In a recent decision, the Court of Appeal affirmed that while a Long Term Disability Insurer’s duty of good faith generally includes the duty to act promptly, fairly, and disclose the contents of the policy to their Insured, it does not require the Insurer to take steps to advise their Insured of statutory limitation periods that are exist outside of those within the policy. The decision is Usanovic v. Penncorp Life Insurance Company (La Capitale Financial Security Insurance Company), 2017 ONCA 395.
We previously discussed the details of the summary judgment decision in our post, “LTD Carriers Embrace Hryniak.” At first instance, the Plaintiff argued that because the Insurer never advised him of the statutory two year limitation period, it had breached its duty of good faith and the limitation clock only began to run when the claim was discovered. Justice Broad disagreed and found that there was no duty on the Insurer to advise the Plaintiff of the statutory limitation period and the claim was discovered upon receipt of the termination letter. The Plaintiff appealed. On appeal the Plaintiff focused solely on whether the Insurer’s common law duty of good faith included the duty to advise the Plaintiff of the 2 year limitation period in its termination letter.
The Court of Appeal upheld Broad J.’s decision and provided helpful guidance for LTD insurers. Notably, the Court of Appeal drew a distinction between the duty of good faith in the context of Accident Benefits and LTD Benefits. The Plaintiff attempted to argue that because the Supreme Court of Canada in Smith v. Co-operators General Insurance Co.,  2 S.C.R. 129, had found that Insurer’s in the Accident Benefits context were required to provide their Insured with the relevant time limits that governed the process, a similar duty should apply in the LTD context. Both benefit schemes bear significant similarities as both are first party Insurers, with similar tests for income replacement based on disability. However, the Court of Appeal found that the source of the Accident Benefits Insurer’s duty to advise of the time limits arose from the complex legislative framework that governed them and not the common law. There was no equivalent statutory provision governing LTD Insurers.
The Court found that the Plaintiff was asking the Court impose something beyond the LTD Insurer’s common law duty to disclose the contents of the insurance policy and to go a step further and disclose information outside the policy. The Court noted that no Canadian court had gone so far and in the jurisdictions that require Insurers to disclose limitation periods this obligation had been put in place by the Legislature. Accordingly, the Court commented that while it might be advisable from a practical standpoint to inform an Insured of the statutory limitation period, the role of making this a legal obligation was that of the government of the day, and not the Courts.
Notably, as of July 1, 2016, amendments to the Insurance Act R.S.O. 1990 c. I.8 came into force and requires that all LTD insurers to include the following statement in the policy and certificate:
Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in the Limitations Act, 2002.
Overall, this decision is a welcomed one for LTD insurers. The Court has made it clear that the expansion of an Insurer’s duty of good faith beyond the established case law is the responsibility of the Legislature and not the Courts. Although there are significant similarities between Accident Benefits and Long Term Disability claims, the statutory framework is the source of significant differences in the proper termination and handling of benefits. The Court has provided clarity that in the Long Term Disability context, the Insurer’s duty of good faith has not been extended to require informing the claimant of information outside the four corners of the policy. With the amendments to the Insurance Act, the provision of the policy to an Insured will satisfy their good faith obligation to provide information and provide a strong basis for any limitations argument an Insurer may want to raise against out of time claims.
In a decision on a preliminary issue released September 7, 2017, Vice Chair Trojek of the LAT held that a catastrophically impaired Applicant missed the two year limitation period to dispute the Insurer’s refusal to pay housekeeping and attendant care benefits, coming to the same conclusion ADR Chambers came to in a similar case last year (Mayo v. Economical Mutual Insurance Co.,  O.F.S.C.D. No. 342 (QL).
In S.T. v. Economical, the Applicant was involved in a motor vehicle accident on September 12, 2008. Following the accident, the Applicant received various benefits under the SABS, including housekeeping and attendant care benefits. Economical sent the Applicant an OCF-9 near the two year mark advising that no further housekeeping and attendant care benefits would be paid after the 104-week mark. The Applicant submitted an Application for Determination of Catastrophic Impairment almost seven years post-accident. After appropriate assessments were completed, she was deemed to be catastrophically impaired by Economical. After this the Applicant submitted further expenses for housekeeping and attendant care, which were also denied. The Applicant did not dispute the initial denial of housekeeping and attendant care until September 29, 2016.
Various arguments were raised on behalf of the Applicant; however, the main arguments were that there can be no denial prior to entitlement and that the limitation period could not begin to run until the Applicant discovered she was catastrophically impaired . The Applicant argued that since there is no limitation period for applying for catastrophic designation or for disputing an insurer’s denial of a catastrophic application, to accept Economical’s position would be to accept that insurers can create a time limit/limitation period for when an insured must apply for catastrophic impairment determination, which goes against recent decisions such as Guarantee v. Doand Machaj v. RBC.
