Volume. 8 Issue. 2 – January 10, 2024

Prior to a hearing, the Respondent reinstated NEB six years after the original denial. The Tribunal considers whether this was ultimately reasonable, and whether the particular circumstances of the matter warranted an award being levied.

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NEB Reinstated After Six Years Generates Award

40% Award for NEB Delay – Injured in an August 2015 MVA, the Applicant Ross sought numerous benefits, including non-earner benefits (NEB), the latter having been terminated in March 2016. Prior to the hearing, in 22-002558 v Aviva, all of the substantive issues were resolved, including the reinstatement of NEB in April 2022. This left only the matter of an award as the remaining issue in dispute, with Aviva attempting to make the case that the Tribunal did not have the jurisdiction to consider the matter of an award as a standalone issue.

The Tribunal however confirmed that prior case law established that “it would contradict the spirit of the Act to let insurers sidestep the enforcement of the s. 10 provisions by delaying settlement of claims until the eve of a hearing… Aviva’s interpretation would be unreasonable and ultimately defeat the purpose of the statute… The respondent did not relieve itself of liability to an award for unreasonably withholding or delaying payments of NEBs as a result of reinstating them prior to a hearing.”

It was the position of Ross that Aviva had ignored pertinent medical information that led to the unreasonable withholding and six-year delay of the applicant’s NEB. There were three distinct periods referenced, the first being from the March 2016 termination through to October 2020, during which there were many documents provided to Aviva that ought to have inclined them to reconsider their initial denial. The second period being from October 2020 to October 2021, when Aviva “was obligated to readjust the applicant’s benefits after it accepted that he was catastrophically impaired”. The third period was from October 2021 through to April 2022, when Aviva had agreed to reinstate, but actually failed to do so for a further six months. Aviva did concede that this last period did represent an unreasonable delay.

The Tribunal determined that Aviva had “unreasonably withheld or delayed payment of the NEB by ignoring pertinent medical information and not reassessing the decision.” The effective period was from October 2020 to April 2022. The Tribunal reasoned that “papering a termination with compliant reports is not necessarily protection against an award if an insurer closes its mind to other information available to it that may affect its decision. It must consider the medical and all other information provided. It should reassess its position as the information is provided. By not doing so, the respondent acted in a manner that was stubborn, unyielding and inflexible.”

While Aviva did secure an April 2019 IE reconfirming no entitlement to NEB, said report “uncovers significant impairments including significant pain, frustration, and increasing forgetfulness, and that he had ceased most of his housekeeping. Tasks that he was able to complete in an hour now took several days. He became apprehensive about leaving the house at all. There were as well a number of other reports between July 2017 and June 2020 that discussed Ross’ ongoing challenges with his day to day functioning. The Tribunal found that at the latest, when Aviva received its own catastrophic assessment report in October 2020, this ought to have triggered a reassessment of the Ross’ NEB, that ultimately was not undertaken until 2022.

With respect to quantum of the award, “Rationality requires that the determination of the amount of the award sufficiently promotes the objectives of punishment and deterrence without exceeding what is necessary to fulfill those goals. Proportionality ensures that the consequences imposed bear a rational connection to the misconduct.” Aviva “acted unreasonably and this conduct should be deterred.”

In the within matter, “It was unreasonable after receipt of further information to not reassess the benefit.” In terms of “vulnerability and harm to the insured person, there is evidence that the applicant’s condition was deteriorating as a result of his impairments.” While there was some harm in the delay, there was no resultant financial hardship, as Ross was in receipt of ODSP benefits, and receiving an NEB payment would result in a reduction of his ODSP.

The established period of unreasonable delay from October 2020 to April 2022, represented a period of 75 weeks, with delayed NEB totalling $13,875. After considering the various factors in play, Ross was entitled to an award of 40%, or $5,500 for the period described, not from the 2016 denial as sought by Ross.

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