Citation: Groleau vs. Continental Casualty Insurance Company, 2026 ONLAT 24-012366/AABS

Licence Appeal Tribunal File Number: 24-012366/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:

Alexandra Groleau

Applicant

and

Continental Casualty Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brian Norris

APPEARANCES:

For the Applicant:

David Gardiner, Counsel

For the Respondent:

Catherine Korte, Counsel

HEARD: By way of written submissions

OVERVIEW

1Alexandra Groleau (“the Applicant”) was involved in an automobile accident on November 12, 2022, and sought benefits from Continental Casualty Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to a medical benefit in the amount of $609.10 for assistive devices, proposed by FunctionAbility and the Good Access Company in a treatment plan dated February 26, 2024?

2. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

3. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant is entitled to the assistive devices proposed in the plan, dated February 26, 2024, plus interest pursuant to section 51 of the Schedule.

4The Applicant is entitled to an award of 50% of the amounts withheld by the Respondent, plus applicable interest.

Background

5The Applicant was a passenger in a vehicle which was struck by another vehicle while traversing a suburban intersection in Ottawa. She was diagnosed with a concussion, cervical sprain/strain, head lacerations, and other injuries as a result of the accident.

6The Applicant is a resident of the province of Quebec and has been since before the accident. She does not hold a driver’s licence, does not own a vehicle, and is not a named insured on an auto insurance policy.

7The Applicant applied for accident benefits from the Respondent following the accident, because the Respondent is the insurer of the vehicle she was travelling in at the time of the accident. The Respondent accepted the Applicant’s claim and paid accident benefits to her for a period of over a year and a half. Eventually, the two parties disagreed on the Applicant’s entitlement to a treatment plan unrelated to the current dispute, and the Applicant filed an application with the Tribunal to resolve that dispute. However, the application was subsequently withdrawn.

8On January 5, 2024, during the course of the prior dispute, counsel for the Respondent advised that it would rely on the Tribunal decision of Lanthier-Grenier v. Intact insurance Company in 18-010501/AABS (“Lanthier-Grenier”). The letter states that the Respondent will rely on Lanthier-Grenier in the Tribunal dispute, and stated that it would take the position that it is entitled to a deduction of all benefits available to the Applicant through the Société de l’assurance automobile due Québec (“SAAQ”), which administers benefits payable as outlined in the (Quebec) Automobile Accident Insurance Act, RSS 1978, c A-35 (“AAIA”). As noted, the application was withdrawn, and the dispute never went to a hearing on the issue. The January 5, 2024 letter was not on the Respondent’s letterhead, and never addressed how any future claims would be adjusted.

9On March 26, 2024, after the prior Tribunal application was withdrawn, the Respondent approved a new plan for occupational therapy services and assistive devices “in full”. Like the prior approvals, this approval letter states the following;

If you have access to any other medical coverage (for example, through your employer’s or spouse’s employer’s group medical, health and dental plan), then any costs from this treatment plan must be sent to that coverage first. Your insurance company will only pau for costs that will not be covered elsewhere.

10Importantly, the March 26, 2024 letter does not refer to the SAAQ or any other accident benefit insurer or scheme. As a result of this approval letter, the Applicant incurred $284.75 in assistive devices, and $324.68 in services.

11On October 2, 2024, the Respondent departed from its previous course of adjusting. After approving the assistive devices in dispute “in full” and receiving invoices for goods and services proposed in the plan, the Respondent demanded that the Applicant submit the treatment plan to the SAAQ. This response to an invoice was the first time that the Respondent referred the Applicant to the AAIA with respect to this claim for assistive devices, and the SAAQ as a possible payor of benefits during the adjusting of the Applicant’s claim. The prior notice was provided through counsel, during litigation at the Tribunal, and referred specifically to the prior claim before the Tribunal.

12For the following reasons, I find that the Applicant is obliged to apply to the SAAQ for accident benefits with respect to the subject accident because she has access to benefits under the AAIA. I also find that the Respondent is entitled to a deduction of benefits payable to the Applicant when the benefits claimed are reasonably available to her.

