Licence Appeal Tribunal File Number: 23-014490/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:
[K.G]
By their litigation guardian, [C.M]
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Brian Smith, Counsel
For the Respondent:
Jennifer Chapman, Counsel
Jennifer Mitchell, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[K.G], the applicant, was involved in an automobile accident on June 12, 1999, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The applicant was denied benefits by the respondent, the Motor Vehicle Accident Claims Fund, 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 payment of $150,408.28 as a result of the Tribunal’s ruling in Tribunal File No. 20-003724/AABS?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order lists issue i as, “Is the applicant entitled to payment of $150,408.28 as a result of the Tribunal’s ruling in Tribunal File No. 20-003724/AABS?” The applicant in his submissions seeks an Order claiming entitlement to payment of $194,695.88. I find that rather than amend the issue in dispute, I will deal with the amount of any entitlement in my decision below.
RESULT
4The applicant is entitled to payment of the balance of the amount owing of $120,967.82, less the top-up of $7,019.32, plus interest, pursuant to the Tribunal’s ruling in Tribunal File No. 20-003724/AABS.
5The respondent is liable to pay an award under s. 10 of Reg. 664, at the rate of 15%, in the amount of $18,145.17, plus interest at 2%.
ANALYSIS
Background
6The applicant sustained a catastrophic brain injury in a motor vehicle accident that occurred on June 12, 1999. The applicant made an application to the Tribunal (Tribunal File No. 20-003724/AABS) with respect to entitlement to past attendant care benefits (“ACBs”), interest and an award. Vice Chair Jeffrey Shapiro issued his Decision and Order on August 2, 2022 (“the Decision”), in which he held that past ACBs were owing, made an award, and ordered that interest on all amounts owed accrued from the date of the Order at a rate of 2% compounded monthly.
7The applicant provided the respondent with a report prepared by Gary Phelps, Chartered Professional Accountant, dated August 11, 2022. The report indicated that the amount owing was $1,321,649.33. The respondent in response paid the applicant $7,019.32 (the “top-up” benefit) on September 8, 2022 and $1,220,607.24 on January 3, 2023. The applicant submits that there is a deficit of $120,967.82. The applicant submits that despite numerous requests, the respondent has not paid the full amount owing to the applicant or explained why it disagrees with Mr. Phelps’ calculations.
8On November 4, 2022, the applicant brought a motion to the Tribunal requesting an Order clarifying the amounts owing to the applicant as ordered in Vice Chair Shapiro’s decision dated August 2, 2022. The motion was subsequently denied by Vice-Chair Lindsay Lake, in her Motion Order dated November 22, 2023 (“the Motion”). Vice-Chair Lake noted that the basis for the relief requested is that the parties do not agree on the amount owing as a result of the Decision. However, the decision rendered was final, the Tribunal was functus officio, and the Decision cannot be revisited. Further, she found that the applicant did not identify any statutory authority for the relief requested. The Vice Chair noted the potential role of Rules 17 and 18 of the Rules after a decision is rendered, however states: “it does not appear that the relief being sought by the applicant would fall under Rule 17. Neither party requested Reconsideration”. Finally, it was noted that the Notice of Motion was filed three months after the Decision was released and Vice Chair Shapiro is no longer with the Tribunal.
9On July 3, 2024, Mr. Phelps provided a recalculation of the total differential amount owing of $120,976.82 plus interest calculated at 2% compounded monthly. He calculated that the total amount owing on July 3, 2024, was $172,715.62, including the balance owing of $120,976.82 plus interest calculated at 2% per month compounded monthly of $51,738.80.
10The applicant submits that as of January 24, 2025, the date of this written hearing, the respondent owes $194,695.88.
11The applicant seeks an Order requiring the respondent to pay $194,695.88 in unpaid interest arising out of the Decision. The applicant also seeks an award because the respondent failed to pay the amount owed or explain why it has not paid the amount owed, in the two years and five months that have passed since the calculation of the amount owed was provided.
12The respondent submits that the application ought to be dismissed as the issue is res judicata and/or the application is an abuse of process, the Tribunal does not have jurisdiction to grant the relief requested by the applicant, and all amounts were paid to the applicant in accordance with the Decision.
Res Judicata
13I find that the applicant is not barred from proceeding to a hearing on the basis of the doctrine of res judicata.
