Yuliya Kopylets v. Primmum Insurance Company, 2025 CanLII 35940

Citation: Kopylets v. Primmum Insurance Company, 2025 ONLAT 23-009706/AABS

Licence Appeal Tribunal File Number: 23-009706/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:

Yuliya Kopylets

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Matthew Consky, Counsel

For the Respondent: Matthew Dugas, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yuliya Kopylets, the applicant, was involved in an automobile accident on September 11, 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, Primmum 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 are:

i. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from October 11, 2021 to October 11, 2023 on the basis of the deemed incurred provisions of the Schedule?

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

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

RESULT

3The applicant is not entitled to attendant care benefits on the basis of the deemed incurred provisions of the Schedule. The applicant is not entitled to interest or an award.

ANALYSIS

Background

4This application arises from a bicycle incident that occurred on September 11, 2021. The respondent took the position that the applicant was not involved in an “accident” under s. 3 of the Schedule due to the uncertainty related to whether the fluid came from an “automobile”, and even if so, whether the fluid ended up on the ground due to the “normal use and operation” of an automobile. The respondent further argued that a fall from a bicycle, with no other connection to an automobile other than unknown fluid on the road, would not be an “accident”. The issue of whether the applicant was involved in an “accident” was heard by the Tribunal. A decision was released by Adjudicator Kevin Lundy on July 26, 2023: see Kopylets v. Primmum Insurance Company, 2023 CanLII 65759 (ON LAT). Adjudicator Lundy determined that the applicant had met her evidentiary onus to demonstrate that she was involved in an “accident”. No further issues were before Adjudicator Lundy.

5Following this decision, the applicant requested payment of all outstanding attendant care in the amount of $3,000.00 per month based on an In-Home Assessment and Form 1, dated November 29, 2021, which recommended attendant care in the amount of $4,696.89 per month. The respondent requested proof that the attendant care amounts were incurred under s. 3(7)(e) of the Schedule. The applicant conceded that attendant care had not been formally incurred, but she requested payment under s. 3(8) of the Schedule as a deemed incurred expense. The applicant brought a second application, which is before me, claiming that she is entitled to attendant care benefits in the amount of $3,000.00 per month from October 11, 2021 to October 11, 2023, on the basis of the “deemed incurred” provision under s. 3(8) of the Schedule.

6The parties agree that the issue of entitlement is not in dispute, nor is the quantification in the Form 1. No attendant care services have been incurred. The applicant has not paid out-of-pocket for a service provider to administer the services, and the applicant is not asserting that any person sustained an economic loss for providing the services.

Law

7Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant.

8Section 3(7)(e) provides that expenses are not incurred by an insured person unless:

i. They have received the goods or services to which the expense relates;

ii. They have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expense; and

iii. The person who provided the goods or services,

a. Did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident; or

b. Sustained an economical loss as a result of providing the goods or services to the insured person.

9Section 3(8) of the Schedule further provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

Attendant Care Services are Not Deemed Incurred

10The applicant submits that past attendant care benefits are “deemed incurred” under s. 3(8) of the Schedule, as a result of the respondent taking the position that the applicant was not in an “accident”. The applicant submits that the attendant care benefits were deemed incurred when the respondent unreasonably withheld those benefits by:

i. Ignoring all evidence that the applicant was involved in an accident;

ii. Consequently refusing to honour the applicant’s claim for benefits; and

iii. Only after the Tribunal ruled that the applicant had been in an accident, insisting that she provide proof that expenses had been incurred, per its meaning in s. 3(7)(e).

11The applicant submits that the respondent unreasonably withheld benefits in general and attendant care specifically, by ignoring the evidence provided by the applicant to show that she was involved in an accident. The applicant submits that this was a complete and ongoing refusal by the respondent to consider the evidence at hand. The applicant relies upon the OCF-1, the OCF-3, the Examination Under Oath, the photos of the accident scene, the statement of Bill Glennie, the OT and Form 1 report, and the adjuster’s log notes, as the evidentiary basis to support that she was involved in an “accident”. The applicant further submits that no evidence has been adduced by the respondent to support its denial. Possessing no evidence to the contrary, they simply disregarded the evidence of the applicant.

12The applicant submits that, by denying that the applicant was involved in an accident, the respondent has effectively robbed her of the opportunity to incur attendant care expenses. The applicant relies on the Divisional Court’s decision in Belair Insurance Company v. McMichael (“McMichael”), 2007 CanLII 17630 (ON SCDC), for the principle: what incentive would insurance companies have to pay for any benefit if they are not held accountable if it is determined a benefit was unreasonably withheld? The Court concluded that an insured does not need to receive a service to be entitled to the expense, as it would shield the insurer from an obligation to pay the benefit. All that must be established is that the service was reasonable and necessary.

13The respondent submits that its position that the incident was not an “accident” was reasonable and based on the evidence provided by the applicant and its own investigation. The respondent submits that the issue of whether the applicant was involved in an “accident” involved many nuanced legal and factual issues, demonstrating that the position of the respondent was not “unreasonable”, even if it was, ultimately, incorrect.

