Licence Appeal Tribunal File Number: 24-002680/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:
Maria De Barros
Applicant
and
Wawanesa Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Sophia Souffront, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Maria De Barros, the applicant, was involved in an automobile accident on September 29, 2021, 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, Wawanesa Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was removed from the MIG on April 3, 2022 due to a pre-existing condition that prevents her from achieving maximal medical recovery from a minor injury.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to interest on any overdue payment of benefits?
ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the respondent liable to pay costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023, (“Rules”)?
4In her submissions the applicant withdrew issue v), vi), and x) listed in the Case Conference Report and Order (“CCRO”), as such, I will not address the issue of medical services in the amount of $561.72 in a plan dated June 20, 2022, psychological services in the amount of $2,199.93 in a plan dated August 29, 2023, and chiropractic services in the amount of $1,680.00 in a plan dated May 25, 2022.
5The respondent notes that treatment plans i), ii), iv), v), vi), and vii) in the CCRO have been fully funded, treatment plan iii) was withdrawn by the applicant by email dated April 13, 2022, and viii) was a duplicated treatment plan.
6The applicant in reply confirms that the benefits have been paid and the interest and an award remains in dispute.
7According to the provisions of Rule 19.2, a party may make a request for costs in writing or orally at a case conference or hearing, at any time before the decisions or order is released if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
8As the applicant requested costs as part of its written hearing submissions and prior to the decision in this matter, I find the applicant has requested costs in accordance with Rule 19.2 and, therefore, the issue of costs is added as an issue in dispute in this hearing. It is the burden of the party that raises a request for costs to support allegations of whether the other party acted unreasonably, frivolously, vexatiously, or in bad faith.
RESULT
9I find that:
i. The applicant is entitled to interest on amounts incurred to the date of approval for the orthopaedic assessment dated August 24, 2022, the chiropractic treatment dated August 4, 2022, the psychological treatment dated July 29, 2022, the chiropractic treatment dated November 22, 2022, and the chronic pain assessment dated December 17, 2022.
ii. The respondent is not liable to pay an award.
iii. The applicant has not met the high threshold for ordering costs.
ANALYSIS
10As outlined above, the applicant acknowledges five of the treatment plans in dispute have been paid by the respondent, four were withdrawn by the applicant, and one was a duplicate treatment plan.
11The applicant submits she is entitled to interest for the orthopaedic assessment dated August 24, 2022, chiropractic treatment dated August 4, 2022, psychological treatment dated July 29, 2022, chiropractic treatment dated November 22, 2022, and the chronic pain assessment dated December 17, 2022 because the respondent unreasonably withheld interest and delayed funding the benefit without reason.
12The respondent submits that the treatment plans have been funded and no interest is owed. The respondent argues, in accordance with section 51(4) of the Schedule, interest is calculated for the period that begins on the date on which an application is made with the Tribunal and ends on the date a settlement is reached.
13The respondent unequivocally approved one of the treatment plans on November 17, 2022 and four of the treatment plans on March 12, 2025, but only after the applicant filed her submissions on the same day.
14I find the applicant is entitled to interest on amounts incurred because interest cannot accrue on goods and services which have not been incurred. This is because, in accordance with section 15(1), the respondent is only liable to pay for goods and services incurred by the applicant.
15I find the applicant is entitled to interest on amounts incurred for the five treatment plans outlined above.
Interest
16Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As the respondent has confirmed payment of the benefits, interest is owed on the amounts incurred in accordance with section 51 for the orthopaedic assessment dated August 24, 2022, the chiropractic treatment dated August 4, 2022, the psychological treatment dated July 29, 2022, the chiropractic treatment dated November 22, 2022, and the chronic pain assessment dated December 17, 2022.
Award
17The applicant seeks an award under section 10 of Regulation 664. Under section 10, 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
18The applicant submits the respondent unreasonably withheld or delayed benefits, the respondent failed to properly adjust the file, and in doing so breached their duty of good faith. The applicant requests 50% of the value of all treatment plans in dispute, plus interest. The applicant argues the CAT reports were provided to the respondent on January 21, 2025. The respondent approved the payments 50 days later on March 12, 2025, and that this was an unreasonable delay.
19The respondent submits that it paid the benefits upon receipt of the applicant’s productions on February 20, 2025, including CAT reports, dated January 21, 2025. The respondent argues that it acted reasonably and expeditiously upon receipt of additional information by reconsidering the benefits.
20It is well-settled that insurers are not help to a standard of perfection in their adjusting decisions and that a section 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment.
21I find that the respondent’s reliance on the CAT reports or waiting for the applicant’s productions does not amount to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I find the applicant is not entitled to an award.
Costs
22I find that the respondent is not liable to pay costs to the applicant.
23The applicant is seeking $1,000.00 in costs. The applicant argues the respondent acted in bad faith and its actions have resulted in the applicant wasting hours preparing submissions for treatment plans that would have been approved if the file had been properly adjusted.
24The respondent submits benefits were not unreasonably withheld and argues the treatment plans have been paid fully.
25In my view, the respondent delayed payment of the applicant’s benefits and unnecessarily withheld the interest, however, this does not reach the threshold of unreasonable, frivolous, vexatious, or bad faith behaviour.
26The applicant has not established that the high threshold for costs has been met because I do not find the respondent acted unreasonably, frivolously, vexatiously, or in bad faith.
27I decline to award costs to the applicant.
ORDER
28For the reasons outlined above, I find that:
i. The applicant is entitled to interest on the amounts incurred to the date of approval for the orthopaedic assessment dated August 24, 2022, the chiropractic treatment dated August 4, 2022, the psychological treatment dated July 29, 2022, the chiropractic treatment dated November 22, 2022, and the chronic pain assessment dated December 17, 2022.
ii. The respondent is not liable to pay an award.
iii. The applicant has not met the high threshold for ordering costs.
Released: December 19, 2025
Aric Bhargava
Adjudicator