The Law
14The doctrine of res judicata prevents a party from relitigating an issue that has already been decided.
15I am bound by the Supreme Court of Canada decisions in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (“Danyluk”) and Toronto (City) v. CUPE Local 79, 2003 SCC 63, [2003] 3 SCR 77 (“CUPE Local”), which set out the preconditions that must be established before an adjudicator can determine whether to exercise discretion to apply res judicata.
16At paragraph 25 of the decision in Danyluk, the Supreme Court of Canada determined that there were three pre-conditions for issue estoppel (a branch of res judicata), which are as follows:
i. That the same question has been decided;
ii. That the judicial decision which is said to create the estoppel was final; and
iii. That the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies.
17The Supreme Court of Canada decision in CUPE Local confirms the three pre-conditions set out in Danyluk and found that “issue estoppel is a branch of res judicata … which precludes the relitigation of issues previously decided in court in another proceeding.”
Parties Positions
18The respondent submits that this application ought to be dismissed as res judicata. It submits that the applicant brought a motion seeking the same relief as this application and the motion was denied. It submits that the within application is requesting a specific amount be paid because the parties do not agree on the amount owing pursuant to the Decision. The respondent argues that the issue as to interest was already decided in the Decision and whether the Tribunal can now change the determination of that issue, by assigning a dollar figure or “clarifying” same, was already decided by the Motion. The respondent states that the Decision is final, as is the Motion Order.
19The applicant submits that he is not estopped from seeking the relief sought in his application. He submits that the respondent has not complied with the Order of Vice-Chair Shapiro and the applicant cannot take steps to enforce it without an Order quantifying the amount owed. The applicant disagrees with the respondent’s claim that the Decision has already decided what interest is owing. The applicant submits that the determination that interest be calculated at 2% on all amounts owed, is meaningless absent an agreement or determination of what amount is owed. As the parties cannot agree, an Order is required. The applicant submits that this issue has not been adjudicated and he had no alternative but to bring this application to obtain an Order quantifying the amount owed by the respondent.
20The applicant further submits that the issue in dispute was not addressed in the Motion. He submits that res judicata would only apply if Vice-Chair Lake held that no further amounts were owed or that the Tribunal lacked the jurisdiction to quantify the Order. The applicant argues that he requested that the motion be heard by Vice Chair Shapiro at a case conference to clarify his Order and he did not seek a specific dollar amount.
Res Judicata does not apply
21I find that the applicant is not barred from proceeding to a hearing on the basis of the doctrine of res judicata.
22The first precondition set out in Danyluk is whether “the same question has been decided”. I find that the issue raised by the applicant in the present application is different than the issue raised in the Decision. The Decision dealt with the applicant’s entitlement to ACBs and the interest that flowed from that determination. The current application deals with the dispute between the parties about the quantum of the interest owing to the applicant. While both issues deal with the applicant’s entitlement to interest, the questions are not the same.
23In the Decision, I find that the Tribunal held that the applicant was entitled to ACBs, interest and award. I find that following the Tribunal’s Decision, the applicant provided the respondent with a report calculating the amount owing. The respondent disagreed with the findings in the report and paid the applicant a lower amount. I find that when the applicant brought a motion to clarify the amount owing, his motion was dismissed by the Tribunal. The applicant was left with no other option to dispute the difference in the amounts owing, but to file a new application with the Tribunal.
24Section 280 of the Insurance Act applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. Since there is a fresh dispute over the latter, it is clearly a “new” question that the Tribunal has jurisdiction over.
25Based on the facts and evidence before me, I find that the prerequisites for issue estoppel have not been met, and as such, the doctrine of res judicata does not apply. While the two applications involve the same parties, and both deal with the applicant’s entitlement to interest, they engage different questions. In the circumstances it would be procedurally unfair to prevent the applicant from proceeding to a hearing.
Abuse of Process
26I find that the applicant is not barred from proceeding to a hearing on the basis of an abuse of process.
27The respondent submits that if the application is not dismissed as res judicata, it ought to be dismissed as an abuse of process. The respondent submits that the applicant did not request reconsideration and his motion was denied. It argues that although the within application is worded as a request for payment of the amounts owing pursuant to the Decision, it amounts to essentially the same request made in the Motion. The respondent submits that the integrity of the Tribunal’s adjudicative process would be significantly undermined if the applicant is permitted to proceed with the within application.
