Semyonov v. TD General Insurance Company, 2025 CanLII 97798

Citation: Semyonov v. TD General Insurance Company, 2025 ONLAT 23-015739/AABS

Licence Appeal Tribunal File Number: 23-015739/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:

Anna Semyonov

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Antonella Santi, Counsel

HEARD: By way of written submissions

OVERVIEW

1Anna Semyonov, the applicant, was involved in an automobile accident on July 14, 2019, 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, TD General 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 $2,825.00 ($2,500.00 plus HST), for an IRB Calculation report, prepared by S&T Accounting, dated June 14, 2023?

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?

RESULT

3I find that the applicant is not entitled to the cost of the IRB Calculation report, prepared by S&T Accounting, dated June 14, 2023, interest or an award.

ANALYSIS

Background

4At the time of the accident, the applicant was employed at 1905464 Ontario Corporation, carrying on business as Synergy Diagnostic and Assessment Centre (“Synergy”). She was an employee and co-owner of the business since 2013. Following the accident, she was unable to return to work and remained completely off work for a few months. The applicant returned to Synergy on July 15, 2019, but claims that she subsequently stopped working on December 31, 2021. She started her employment at Factor Direct Corporation on January 1, 2022 and stopped working on December 31, 2022. She received Maternity benefits until October 7, 2023.

5On October 26, 2021, the respondent acknowledged receipt of the applicant’s T4 for the 2018 and 2019 taxation year. It advised the applicant that as she is self-employed, it had assigned an independent accounting firm to complete an IRB Calculation report. The letter notes that the accounting firm will be in contact with her with a request for additional financial documents.

6On November 2, 2021, Pricewaterhouse Coopers LLP (“PwC”) wrote to the applicant’s counsel requesting a list of information and documents it required in order to prepare its IRB Calculation Report.

7PwC provided follow up letters to counsel for the applicant on January 11, 2022 and January 25, 2022. The respondent also provided a letter to counsel for the applicant on January 25, 2022, reiterating that PwC required the financial information requested.

8On January 31, 2022, counsel for the applicant enclosed the applicant’s T4 for 2018.

9On February 3, 2022, PwC again wrote to counsel for the applicant outlining the information it continued to require in order to prepare a calculation of the applicant’s IRB. A follow-up letter was sent by PwC on March 8, 2022.

10On March 8, 2022, the respondent wrote to the applicant and advised that PwC had notified it that after many requests, it has not received the financial information required to accurately calculate her IRB. The respondent notes that it therefore advised PwC to close their task.

11On March 15, 2022, counsel for the applicant wrote to PwC and provided it with the applicant’s T4 for 2018-2021 and advised that she went back to work in 2019 and was on and off work in 2020-2021. On March 16, 2022, PwC acknowledged counsel for the applicant’s email and again set out the information that remained outstanding. No response was received from the applicant.

12By letters dated May 23, 2023, May 24, 2023, June 13, 2023 and June 27, 2023, the respondent notified the applicant that it was requesting financial documentation under s. 33 of the Schedule to calculate her IRB. No response to these letters was received from the applicant.

13The applicant submitted an IRB calculation report to the respondent, prepared by S & T Accounting, dated June 14, 2023. The report calculated the applicant’s IRB entitlement from July 22, 2019 until May 14, 2023. An invoice in the amount of $2,825.00, dated June 19, 2023, was submitted to the respondent.

14By letter dated July 25, 2023, the respondent denied entitlement to this report and advised that “the report is not reasonable and necessary as we had engaged the services of PwC. They had requested income information that was not provided. Once we are in receipt of the report if further information is required we will notify you.”

15On August 8, 2023, PwC provided counsel for the applicant with a letter outlining the information it needs to calculate the applicant’s IRBs. On August 9, 2023, counsel for the applicant provided PwC with the information requested. On August 15, 2023, PwC wrote to counsel for the applicant and requested further particulars from the applicant.

16On November 15, 2023, counsel for the respondent emailed counsel for the applicant and provided a list of the outstanding financial information and documentation with respect to the IRB calculation. By email dated November 17, 2023, the applicant’s counsel responded with answers to the respondent’s questions. Counsel for the applicant stated that the applicant was frustrated by some of the questions asked as the answers were already provided to PwC.

17On November 28, 2023, PwC provided the respondent with a copy of its IRB Calculation Report. The report limited its calculation of the applicant’s IRB entitlement to the period ending August 25, 2021. The report notes that the June 14, 2023 report prepared by S&T Accounting was reviewed and comments were provided. The report notes that there are still outstanding documents that the applicant had not provided to PwC. The report was provided to the applicant on February 8, 2024.

The applicant is not entitled to cost of the IRB Calculation report

18I find that the applicant has not proved entitlement to the cost of the IRB Calculation report.

19Section 7(4) of the Schedule states that an insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment if all of the following conditions are satisfied:

1. The insured person is applying for an income replacement benefit under this Part that is based on employment or self-employment considered in the report.
2. The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.
3. The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit.

20Section 7(4) is to be read in concert with s. 7(5) of the Schedule, which allows payment up to $2,500.00 for the preparation of the report.

21The applicant submits that there is nothing in the Schedule which indicates if a respondent has commissioned its own accounting report, that the applicant is barred from utilizing the authority bestowed under s. 7(4) of the Schedule. The applicant submits that it was reasonable and necessary for her to commission the report from S & T Accounting, because her IRB calculation was not straightforward as she was an employee and co-owner of Synergy at the time of the accident. The applicant further submits that it was reasonable and necessary for her to commission her own accounting report due to the length of time it took PwC to provide a report. She submits that the PwC report was deeply flawed, inaccurate and conflicting. The applicant relies upon the Tribunal decision in V.H. v. Aviva Insurance Company of Canada, 2019 CanLII 130385 (ON LAT) (“V.H. v. Aviva”), in support of her position.

