On May 11, 2017, the LAT (AABS) released a decision dismissing a claim for attendant care benefits as the appeal Application was deemed to be premature and the pre-conditions for an Appeal were not met.

In D.B. and Cumis General Insurance (Tribunal File No.: 16-002730/AABS) Adjudicator Sandeep Johal was asked by the Insurer for a preliminary decision to dismiss a claim for attendant care benefits.

In this case, the claimant sought reimbursement for attendant care benefits that he claimed were provided by his wife. The Insurer had made several requests for appropriate documentation so as to adjust the file accordingly. It took the position that there was never a formal denial of benefits. Rather, the Insurer was not provided the required documentation to enable it to assess whether the benefit was payable on the basis of whether (or not) the spouse service provider had suffered an economic loss.

The claimant brought an Application and the Insurer asked for a Preliminary Decision to dismiss his Application.

Adjudicator Johal agreed with Cumis and dismissed the Application.

He wrote:

The respondent [insurer] has asked the applicant for proof of such losses. It takes the position that, prior to the application to the Tribunal, none has been forthcoming. I agree.

What is of particular interest is that the Applicant did, in fact, submit expenses in this claim after the Insurer had made it’s submissions for this preliminary hearing. The Insurer took the position, in Reply, that it was too late.

Adjudicator Johal, agreed:

There is no dispute between the parties that, in his submissions with respect to this preliminary issue hearing, the applicant submitted documents in support of his position that his spouse had suffered economic loss. He takes the position that, since he has now provided such documents, he has satisfied the respondent’s concerns and the matter should proceed to a hearing. The respondent submits that providing document in the course of a proceeding before the Tribunal is not an appropriate way to apply for a benefit. By doing so, the applicant has denied the respondent the right to properly adjust the file and issue a decision, including a decision that may be favourable to the application. I accept the respondent’s position.

The Applicant took the position that because he complied with Rule 9.2(a) by submitting the documents within 10 days of the hearing, the Tribunal is compelled to adjudicate the appeal. Adjudicator Johal did not agree. He wrote:

If I am to accept the applicant’s interpretation of Rule 9.2(a), insurers would be denied their ability to exercise the basic function of adjusting a claim. The accept that the applicant’s interpretation, is to permit a proceeding before the Tribunal to become the forum in which insurers first get the chance to review the file and issue a decision. Rule 9.2(a) deals with procedure before the Tribunal once a valid application is filed. To be valid, the application must fall within the provision of s.280(1) of the Insurance Act, RSO 1990, c I.8. (the “Act”): there much be a dispute between the parties. Until there is a denial, there is no dispute. [emphasis mine]

This is an important interpretation of section 280, which reads, in part,:

          Resolution of disputes

280. (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. 2014, c. 9, Sched. 3, s. 14.

Application to Tribunal

(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). 2014, c. 9, Sched. 3, s. 14.

This decision clarifies the jurisdiction of the LAT (AABS) in that the Tribunal will not become a forum for evaluating entitlement to benefits in the first instance. The Tribunal is intended to be a forum to address appeals from decisions made to deny a claim.

Adjudicator Johal has clearly signalled that where there is no denial, there is no dispute for purposes of section 280 and the LAT (AABS) ,

I am satisfied that there has been no denial. I am also satisfied that there is no dispute over the quantum of the benefit as the necessary documents have not been provided to the respondent in order for them to approve, deny, or quantify the attendant care benefit being claimed. The pre-conditions for an appeal for this Tribunal set out in the Act have not been satisfied.[emphasis mine]

This decision sets an important precedent on two issues:

1. The Tribunal is a forum for dispute resolution, not for evaluation of claims in the first instance. If a claimant has failed to furnish required documentation prior to it’s Application, then the Application is premature.

2. Where there is no denial of a benefit, there is no “dispute”. Where there is no “dispute” the pre-conditions for an Appeal have not been met and, in this case,  the Tribunal will turn to section 280 of the Insurance Act and dismiss the Application.

Insurers ought to be mindful of the above going forward as a tool for early disposal of Applications.  Where there had been much concern about the recommendation of Justice Cunningham to have a strong gatekeeping function at the LAT, this decision suggests that adjudicators can and will stop a claim in its tracks early on in appropriate circumstances.

Peter Durant is the co-chair of the License Appeal Tribunal practice group. If you have a question about this decision or a LAT file, please contact Peter.