CITATION: Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369
DIVISIONAL COURT FILE NO.: 456/23
DATE: 20241002
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Lococo and Reid JJ.
BETWEEN:
RELL NOWELL LULUQUISIN
Appellant
– and –
AVIVA INSURANCE COMPANY OF CANADA and INTACT INSURANCE
Respondents
Counsel:
Mireille Dahab, for the Appellant
Jason Goodman and Faiza Ikram, for the Respondent Intact Insurance
Kevin So, for the Respondent Aviva Insurance
HEARD at Toronto: February 26, 2024
REASONS FOR DECISION
D.L. Corbett J.
[1] This is an appeal from the decision and reconsideration decision of Vice-Chair Farlam of the License Appeal Tribunal (the “LAT”), dismissing various of the Appellant’s claims under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”).
[2] The Appellant raises numerous grounds of appeal. I do not find it necessary to address all of these grounds. In respect to one important issue, the Vice Chair erred in law and applied the wrong test. The reasons, taken as a whole, are brief and frequently conclusory. Such an approach may be appropriate for some issues, when important issues have been addressed properly: what is required will depend on the importance of the issue, its complexity, and the extent to which the reasons for decision on a minor issue have already been addressed elsewhere in the decision. In this instance, the errors in analysis and unduly conclusory reasoning on an important issue serve to undermine confidence in the balance of the decision. Therefore, in the result, I would set aside the impugned decision and remit the entire matter back for a fresh hearing before a differently constituted tribunal.
Background
[3] Mr Luluquisin was injured in an automobile accident on March 17, 2017. In February 2020, his insurer, Aviva, deemed Mr Luluquisin’s injuries “catastrophic” within the meaning of the SABS.
[4] Mr Luluquisin applied for various benefits pursuant to the SABS. Aviva accepted some of these claims and denied others. Mr Luluquisin then applied to the LAT in respect to denied benefits. In August 2021, the respondent Intact assumed priority for Mr Luluquisin’s claim and was added as a party respondent to the LAT proceeding.
Jurisdiction and Standard of Review
[5] Pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, SO 1999, c. 12, Sched. G (the “Act”), this court has jurisdiction over this appeal. As in this case, pursuant to s. 11(6) of the Act, an appeal to this court from the LAT relating to a matter under the Insurance Act, RSO 1990, c. I.8, may be made on a question of law only.
[6] The standard of review for questions of law arising on a statutory appeal is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. Issues of procedural fairness are decided on a correctness standard: Abrametz v. Law Society of Saskatchewan, 2022 SCC 29, 470 DLR (4th) 328. “The application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle… can be characterized as an error of law”: Housen v. Nikolaisen, at para. 36.
Analysis
(a) Claim for Attendant Care Benefits
The Statutory Scheme
[7] Mr Luluquisin was deemed catastrophically impaired by his insurer. Section 14 of the SABS provides:
Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
Medical and rehabilitation benefits under sections 15 to 17.
If the impairment is not a minor injury, attendant care benefits under section 19.
Mr Luluquisin’s impairment is not a “minor injury” – it is catastrophic. Therefore, the insurer is liable to pay attendant care benefits to Mr Luluquisin in accordance with section 19 of the SABS.
[8] Section 19(1)(a) of the SABS provides:
(1) Attendant care benefits shall pay for all reasonable and necessary expenses,
(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Fixing Long-Term Care Act, 2021 or a chronic care hospital;
[9] There are two aspects to the test under s.19(1)(a) that are material to this appeal: (i) whether the claimed expenses are “reasonable and necessary”, and (ii) whether those expenses “are incurred by or on behalf of” Mr Luluquisin.
The LAT’s Reasons on this Issue
[10] Fifteen issues are listed as matters to be decided at the LAT hearing (Decision, para. 6). Mr Luluquisin’s claim for attendant care benefits is the first listed issue. The Tribunal’s overall findings are set out in the next three paragraphs of the decision (paras. 7-9), and then, in para. 10, applicable legal principles are set out as follows:
[Applicable s]ections… of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.
The Vice-Chair cited Scarlett v. Belair Insurance Company Inc., 2015 ONSC 3635 (Div. Ct.), as authority for this proposition. I am unable to locate a statement of this principle in Scarlett, and the detailed legal analysis in that decision is focused primarily on other issues:
- whether the onus is on an insured or an insurer to establish the applicable category of coverage (ranging between “minor” and “catastrophic”);
- the meaning of “compelling evidence” in s. 18(2) of the SABS; and
- whether the Minor Injury Guideline has been incorporated into the SABS, and if so, to what extent; and
- issues of procedural fairness. (Scarlett v. Belair, at paras. 20-40).
[11] The general statement of principles by the Vice-Chair – that claimed benefits must be “reasonable and necessary” and that the claimant bears the onus of establishing this point on a balance of probabilities – discloses no error in principle. However, it is a preliminary statement of general principle and not the kind of detailed legal analysis one might expect in regard to a substantial claim.
[12] The Vice-Chair then prefaced her analysis of all the issues before the LAT as follows (Decision, para. 11):
After considering all of the evidence, submissions and legal authorities put forward by all parties, I find the following:
Following this statement, the Vice-Chair then addressed fourteen issues briefly, in reasons ranging in length from one to five paragraphs (most being two or three short paragraphs long).
