Volume. 5 Issue. 43- September 29, 2021

This week’s edition covers the Divisional Court release last week, where the court has once again weighed in on the non compliant payment obligations of treatment and assessments further to s.38(11) of the Schedule. OTLA, the Tribunal and The Coalition of Citizens with Disabilities – Ontario and Health Justice Program intervened.

We also feature the first case wherein the Tribunal was asked to determine the nature of the CERB in a case involving IRB with CERB simultaneously having been received.

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Defective Notice cannot be Cured Post Hearing

Defies Logic – Hearing its own Reconsideration, the Tribunal, in DS v. Aviva (18-006592), had confirmed that “An insured may dispute the denial of a treatment plan and seek a ruling from the Tribunal that the proposed treatment is reasonable and necessary before the benefit is incurred”.

On appeal to the Court, Suarez v. Aviva, it was argued that there was an error in law in ordering payment of the treatment plan expenses, as:

“1) there was no evidence before the LAT of expenses incurred by Ms. Suarez in advance of the hearing;

and

(2) the LAT lacked the jurisdiction to order Aviva to pay expenses incurred by Ms. Suarez following the completion of the hearing.”

Aviva contended that “satisfying the “incurred” definition was an essential element of a claim for medical rehabilitation benefits…therefore, it was required to be established before reasonable and necessary medical rehabilitation benefits could be found payable”. Further, “with respect to the payment of expenses incurred after the date of hearing, Adjudicator Grant had no jurisdiction to order Aviva to make payment upon the happening of a future event.” In the alternative, Aviva argued that as Suarez was permitted to complete her claim post-hearing by incurring expenses, likewise they should be allowed post hearing to issue compliant denials, so as to avoid the mandatory payment obligations.

OTLA, one of three Intervenors (the Tribunal and The Coalition of Citizens with Disabilities – Ontario and Health Justice Program being the others) submitted that Aviva “was seeking to overturn decades of existing practice and jurisprudence, that its proposed interpretation of the Schedule offended its statutory purpose as consumer protection legislation, and that the relief sought by Aviva would render the dispute resolution function of the LAT inaccessible to most claimants.”

The Court agreed with Suarez that “If Aviva’s position is accepted, claimants will be required to fund disputed Treatment Plans in advance of an application to the LAT and will be limited to pursuing payment of only that treatment which they can afford to self-fund. Claimants with limited or no access to funds will be at the mercy of their insurers’ goodwill; this is the very power imbalance that the legislation is intended to circumvent.”

Further, “Aviva’s position is untenable on any interpretative approach to the legislation. Not only does its proposed interpretation offend the remedial, consumer-oriented purpose of the legislation and regulations, it also ignores the clear wording of s. 280(1) of the Insurance Act which identifies entitlement and quantum as mutually exclusive issues, and s. 55(1) of the Schedule which is silent on a claimant’s failure to “incur” expenses as a restriction to initiating proceedings.” To permit the issuing of a compliant denial post hearing “would effectively render s. 38(11) of the Schedule meaningless and the result of the hearing moot. It defies logic that the legislature would impose strict consequences intended to minimize delay in accessing benefits only to permit insurers to avoid those consequences by taking remedial action following an adverse determination at the LAT. Insurers have the ability to take remedial action in advance of the LAT hearing; if they choose not to, then they do so at their own peril.”

The Court did not accept arguments to the effect that such an order would deprive Aviva of its remedies to dispute invoices or could result in payments in excess of insurance limits. There was found to be nothing in said order that in any way prevented Aviva from raising objections to payment of invoices subsequently, similar to their rights for approved Plans, and the Court noted that it was “not challenging in our age of technology to track the benefits claimed in submitted Treatment Plans and to deny treatment in excess of policy limits… the failure or unwillingness of insurers to track liability for expenses should not be the responsibility of consumers.” Costs were awarded in the agreed upon sum of $5,000 to Suarez.

CERB Deductible from IRB

CERB Deductible as Gross Employment Income – In Foster v Aviva (19-014657), Foster Injured in a May 2019 accident continued in his employment, at a part-time and modified level, until April 14, 2020. Aviva contended that Foster lost his job due to COVID, as evidenced by his confirmed receipt of CERB. The Tribunal however found that Foster in fact was only able to continue his employment “because his employer was accommodating and tolerant of his limited capacity. After the pandemic, likely anticipating economic pressures, his employer was no longer able or willing to accommodate.” This was characterized as “an unusual situation in that JF’s substantial inability to perform his duties preceded his unemployment by a significant time period.”

Ultimately, the Tribunal found Foster entitled to IRB through to the 104 week mark, however not beyond given insufficient evidence in support of same. However, both parties requested that the Tribunal determine whether the CRB/CERB was deductible from IRBs. The Tribunal noted that “gross employment income as per s4(1) included any benefits received under the Employment Insurance Act (Canada), and that s.7(3)(a) allowed for a deduction of 70% of gross employment income. The Tribunal found that “CERB is tantamount to other remuneration from employment, and therefore deductible. Although not exactly the same, it is essentially akin to Employment Insurance (“EI”) benefits in the context of the Schedule.”

The Tribunal referenced a case regarding wrongful dismissal “somewhat on point” wherein CERB was not deductible from damages as it “cannot be considered in precisely the same light as [EI] benefits when it comes to calculating damages for wrongful dismissal”. This was though found distinguishable, as no component of IRB is designed to approximate damages. Rather, IRB is intended to minimize the impact of a loss of income, and “to the extent that an individual continues to receive income, IRBs are not applicable or necessary.” The CERB “much like EI benefits, provides a bridge to individuals out of work.” Therefore “I would treat JF’s receipt of CRB/CERB in the same manner as EI benefits or “other remuneration from employment.” As a result, the entitlement to IRB was at the rate of $400 per week, less the CRB/CERB.

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