Licence Appeal Tribunal File Number: 23-005742/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:
Navaneeswaran Rajadurai
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Aleksandra Pace, Counsel
For the Respondent:
Thomas Long, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Navaneeswaran Rajadurai, the applicant, was involved in an automobile accident on November 3, 2018, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2According to the Case Conference Report and Order (“CCRO”), dated December 5, 2023, a 7-day videoconference hearing was scheduled in this matter to commence on May 27, 2024. On May 14, 2024, the applicant filed a Notice of Motion on consent of the respondent, vacating the 7-day videoconference hearing and converting the format of the hearing to a written hearing and withdrawing issues 1 and 17 as listed on the CCRO. The applicant further advised that the parties had resolved issues 4 to 16, 18 and 19 as listed in the CCRO. By Order dated May 16, 2024, the Tribunal granted the applicant’s motion, and the written hearing was scheduled for July 12, 2024.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to attendant care benefits in the amount of $1,935.63 per month from November 1, 2019 to June 9, 2020?
ii. Is the applicant entitled to attendant care benefits in the amount of $958.02 per month from June 9, 2020 to date and ongoing?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. 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
4I find that the applicant is not entitled to additional attendant care benefits, interest or an award.
PROCEDURAL ISSUES
5The applicant requested that the following preliminary issue be added as an issue in dispute in this hearing:
i. Is the respondent entitled to rely upon the Assessment of Attendant Care Needs and Form 1, completed by Montana Mullane, occupational therapist, dated January 24, 2020, or any medical opinions obtained pursuant to s. 44 of the Schedule?
6The applicant submits that the respondent should not be entitled to rely upon its Assessment of Attendant Care Needs and Form 1, dated January 24, 2020, or on any medical opinions obtained pursuant to s. 44 of the Schedule based on his Rule 10.4 Notice, and the respondent’s notice letter scheduling the assessment, dated December 17, 2019. The applicant challenges the respondent’s Insurer Examination (“IE”) reports based on its submission that the respondent had no legal right to conduct the assessments as medical and all other reasons were not provided in the Notices of Denial and/or Notices of Examinations, nor in any other notice documents, contrary to the Schedule, including sections 36(4)(b), 37(1)(b), (2)(c), (5) and (6)(c), 38, 42(3)(4) and 44(5)(a).
7The respondent submits that the preliminary issue should be dismissed for the following reasons. The respondent submits that the applicant did not raise this as an issue at the Case Conference and has raised the issue for the first time at the hearing. The respondent submits that any Notice under Rule 10.4 must be delivered by the applicant as soon as possible and no later than 10 days before the hearing, with a copy filed with the Tribunal. The respondent submits that the applicant has not complied with this requirement, as the notice was not delivered as soon as possible and represents litigation by ambush, which runs counter to the Tribunal’s own rules and procedural fairness. The respondent further submits that the applicant’s assertion that the notice of the IE is boilerplate and is unsupported by any specific deficiency.
8In reply, the applicant submits that the respondent has not provided a medical reason for any examination required under a Notice of Examination as well as for any Explanation of Benefits, as required by the Schedule and the applicable jurisprudence. The applicant relies upon the decision in Taksali v. Aviva Insurance Company, 2024 CanLII 128(ON LAT) (“Taksali”).
9The applicant’s request to exclude the respondent’s IE report is denied.
10I find that the applicant was entitled to file its Rule 10.4 Notice, as the Notice was filed within 10 days of the hearing date. Therefore, the preliminary issue raised by the applicant was properly before the Tribunal.
11I further find that Taksali is a parallel Tribunal decision and is not binding upon adjudicators at the Tribunal. Moreover, Taksali erroneously concluded that a non-compliant notice of an IE caused the resulting IE report to be void ab initio. The conclusion in Taksali failed to consider that the remedy for an insufficient IE notice is that the applicant is not obligated to attend the assessment.
12In this matter, the applicant attended and participated in the IE without any protest. Having attended and participated in the IE renders the applicant’s arguments on the admissibility of the IE report to be moot.
13For these reasons, I do not find that the applicant has established on a balance of probabilities that the IE report should be excluded.
ANALYSIS
The applicant is not entitled to any additional Attendant Care Benefits
14I find the applicant has not established that he is entitled to payment of any additional attendant care benefits.
15Section 20(1)(a) of the Schedule states that the availability of attendant care benefits, if found reasonable and necessary, is limited to 260 weeks from the date of the accident for an insured not designated catastrophically impaired.
16Section 18(3)(a) of the Schedule provides a monetary limit of $65,000.00 for all medical, rehabilitative, and attendant care needs for an insured not designated catastrophically impaired.
17The applicant submits that he is entitled to attendant care benefits in the amount of $1,935.64 per month from November 1, 2019 to June 9, 2020 and attendant care benefits in the amount of $958.02 per month from June 9, 2020 to date and ongoing. He further claims entitlement to $9,979.55 for attendant care benefits incurred at Smart Personal Care up to April 21, 2022.
18The respondent submits that it has paid the applicant attendant care benefits in accordance with the Schedule. It submits that the benefit is unavailable to the applicant as both the period of the benefit’s potential availability has expired, along with the potential available funding being exhausted in accordance with the prescribed limits in the Schedule.
19I find that as of the date of this hearing, the applicant has not made a claim for catastrophic impairment and an OCF-19 has not been submitted. Pursuant to s. 20(1)(a), the 260-week period for claiming attendant care benefits expired on October 28, 2023. The parties have both agreed that as of the date of this hearing, the non-catastrophic limits of $65,000.00 for medical, rehabilitative, and attendant care benefits have been exhausted.
20I therefore find that as of the date of this hearing there is no additional entitlement to attendant care benefits, subject to the determination of CAT in the future. As I can only address the issues before me, I find that the applicant is not entitled to any additional attendant care benefits as the period of the benefit’s potential availability has expired, along with the potential available funding being exhausted in accordance with the prescribed limits in the Schedule.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that no benefits are owing, it follows that no interest is payable pursuant to s. 51 of the Schedule.
Award
22The applicant sought an award under s. 10 of Reg. 664. The applicant is not entitled to an award under s. 10, because the applicant is not entitled to the benefits or interest claimed.
ORDER
23For the reasons outlined above, I find that the applicant is not entitled to additional attendant care benefits, interest or an award. The application is dismissed.
Released: April 25, 2025
Melanie Malach
Adjudicator