28The respondent relies upon the decision in CUPE where Justice Arbour states:
In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute.”
…Canadian courts have applied the doctrine of abuse of process to preclude relitigating in circumstances where the strict requirements of issue estoppel … are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
29The applicant submits that his application is not an abuse of process. He submits that his only recourse to challenge the respondent’s interpretation of the Decision, is to apply to the Tribunal. He argues that little would bring the administration of justice into disrepute more than barring him from challenging the respondent’s erroneous calculation of the amount of benefits owed and refusal to pay.
30I find the application is not an abuse of process. I do not find that the applicant is attempting to misuse the Tribunal’s procedures or that the within application would bring the administration of justice into disrepute. I do not find that allowing this application to proceed would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice. As stated above, the question raised in the applicant’s current application is not the same question raised in the Decision or in his subsequent motion. I do not find that the applicant is attempting to challenge the Decision, nor is he attempting to clarify the Order as he did in his motion. I find that this application is being brought to resolve the discrepancy in the amounts determined to be payable by the parties.
Jurisdiction of the Tribunal
31I find that the Tribunal has jurisdiction to decide the current application.
32Section 280(1) of the Insurance Act states that the Tribunal has jurisdiction to resolve “disputes in respect to an insured’s entitlement of statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”
33The respondent submits that the Tribunal does not have the jurisdiction to deal with the requested relief in the application. The respondent argues that the applicant is requesting that the Decision be “clarified” or changed to include a specific monetary amount payable by the respondent, which was not included in the Decision. The respondent further submits that the Tribunal’s jurisdiction is derived from s. 280 of the Insurance Act. It argues that given that interest and an award are not matters “in respect of an insurer’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”, there is no jurisdiction for the Tribunal to make the Order requested by the applicant.
34The applicant submits that the parties disagree about the quantum of ACBs owed, with the respondent claiming an $87,000.00 credit. The applicant challenges the respondent’s assertion and seeks an Order from this Tribunal quantifying the amount of ACBs owed by the respondent, upon which interest and the special award must calculated. The applicant submits that this falls squarely within the Tribunal’s jurisdiction.
35I find that the Tribunal has jurisdiction in respect of the amount of statutory accident benefits to which an insured person is entitled. I further find that the Tribunal has the authority to make an award and to award interest or costs, all remedies that may be used to respond to and deter insurer misconduct. I therefore find that the Tribunal has jurisdiction to decide the current application, as the issues in dispute are tied to the applicant’s entitlement to ACBs and the interest that applies to that determination where the respondent disagrees and/or refuses to pay the amount claimed.
The Decision
36I find that the applicant is entitled to the balance of the amount owing as set out in the Decision.
37The Decision made the following Order:
i. K.G. is not entitled to any further ACB prior to the November 2000 suspension. Those rates were correct and have been paid.
ii. The $120.40 rate, recently paid, from November 2000 to date and ongoing is correct, except for two periods during which K.G. is entitled to an increased ACB of $451.50 a month (i.e. a ‘top up’ of $331.10 per month over the $120.40 rate) for 6 months following his moves to: (1) Orillia in December 2003; and (2) his house in December 2004, plus interest at the 2% rate under s. 46(2) of the 1996 Schedule running from those periods.
iii. K.G. is entitled to an award of 10% on the $120.40 recently paid and $331.10, with interest.
iv. MVAC shall be entitled to a credit for amounts and interest paid.
38Following the Decision, the applicant retained Mr. Phelps to calculate a summary of the amounts owing based on the following instructions, with references to the Order in italics:
i. Interest on all past due amounts accrues at 2% compounded monthly (plus interest at the 2% rate under s. 46(2) of the 1996 Schedule running from those periods)
ii. The ACB was payable in the amount of $120.40 per month from November 1, 2000 through November 1, 2023. (The $120.40 ACB rate, recently paid, from November 2000 to date and ongoing is correct)
iii. The ACB was payable in the amount of $451.50 per month from December 1, 2023 through June 1, 2024. (except for two periods during which K.G. is entitled to an increased ACB of $451.50 per month…for 6 months following his moves to (1) Orillia in December 2003…)
iv. The ACB was payable in the amount of $120.40 per month from July 1, 2004 through November 1, 2004. (The $120.40 ACB rate, recently paid, from November 2000 to date and ongoing is correct)
v. The ACB was payable in the amount of $451.50 per month from December 1, 2004 to June 1, 2005. (except for two periods during with K.G. is entitled to an increased ACB of $451.50 per month…for 6 months following his moves to…his house in December 2004)
vi. The ACB was payable in the amount of $120.40 per month from July 1, 2005 through April 1, 2019, after which no past benefit is payable, but interest on amounts owing as of that date continues to accrue.