14The respondent submits that the basis for its position that the fall was not an “accident” was, in part, uncertainty related to whether the fluid came from an “automobile”, and even if so, whether the fluid ended up on the ground due to the “normal use and operation” of an automobile. The respondent further argued that a fall from a bicycle, with no other connection to an automobile other than an unknown fluid on the road, would not be an “accident”.

15The respondent submits that the Court of Appeal for Ontario’s decision in Pucci v. The Wawanesa Mutual Insurance Company (“Pucci”), 2020 ONCA 265, held that the focus of s. 3(8) of the Schedule is primarily on the actions of the insurer. The Court stated at paragraph 65:

…A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy. This duty of fairness, however, does not require an insurer necessarily to be correct in making a decision to dispute its obligations to pay a claim. Mere denial of a claim that ultimately succeeds is not, in itself, an act of bad faith.

16The respondent further relies on the Tribunal decision in Duval v. Aviva General Insurance (“Duval”), 2021 CanLII 62527 (ON LAT) where the Tribunal set out a two-part test for applying s. 3(8) of the Schedule. The Tribunal held that it is the applicant’s onus to prove, on a balance of probabilities, that (1) the respondent unreasonably withheld or delayed the benefit and (2) because of the unreasonably withholding, the applicant could not incur the costs of the benefits. There must be a direct link between the two.

17The respondent submits that the applicant has not adduced any evidence to satisfy the part of the test for “deemed incurred” that the benefits were not incurred because of the respondent’s unreasonable position. In response to paragraph 35 of the applicant’s submissions that the applicant was “literally unable” to incur attendant care expenses, the respondent submits that this did not stop the applicant from incurring other types of benefits. Following the Tribunal’s decision that the applicant was involved in an “accident”, the respondent paid the applicant all benefits that were incurred.

18I find that the applicant has not met her onus of proving on a balance of probabilities that the conduct of the respondent was unreasonable, thereby triggering the provisions in s. 3(8) of the Schedule, for the following reasons.

19I find that it is not my role to provide a reconsideration of the Tribunal’s decision as to whether the applicant was involved in an “accident” or to question the findings made by Adjudicator Lundy. This issue was already the subject of a full virtual hearing, with a final determination. However, the present hearing, involves again reconsidering the same underlying issue in order to determine whether the respondent’s position up to that hearing was “unreasonable”.

20I agree with the applicant that this was an atypical fact scenario. Upon review of the decision of Adjudicator Lundy, I further agree with the respondent that this was a nuanced and complicated legal and factual determination.

21I find that the respondent was entitled to make a decision as to whether the applicant was involved in an accident based on the evidence before it. I find based on the submissions made by the respondent and the decision of Adjudicator Lundy, that the respondent disputed the evidence of the applicant. I find that there is insufficient evidence provided by the applicant to show that the respondent ignored or failed to properly consider the evidence of the applicant. I further find that the duty of fairness does not require the respondent to be correct in making its decision as confirmed in Pucci.

22I find that the applicant has not proved, on a balance of probabilities, that the respondent’s decision was arbitrary, self-serving, malicious or in bad faith. I find that it was reasonable for this matter to proceed to a hearing before the Tribunal to determine this atypical fact scenario. There was evidence provided by both parties which was analyzed and considered by the Tribunal in reaching the decision that the applicant was involved in an “accident”.

23I find the decision in Duval persuasive, where the Tribunal applied the two-part test for s. 3(8). In addition to finding that the respondent’s denial was not unreasonable, I find that the applicant has not provided sufficient evidence to support her position that the attendant care services would have been incurred if not for the respondent’s position that she was not involved in an “accident”. As cited in McMichael, the onus is on the applicant to prove that the service was reasonable and necessary. The applicant has not provided any submissions on the need for attendant care except to state that an In-Home Assessment and Form 1 were prepared following the accident. Instead, the applicant’s submissions focussed solely on her position that the respondent’s denial of her claim was unreasonable because it concluded that she was not involved in an “accident”. Section 3(8) does require the applicant to show that she did not incur the expense because the respondent unreasonably withheld the benefit. While the applicant submits that it was “impossible” to incur the attendant care benefits before the “accident” finding, I find that the applicant has not provided sufficient evidence to show that the respondent’s position is the cause of her not incurring attendant care benefits.

24As I have found that the respondent’s denial of the applicant’s claim was not unreasonable and the applicant did not meet the second part of the test under Duval, the applicant’s claim for attendant care benefits is not deemed incurred.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no overdue payment of benefits is owing to the applicant, no interest is owed.

Award

26The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

27As I have determined that there is a lack of benefits owing to the applicant, I therefore find that no award is payable.

ORDER

1For the reasons outlined above, I find:

i. The applicant is not entitled to attendant care benefits on the basis of the deemed incurred provisions of the Schedule;

ii. The applicant is not entitled to interest or an award; and

iii. The application is dismissed.