13However, with respect to the Applicant’s current claim for assistive devices, I find that the Respondent is estopped from deducting the amounts payable under the AAIA because it accepted and adjusted this specific claim by the Applicant without mention of the issue of her entitlement to benefits under the AAIA.

ANALYSIS

The Applicant is obliged to apply to the SAAQ if she wishes to claim accident benefits

14I find that the Applicant is obliged to apply to the SAAQ if she wishes to claim accident benefits.

15The Applicant submits that neither the Insurance Act, RSO 1990, c I.8, nor the Schedule, mandate that the Applicant apply for accident benefits through SAAQ. She submits that section 59(2) of the Schedule provides that she may claim benefits from one jurisdiction, but not both.

16The Respondent submits that section 7 of the AAIA provides that the Applicant would be entitled to benefits provided by the SAAQ by nature of being a resident of Quebec. The Respondent further submits that, pursuant to section 268(7) of the Insurance Act, benefits provided under the Schedule are excess of any other insurance of the same type indemnifying the Applicant. Thus, it submits that it is not obliged to pay benefits to the Applicant that she would otherwise be entitled to received under the AAIA.

17The Respondent also submits that the SAAQ is the Applicant’s primary insurer as it relates to the accident, and the benefits provided under the Schedule would be considered excess insurance, pursuant to Dubreuil v. AXA Insurance (Canada), 1999 ONFSCDRS 102 (“Dubreuil”). In Dubreuil, the insured received a $67,600.10 death benefit from the SAAQ, and the insurer in Ontario was liable to pay the insured $450.84, representing the difference between the amount paid pursuant to the AAIA and the amount of $68,050.94, which was the amount payable under the Schedule at that time.

18I find that section 59(2) of the Schedule is not relevant to the dispute. Section 59(2) addresses accidents which occur outside of Ontario. The parties agree that the accident occurred in Ontario, thus the section has no application here.

19I agree with the Respondent and find that section 7 of the AAIA provides auto insurance coverage to the Applicant. That section states that every automobile accident injury victim who is a resident of the province of Quebec is entitled to compensation under the AAIA, regardless of the location of the accident. The Applicant does not dispute that she is a resident of the province of Quebec. Further, the evidence, including her application for accident benefits, and her health card, state her residence as being in the province of Quebec.

20I agree with the Respondent and find that benefits provided under the Schedule are excess insurance, as outlined in section 268(7) of the Insurance Act. This section provides that statutory accident benefits are excess insurance to any other insurance indemnifying the injured person. This means that benefits provided under the Schedule are subject to a deduction of all collateral benefits available to a person involved in an accident.

21The operation of section 268(7) of the Insurance Act obliges the Applicant to apply for accident benefits from the SAAQ. This is because the Applicant is entitled to benefits provided by the SAAQ, because she is a resident of the province of Quebec, and because benefits administered under the Schedule are excess to the benefits provided by the SAAQ. The AAIA does not include language stating it is excess coverage, as is the case in section 268(7) of the Insurance Act.

22Accordingly, the Applicant is obliged to apply for benefits from the SAAQ, and may seek compensation under the Schedule if there is excess benefits.

The Respondent is entitled to a deduction of benefits payable to the Applicant

23Having found that the Applicant is a resident of Quebec who is entitled to claim benefits from the SAAQ, I must now turn to whether the Respondent is entitled to a deduction of benefits payable to the Applicant.

24Section 47 of the Schedule permits the Respondent to deduct the amount of any other temporary or periodic benefits from the amounts payable to the Applicant under the Schedule. Section 47(2) states that payment of a medical and rehabilitation benefit, such as the devices claimed by the Applicant in this hearing, is not required for that portion of the expense for which payment is reasonably available to the injured person under any insurance plan or law.

25I agree with the reasoning in Lanthier-Grenier, submitted by the Respondent. This case is nearly identical to the Applicant’s situation in that a resident of the province of Quebec was involved in an accident in the province of Ontario. There, the Tribunal concluded that the insured was obliged to claim benefits from the SAAQ prior to claiming benefits provided under the Schedule. The basis for the decision was that benefits administered under the Schedule are considered excess insurance, which only applies after the primary insurance is exhausted. Moreover, in Lanthier-Grenier, the Respondent insurer from Ontario was permitted to a deduction of expenses that were reasonably available to the insured person through the SAAQ, pursuant to section 47(2) of the Schedule. I see no reason to deviate from the rationale in Lanthier-Grenier.

