it unreasonably delayed payment of the NEB for the third period of delay.

9I found that the respondent unreasonably delayed payment of the NEB for both the second and third periods, from October 22, 2020 to April 5, 2022 for a total of 75 weeks, a total of $13,875.00.

No error in quantifying the amounts unreasonably withheld by the respondent

10The applicant submits that I failed to account for the fact that as of October 22, 2020 when the insurer ought to have re-adjusted the claim, it already owed over $44,000 in past NEBs, plus interest in my calculations.

11I disagree and see no error in my decision with respect to the past NEBs. While I agree that the applicant was entitled to NEBs for that period (which was eventually paid by the respondent), the dispute before me was whether benefits were unreasonably withheld during that period such that it attracts an award. It was open to me to make that finding, however I found only that the benefits were unreasonably withheld for the period from October 22, 2020 to April 5, 2022. I did not find that the benefits were unreasonably withheld for the period from March 25, 2016 to October 22, 2020, until they were paid in April 2022. Therefore, even though the applicant was entitled to benefits during that period, they were not unreasonably withheld and I did not consider them as part of the award.

Error of law in calculating the amount payable

12The Divisional Court in Personal v. Hoang, 2017 ONSC 81 adopted the approach to fixing the amount of a special award from Persofsky v. Liberty Mutual Insurance, 2000 ONFSCDRS 113, as follows:

1. Determine the benefits owing to the insured person, including interest calculated under the Schedule;
2. Decide whether the insurer unreasonably withheld or delayed payment of these benefits;
3. Determine the maximum special award, or at least a reasonable approximation using this formula:

Up to 50% x (amount unreasonably withheld or delayed benefits + interest on these benefits calculated under the Schedule + compound interest calculated as per s.10 of Regulation 664).

4. Consider all relevant factors to determine an appropriate lump sum, not a percentage, that responds to the facts of the case and bears a reasonable relationship to other awards, and does not exceed the maximum;
5. Provide reasons for concluding that the award is payable, and for the amount of the award; and
6. Express the award as a specific lump sum amount. No interest is payable on this amount, except as part of the enforcement process.

13The applicant submits that I correctly cited the formula for determining the sum of an award, but that I erred in applying the formula set out in step (3) above. I agree, I erred in applying the formula. I also agree the error is such that I would likely have reached a different result had the error not been made.

14Expressed in an equation, the formula is:

50% x (A + B + C)

15Where “A” is the amount unreasonably withheld or delayed benefits; “B” is the interest on these benefits pursuant to section 51 of the Schedule, and “C” compound interest rate under s. 10 of Regulation 664.

16The applicant describes “A” as the “principal amount of the benefits withheld”. I disagree with that description. As noted above, it does not include the amounts withheld for the period from March 25, 2016 to October 22, 2020, plus interest as I did not find that they were unreasonably withheld during that period. “A” is the amount of unreasonably withheld benefits.

17I agree that I made an error in my calculation, as my calculation expressed in a formula, was that the maximum payable was:

(50% of A) + B + C

18Using figures from the parties’ calculations, the maximum award payable (or reasonable approximation) is as follows:

October 22, 2020 to April 5, 2022 = 75.7 weeks

$185.00 per week x 75.7 weeks = $14,033.57

Total interest payable per the Schedule as of March 1, 2022: $1,098.34

Total interest payable per Regulation 664: $6,268.30 (being 2% compounded monthly on ($14,033.57 + $1,098.34) for the 17.5 month period from October 22, 2020 to April 5, 2022)

Max award = 50% ($14,033.57 + $1,098.34 + $6,268.30)

= 50% ($21,400.21)

= $10,700.11

19Therefore, the maximum amount that I could have awarded, based on my findings, was approximately $10,700.11.

20Despite my error in my calculations, I considered the relevant factors and concluded that the applicant was entitled to an amount equivalent to 40% which I calculated to be $5,550.00. In my decision, I found that the applicant was entitled to a lump sum award of $5,550.00 plus interest under the Schedule, plus compound interest under s. 10 of Regulation 664.

21Had I applied the formula correctly, the award would have been 40% x $21,400.21= $8,560.08. This figure correctly includes the interest under the Schedule and compound interest under Regulation 664.

22Having considered the factors as outlined in my decision, I find that the applicant is entitled to a lump sum award of $8,560.08. No interest is payable on this amount except as part of the enforcement process (i.e. if there is a delay in satisfying the order).

CONCLUSION & ORDER

23The applicant’s request for reconsideration is granted.

24I am varying my order to find that the quantum of the award is fixed at $8,560.08.

Kate Grieves Adjudicator Tribunals Ontario – Licence Appeal Tribunal