Volume. 8 Issue. 42 – December 4, 2024
As a follow up to the theme in last week’s edition, the court was tasked with assessing whether the Applicant was entitled to an award with respect to the agreed upon sum of $770K, the cost of providing suitable accommodation for the Applicant. Somewhat similar to last week’s matter, the court opted to set aside the Tribunal’s decision, and to remit the matter back for a rehearing.
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Court Remits $770K Award Worthy Matter Back to Tribunal
Award to Follow on $770K Home Claim? – Similar to last week’s case, the court, in McDonald v Aviva, hears a matter wherein a special award was granted on some benefits, however it was not granted on all of the benefits. Despite the Respondent’s agreement to pay the amount claimed, the Adjudicator found that an additional report regarding the amount of the housing benefits was needed before an award on that amount could be made. The court granted the appeal and set aside that part of the LAT decisions that denied a special award on the housing benefits, and remit the matter back to the LAT to decide on the special award on the housing benefits in accordance with these reasons for judgment. The court found that the Adjudicator erred in law in her interpretation of s. 10, as it does not require that the amount of the benefit be adjudicated under the SABS when the Respondent has agreed to pay the claimed amount.
In January 2022, prior to his discharge from hospital, a treatment and assessment plan (OCF-18) was submitted to Aviva, totaling $924,671, which primarily included up to $770,000 for the cost of a new home, renovations of $29,000, and up to $100,000 for a wheelchair accessible vehicle. Ultimately, Aviva agreed to pay these amounts just before the LAT hearing. By way of a letter dated December 19, 2022, and with the LAT hearing scheduled to begin in January 2023, the Respondent wrote that it had “reconsidered” its position. It approved the entire treatment plan for $924,671. Aviva’s letter to McDonald expressly stated that it “agreed to fund” the amounts claimed for house purchase, renovations and a wheelchair accessible vehicle. The letter agreeing to pay gave no explanation for its reconsideration. At the LAT hearing in January 2023, the Aviva’s insurance adjuster testified that the treatment plan was ultimately approved on the advice of counsel and they claimed privilege over the related notes.
At the hearing, and upheld on reconsideration, the Tribunal levied the maximum 50% award against Aviva on a number of benefits, however not on the $770,000 for the cost of a new home. Reasons being “I agree with the respondent’s submissions that I have not been provided with the cost to modify the [Appellant’s] pre-accident home.” Rendering its decision, the court found “that the Adjudicator erred in her interpretation of s. 10. Once the amount of the benefit was agreed on that amount did not need to be adjudicated in order to grant a special award. The “amount” the Appellant was entitled to under s.10 was the amount agreed on. It was an error in law to bring s.16(4)(c) into the s. 10 analysis in this case.”
Concluding, the court found that the Schedule “does not require that an Appellant prove the amount of his entitlement where the Respondent has agreed to pay the amount, nor does it require that s.16(4)(c), from the SABS, be imported into s. 10. The “amount” of the entitlement under s.10, should not be interpreted to require more where there is an agreement to pay a specific amount. The “amount” may arise either from an agreement (as it did here) or an adjudicated amount where there is no agreement. The Adjudicator therefore erred in law in importing a requirement to adjudicate, including s. 16(4)(c), into s. 10 in this case.” Accordingly, the court “set aside that part of the LAT decisions that denied a special award on the housing benefits and remitted the matter back to the LAT to determine the special award on those housing benefits in accordance with these reasons for judgment based upon the agreed amounts.” Costs as agreed of $15,000 were awarded to McDonald.
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