[13] The Vice-Chair provided the following reasons for decision on the first issue, the claim for attendant care benefits (“ACB” in the Reasons) (Decision, paras. 12-14):
The onus is on the applicant to prove entitlement to ACB and that the amount of the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities. The applicant has not established with medical evidence that the ACB in the amount of $6,000.00 per month from April 19, 2020 to date and ongoing, is reasonable and necessary.
The respondent Aviva initially approved the applicant’s claim for ACB but, reduced the claim to $1,029.42 per month based on an occupational therapy in-home assessment which indicated the ACB need was in that amount. ACB was suspended on September 16, 2021 as a result of the applicant’s failure to attend an IE.
Further, requests by the respondent Aviva for additional information regarding the invoices purporting to represent services incurred by the applicant pursuant to s. 46.2 of the Schedule remain unsatisfied by the service provider. As a result, it appears that the services and the quantum of the claim greater than $1,029.42 per month has not been established as reasonable and necessary. As a result, the applicant is entitled to $1,029.42 per month for the period claimed, if not already paid.
[14] Although it is not entirely clear, I read these reasons as concluding that the claimed services are not established as “reasonable and necessary” because (a) Aviva assessed the necessary services at $1,029.42 per month; (b) the claimant “failed” to attend an independent medical examination on September 16, 2021, and (c) one of the claimant’s service providers did not respond to a request for additional information from Aviva. The LAT did find that the Applicant “has not established [the claim] with medical evidence” but this is a conclusion without analysis of the evidence that was provided by the Applicant.
[15] No explanation is provided – let alone any analysis –to justify drawing conclusions against the claimant because of the “failure” to attend a medical examination or for the “failure” of one of the claimant’s service providers to provide additional information to Aviva. No description is provided – let alone an analysis – of the evidence provided by Mr Luuquisin in support of the claim for attendant care benefits.
[16] The SABS provides a detailed code prescribing disclosure obligations and remedies where a party does not comply with their obligations. Disagreements around medical examinations and provision of further information are governed by that code. None of that statutory scheme is cited, analysed, or applied by the LAT in this case. Rather, in a conclusory manner, the LAT has drawn an adverse inference against Mr Luluquisin to preclude all aspects of his claim for attendant care benefits other than those previously admitted by the insurer. This inference was apparently so strong that the LAT did not feel it necessary to state and apply the law concerning the test for “reasonable and necessary”, or to review the evidence Mr Luluquisin did provide to substantiate that his claim was for services that are “reasonable and necessary” as a result of the accident.
[17] The claim for attendant care benefits was substantial and important - $6,000 per month. There was a substantial record in respect to this claim. With respect, a claimant is entitled to more than the summary, conclusory reasons provided by the LAT on this issue in this case.
[18] There are further problems with the summary reasoning. Whether claimed services are “reasonable and necessary” is distinct from the question whether expenses for those services have been “incurred”. There may be situations where an expense is “necessary and reasonable” and has not yet been “incurred” because the claimant has been unable to afford or unwilling to incur the expense before a finding of entitlement. There may be situations where further disclosure is required, or a further medical examination conducted before a finding that the expense is in respect to an impairment “caused by the accident”. The Vice-Chair moved from an uncontested finding that a claimant did not attend an insurer medical examination to a conclusion that this was a “failure” and was unreasonable. She then concluded that the unreasonable failure precludes a substantial claim. All that was without reference to the statutory scheme, without justification of the factual finding of unreasonableness, and without justification of the draconian consequence of these findings. As such, the Vice-Chair conflated the test under s. 19 with apparent procedural non-compliance with the SABS. For a catastrophically impaired claimant, more would be required to justify the LAT’s decision.
[19] The LAT decision respecting attendant care benefits is inadequate, on its face, and must be returned for a fresh hearing.
The Balance of the LAT’s Reasons
[20] As noted above, issues large and small were all addressed in summary fashion, with a few brief paragraphs, much of it conclusory. Some of the issues could have been addressed appropriately in this fashion. If proper reasons had been provided for the claim for attendant care benefits then subsequent issues could have been decided in a relatively summary manner (for example, by reference to the LAT’s reasons and conclusions about the failure to attend the independent medical examination). However, just as summary reasons may be justifiable on some issues because of the comprehensive treatment of related issues elsewhere, where the first central issue in the case has been disposed of summarily, without proper and complete analysis, this may taint the balance of the reasons.
[21] I consider the entire decision unsafe in light of the way in which the important issue of attendant care benefits was addressed, and I would quash the entire decision and remit it back for a fresh hearing before a different adjudicator.
Disposition and Order
[22] The appeal is allowed, the impugned decision is set aside, and the case is remitted back for a fresh hearing before a differently constituted tribunal, with costs to Mr Luluquisin of $5,000, inclusive, payable by Intact within 30 days.
“D.L. Corbett J.”
I agree: “Lococo J.”
I agree: “Reid J.”
Date of Release: October 2, 2024
CITATION: Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369
DIVISIONAL COURT FILE NO.: 456/23
DATE: 20241002
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Lococo and Reid JJ.
BETWEEN:
RELL NOWELL LULUQUISIN
Appellant
– and –
AVIVA INSURANCE COMPANY OF CANADA and INTACT INSURANCE
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: October 2, 2024