Volume. 6 Issue. 10 – March 16, 2022
The first case this week finds the Court weighing in on the Tribunal’s Order that the insurer was obliged to repay $6,600 IRB that had been withheld due to s.33 non-compliance on the part of the insured.
Then the Tribunal considers whether it has jurisdiction to rule on payment of a $240K lump sum payment in accordance with the Quebec no-fault regime.
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Insurer to Repay $6,600 IRB Given “Reasonable Explanation”
Court Upholds “Reasonable Explanation” – In Aviva v. McNamara, Aviva appealed to the Divisional Court a Tribunal decision that ordered repayment of IRB withheld due to McNamara’s non-compliance with producing records in accordance with s.33 of the Schedule.
The Tribunal, at first instance and upon reconsideration found that McNamara had a reasonable excuse for the failure to produce the records on a timely basis, and that as a result she was entitled to $6,600 IRB that had been withheld during the s.33 suspension period. Aviva argued that the Tribunal erred in law by misinterpreting the phrase “reasonable explanation” as set out in section 33(8)(b), or in the alternative had failed to provide sufficient reasons upon which a reasonable explanation could be found.
In a March 2019 affidavit, McNamara indicated that the delay in producing the requested records was that “she believed that Aviva could directly access her medical records with the consent that she had earlier provided.”
In April 2019 Aviva cross examined McNamara on the affidavit, and she elaborated that “she did not recall receiving the request, she was grappling with depression, she had difficulties in getting a family physician, had to switch physicians and that she genuinely believed that Aviva already had access to her physician’s notes and records.”
The Tribunal found that “McNamara regularly sought and received help for her psychological symptoms during the period of benefits suspension and that she provided a reasonable explanation for not providing her physician’s notes and records when requested.”
Before the Court, Aviva argued that “section 33(8)(b) of the SABS requires an objective standard of reasonableness, that is, a standard relative to a reasonable person’s actions in the same situation.” The Court however found that “When applying a curative provision within the SABS, the reasonable explanation test must be applied in context, taking into account the remedial nature of the legislation and the discretion given to the tribunal to excuse an insured’s default”. Further, that the “reasonable explanation test will have a measure of objectivity in that it is worthy of belief, but it need not rise to the standard of the reasonable person in tort law.”
The Court reasoned that the Tribunal “took all of Ms. McNamara’s personal characteristics into account when finding that her explanation for failing to answer the request for information was reasonable, and in doing so, the Adjudicator did not apply a purely subjective test. She assessed whether the explanation was reasonable in the circumstances of this case.” Aviva’s alternative argument regarding the sufficiency of the reasons denoted by the Tribunal also failed, with the Court finding there to have been “a clearly sufficient basis for meaningful appellate review.” Costs to McNamara were ordered in the sum of $7,500.
Tribunal to Rule on Entitlement to $240K Quebec Lump Sum Payment
Tribunal to Rule on $240K Lump Sum Benefit – Injured in an August 2018 accident, in Quebec, the Applicant (Maycid) in 20-012985 v TD Insurance elected to receive Quebec benefits. Maycid’s dispute is specifically over entitlement to a lump sum payment for non-pecuniary loss of up to a maximum of approximately $240,000 that may be available to him under the Quebec regime.
The preliminary issue before the Tribunal was to determine whether the Tribunal has jurisdiction to hear disputes over entitlement, or whether the same must be brought before the equivalent Quebec tribunal. TD asserted that as Maycid is compensated according to the Quebec no-fault regime, disputes regarding entitlement must therefore be brought before the Quebec tribunal.
The Tribunal confirmed its jurisdiction to resolve disputes for benefit entitlement under the Schedule. TD submitted that by electing benefits under the Quebec legislative scheme, the dispute was no longer a dispute in accordance with the Schedule. In its view, the dispute became a dispute under the Quebec legislative scheme.
The Tribunal however found that such an interpretation of s.59 of the Schedule (Accidents Outside of Ontario) “runs counter to the consumer protection aspect of the Schedule” with the aim of the Schedule being “to make a range of reasonable and necessary medical, rehabilitation and other benefits available to Ontario insureds and for disputes over benefits to be resolved expeditiously.”
The Tribunal further reasoned that s.59(3) of the Schedule “puts administration of claims requiring the “insurer” to pay the benefits in accordance with the election squarely on the shoulders of the Ontario insurer.” In combination with s.280 of the Insurance Act, “disputes between an insured and insurer relating to the entitlement or amount of statutory accident benefits fall within the jurisdiction of the Tribunal, then I can see no support for TD’s position.”
TD also relied upon s.59(2)2, wherein Maycid was deemed to be a resident of Quebec, however the Tribunal noted that this section “addresses the level of benefits and conditions that might apply to those benefits, not the jurisdiction for dispute resolution.” Therefore, the Tribunal confirmed that it had jurisdiction to hear the dispute and the matter would proceed to case conference. To be decided was whether Maycid was entitled to the lump sum benefit, and if so in what amount.
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