Economical argued that the Do and Machaj decisions were not relevant to the issue in this case because it was the specific benefits claimed that were denied — not catastrophic designation. The Vice Chair agreed and found that in keeping with the Court’s decisions in Sietzema, Haldenby, and Turner, that the objective of consumer protection must be balanced against other objectives, such as the finality and certainty that limitation periods provide. The Vice Chair also confirmed that the principle of discoverability does not apply in the scheme of statutory accident benefits.
See 16-003034 v Economical Mutual Insurance Company , 2017 CanLII 59507 (ON LAT)[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]
The Ontario Divisional Court has weighed in on an application under the JRPA for a stay of LAT proceedings pending a review of 2 rulings refusing the insurers requests for an adjournment.
In Taylor v. Aviva there was a threshold legal issue as to whether the claimant was involved in an ‘accident’. After the case Conference, and facing an unexpected affidavit in a written hearing proceeding, the insurer sought an adjournment of the case in order to cross examine the affiant and was denied. Twice. With no substantive reason provided. The insurer turned to the Divisional Court for relief and in particular a stay of the proceeding pending judicial review of the refusal to grant the adjournment. It was argued that there was a serious issue to be tried (relating to procedural fairness) and that irreparable harm would result if the stay was not granted.
The Divisional Court didn’t buy it. Not only did they not accept the arguments regarding the serious nature of the issue to the insurer they found that the insurer’s application was premature because they had not exhausted all of the remedies available in the LAT such as a Request for Reconsideration. Importantly the court noted the importance of allowing a relatively new tribunal such as the LAT the opportunity to ‘iron out wrinkles in procedural issues’ and to let it do ‘what the legislature directed it to do’ – to provide a dispute resolution mechanism that is fair, efficient and proportional.
See Aviva Canada Inc. v Taylor , 2017 ONSC 2661 (CanLII)[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]
In the recent decision of M.P. v. Certas Home and Auto Insurance Company, the License Appeal Tribunal has tackled the issue of whether attendant care expenses are incurred where a claimant’s “professional” attendant care provider is also a family member. Both sections 3(7)(e)(iii)(A) and 3(7)(e)(iii)(B) were in issue.
The Adjudicator held that the claimant’s wife, who was a Health Care Aid and who provided attendant care to the claimant did not do so in the course of her ‘ordinary’ employment because she provided the care to her husband outside her normal working hours. Similarly, the Adjudicator accepted that as the wife’s subsequent period of unemployment was unrelated to the accident as her services performed during that time were also not done in the course of her employment which she would ordinarily have been engaged but for the accident.
In M.P., the claimant’s wife was employed as a Health Care Aid at the time of the accident. It was agreed that her qualifications were sufficient for her to be considered a “professional” attendant care provider. After the accident, she continued to work as a Health Care Aid as she had prior to the accident as well as providing attendant care for her husband outside her normal working hours. Within 18 months of the accident, the claimant’s wife claimed that she had to stop working due to a medical problem she developed due to the increased demands of having to care for her husband. She began providing full-time care to the claimant seven days per week. The insurer argued that she stopped working due to a lack of available work and relied on a letter from the claimant’s counsel which stated as much. As a result there was no proof that she had sustained an economic loss.
According to section 3(7)(e)(iii)(A) of the SABS, an attendant care expense is “incurred” if the person who provided the services did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged but for the accident.
In M.P. during the initial period after the accident until January 2015, Adjudicator Sewrattan found the claimant’s wife did not meet the “incurred” definition because she worked the same hours as she did before the accident and only cared for her husband in her spare time. The Adjudicator concluded that because she cared for her husband outside her normal working hours her services were not performed in the course of the employment, which she would ordinarily have been engaged but for the accident. The Adjudicator relied primarily on the fact that the claimant’s wife continued to work on the same basis after the accident as she had before and that the services to the claimant were provided when she was at home and would have provided the assistance in any event. The Adjudicator cites this as one of the underlying reasons for the changes to the definition of “incurred” that was articulated in Henry v. Gore; namely that the changes were implemented to prevent family members from being compensated for care that would have been provided without compensation in any event.
