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Insurance - Auto - 'Delay Awards' [IA s.280]. Bennett v Allstate Insurance Company of Canada
In Bennett v Allstate Insurance Company of Canada (Div Court, 2023) the Divisional Court considered a 'delay award' under s.10 of the Automobile Insurance Reg [Reg 664/90] of the Insurance Act [s.289 'Resolution of Disputes'], which reads:10. 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. The court dismissed the appeal as it was limited to 'questions of law' [LATA s.11(1,6)], as it found the issue was one of fact and law (at the highest) - but the case gives some insight into these 'delay award' provisions:[10] In our view, the appeal raises no question of law. In determining whether an award under s. 10 of the Regulation was warranted, the Adjudicator identified and applied the correct principles. The Appellant does not argue otherwise.
[11] The issues raised by the Appellant, namely: (i) the Adjudicator’s determination that the Respondent did not unreasonably withhold or delay payment of IRB, and (ii) whether the Respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate are questions of fact. At their highest, they are questions of mixed fact and law from which no extricable question of law has been demonstrated. As a result, they are not the proper subject of an appeal under the Act.
[12] The Appellant’s submissions largely relate to the Adjudicator’s assessment of the evidence of the Respondent’s experts. The weighing of evidence and weight to be given to expert testimony by a specialized tribunal is a finding of fact and not a determination of a point of law: Maxwell v. Ottawa (City), 2012 ONSC 7224, at para. 23 (Div. Ct.).
[13] Further, there was ample evidence in the record before the Adjudicator, including through cross-examination of the Respondent’s expert, to support the factual conclusions arrived at by her. For example, in both the decision and the reconsideration decision, the Adjudicator noted that the Respondent’s expert, Dr. Jaroszynski, was cross-examined about his ability to diagnose chronic pain. In that context, he gave evidence that he did not see cause for “organically based pain” in the Appellant. It was open to the Adjudicator to rely on this evidence in finding that the Respondent did not improperly rely on Dr. Jaroszynski’s report to terminate IRB.
[14] In addition, the evidence was that the Respondent re-evaluated the Appellant’s claim after receiving and having its assessors consider the reports, including updated reports, received from the Appellant’s assessors, Dr. Ogilvie-Harris, Dr. Bax and Allan Mills.
[15] As a result, there was no finding of fact by the Adjudicator that would amount to an error of law, namely, a finding that was unsupported by the evidence or that was based on an “irrational inference.” See: Micanovic v. Intact Insurance, 2022 ONSC 1566, at paras. 35-36.
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