vii. Deduct payment made by the MVACF in the amount of $26,488.00 on July 21, 2021. (MVAC shall be entitled to a credit for amounts and interest paid)
viii. Deduct payment made by the MVACF in the amount of $242,185.23 on May 11, 2022. (MVAC shall be entitled to a credit for amounts and interest paid)
ix. Apply a 10% special award to all amounts owing as of August 2, 2022. (K.G. is entitled to an award of 10% on the $120.40 recently paid and $331.10 top up, plus interest)
x. Interest continues to run on the principal owing as of August 2, 2022 at 2% compounded monthly.
39Based on these instructions, the applicant submits that Mr. Phelps authored a Summary of Amounts Owing Report dated August 11, 2022, which indicated that the amount owing to the applicant was $1,321,649.33.
40On August 18, 2022, counsel for the respondent advised counsel for the applicant that payment in the amount of $7,019.32 was being forwarded to his office which represents payment of the “top-up” benefit and award.
41On August 19, 2022, counsel for the applicant acknowledged the email from counsel for the respondent dated August 18, 2022, and forwarded a copy of Mr. Phelps report.
42By email dated September 2, 2022, counsel for the applicant sent an email to counsel for the respondent asking if the respondent agreed with Mr. Phelps’ calculation of the Order. A second follow-up email was sent on November 15, 2022, and a third email was sent on November 29, 2022. The respondent did not respond to these emails.
43On December 21, 2022, counsel for the respondent advised counsel for the applicant that payment in the amount of $1,220.607.24 for interest and the award was being forwarded to him. The letter states that payment is based on the calculations provided by the applicant less the credit for “amounts and interest paid” as per the Decision.
44On January 3, 2023, the respondent sent a cheque to the applicant in the amount of $1,220.607.24. In response, counsel for the applicant advised on January 5, 2023, that there was a difference between the respondent’s calculation of the amount owing and Mr. Phelps’ determination, which resulted in a shortfall of $120,967.82. Counsel for the applicant repeated the instructions it had provided to Mr. Phelps and asked counsel for the respondent to “Please identify the point(s) at which our calculations diverge.”
45I find that despite the applicant’s request for clarification as to why the respondent did not agree with Mr. Phelps’ calculation, no response was received from the respondent.
46The respondent argues that although the applicant’s calculations include credit for the ACB and interest payment made prior to the release of the Decision ($26,488.00 and $242,185.23 respectively), they do not include credit for the “top-up” and award payment of $7,019.32.
47In addition, the respondent submits that the applicant failed to provide credit for other ACB amounts paid by the respondent. It submits that from the period of March 2019 to November 2020, the respondent paid the applicant ACB in the amount of $4,948.44 per month. From the period of December 2020 to August of 2022, the respondent paid the applicant ACB in the amount of $180.60 per month. The respondent submits that these payments are in excess of the amounts ordered in the Decision and the respondent is entitled to a credit to the extent of the excess. It claims that the total credit omitted from the applicant’s calculations is $94,022.77. The respondent submits that it used the calculations provided by the applicant and deducted the amounts that the applicant did not deduct.
48The respondent has provided a copy of its letter to the applicant dated August 15, 2022. The letter advised that the applicant is currently in an overpayment situation in the amount of $1,324.40 for the period of October 2020 to August 2022, during which time the monthly ACB was being paid in the amount of $180.60 for that period. The letter advises that as the LAT has determined that his entitlement for that period was also $120.40, an overpayment of $60.20 per month from October 2020 to date is payable.
