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Reasons - Summary Reasons. Luluquisin v. Aviva Insurance Co. of Canada
In Luluquisin v. Aviva Insurance Co. of Canada (Div Court, 2024) the Divisional Court allowed a claimant's LAT SABS appeal, here on the basis of inadequate 'summary' reasons:[1] This is an appeal from the decision and reconsideration decision of Vice-Chair Farlam of the License Appeal Tribunal (the “LAT”), dismissing various of the Appellant’s claims under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”).
[2] The Appellant raises numerous grounds of appeal. I do not find it necessary to address all of these grounds. In respect to one important issue, the Vice Chair erred in law and applied the wrong test. The reasons, taken as a whole, are brief and frequently conclusory. Such an approach may be appropriate for some issues, when important issues have been addressed properly: what is required will depend on the importance of the issue, its complexity, and the extent to which the reasons for decision on a minor issue have already been addressed elsewhere in the decision. In this instance, the errors in analysis and unduly conclusory reasoning on an important issue serve to undermine confidence in the balance of the decision. Therefore, in the result, I would set aside the impugned decision and remit the entire matter back for a fresh hearing before a differently constituted tribunal.
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The LAT’s Reasons on this Issue
[10] Fifteen issues are listed as matters to be decided at the LAT hearing (Decision, para. 6). Mr Luluquisin’s claim for attendant care benefits is the first listed issue. The Tribunal’s overall findings are set out in the next three paragraphs of the decision (paras. 7-9), and then, in para. 10, applicable legal principles are set out as follows:[Applicable s]ections… of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary. The Vice-Chair cited Scarlett v. Belair Insurance Company Inc., 2015 ONSC 3635 (Div. Ct.), as authority for this proposition. I am unable to locate a statement of this principle in Scarlett, and the detailed legal analysis in that decision is focused primarily on other issues:- whether the onus is on an insured or an insurer to establish the applicable category of coverage (ranging between “minor” and “catastrophic”);
- the meaning of “compelling evidence” in s. 18(2) of the SABS; and
- whether the Minor Injury Guideline has been incorporated into the SABS, and if so, to what extent; and
- issues of procedural fairness. (Scarlett v. Belair, at paras. 20-40). [11] The general statement of principles by the Vice-Chair – that claimed benefits must be “reasonable and necessary” and that the claimant bears the onus of establishing this point on a balance of probabilities – discloses no error in principle. However, it is a preliminary statement of general principle and not the kind of detailed legal analysis one might expect in regard to a substantial claim.
[12] The Vice-Chair then prefaced her analysis of all the issues before the LAT as follows (Decision, para. 11):After considering all of the evidence, submissions and legal authorities put forward by all parties, I find the following:Following this statement, the Vice-Chair then addressed fourteen issues briefly, in reasons ranging in length from one to five paragraphs (most being two or three short paragraphs long). [13] The Vice-Chair provided the following reasons for decision on the first issue, the claim for attendant care benefits (“ACB” in the Reasons) (Decision, paras. 12-14):The onus is on the applicant to prove entitlement to ACB and that the amount of the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities. The applicant has not established with medical evidence that the ACB in the amount of $6,000.00 per month from April 19, 2020 to date and ongoing, is reasonable and necessary.
The respondent Aviva initially approved the applicant’s claim for ACB but, reduced the claim to $1,029.42 per month based on an occupational therapy in-home assessment which indicated the ACB need was in that amount. ACB was suspended on September 16, 2021 as a result of the applicant’s failure to attend an IE.
Further, requests by the respondent Aviva for additional information regarding the invoices purporting to represent services incurred by the applicant pursuant to s. 46.2 of the Schedule remain unsatisfied by the service provider. As a result, it appears that the services and the quantum of the claim greater than $1,029.42 per month has not been established as reasonable and necessary. As a result, the applicant is entitled to $1,029.42 per month for the period claimed, if not already paid. [14] Although it is not entirely clear, I read these reasons as concluding that the claimed services are not established as “reasonable and necessary” because (a) Aviva assessed the necessary services at $1,029.42 per month; (b) the claimant “failed” to attend an independent medical examination on September 16, 2021, and (c) one of the claimant’s service providers did not respond to a request for additional information from Aviva. The LAT did find that the Applicant “has not established [the claim] with medical evidence” but this is a conclusion without analysis of the evidence that was provided by the Applicant.
[15] No explanation is provided – let alone any analysis –to justify drawing conclusions against the claimant because of the “failure” to attend a medical examination or for the “failure” of one of the claimant’s service providers to provide additional information to Aviva. No description is provided – let alone an analysis – of the evidence provided by Mr Luuquisin in support of the claim for attendant care benefits.
[16] The SABS provides a detailed code prescribing disclosure obligations and remedies where a party does not comply with their obligations. Disagreements around medical examinations and provision of further information are governed by that code. None of that statutory scheme is cited, analysed, or applied by the LAT in this case. Rather, in a conclusory manner, the LAT has drawn an adverse inference against Mr Luluquisin to preclude all aspects of his claim for attendant care benefits other than those previously admitted by the insurer. This inference was apparently so strong that the LAT did not feel it necessary to state and apply the law concerning the test for “reasonable and necessary”, or to review the evidence Mr Luluquisin did provide to substantiate that his claim was for services that are “reasonable and necessary” as a result of the accident.
[17] The claim for attendant care benefits was substantial and important - $6,000 per month. There was a substantial record in respect to this claim. With respect, a claimant is entitled to more than the summary, conclusory reasons provided by the LAT on this issue in this case.
[18] There are further problems with the summary reasoning. Whether claimed services are “reasonable and necessary” is distinct from the question whether expenses for those services have been “incurred”. There may be situations where an expense is “necessary and reasonable” and has not yet been “incurred” because the claimant has been unable to afford or unwilling to incur the expense before a finding of entitlement. There may be situations where further disclosure is required, or a further medical examination conducted before a finding that the expense is in respect to an impairment “caused by the accident”. The Vice-Chair moved from an uncontested finding that a claimant did not attend an insurer medical examination to a conclusion that this was a “failure” and was unreasonable. She then concluded that the unreasonable failure precludes a substantial claim. All that was without reference to the statutory scheme, without justification of the factual finding of unreasonableness, and without justification of the draconian consequence of these findings. As such, the Vice-Chair conflated the test under s. 19 with apparent procedural non-compliance with the SABS. For a catastrophically impaired claimant, more would be required to justify the LAT’s decision.
[19] The LAT decision respecting attendant care benefits is inadequate, on its face, and must be returned for a fresh hearing.
The Balance of the LAT’s Reasons
[20] As noted above, issues large and small were all addressed in summary fashion, with a few brief paragraphs, much of it conclusory. Some of the issues could have been addressed appropriately in this fashion. If proper reasons had been provided for the claim for attendant care benefits then subsequent issues could have been decided in a relatively summary manner (for example, by reference to the LAT’s reasons and conclusions about the failure to attend the independent medical examination). However, just as summary reasons may be justifiable on some issues because of the comprehensive treatment of related issues elsewhere, where the first central issue in the case has been disposed of summarily, without proper and complete analysis, this may taint the balance of the reasons.
[21] I consider the entire decision unsafe in light of the way in which the important issue of attendant care benefits was addressed, and I would quash the entire decision and remit it back for a fresh hearing before a different adjudicator.
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