Volume. 6 Issue. 39 – October 5, 2022
This week features a “deep dive” into a decision in which the insurer contested whether an incident, wherein the Applicant fell on ice while exiting the vehicle, satisfied the definition of “accident” under the Schedule, after more than four years of having paid benefits post accident.
The Tribunal, in ‘Four+ Years After the Fact Too Late to Contest “Accident”’ considers the implications of the procedures for claiming benefits under s.32 of the Schedule, in context of the consumer protection mandate of the Schedule. This context is also front and center in a determination that the incident was for a fact an “accident”.
Need help finding cases? Reach out to our Live Chat Experts for guided searches!
Cannot Contest “Accident” More Than Four Years Later
Four+ Years After the Fact Too Late to Contest “Accident” – The Applicant, Harland-Bettany, received benefits for several years resulting from a February 2017 incident, however Aviva subsequently, in 21-005099 v Aviva, raised a preliminary issue in September 2021, suggesting that the incident did not meet the definition of “accident” under the Schedule.
Aviva suggested that case law had found numerous such incidents not being defined as “accidents”, while Harland-Bettany argued that the act of exiting the vehicle had significantly impacted her fall. Harland-Bettany also argued that “too much time has passed for the respondent to now challenge whether the incident was an “accident”. The Tribunal specifically asked of the parties whether s. 32 of the Schedule played any role in the dispute, the provision that addresses the steps insurers and individuals must follow when first applying for accident benefits
The Tribunal referenced s.32, noting specifically that upon receipt of an application, the “insurer has 10 business days to review the application and potentially inform the applicant that something in the application is missing…(and) the insurer must first conduct “a reasonable review of the incomplete application” before alerting the applicant that “without the missing information” it cannot determine “whether a benefit is payable”. These provisions “provide a means for ensuring the timely receipt and adjusting of an initial application for accident benefits. They also specify what an insurer must do to remedy deficiencies it finds in an application, with a corresponding penalty if an applicant fails to comply.”
Ultimately, the Tribunal found that Aviva “did not raise this preliminary issue in a timely fashion, such that it has missed its opportunity to challenge whether the incident constituted an “accident” under the Schedule.” It was noted that following receipt of Harland-Bettany’s application, Aviva sent her a letter confirming benefits to which she was entitled to apply for. This was the time during which Aviva “was required to determine if there was something missing in the application that left it unable to determine “whether a benefit is payable.” However, Aviva, despite its current contention, never sought any further information with respect to whether an “accident” had taken place. Rather, Aviva continued to pay benefits for several years, absent any indication as to any reservations as to whether an “accident” had occurred.
It was further noted that there was “no indication of what changed between the respondent’s acceptance of the incident as an “accident” in March 2017, and the case conference in September 2021. Instead, the incident described in the OCF-1 mirrors the applicant’s description of the incident in her March 2022 affidavit.” While there is no limitation period regarding concerns over whether an “accident” occurred, “the mandatory language of s. 32 cannot be swept aside, especially when there is no indication of what has altered an insurer’s understanding of the incident in question.”
With the Schedule’s mandate of consumer protection, same would be “imperiled if an insurer could disregard its obligations under s. 32, and then raise questions about an applicant’s application years later. There are also concerns about procedural fairness, as delaying the adjudication of this fundamental question means evidence about the incident will deteriorate over time. All these factors lean in favour of finding this preliminary issue is untimely.” The Tribunal did not stop there however, finding that, while not strictly required, there would have been a finding that the incident did for a fact constitute an “accident” under the Schedule.
The Tribunal, in not accepting Aviva’s argument that the ice was an “intervening act”, found that the “dominant feature” consideration was the most helpful in these circumstances. This required an analysis as to “the aspect of the situation that most directly caused the injuries”. The Tribunal was “satisfied that both the ice and “the ordinary and well-known” activity of exiting a vehicle were the equally dominant features of the incident.” The “applicant’s twisting movement during the ongoing exit acted in conjunction with the ice to create the circumstances that led to this incident, and, by extension, her injuries.”
The Tribunal considered cases submitted by Aviva wherein the ultimate falling on ice was found to be an “intervening act”. However, these cases did not “allow for the possibility that a number of other factors may be at play. This ability to account for and weigh different causes is the underlying value of the “dominant feature” consideration.” The Tribunal was satisfied that the factors of ice and exiting of the vehicle were both the dominant feature, and “in light of the consumer protection mandate, I find it may be necessary to consider more than one dominant feature.” The Tribunal was unable to say which feature “most directly caused the injuries”. In light of this ambiguity, the consumer protection mandate directs adjudicators to accept the interpretation that best meets the remedial nature of the Schedule.” Concluding, “I am not satisfied that the remedial nature of the Schedule would be upheld if this ambiguity allowed for a situation where coverage was denied.”
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!