No need for broad interpretation of ‘spouse’ in SABs-context
A ruling that found the meaning of “spouse” under the Family Law Act (FLA) is not applicable when determining eligibility for accident benefits is ’principled and well-reasoned,’ Ottawa personal injury lawyer Najma Rashid tells AdvocateDaily.com.
There’s a business case for accessibility legislation
CPSO Annual Report
Award
[84] The applicant claims an award under Section 10 of Regulation 664 (O. Reg. 43/16, s. 4), which reads as follows:
If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
[85] An award claim must be linked to a disputed benefit which is ordered payable. The applicant bears the onus of establishing, on a balance of probabilities that the respondent acted unreasonably in withholding or delaying the payment of a disputed benefit. I do not find that the respondent unreasonably withheld or delayed payment with respect to the income replacement benefit or the treatment plans that I found to be payable.
Did the respondent unreasonably withhold or delay payment of the attendant care benefit?
[86] I do find that the respondent acted unreasonably when it withheld payment of the attendant care benefit to a degree that would attract an award under section 10 of regulation 664. The respondent unreasonable conduct stems from the fact that it intentionally misrepresented the findings of its s.44 assessors in order to keep the applicant within the confines of the MIG. Letters from the respondent to the applicant dated March 24, 2016 and July 8, 2016 demonstrate this misrepresentation. Both letters state the following:
“It is the opinion of our assessors and determination of your insurer that your injuries are considered predominately under the Minor Injuries Guidelines not exceeding $3,500 for medicals/rehabilitations benefits; and you do not qualify to receive Income Replacement Benefits, nor Non-Earner benefits, Nor Attendant Care benefits.”
[87] The evidence before me clearly indicates that this was not the opinion of the respondent’s assessors and as such, I find this conduct to be unreasonable to a degree that would attract an award under section 10 of regulation 664. I am not persuaded by the respondent’s submission that the denial of the attendant care benefit was reasonable as it was based on the conclusions of Dr. Martin, Dr. Wolf and Dr. Kim each of whom concluded that the applicant did not satisfy the criteria for attendant care benefits. The respondent’s denial of attendant care benefits was directly linked to the finding that the applicant fell within the confines of the MIG.
Quantum of the Award
[88] The amount of the award must rationally relate to the circumstances of the case so as to further the goals of deterrence and should also be proportionate to the misconduct. The outstanding attendant care benefits owing is $38,662.12 (representing the 13 month, 11 day period in which I found the benefit to be payable). The maximum special award that can be awarded in this case amounts to $19,331.06 (50% of the $38,662.12 in attendant care benefits owing). A 50% award should be reserved for the most egregious conduct of the part of the insurer. This is not one of those cases. In this case I find that an award in the amount of $15,464.85 (representing a lump sum of 40% of the attendant care benefits), plus interest is appropriate. I have come to this conclusion taking the following into account:
I. The respondent’s actions were intentionally misleading.
II. The applicant is particularly vulnerable given that he came to Canada as a refugee in 2007 and as a result has very little economic and social roots in Canada.
III. Significant economic harm was imposed on the applicant by the respondent’s decision.
IV. The need to deter similar behavior in situations wherein there is notable power imbalance.