26Having found that the Applicant is a resident of the province of Quebec, that she is entitled to claim benefits from the SAAQ and is obligated to do so if she wishes to claim benefits under the Schedule, and that the Respondent is entitled to a deduction equivalent to the benefits available to the Applicant under the AAIA, I turn to whether the Respondent’s conduct has created a situation where it is estopped from deducting from the amounts payable to the Applicant.

The Respondent is estopped from deducting any amounts payable in relation to the amounts claimed in relation to the plan, dated February 26, 2024

27Although the Respondent is entitled to a deduction in the benefits payable commensurate with the benefits available from the SAAQ, I find that the Respondent is estopped from doing so with respect to this plan.

28Section 131(1)(b) of the Insurance Act states that the obligation of an insured to comply with a requirement under a contract is excused to the extent that, the insurer’s conduct reasonably causes the insured to believe that the insured’s compliance with the requirement is excused in whole, or in part, and the insured acts on that belief to the insured’s detriment. The Divisional Court affirmed that the Tribunal has ability to apply section 131 of the Insurance Act, in Akinyimide v. Economical Mutual Insurance Company, 2023, ONSC 5272.

29The Applicant submits that if there is an obligation to apply for benefits through the SAAQ, it was incumbent upon the Respondent to advise her of this obligation at the outset of her claim and not nearly two years after the accident. On this point, the Applicant relies on section 32(2) of the Schedule. She submits that the Respondent, upon receiving her application for accident benefits, was obliged to, amongst other things, promptly provide her with a written explanation of the benefits available to her and information to assist her in applying for benefits. To the Applicant, this obligation would include advising her that she is obligated to apply for benefits under the AAIA prior to receiving any payment for benefits outlined in the Schedule.

30To the Applicant, the Respondent is estopped from relying on the position that she should apply to the SAAQ for benefits by operation of section 131(1) of the Insurance Act. She submits that the top priority of the Schedule is consumer protection and that fundamental unfairness to an insured must be avoided.

31The Respondent submits that the Applicant was made aware of her obligation to apply for benefits from that SAAQ, and that she has not established a basis for estoppel, pursuant to section 131(1)(b) of the Insurance Act. It submits that the Applicant has not provided any specific submissions or evidence as to how its conduct caused her to believe that compliance with section 47(2) of the Schedule was not required and how she acted on that belief to her detriment. Lastly, the Respondent submits that it told the Applicant numerous times she should be applying to the SAAQ for benefits, including at the Examination Under Oath on February 27, 2025, and that multiple claims approvals predating this dispute all advised the Applicant that if she has access to other medical coverage then costs from the treatment plan must be sent to that provider first and that the Respondent will only pay for costs that will not be covered elsewhere.

32I find that the Respondent’s conduct reasonably caused the Applicant to believe that she was not required to apply for benefits from the SAAQ and that she acted on that belief when she incurred the goods and services in dispute. The Respondent accepted and adjusted the Applicant’s claim for a period of over a year and a half without notifying her about her obligation to claim benefits pursuant to the AAIA. During this period, the Respondent approved and paid a non-earner benefit to the Applicant without any deductions and without reference to the SAAQ or the AAIA. The Respondent also approved and paid for an in-home assessment and an attendant care report for the Applicant, without any mention of the SAAQ or the AAIA. Additionally, the Respondent approved the assistive devices in dispute for this hearing, “in full”, again without reference to the SAAQ or the AAIA.

33The letter dated January 5, 2024 does not discharge the Respondent’s obligation to provide information to assist the Applicant in applying for benefits, pursuant to section 32(2)(c) of the Schedule. This is because the letter does not refer to the goods and services in dispute, but rather a different plan that is related to a different dispute before the Tribunal, which was subsequently withdrawn. I find the Respondent’s explicit reference to a different dispute reasonably caused the Applicant to interpret its advice to be specific to that dispute, and not the current one. Moreso, the approval letter for the goods and services in dispute for this hearing, dated March 26, 2024, does not refer to the SAAQ or the AAIA. This omission suggests to the Applicant that the Respondent reverted back to its prior course of adjusting, which did not require proof from her that the expense was submitted to the SAAQ. While insurers are not held to a standard of perfection, it remains that it must provide clear information to claimants regarding the adjusting of their claim. The clear information is missing in this case.

