Vermeulen v. Intact Insurance Company, 2024 CanLII 81192

Citation: Vermeulen v. Intact Insurance Company, 2024 ONLAT 22-007146/AABS

Licence Appeal Tribunal File Number: 22-007146/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:

Joanne Vermeulen

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Alden Dychtenberg, Counsel Manreet Pabla, Counsel

For the Respondent: Darrell March, Counsel

HEARD: By way of written submissions

OVERVIEW

1Joanne Vermeulen, the applicant, was involved in an automobile accident on September 13, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute as listed in the Case Conference Report and Order dated March 29, 2023 (“CCRO”) are:

i. What is the quantum of income replacement benefit that the applicant is entitled to from June 17, 2022 to date?

ii. Is the applicant entitled to $3,568.00 for vision therapy services proposed by Dr. Hansel Huang in a treatment plan dated April 26, 2022?

iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

3In her submissions the applicant confirmed that the treatment plan for vision therapy services identified as item 2(ii) above has been withdrawn.

RESULT

4The parties have resolved the issue of the quantum of income replacement benefits.

5The applicant is entitled to an award amounting to 20% of the value of income replacement benefit payments that the respondent paid to the applicant for the period of August 11, 2022 to January 3, 2024, including interest.

ANALYSIS

The issue of quantum of Income Replacement Benefits (“IRBs”) has been resolved by the parties

6The applicant provided initial submissions on the quantum of IRBs which were being withheld by the respondent. She submits that the respondent had initially paid IRBs in the amount of $400.00 per week beginning on September 20, 2017. However, the respondent stopped IRB payments on August 10, 2022, as it had identified the possibility that the applicant may have received an overpayment of IRBs as a result of long-term disability (“LTD”) payments. The applicant submits that despite any LTD and CPP disability payments, she would still be entitled to $63.97 a week for the year 2022 and $40.87 a week for the year 2023.

7In its submissions the respondent confirmed that it had stopped IRB payments on August 10, 2022 as a result of potential overpayment, due to its discovery of the applicant’s receipt of LTD payments. It further stated that it had not been in a position to properly assess the quantum of IRBs until November 30, 2023 when the applicant provided an accounting report from Principe Nafekh Ltd. It submits that after it received this information, it agreed that the quantum of IRBs are as identified in the applicant’s accounting report. The respondent further submits that it has made a payment to the applicant, including interest, for the period of August 11, 2022 to January 3, 2024. It further has set up a schedule of ongoing bi-weekly payments starting from January 4, 2024.

8In her reply submissions, the applicant confirmed that the parties have agreed as to the quantum of her IRB payments.

Section 10 Award

9I find the respondent unreasonably delayed payment of IRBs to the applicant, such that the applicant is entitled to an award amounting to 20% of the value of the IRB payments paid by the respondent on or about January 4, 2024 for the period of August 11, 2022 to January 3, 2024, including interest.

10Under s. 10 of Regulation 664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

11The applicant submits that the respondent acted in an unfair, excessive imprudent, stubborn, inflexible and unyielding manner in withholding her IRB payments from August 10, 2022. She disputes the respondent’s position that it did not have sufficient information to calculate the quantum of her IRB payments until it received her accounting report on November 30, 2023. Rather, the applicant submits that as early as June 2023 the respondent had accurate and sufficient information to determine quantum. Further, the applicant argues that even upon receipt of the accounting report, the respondent still delayed payment of her outstanding IRBs until the eve of this written hearing.

12The respondent submits that a special award is only available in exceptional cases, where there has been malicious, oppressive and high-handed misconduct. It argues that this is a very high standard, and that the present matter does not meet this threshold. The respondent submits that the evidence it had received from the applicant at the time did not establish that she was entitled to the benefits being sought.

13I agree with the applicant that the respondent unreasonably delayed payment of IRBs.

14Although IRBs were stopped on August 10, 2022, on March 21, 2023, the respondent stated in an email that it agreed that IRBs will be reinstated and back paid with interest. Even though the email noted that it would be requesting additional documentation including the LTD/Disability file, the respondent still confirmed that “we are reinstating without this documentation available”. However, no payments were made until the parties settled this issue in January 2024.

15The issue of the applicant’s LTD/Disability file was resolved on March 27, 2023, when the case conference adjudicator declined to issue an order for production of the complete LTD file. Rather, a production order was made for the statement of benefits paid from the LTD file, the redacted bank statements disclosing the CPP deposits and the complete CPP disability file.

16On June 19, 2023, the applicant’s counsel provided the respondent with LTD payment statements and redacted bank statements disclosing CPP disability deposits. The respondent does not direct me to any correspondence indicating that it requested additional information from the applicant. The applicant’s counsel continued to follow-up on June 28, 2023 and August 16, 2023. On August 24, 2023 the respondent provided its own IRB calculation indicating a quantum of IRBs being $33.27 per week for 2022 and $14.47 per week for 2023.

17However, the subsequent letter from the respondent sent November 15, 2023 indicated that IRB payment would be payable in the amount of $0.00 weekly. The letter references the fact that overpayment had been made from September 20, 2017 to July 6, 2023. Although I infer from this letter that the respondent was deducting the overpayment amount from the IRB payments, no evidence is provided to indicate that the respondent formally sought repayment or provided a repayment notice pursuant to s. 52(2) of the Schedule. The letter also does not clearly state that the IRB amount was $0.00 as a result of overpayment deductions. Although the respondent submits that it came to the calculation of $0.00 on the basis of “reasonable assumptions”, it does not provide any specific submissions or evidence to establish what these reasonable assumptions were.

18Even upon receipt of the applicant’s accounting report, it does not appear that the respondent reached out to the applicant to resume IRB repayments. Rather, it appears that IRB payments resumed only after the applicant filed her initial hearing submissions. Further, although the respondent states that it was the information in the applicant’s accounting report which permitted it to properly calculate IRB quantum, it does not provide any specific submissions on what necessary information was provided in the report, that had not already been provided by the applicant in June 2023.

19I accept the applicant’s argument that the respondent’s behaviour in withholding IRB payments and calculating her IRB payments as nil was unreasonable behaviour given the information it had been provided. Further, the respondent does not direct me to evidence that it clarified what additional information it still required from the applicant, other than the LTD file which had been addressed at the case conference. To the extent that the respondent required additional information, it should have communicated this to the applicant, particularly given its March 21, 2023 email which stated that it was “reinstating” IRB payments even without the required documentation.

20I find that this behaviour was inflexible, as it led to the applicant’s IRB payments being delayed by six months. Further the respondent did not take appropriate steps in its ongoing duty to adjust the applicant’s claim. I find that an award of 20% of the value of the IRB payments paid by the respondent for the period of August 11, 2022 to January 3, 2024 is appropriate in this case, plus interest.

ORDER

21The applicant is entitled to an award amounting to 20% of the value of IRB payments that the respondent paid to the applicant to encompass the period of August 11, 2022 to January 3, 2024, plus interest.