Volume. 6 Issue. 38 – September 28, 2022

Two weeks ago, we featured two cases wherein a number of rather fundamental errors on the part of the Tribunal required remediation. Once again, this week we discuss two more cases where numerous significant errors, resulted in one being sent back for rehearing and a second where the decision was varied.

In ‘Five Tribunal Errors Mandates a Rehearing’ the Tribunal confirmed a total of five fundamental errors, thereby requiring the matter be sent back for rehearing. Upon reconsideration, the Tribunal found for a fact “that the reasons are wholly inadequate to explain how the Tribunal arrived at the conclusions it did and to permit meaningful review”.

In ‘Compliant Notice Not Rendered Non Compliant’ the Tribunal varies an earlier decision that rendered an otherwise compliant notice invalid, finding no obligation within the Schedule for an insurer to deliver said notice to counsel retained after the initial delivery in order for the notice to remain valid.

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Tribunal Gets it Mostly Very Wrong

Five Tribunal Errors Mandates a Rehearing – In 19-002767 v Intact, both the Applicant, J. D., and filed requests for a partial reconsideration, alleging errors of fact and law and jurisdictional and procedural fairness issues, particularly the Tribunal’s failure to tie findings to the evidence, as well as a failure to provide adequate reasons.

The Tribunal agreed with the parties “that the reasons are wholly inadequate to explain how the Tribunal arrived at the conclusions it did and to permit meaningful review”. Therefore, the matter was remitted back to the Tribunal for a rehearing before a different panel.

The Tribunal had approved a treatment plan for OT services, reasoning that J.D. “has established, on a balance of probabilities, that it was reasonable and necessary for his occupational therapy treatments to take place in-home.” This “blanket statement” made it “impossible to determine the Tribunal’s reasoning for payment of the full amount”, essentially applying “a reasonableness analysis without addressing Intact’s grounds for denial in detail.” Therefore, the “Tribunal’s failure to provide adequate reasons for its determination that this item is payable is a violation of the rules of natural justice and grounds for setting aside this aspect of the Decision.”

The Tribunal had also awarded J.D. Attendant Care Benefits (ACB) in the sum of $3,000 per month. Upon reconsideration, it was noted that the Tribunal never referenced the Form 1s provided by both parties. Thus, the Tribunal failed in its obligation to consider the competing positions of the parties on the value of the ACB. It was suggested that “On its face, the Decision reads as though the Tribunal felt itself constrained to award attendant care either at the CAT level of $6,000 per month or the non-Cat level of $3,000 per month and simply opted for the lower scale.” Both parties agreed “supported by ample case law, that the failure to give adequate reasons is a denial of natural justice”. The Tribunal herein found that the Tribunal “acted outside its jurisdiction or violated the rules of procedural fairness when it failed to give adequate reasons for its attendant care decision.”

An analysis and conclusion with respect to entitlement to housekeeping and home maintenance “suffers from the same defects as the attendant care analysis.” The Tribunal had failed to “identify what evidence it considered in deciding that he needed $50 per week of help. It simply makes a conclusory statement that $50 seems fair. With respect, the test is whether Mr. [J. D.] qualified for a housekeeping and home maintenance expense. If so, he is entitled to up to $100 per week on proof of incurred expense, not $50 because that seems fair.”

Within the context of an “identified need” concerning home allowances, the Tribunal awarded “nothing for either modifications of the existing property or the cost of suitable alternative accommodation.” While finding that J.D. “requires alternative housing to meet his disability-related need”, he was nonetheless not entitled to the benefit, “because all viable housing options are not before me”. The viable option referenced, featured in an earlier edition of the LAT inFORMER, was a property that J.D. owned with his siblings, of which his expert was unaware. This lack of awareness was used to disentitle J.D., “yet there was evidence of both need and possible alternatives that are discussed in the Decision but inexplicably ignored in the reasoning leading to disentitlement.”

Finally, the Tribunal had awarded J.D. $19,200 to satisfy his short – term housing needs. The decision “makes no attempt to review the evidence relating to the need for short-term housing. While the Tribunal finds a need, it simply accepts the number advanced by Mr. [J. D.] without considering the cost of the housing or the cost of any necessary modifications to make it suitable for Mr. [J. D.] ’s needs. This failure to give reasons for why Mr. [J. D.] is entitled to $19,200 for short-term housing is a violation of the rules of natural justice and grounds for setting aside this aspect of the Decision.”

Denial Notice Not Sent to Counsel Confirmed as Valid

Compliant Notice Not Rendered Non Compliant – A reconsideration of 19-013755 v Intact, was granted in favour of Intact, varying the original decision wherein theApplicant Belanger was not statute barred pursuant to s.56. The Tribunal had found that delivery of an IRB denial letter dated March 26, 2015, was not done in accordance with s.64 of the Schedule until February 15, 2019. This latter date was when Intact had delivered a copy to Belanger’s counsel, who had been retained in June of 2015. This had the effect of limitation running through to February of 2021, therefore the November 2019 LAT filing was well within the revised limitation period.

Upon reconsideration, the Tribunal varied the original decision, finding that the notice delivered to Belanger March 26, 2015, triggered the two-year limitation period in s. 56, and as a result Belanger was statute barred from proceeding with his application.

For their part Intact argued that “it is an error of law to interpret the Schedule to find that an otherwise compliant s. 64 notice is no longer compliant until it is delivered to counsel, when counsel had not been retained at the time the notice was first provided. An application of s. 64, in accordance with the modern approach to statutory interpretation, does not include a requirement to re-deliver notice to counsel retroactively after an insured retains counsel.” The Tribunal agreed with Intact, finding that “the Tribunal made an error of law in its interpretation of s. 64 of the Schedule such that the Tribunal would likely have reached a different outcome had the error not been made”.

In the original decision, the Tribunal had reasoned that “It would be unfair to allow the respondent to rely on the March 26, 2015, IRB stoppage letter to claim that the limitation period has expired when the respondent failed to provide a copy of the same to the applicant’s counsel within a reasonable period of time”. However, the Tribunal confirmed that the earlier decision did “not discuss how this finding is consistent with the language of s. 64.” It was an error of law “to find that an otherwise compliant notice must be delivered to counsel, who is retained after the notice is delivered, for it to remain valid. Section 64 does not include a requirement to re-deliver a notice to counsel after an insured person retains counsel. The Tribunal erred in reading this requirement into s. 64, and I agree with the respondent that there is no ambiguity in the section that allows for it.”

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