With respect to the period 18 months after the accident, the claimant argued that as his wife was forced to stop working to care for him when she would have ordinarily been able to work; therefore her services met the definition of “incurred” as per section 3(7)(e)(iii)(A) because they were provided in the course of her employment, occupation or profession in which she would ordinarily have been engaged but for the accident. The Adjudicator rejected the claim that she could not work due to a medical condition caused or exacerbated by caring for the claimant because it was not explicitly stated in her affidavit or corroborated by any medical documents. Moreover, the Adjudicator preferred the evidence relied upon by Certas to support that the claimant’s wife was unemployed due to a lack of work as evidenced by a letter from her husband’s legal counsel. As a result the Adjudicator concluded that the attendant care expenses were not “incurred” as the services provided by the applicant’s wife were not done in the course of her employment, occupation or profession which she would ordinarily have been engaged but for the accident.
According to section 3(7)(e)(iii)(B) of the SABS, an attendant care expense is “incurred” if the person who provided the services sustained an economic loss as a result of providing the goods or services to the insured person. In this case, the Adjudicator found insufficient evidence of such economic loss in light of the factual conclusions drawn.
This decision is a departure from Walsh and Echelon General Insurance Company, FSCO A15-007448 (August 31, 2016) which found that a professional service provider does not need to care for the claimant in his or her pre-accident working hours to meet the definition of “incurred”. In Walsh, the claimant’s wife assisted him with personal care after a motor vehicle accident. At the time she was employed as a personal support worker (PSW) and worked evening shifts. After the accident, she continued to work her evening shifts and cared for her husband during the day. Eventually, her employer granted her request to take an unpaid leave of absence specifically for the purpose of caring for her husband. Arbitrator Drory held that just because the claimant’s spouse was not at work when she cared for her husband did not mean that she was not in the course of the employment, occupation or profession in which she would ordinarily have been engaged.
The M.P. case creates uncertainty about the issue of whether professional caregivers who family members are providing service outside of their normal working hours will satisfy the definition of “incurred”. This decision provides an alternative framework to analyze the definition of incurred as it places a greater emphasis on the premise that people will not be compensated for work that they would have performed in any event without compensation.
See M.P. v. Certas Home and Auto Insurance Company , 2017 CanLII 9810 (ON LAT)[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]
In MK v Dumfries Mutual, LAT adjudicator Jeanie Theoharis stated that “in arbitration hearings an Applicant’s credibility is vital, particularly where there are competing medical opinions”.
The adjudicator looked closely at the Applicant’s self-reports, surveillance, the clinical notes and records of the Applicant’s treating doctors and the content and quality of assessor’s reports for internal consistency and consistency with known facts. The adjudicator found there was a contradiction between surveillance and the statement given by the Applicant; that the Applicant’s psychological assessment was unreliable; and, that the Applicant’s self-reports were not supported by the records of her treating doctors.
Ultimately the adjudicator held that the Applicant’s injuries fall within the Minor Injury Guideline and that she is not entitled to income replacement benefits.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]
FSCO Director’s Delegate Evans has upheld an arbitration decision that has found that a treatment and assessment plan is not payable despite a Section 38 deficiency if the OCF-18 is not warranted.
In Sadozai v. State Farm Mutual Automobile Insurance Company, Mr. Sadozai appealed the denial of an in-home assessment by Arbitrator Musson. Counsel for Mr. Sadozai argued that since State Farm had failed to provide a denial within ten business days of receipt of the OCF-18, it should be automatically payable. Arbitrator Musson had indicated that the onus is on the claimant to prove that the medical benefits and costs of examinations in dispute are necessary, which Mr. Sadozai failed to do.
Director’s Delegate Evans agreed with Arbitrator Musson, citing the analysis of Arbitrator Wilson in Ying Al Chen and State Farm Mutual Automobile Insurance Company, May 30, 2016. Arbitrator Wilson noted, the SABS is not a lottery for treatment providers where the prize is the deemed approval of a meritless treatment plan. Further, the precondition is that the claimed expenses be “reasonable and necessary” before an insured can claim indemnity from an insurer.
This decision reinforces the importance of considering the merit of each treatment and assessment plan disputed, despite a Section 38 deficiency.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]
The recent LAT decision of S.G. and Unifund, 16-000879/AABS by Adjudicator Anna Truong should be seen as a win for proper procedure and that the LAT will follow the Heath analysis of non-earner benefits.
The Applicant was pursuing non-earner benefits, a rehabilitation benefit, a special award, and costs. Prior to the written hearing on November 16, 2016, Unifund raised a preliminary issue seeking to exclude the updated clinical notes of the Applicant’s psychologist and an orthopaedic surgeon report that had not previously been disclosed or produced to Unifund until they were included in the Applicant’s Reply on November 3, 2016. The Case Conference Report required the claimant to submit her submissions no later than October 4, 2016 and a Reply no later than October 31, 2016. The applicant initially provided no explanation as to why her submissions were late.