34The Respondent is a sophisticated administrator of auto insurance which ought to have known that the Applicant was obliged to apply to the SAAQ prior to claiming statutory accident benefits under the Schedule. The Respondent has known that the Applicant is a resident of the province of Quebec for the entire period of the claim, but it never advised her of her obligation to claim benefits from the SAAQ until after it approved several benefits in full, including the assistive devices in dispute for this hearing. To me, advising the Applicant that she is obliged to apply for benefits from the SAAQ falls under the Respondent’s obligations to provide the insured person with information to assist them in applying for benefits, as outlined in section 32(2)(c) of the Schedule. Having failed to discharge its onus to provide information to assist the Applicant, and after approving the assistive devices in full without reference to the SAAQ, the Respondent cannot now demand that the Applicant apply to the SAAQ before paying for the incurred expense.

35I find that the Respondent’s reference to other possible insurance plans is insufficient notice to the Applicant of her obligation to claim benefits from the SAAQ. The Respondent claims that it advised the Applicant of her obligation to submit the expense for coverage from the SAAQ because the approval for the assistive devices explicitly states:

[. . . ] if you have access to any other medical coverage (for example, through your employer’s or spouse’s employer’s group medical, health and dental plan), then any costs from this treatment plan must be sent to that coverage first. Your insurance company will only pay for costs that will not be covered elsewhere.

36This position in untenable in light of the history of the Respondent’s adjusting of the Applicant’s claims. The same line was used in prior approvals which never required the Applicant to submit the expense first to the SAAQ. It cannot be said that reference to other medical coverage at this point in the Applicant’s claim would have a new meaning after multiple instances where it was never an issue, and no deduction was ever made.

37Accordingly, I find that the Respondent’s conduct has reasonably caused the Applicant to believe that her compliance with the requirement to apply for benefits under the SAAQ is excused in whole, or in part, and that she acted on that belief to her detriment by incurring the goods and services. Thus, the Respondent is estopped from requiring the Applicant to submit this claim to the SAAQ for compensation.

Award

38I find that the Applicant is entitled to an award of 50% of the amounts withheld by the Respondent.

39The Applicant sought an award under section 10 of Regulation 664. Under section 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.

40The Applicant submits that the Respondent has unreasonably withheld and delayed payment of the expenses in the amount of $609.10 by taking an entirely new and unexpected position following the approval of said expenses. She submits that this delay has had a detrimental impact on her recovery and prevented her from being able to access additional treatment and rehabilitation. She characterizes this change in position as unreasonable and made in bad faith.

41The Respondent submits that it is not held to a standard of perfection, and that it attempted to assist the Applicant with her claim and advised her on more than one occasion that she should be applying to the SAAQ for benefits.

42Having found that the Respondent is estopped from demanding that the Applicant apply to the SAAQ for coverage of the assistive devices, I find that it acted in a manner that is imprudent, stubborn, inflexible, unyielding, and immoderate. Here, the Respondent has failed to appreciate that it adjusted the Applicant’s claim for a period of nearly two years prior to requesting she apply to the SAAQ for coverage, a request it made after it approved the assistive devices in full. By maintaining that position through to a hearing, the Respondent has demonstrated that it has acted in a manner that is imprudent, stubborn, inflexible, unyielding, and immoderate.

43Accordingly, I find that the Applicant is entitled to an award of 50% of the amounts withheld, plus applicable interest.

Interest

44Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the assistive devices in dispute, it follows that she is also entitled to interest on the overdue payment of benefits.

CONCLUSION AND ORDER

45I find that the Applicant is entitled to the assistive devices proposed in the plan, dated February 26, 2024, plus interest pursuant to section 51 of the Schedule.

46The Applicant is entitled to an award of 50% of the amounts withheld by the Respondent, plus applicable interest.