49The applicant submits that there is no factual or legal basis for the respondent to claim what amounts to a “repayment” of approximately $87,000.00 in respect of ACBs paid between March 2019 and August 2022, as payment of ACBs during that period was not an issue in dispute before the Tribunal and formed no part of the Decision. The applicant submits that the parties made no submissions on repayment and the Decision provides no analysis of that issue. The applicant submits that Mr. Phelps was not asked to consider ACBs paid post March 2019 for the purpose of his calculations because ACBs paid after that date were not in dispute.
50The applicant accepts the respondent’s submission that the $7,092.32 “top-up” received on September 8, 2022, in accordance with the Order, was not accounted for in the instructions provided to Mr. Phelps. The applicant submits that as this was only raised in the respondent’s submissions, it did not have an opportunity to request that Mr. Phelps revise his calculations and requests that Mr. Phelps be given the opportunity to revise his report to take this “top-up” into account.
51I find that the applicant provided specific instructions to Mr. Phelps following the Decision to calculate the amount owing. I find that the instructions provided to Mr. Phelps were consistent with the Decision. I further find that despite the applicant’s counsel asking the respondent’s counsel in multiple letters whether it agreed with the instructions provided to Mr. Phelps, that no response was received by the respondent. Instead, the respondent determined an amount payable to the applicant based on its own calculations, without any explanation for the amount, except to say that it was for the award and interest. I find that following receipt of the reduced amount from the respondent, counsel for the applicant again asked for clarification of the amount being paid, without any response from counsel for the respondent.
52Instead, I find that the first time that any explanation was provided by the respondent with respect to its calculation was in its submissions for this hearing. I find that the respondent’s only submission is that it is entitled to a credit of $94,022.77 for the other ACB amounts paid by the respondent. I find that the respondent has not provided any evidence to support the amount calculated and deducted, other than to provide a copy of its letter dated August 15, 2022, which discusses the repayment of ACBs for the period from October 2020 to August 2022. I find that the letter does not address how the repayment was to be made or why. I further find that the respondent has not provided any evidence of a request made for the repayment it mentions for the period from March 2019 to November 2020 or a breakdown of the repayment owing pursuant to s. 52 of the Schedule. Indeed, if repayment were at issue, the respondent would have added it as an issue in dispute for this hearing.
53I agree with the applicant that the Decision did not deal with any issues of repayment and the Decision provides no analysis of that issue. I find that had the respondent requested repayment, it was required to comply with s. 52 of the Schedule. I do not find that the respondent had the right to unilaterally deduct amounts from Mr. Phelps’ calculations that were not first communicated and set out for the applicant in a proper notice.
54I find that the applicant was entitled to have a report prepared which set out the amounts owing by the respondent as per the Decision. I find that had the respondent communicated the details of the repayment it was seeking to the applicant, consideration could have been made by the applicant to make these repayments. As no such communication was made, and proper notice of the repayment was not provided, the applicant was entitled to receive the entire amount calculated by Mr. Phelps in his report which was based solely on the Decision.
55I therefore find that the respondent is required to pay the balance of the amount set out in the report of Mr. Phelps, dated August 11, 2022, of $120,967.82 less the agreed upon top-up amount paid. I find that instructions should be provided to Mr. Phelps to update his calculations to include the $7,019.32 top-up, agreed upon by the parties. I further find that the report of Mr. Phelps should be updated and a calculation of the interest owing should be provided to the date of this Order. As set out in the Decision, interest is payable at the 2% rate under s. 46(2) of the 1996 Schedule.
Award
56The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
57In determining the type of conduct for which an award is appropriate, the applicable standard is set out in Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, the conduct must be found to be an “immoderate, imprudent, inflexible and excessive” approach with respect to the respondent’s decision-making. An award should not be ordered simply because the Tribunal determined that the respondent made an incorrect determination. The insurer’s conduct must rise to the level described in Plowright, that is, excessive, imprudent, stubborn, inflexible unyielding or immoderate.
58Case law has established that in determining the quantum of an award, the Tribunal may consider the following factors: a) the blameworthiness of the insurer’s conduct; b) the vulnerability of the insured person; c) the potential or actual harm to the insured; d) the necessity of deterring future such conduct from the insurer; e) the advantage gained through the insurer’s misconduct; f) a consideration of any other action that has been or will be taken against the insurer due to its conduct; and g) the overall length of the delay.
