May 17, 2021 by David Gambrill
Ontario’s Licence Appeal Tribunal (LAT) has ruled that Intact Insurance is not obligated to fund a claimant’s $10,200 multidisciplinary report, the purpose of which was to dispute Intact’s decision to cease income replacement benefits after a 104-week period of entitlement.
The claimant, Mark Green, was involved in an auto collision on Mar. 29, 2016. Intact paid him an income replacement benefit, but then terminated the benefit on Sept. 2, 2019, after determining that Green did not meet the test for post-104-week entitlement.
Green claimed the cost of the multidisciplinary report to rebut the respondent’s income replacement benefit determination, but Intact denied the claim. Green took Intact’s decision not to fund the report to the LAT.
“[Green] submits that, as a matter of procedural fairness, he is entitled to be assessed for an income replacement benefit by the assessors of his choice,” LAT vice-chairwoman Theresa McGee stated in the tribunal’s decision in Green v. Intact Insurance Company, released Friday. “He relies on the Divisional Court’s decision in Certas v. Gonsalves as support for his submission that a party must be given an equal opportunity to respond to the position taken against it because that is what procedural fairness dictates.
“He also submits that he has a substantive right to combat the opinions of the respondent’s experts under s. 25 of the Schedule.”
Intact, for its part, argued successfully that s. 25 of the Statutory Accident Benefits Schedule (SABS) relates to the determination of a catastrophic impairment, not to income replacement entitlement benefits.
In siding with Intact, McGee also found that Certas v. Gonsalves did not stand for the proposition that the insurer had to fund a rebuttal report based on the principle of procedural fairness.
“In Gonsalves, the court restored an arbitrator’s decision to adjourn a matter to allow an insurer time to respond to an insured’s late-filed expert reports,” McGhee wrote. “That case concerned steps taken in the decision-making process. It does not stand for the proposition advanced by [Green].
“The common law duty of procedural fairness is one that is owed by an administrative decision-maker [such as LAT] to participants in the decision-making process. It is a set of participatory rights which aim to ensure that administrative decisions are made using a fair and open procedure.
“Gonsalves was about an adjournment granted to allow a party to marshal responsive evidence and fairly participate in litigation. Gonsalves is not authority for an administrative decision-maker compelling one party in a dispute to assume costs associated with the litigation on another party’s behalf.”
McGhee then turned to s. 25 of the SABS to see whether there was a substantive right in law for the insurer to pay for a report to be used by the claimant in a dispute over income replacement benefits. She found that there was no such substantive right in the SABS.
“Section 25(1)5 plainly requires insurers to pay ‘reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment…’” McGhee wrote.
“The plain meaning of the provision is clear: it refers to costs associated with an application for catastrophic impairment determination. It does not refer to income replacement benefit reports.”
Feature image courtesy of iStock.ca/FatCamera