In deciding to exclude the reports, Adjudicator Truong did not accept the applicant’s argument that she only received the two records on November 1, 2016 and that despite the Case Conference Report’s timelines, she was in compliance with Rule 9.3 as they were disclosed more than 10 days before the written hearing. Adjudicator Truong noted that Rule 9.3 contemplates deadlines imposed by any Order of the Tribunal and noted that the Case Conference Report had the weight of an Order. Therefore, parties were required to comply with the deadlines set out in them. Although the Applicant claimed the Case Conference Adjudicator had indicated that documents could be submitted “within a few days” of the deadline, Adjudicator Truong had no evidence on this point and did not accept the argument.
The Adjudicator also reprimanded the Applicant for failing to raise these two documents at either of the two previous Case Conferences. She found that raising these issues at the Case Conference, “would have allowed the case conference adjudicator and the Respondent to adequately deal with these documents. Waiting until the Reply to disclose these documents for the first time amounts to sharp practice and it is against the Rules.”
In turning to the substantive issue of the non-earner benefit, the Adjudicator appropriately identified the Court of Appeal’s decision in Heath v. Economical as outlining the relevant test for the non-earner benefit. In particular she indicated the following analysis should be followed:
- There must be a comparison of the Applicant’s Activities and life circumstances before the accident to those post-accident.
- The Applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration is case dependent.
- All of the pre-accident activities will be considered but greater weight will be given to the activities of greater importance to the Applicant.
- The Applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. The disability or incapacity must be uninterrupted.
- “Engaging in” is a qualitative analysis and requires more than simply going through the motions.
- If pain is the primary reason the Applicant cannot engage in activities, the question is whether the pain practically prevents them from performing those activities, rather than physically.
The Adjudicator emphasized that the test requires that the claimant is impaired in substantially all of her pre-accident activities.
The hearing was conducted fully in writing. It does not appear that any affidavit evidence was submitted. The Insurer provided several section 44 reports which indicated the claimant did not suffer a complete inability to carry on a normal life. The Applicant only provided a psychological report, and two disability certificates of the family doctor in support of her claim.
In assessing entitlement, the Adjudicator found that the claimant was a homemaker and mother of four prior to the accident, and continued to be a homemaker and mother of four after the accident. Despite accepting the claimant suffered some impairments, notably a Major Depressive Disorder, the Adjudicator found that the claimant continued to be independent of her personal care, continued to be independent in all housekeeping activities except cleaning the toilet, continued to visit her friends, continued to drive, continued to care for her children, and continued to be able to sit, stand, and walk for 30 minutes at a time.
Adjudicator Truong found that on the balance of probabilities, the Applicant had failed to prove she continued to suffer from a complete inability to carry on a normal life.
She also found that the proposed treatment and assessment plan was not reasonable or necessary as the Applicant made no submissions and pointed to no evidence to support her position. The Adjudicator disagreed with the claimant’s argument that the Tribunal should award the treatment plans on “compassionate grounds” as this was not a remedy available to the Applicant under the Schedule and she failed to point to any legislation or jurisprudence which supported that argument.
In dealing with the request for a Special Award, the Adjudicator noted the Applicant relied on s. 282(10) of the Insurance Act which had since been repealed. However, she addressed section 10 of the Ontario Regulation 664 which dealt with special award. As nothing was found payable, no award could have been sought.
In addressing costs, the Adjudicator noted that the Applicant relied on section s. 282(11) of the Insurance Act which had since been repealed. However, the Adjudicator reviewed Rule 19.1 for awarding costs and noted that costs were an exceptional remedy with a high bar. She declined to award any costs.
In addition to affirming that non-earner benefits remains a high bar to meet, this decision should be seen as a strong message to parties that Case Conferences Reports should be followed and that the LAT may not accept late documents. The Applicant’s failure to comply with the Case Conference timelines resulted in the exclusion of supportive evidence. The Case Conference is a party’s opportunity to address the issues in dispute and raise any pending issues, such as delayed expert reports. Failure to do so may result in significant prejudice to the defaulting party. On all issues, this decision demonstrates that evidence drives the day.
On a parting note, it is worth noting that the LAT continues to treat costs as an “exceptional remedy” that carries a high bar. Although there was no evidence to support costs for the Applicant, it is interesting that despite the finding of sharp practice, which arguably resulted in additional costs for the Insurer, no costs were pursued in relation to the late submission of the report. Going forward, Insurers should consider including a claim for costs in their submissions where one party fails to comply with mandated time lines.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]