In Ross v Aviva General Insurance, 2023 ONLAT 22-002558/AABS, the insurer stopped payment of the claimant’s NEB following an IE that concluded that the claimant did not suffer from a complete inability to carry on a normal life. Following the stoppage, the claimant provided updates on his health status via assessments, treatment plans, reports, and clinical notes and records. He also disputed the stoppage of NEBs through three separate applications to the Tribunal. Four years after the NEB stoppage, the claimant was found to be catastrophically impaired, and a year after the CAT finding, the insurer agreed to reinstate the claimant’s NEB. However, the insurer did not resume its payment of the claimant’s NEB until six months after agreeing to do so. 

Adjudicator Grieves found that when the insurer received its own CAT assessment report, it should have reassessed the claimant’s entitlement to NEB. The insurer argued that the claimant’s class 4 impairment did not impact his eligibility for NEB. While the Adjudicator agreed that the test for catastrophic impairment and the test for NEB are not the same, she found that the conclusions of the CAT assessment report, taken together with the other medical evidence regarding the claimant’s deteriorating condition, should have triggered a review of his eligibility for NEB, which did not happen until a year later.  The insurer’s delay in this regard was deemed to be “stubborn, unyielding and inflexible”.

The insurer conceded to the unreasonable delay in resuming NEB payments while concurrently arguing that this case precludes an award under section 10 of Regulation 664 as it would require a stand-alone award for unreasonably withheld or delayed payments. Adjudicator Grieves found that the Tribunal can grant a stand-alone s. 10 award even in situations where the parties resolved all the substantive issues in dispute before a hearing. She went on to hold that a dispute may also encompass a disagreement regarding unreasonably withheld or delayed payments.  In doing so, she considered the consumer protection objective of the Insurance Act , and concluded that allowing insurers to sidestep the enforcement of the s. 10 provisions by delaying the settlement of claims until the eve of a hearing would “undermine the legislature’s intent of a timely provision of accident benefits and consumer protection”. 

Adjudicator Grieves held that the insurer did not relieve itself of liability for an unreasonable withholding or delay of payment of NEBs even if the benefit was reinstated prior to the hearing. As a result, under s. 10 of Regulation 664, she held that the claimant was entitled to a 40% award on the benefits that were unreasonably withheld beginning from when the claimant was designated as catastrophically impaired. The insurer was ordered to pay $5,550.00, plus interest under the Schedule, plus compound interest calculated as per s. 10 of Regulation 664.

This outcome is similar to prior decisions from FSCO, in which a Special Award was levied against an insurer under former section 282 of the Insurance Act. That provision was held to permit the making of such awards by FSCO arbitrators even where substantive issues were resolved before the hearing, sometimes by way of benefit reinstatement. Thus, Ross v Aviva General Insurance suggests that LAT adjudicators are interpreting s. 10 of Regulation 664 in much the same way as FSCO arbitrators used to interpret former s. 282 of the Insurance Act, one requirement of which was that the Special Award amount could not exceed 50% of the withheld benefits.

Duha Sikander is an articling student at the firm and the author of this blog. If you have a question about this decision or a similar file, please reach out to Duha or Bill Sproull at 416-777-5206