22The applicant further submits that the reasonableness and necessity of the report prepared by S&T Accounting is specified at page 9 of the report:

1. To expedite IRB application process for the claimant – 204 weeks has elapsed since the date of the accident and the insurer has not been able to complete their calculation before the preparation of this report.
2. The claimant chose to hire independent accountants for the completion of the IRB accountant’s report due to the risk of potential bias in calculations of parties affiliated with and/or solicited by the insurer.
3. In order to determine the most advantageous weekly base amount for the claimant, IRB weekly base amount calculation based on the last fiscal year.
4. Claimant’s post-accident income or loss from employment and self-employment needs to be established in order to arrive at the correct IRB payable amount as per O. Reg. 34/10, s. 7(2) and s. 7(3).

23The respondent submits that PwC was unable to provide a report until November 28, 2023, due to the applicant’s failure to provide the requested financial documentation. The respondent submits that it appropriately retained the services of PWC to calculate the applicant’s IRB entitlement on October 26, 2021. Numerous requests from PwC and the respondent were sent to the applicant between November 2, 2021 up to the completion of the report dated November 28, 2023. It argues that the applicant continuously failed to provide the outstanding financial information/documentation required to appropriately complete the IRB calculation. The respondent submits that the delays caused by the applicant prevented PwC from completing the accounting report and such delays do not invoke s. 7(4) of the Schedule. The respondent further submits that the applicant has failed to provide reasons for the delay in providing it with the requested information despite providing all of the required documentation to her own accounting expert, S & T Accounting.

24The respondent relies upon the Tribunal decision in BH v. Certas Home and Auto Insurance Company, 2018 CanLII 9551 (ON LAT) (“B.H. v. Certas”), where the Tribunal found that an applicant cannot rely on delays in providing information or providing inaccurate information to justify the reasonableness requirement for an applicant’s accounting report. The Tribunal further found that miscalculations or errors by insurers in IRB calculations do not displace the applicant’s onus in proving that the accounting report is reasonable and necessary.

25The applicant in her reply submissions states that the respondent has repeatedly and intentionally misled the Tribunal with many statements which are factually incorrect. She submits that the respondent has continuously misreported the facts and has refused to acknowledge that it has mishandled the claim from the onset. She submits that many of the respondent’s correspondence is vague, unclear and deficient. She submits that the respondent had in its possession for many months the completed financial documents required to produce a report, yet the report of PwC was not completed until February 8, 2024. The applicant submits that it was reasonable and necessary for her to commission her own report because she was confused as to what information and documents she was required to produce. The applicant argues that many of the requests made by PwC were unreasonable and irrelevant.

26I find that the applicant has not met the condition set out in s. 7(4)(iii) of the Schedule.

27Both parties agree that conditions (i) and (ii) of s. 7(4) of the Schedule are satisfied. I find that the analysis is therefore whether pursuant to s. 7(4)(iii), the applicant has met her onus of proving that the IRB Calculation report is reasonable and necessary to determine her entitlement to an IRB.

28I agree with the applicant that there is nothing in the Schedule which bars the applicant from commissioning her own IRB Calculation report even though the respondent had already commissioned a report. The issue is whether the applicant’s IRB Calculation report is reasonable and necessary, and therefore payable.

29The applicant submits that the S & T report is reasonable and necessary because of the delay by the respondent in providing her with the PwC report. However, I find that the applicant has not provided any explanation as to why the initial requests made by PwC on November 2, 2021, and the multiple requests and follow up requests in 2022, were not complied with. As of the date that she commissioned her own accounting report, the requests of the respondent and PwC were still outstanding. I do not accept the applicant’s submission that she commissioned her own IRB Calculation report in June 2023 due to the respondent’s failure to provide its own report. By her own submission, I find that the applicant did not provide the respondent or PwC with the requested information until August 9, 2023. I therefore find that this information was only provided after she had commissioned her own report dated June 14, 2023. I further find that PwC could not be reasonably expected to complete its report prior to this date, without receipt of the requested information and documentation.

30I also do not accept the applicant’s reply submission that the requests of PwC were unreasonable and irrelevant. I find that the applicant’s submission that she was confused about the information and documents she was required to produce is not supported by the evidence. I find multiple correspondence was exchanged between PwC and the applicant’s counsel. If the applicant was uncertain about the requests that were being made, she or her counsel were entitled to seek further clarification instead of simply not responding to the requests.

31I agree with the respondent’s position that the IRB Calculation report of S & T was denied based on the fact that the requested income information and documentation had not been provided by the applicant to complete its own report. I find that the applicant was in possession of the requested documentation which she then provided to her own accounting firm to prepare its report. I find that the applicant did not provide the documents in her possession until August 9, 2023. As such, at the time of the respondent’s denial on July 25, 2023, it had not yet been provided with the documentation and information previously requested. I therefore find that the basis of the respondent’s denial is supported by the evidence.

32While the applicant further submits that she required her own report because she was self-employed and the calculations were difficult, no further submissions were made by the applicant in this regard. I therefore find that that the applicant has not met her onus of proving that the IRB Calculation report of S & T was reasonable and necessary at the time it was commissioned.

33For the reasons outlined out above, I find that the applicant has not met her onus of proving on a balance of probabilities that she entitled to the cost of the IRB Calculation Report prepared by S & T Accounting.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

35The 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. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

36For the reasons outlined above, I find that the applicant is not entitled to the cost of the IRB Calculation report, prepared by S&T Accounting, dated June 14, 2023, interest or an award. The application is dismissed.