Volume. 5 Issue. 26 – June 9, 2021

In this IRB exclusive edition, we begin with an apparent departure from what has been the standard regarding entitlement to s.25 assessments where the Tribunal considered whether the Schedule obliges the Respondent to fund a Post 104 IRB multidisciplinary report.

The Tribunal also deals with two IRB exclusions related to “no insurance” and “no licence”, respectively considering whether the Applicant knew or ought reasonably to have known he was operating his vehicle without insurance and whether the Applicant is barred from claiming IRB as he was driving without a valid driver’s licence. multidisciplinary report.

No Funding for S.25 IRB Report

S.25 IRB Report Not Payable – In Green v Intact (19-013031), the Tribunal considered whether Green was entitled to $10,200.00 for an income replacement benefit multidisciplinary report which Green claimed to rebut the Respondent’s denial regarding the post-104 IRB. However, in this matter, “the dispute hinges on whether the Schedule obliges the respondent to fund the disputed report”. As a result, “it will only be necessary to engage in an in-depth analysis of the medical evidence if I accept the applicant’s position on this threshold question.” Further, “it will also be unnecessary to consider whether the cost of the report should be deducted from the medical and rehabilitation benefit funds under s. 18(3) of the Schedule.” In addition, there would be no need to consider “whether the disputed report is reasonable and necessary because of the applicant’s accident-related impairment.”

Green submitted that “as a matter of procedural fairness, he is entitled to be assessed for an income replacement benefit by the assessors of his choice.” In response however, the Tribunal suggested that the “applicant’s procedural fairness argument conflates the common law duty owed by the Tribunal to participants in its adjudicative process with the statutory obligations between parties to a proceeding under s. 280 of the Insurance Act.” The Tribunal indicated that “Ordering the respondent to pay the cost of the disputed report would not be a procedural order but a substantive one, and the Tribunal must look to the provisions of the Schedule for the authority to make such a substantive order.”

The Tribunal noted that s.25 of the Schedule “does not refer to income replacement benefit reports” and “the text of the full provision also militates against the interpretation the applicant suggests.” It was noted that there is specific reference to payment of fees for completion of a disability certificate, which “shows that the legislature contemplated the fees it intended insurers to fund in relation to applications for income replacement benefits, and it deliberately did not extend that coverage to reports such as the one in dispute.” Additionally, there is funding required for reports calculating the quantum of benefits, confirming that the “Schedule provides a complete scheme for an insurer’s liability for costs associated with income replacement benefit determinations. Controlling costs to the automobile insurance system is consistent with the Schedule’s consumer protection purpose.” Therefore, “nothing in s.25(1)5 permits the Tribunal to order the respondent to pay for the disputed report.”

In Trending – IRB Exclusions – No Insurance & No Valid Driver’s Licence

No Innocent Victim – In Hines v TD Insurance (19-006324), the Tribunal considered whether Hines knew or ought reasonably to have known he was operating his vehicle without insurance, thereby allowing the Respondent to refuse to pay IRB as per the exclusion in s.31(1) of the Schedule. For his part, Hines alleged that he was “an innocent bystander and victim of fraud”. He thought he had purchased valid insurance from a broker and his vehicle was insured. It was not until after the accident that he realized he had been dealing with a fraudster who had not arranged for insurance on his vehicle. The Tribunal found for a fact that Hines knew and ought to reasonably have known that he was operating his automobile while it was not insured.

Amongst the reasons cited by the Tribunal was the fact that the meeting was held in “an unconventional manner”. Hines arranged to meet the “broker” at or near a gas station. At this meeting, in exchange for a temporary insurance card, Hines gave the “broker” $600.00 in cash for the “first and last months payments” of $300.00 each. In addition, “the price the applicant said he paid for the so-called insurance was significantly lower than the applicant had paid for insurance before on the same vehicle less than a year earlier.” To this point, the Tribunal noted that an earlier policy, cancelled for non-payment, called for in excess of $500 in monthly premium.

Ultimately, the Tribunal found it not credible that Hines “could reasonably have thought he was purchasing motor vehicle insurance through a ‘broker’ who never provided him with a written quote, an invoice, a receipt for the cash payment, a payment schedule for monthly payments, a replacement insurance card in place of the temporary card which showed coverage expiring July 2, 2016 or any insurance policy documents. It is also not credible that being given a policy number on a temporary insurance card would lead a person to believe that they are entitled to a year’s worth of insurance without payment.”

Ignorance No Defence – In Harsanyi v Co-operators (20-001245), it was undisputed that Harsanyi was driving his vehicle whilst his licence was suspended, based upon missing a deadline for payment regarding an outstanding fine. Harsanyi contended that he had never received notice of same, and that as a result on the date of loss, he was unknowingly driving with a suspended licence. The Tribunal however found that “whether or not the applicant knew or ought to reasonably have known his driver’s licence was invalid at the time of the accident, or whether the applicant has a defence of due diligence is not relevant to the application of s. 31(1)(a)(ii) of the Schedule”.

The Tribunal cited the Schedule which makes unambiguously clear that “an applicant is not entitled to claim an IRB if at the time of the accident the driver was driving the automobile without a valid driver’s licence.” The wording of the Schedule provides no “defence of due diligence or any other defence or explanation including the driver’s knowledge that his licence was not valid.” The Tribunal accordingly “decline(d) to impose a “knew or ought reasonably to have known” requirement upon s. 31(1)(a)(ii) … and given that a knowledge requirement is expressly provided for elsewhere in s. 31(1)(a)”, as evidenced in the case above. Therefore, “the Legislature clearly turned its mind to the knowledge issue and decided not to include it for a driver driving an automobile without a valid driver’s licence.”

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