59The applicant requests the maximum award permitted by s. 10 and claims $97,347.94, representing 50% of the principal owing which shall accrue interest at a rate of 2% compounded monthly. The applicant relies on the following factors:
a. The overall length of the delay: The applicant submits that almost two and a half years has passed as of the date of his Application, without payment or an explanation as to why the respondent disagreed with Mr. Phelp’s report dated August 19, 2022.
b. The blameworthiness of the insurer’s conduct: The applicant submits that the respondent has refused to provide the applicant with any rationale for its failure to pay the amount ordered despite repeated requests. Ignoring an insured, particularly a catastrophically impaired one, is egregious behaviour.
c. The vulnerability of the insured person: The applicant submits that he is exceedingly vulnerable having suffered a catastrophic brain injury.
d. The need for deterrence: The applicant submits that insurers should be deterred from taking the approach adopted by the respondent as it has ignored the calculations made by the applicant and did not tell the applicant how it calculated the amounts it paid.
e. The advantage wrongfully gained by the insurer from the misconduct: The applicant submits that the respondent attempted to save the additional $120,967.82 owing when partial payment was made on January 3, 2023.
60The respondent submits that there is no basis for a further award pursuant to s. 10, as no further payments are owing to the applicant. In the alternative, the respondent submits that should the Tribunal find that there are additional amounts owing to the applicant, the respondent submits that an award is not warranted. The respondent submits that the following factors should be considered:
a. Overall length of the delay: The respondent submits that the delay is negligible as the first payment was received one month after the Decision and the final payment was received five months after the Decision. It submits that no further amounts are owing to the applicant.
b. The respondent’s conduct is not blameworthy: The respondent submits that it has paid all amounts ordered in a timely manner and that the applicant was not ignored because its counsel explained to the applicant’s counsel the basis for the payments that were made.
c. Vulnerability of the applicant: The respondent submits that the vulnerability of the applicant is irrelevant to the current dispute and the applicant had the benefit of counsel throughout.
d. Need for deterrence: The respondent submits that there is no need for deterrence arising from the respondent’s conduct as all amounts ordered were paid in a timely manner.
e. Advantage: The respondent submits that it did not gain any advantage as it paid all amounts owed in accordance with the Decision in a timely manner.
f. Sanctions imposed: the respondent submits that there is no need for the respondent to be sanctioned in this case as it has met its obligations pursuant to the Decision. It submits that a 50% award is reserved for cases where an insurer exhibits egregious conduct and its conduct was not unreasonable or egregious in the circumstances.
61I find that based on my findings set out above, that the respondent unreasonably withheld or delayed the payment of benefits. I find that the respondent failed to respond to the applicant’s correspondence and failed to provide the applicant with an explanation as to its partial payment or its position that it was entitled to a credit. I further find that the respondent was unreasonable in failing to pay the applicant pursuant to the Order in the Decision. I agree with the applicant that the respondent offered no explanation as to why it disagreed with Mr. Phelps’ calculation until it served its submissions.
62While the quantum of the award should be large enough to serve as a deterrent, I find the highest allowable award would be excessive. In the circumstances, I find that an award of 15% is appropriate because I have not been directed to any evidence to support a finding that the respondent’s conduct was egregious and that it calls for the maximum amount of the award. I do find that the evidence supports an award higher than a minimal amount given the length of the delay and the blameworthiness of the respondent’s conduct and the vulnerability of the applicant. I find that had the respondent properly communicated with the applicant in respect to this matter, this application would not have been necessary. I therefore find that the applicant has demonstrated that the respondent’s conduct has risen to the level described in Plowright, that being excessive, imprudent, stubborn, inflexible unyielding or immoderate.
63Accordingly, the respondent is liable to pay an award of 15%, on the amount of the $120,967.82 differential that was not paid by the respondent, for a total of $18,145.17, plus interest.
ORDER
64For the reasons outlined above, I find that:
i. The applicant is entitled to payment of the balance of the amount owing of $120,967.82, less the top-up of $7,019.32, plus interest, pursuant to the Tribunal’s ruling in Tribunal File No. 20-003724/AABS.
ii. The respondent is liable to pay an award under s. 10 of Reg. 664, at the rate of 15%, in the amount of $18,145.17, plus interest at 2%.
Released: September 5, 2025
Melanie Malach
Adjudicator