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Volume. 4 Issue. 13 – April 1, 2020

Maximum of 50% Awarded on ACB in CAT Case

In a CAT case where the Applicant’s brother was providing attendant care as a non-professional service provider, the Tribunal was asked to resolve a conflict over quantum in a comprehensive review of the definition of ‘economic loss’, the ‘deemed incurred’ provision, and twists and turns in the handling of the ACB payment, which led to a 50% award.

50% Award on ACB – In 18-003926 v Aviva, an unreported decision submitted by Gary Mazin at Mazin & Associates, the Applicant, rendered CAT in a September 2011 accident, was approved for and received ACB in the amount of $6,000, with the services being provided by his brother, who had left multiple part time jobs to facilitate. Given the February 2014 amendment to the Schedule limiting the obligation to pay a non-professional service provider to an amount equal to their economic loss, the Respondent advised in July 2017 that the amount would immediately be reduced to the provider’s lost wages.

While the provider’s last years earnings amounted to $2,100 per month, the ACB was determined to be equal to the average of his income over three taxation years: the year immediately before the accident and the two following, during which the provider was almost exclusively taking care of the Applicant and therefore not receiving an income, resulting in a monthly ACB allowance of $1,528.91. This amount was paid for almost two years, until the Respondent revised payments to $2,100 per month at the case conference.

In early 2018, the Applicant secured the services of a professional provider, who provided ACB for several months, invoicing the Respondent for same in April 2018. However, one day prior to the invoice being overdue, with the Respondent having not paid, the provider withdrew their services. Numerous follow ups for payment were made, however the Respondent ultimately did not pay until March 2019. The Tribunal, in finding that professional services were not incurred directly as a result of the failure to pay the invoice, deemed same to have been incurred from April 2018 through to March 2019

The Applicant argued that the Respondent was applying “an overly restrictive definition of “economic loss…he claims that (the) economic loss should include other losses aside from lost earnings: lost job opportunities, lost fringe benefits, lost contributions to Employment Insurance (EI) and Canada Pension Plan (CPP), and other expenses paid in the course of providing attendant care”. The Tribunal, while agreeing in principle with the Applicant, considered each submission in detail, noting that the Applicant in each instance failed to establish the existence of a “proper evidentiary foundation”.

The Tribunal awarded the Applicant 50% of all disputed items, noting that he was “an extremely vulnerable member of society”, referencing “the amount of times and funds [the Respondent] has unreasonably withheld or delayed payment”. While “an insurance company is not held to a standard of perfection and is entitled to make errors…when such errors are numerous and continue in the face an insured’s repeated follow-up as in this case, such conduct clearly becomes unreasonable.”

IE Allegation of a Training Exercise Found Troubling

Just a Training Exercise? – In 17-008646 v Allstate, the Tribunal determined that the Applicant was rendered CAT, finding there to have been a marked impairment in the Adaptation domain. The opinion of the Applicant’s assessor was preferred, as it provided a “thorough and comprehensive review and analysis of the applicant’s mental/behaviour disorder, the impact of the mental or behavioural disorder on the applicant’s life and the resulting level of impairment in view of the impact of the mental or behavioural disorder.” In contrast, the Respondent’s assessor’s analysis was “cursory in nature and failed to provide an adequate explanation as to how he reached his conclusion that the applicant suffered a class 2 ‘Mild’ impairment in the Adaptation domain”.

The Tribunal also found the Applicant’s “evidence to be credible and compelling… Her evidence was fundamental to my finding that the applicant’s impairment level significantly impeded her useful functioning within the Adaptation domain”.

The Tribunal further referenced a draft report of the Respondent’s assessor, which indicated that the Applicant “suffered a class 3 ‘Moderate’ and class 4 ‘Marked’ impairment in the Adaptation domain.” The assessor testified that “he cannot find any evidence to suggest that the applicant is markedly impaired…(and) he circled the moderate and marked impairment levels in his draft report as part of a training exercise for the upcoming changes in the legislation.” The Tribunal found the “explanation regarding [the assessor’s] draft report to be troubling.”

Wilful Misrepresentation of Employment Status – Must Repay

Almost $60,000 IRB Repayment Ordered – In 18-000729 v Northbridge, the Tribunal determined that the Respondent was entitled to repayment of IRBs paid to date in the amount of $59,817.21. It was found that the Applicant “misrepresented his employment status, misrepresented his income and submitted manufactured pay slips after the accident in support of his application for accident benefits.” Relying upon evidence submitted by the Applicant, he was paid IRB in the amount of $197.93 weekly from October 13, 2011 through to August 29. 2017. The termination of benefits was prompted by the Respondent becoming aware of the testimony the Applicant had made during a WSIAT hearing. The evidence indicated that “the information provided by the applicant in support of his claim for IRBs is essentially false.”

At the WSIAT hearing, the Applicant’s evidence was that he was a self-employed truck driver. At this Tribunal, the Applicant also confirmed that “there’s no doubt at all” he was in fact self-employed, not employed as he had alleged to the Respondent. He further admitted that “he indicated he was employed because it would be too hard to prove income for accident benefits otherwise. He indicated that his lawyer told him this.” The Tribunal found that “the applicant’s recordkeeping consisted of made-up documents. In this case, the applicant changed his story depending on what suited him.”

New Standard for Complete OCF-3?

(In)Complete OCF-3? – In 18-009096 v Aviva, the Respondent argued that “the applicant failed to submit a completed disability certificate certifying that she meets the criterion for non-earner benefits as required by s. 36 of the Schedule.” The Applicant, claiming NEB, submitted that a completed OCF-3 was provided within 20 weeks of the accident, although the NEB box was not check-marked in the affirmative. The Tribunal agreed with the Respondent, finding that “the applicant did not submit a completed disability certificate for a non-earner benefit as required by s. 36(2), meaning ‘completed’ in the sense that the Schedule contemplates.”

Concluding, it was noted that “the requirement in s. 36(2) is not procedural, it is substantive and there is good reason for it.” As a result, “the statutory requirement to submit a ‘completed’ disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for non-earner benefits.” The Tribunal confirmed, “My interpretation of the statutory requirement for a completed disability certificate is consistent with the Tribunal’s modern approach to statutory interpretation.”

While this may arguably be correct, nonetheless this determination seems to be in stark contrast to prior decisions that deal with what constitutes a “completed” OCF-3 (e.g. 18-009669 v Travelers & 18-011525 v Allstate).

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