Licence Appeal Tribunal File Number: 24-011237/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:
Dawn Campbell
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Doug Wright, Counsel
For the Respondent:
Annette Uetrecht-Bain, Counsel
HEARD: by Videoconference:
July 22, 2025
OVERVIEW
1Dawn Campbell, the applicant, was involved in an automobile accident on August 27, 2023, 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, 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 respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew issues 1-5 as listed in the Case Conference Report and Order, dated March 12, 2025.
RESULT
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest.
ANALYSIS
Interest
6I find that the applicant is entitled to interest on overdue Income Replacement Benefits (IRB) payments.
7Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
8There is no dispute regarding the period of the applicant’s entitlement to the IRB, nor the quantum. The respondent’s letter, dated December 10, 2024, advised the applicant that she was receiving a payment of $8,471.00 for the outstanding IRB from September 4, 2023 to February 5, 2024. The respondent subsequently wrote a letter dated May 26, 2025 to inform the applicant that she is receiving $17,808.86 for the IRB from February 6, 2024 to May 25, 2025 and that going forward she would be paid a biweekly payment of $526.00 for the IRB.
9The applicant argues that she is entitled to interest on the IRB amounts that were paid in arrears.
10The respondent argues that it is not required to pay interest because the applicant is withholding information needed to calculate the IRB quantum. The applicant was self employed before the accident and an accounting of income loss is needed to precisely calculate the IRB quantum. Requests were made for this accounting, but it has never been provided by the applicant. The respondent submits that it is paying the IRB on a good faith basis after calculating the IRB quantum according to the incomplete information it has received. Under these circumstances, the respondent argues that it is not liable to pay interest under s. 33(6) of the Schedule.
11I agree with the respondent.
12Section 33 reads as follows:
(1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:
Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
A statutory declaration as to the circumstances that gave rise to the application for a benefit.
The number, street and municipality where the applicant ordinarily resides.
Proof of the applicant’s identity. O. Reg. 34/10, s. 33 (1).
(2) If requested by the insurer, an applicant shall submit to an examination under oath, but is not required,
(a) to submit to more than one examination under oath in respect of matters relating to the same accident; or
(b) to submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition. O. Reg. 34/10, s. 33 (2).
i. …
(6) The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).
13A plain reading of s. 33(6) shows that insurers are not liable to pay benefits if the information requested under s. 33(1)1. is not provided by the insured. There is no dispute that the applicant did not provide the information requested by the respondent. As such, the circumstances in 33(6) remain in place. The parties have entered into an agreement where the respondent is paying an amount towards the IRB pending the applicant’s co-operation to provide the information referred to in s. 33(1)1. When that information is provided, the respondent will be able to calculate the IRB quantum and s. 33(6) will no longer apply. For now, I find that the respondent is not liable to pay an IRB because of s. 33(6).
14It follows that if the respondent is not liable to pay an IRB, then there are no overdue benefits. As interest is only payable on overdue benefits, I find that the applicant is not entitled to interest.
Award
15The respondent is not liable to pay an award.
16The 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. “Unreasonable” is defined in Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 and constitutes behaviour by an insurer in withholding or delaying payments that can be characterized as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
17The applicant submits that the insurer did not require the information on the applicant’s income loss to calculate the IRB quantum. This is established by the fact that the respondent ultimately paid the IRB. According to the applicant, this should have been done much earlier instead of unnecessarily delaying the payment of benefits. The applicant also suggests that the only reason the IRB was paid at all was because the respondent felt pressured to do so after she filed an application with the Tribunal. The applicant further submits that an award should also be paid for the delay in paying interest. In her view, the unjustified delay in paying the IRB and interest can be characterized as inflexible, imprudent, unyielding or immoderate and the respondent is liable to pay an award.
18The respondent argues that its attempts to obtain necessary information to calculate the IRB quantum cannot be characterized as unreasonable, especially since the applicant never provided the information, nor an explanation for why the information has not been made available. Despite this behaviour, the insurer is paying the IRB on a good faith basis despite not having the necessary information to calculate a precise IRB quantum.
19I agree with the respondent.
20The log note from January 5, 2024 states that the Disability Certificate (OCF-3), completed on November 1, 2023, supports entitlement to both an IRB and NEB, and that the applicant elected to receive an IRB on the OCF-10 Election of Income Replacement form.
21The respondent subsequently wrote to the applicant on January 19, 2024 and May 21, 2024, requesting supporting documents to determine the quantum of IRB. On June 4, 2024, the applicant provided a forensic accounting report by ADS, an accounting firm, but did not provide the source material used by ADS to create the report.
22In a letter dated August 13, 2024, the applicant sent the supporting documentation used by ADS.
23The respondent sent a letter on November 25, 2024 requesting further financial documentation to clarify various large deposits in the applicant’s account and other information to determine the amount of IRB owed to the applicant. The following day, she responded with a letter stating these productions are not reasonable. This is significant because the applicant does not explain why she considers these requests to be unreasonable.
24Likewise at the hearing, the applicant argues that the documents requested by the respondent are not necessary because she received the IRB without providing the documents. She did not provide an accounting reason to explain why the respondent’s accounting firm KPMG would not require the documents to calculate the IRB quantum.
25Alex Amigud, adjuster, testified on the lack of progress in obtaining documents from the applicant. She also testified that she asked KPMG to analyze the incomplete information to resolve the IRB issue. This is reflected in the KPMG report dated December 4, 2024, which states that the scope of its review was limited by the absence of documents it requested but did not receive. I give weight to the fact that these requests were directed by accountants at KPMG, and find there was a legitimate accounting reason for these requests. Consequently, I find that the respondent did not act unreasonably when it made multiple requests for financial documents to determine the IRB quantum.
26In regard to an award for the delay in paying of interest, I have found that the applicant is not entitled to interest. As such, there is no basis to find that the respondent is liable to pay an award for withholding interest.
27For all these reasons, I find that the respondent is not liable to pay an award.
ORDER
28The applicant is not entitled to interest on the overdue.
29The respondent is not liable to pay an award.
30This application is dismissed.
Released: September 19, 2025
Harry Adamidis
Adjudicator