Financial Services Regulatory Authority of Ontario (FSRA) Consumer Advisory Panel members
Rhona DesRoches
Ms. DesRoches is the Chair of the Board of FAIR Association of Victims for Accident Insurance Reform. She has extensive experience in the insurance industry from a consumer perspective, preparing and presenting materials to government, regulators and other stakeholders for the past 25 years with a particular focus on accident victims.
https://www.fsrao.ca/consumers/consumer-advisory-panel____________________________________________________________
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O-Tip of the Week: Trouble Typing? Try “Talk to Text”
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Elliot v. Aviva Insurance Company of Canada, 2020 ONCA 36 (CanLII), <http://canlii.ca/t/j4rr7
COURT OF APPEAL FOR ONTARIO
CITATION: Elliot v. Aviva Insurance Company of Canada, 2020 ONCA 36
DATE: 20200121
DOCKET: C67081
Pardu, Brown and Huscroft JJ.A.
BETWEEN
William Elliot Plaintiff/Responding Party (Respondent)
and
Aviva Insurance Company of Canada, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills
Defendants/Moving Party (Appellant)
And in the following 13 actions:
Shelli-Lynn Black v. Belair Insurance Company Inc. c.o.b. Belair Direct, et al.
CV-18-00607931-00CP
Catherine Brooks v. Intact Financial Corporation c.o.b. Intact Insurance, et al.
CV-18-00607933-00CP
Jill Nicholson v. Unifund Assurance Company, et al.
CV-18-00607937-00CP
Fernanda Sampaio v. Certas Home and Automobile Insurance Company, et al.
CV-18-00607939-00CP
David Macleod v. The Commonwealth Mutual Insurance Group, et al.
CV-18-00608382-00CP
Madeleine Bonhomme v. Co-Operators General Insurance Company, et al.
CV-18-00608386-00CP
John Ross Robertson v. Echelon General Insurance Company, et al.
CV-18-00608390-00CP
Bradley Dorman v. Economical Mutual Insurance Company, et al.
CV-18-00608396-00CP
Mark Cicciarelli v. Wawanesa Mutual Insurance Company, et al.
CV-18-00608399-00CP
Kristopher Baron v. St. Paul Fire and Marine Insurance Company, Travelers Insurance Company of Canada, et al.
CV-19-00611894-00CP
Garry Gibbons v. TD Insurance, et al.
CV-19-00611895-00CP
Brian Nagle v. Gore Mutual Insurance Company, et al.
CV-19-00611899-00CP
David Sura v. Cumis General Insurance Company, et al.
CV-19-00611901-00CP
L. Glenn Frelick and Dona Salmon, for the appellant
Ron Bohm and David Lee, for the respondents
On appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated May 9, 2019, with reasons reported at 2019 ONSC 2827.
BROWN J.A.:
OVERVIEW
[1] At issue on this appeal is the motions judge’s decision that a letter dated July 13, 2018 (“Notice Letter”) satisfied the notice requirement contained in s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”), for 15 class actions commenced in late 2018 and early 2019 against the appellant, Her Majesty the Queen in right of Ontario, Philip Howell, Brian Mills, and 15 Ontario automobile insurers. Howell acted as Superintendent of the Financial Services Commission of Ontario (“FSCO”) from 2009 until 2014; Mills is his successor.
[2] PACA s. 7(1) states, in part, that “no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose”.[1]
[3] The 15 actions assert a common allegation against the Crown defendants: FSCO failed to enforce its guidelines concerning the Harmonized Sales Tax (“HST”) against all automobile insurers in Ontario in respect of the payment of benefits set out in the Statutory Accident Benefits Schedule (“SABS”) made under the Insurance Act, R.S.O. 1990, c. I.8. The actions allege that the FSCO guidelines directed Ontario automobile insurers to pay applicable HST in addition to the cost of the goods and/or services provided under the SABS and not to include HST within the calculation of any cap on benefits under the SABS. The actions contend that insurers consistently breached those guidelines and FSCO was aware of that wrongful conduct but took no steps to stop it.
[21] Finally, I do not accept the appellant’s submission that the form of notice accepted by the motions judge resulted in significant prejudice to the appellant. The affidavit of Ms. Zuyin Wang filed by the appellant in support of its motion did not identify any prejudice resulting from the form of the notice. Nor did the November 7, 2018 letter from Crown counsel that responded to service of the first statements of claim. Indeed, it is difficult to conceive how the Crown’s ability to gather sufficient information to permit it to resolve a complaint could be prejudiced when the complaint against the Crown asserted in the Notice Letter was the same as those pleaded in the 15 actions.
[22] Accordingly, given the breadth of the complaint described in the Notice Letter and its clear signal that class action litigation would follow in respect of that broad complaint, I see no reason to interfere with the motions judge’s dismissal of the Crown’s motion on the basis that the Notice Letter (i) satisfied the legislative purpose of PACA s. 7(1), (ii) set out a specific grievance, (iii) identified the class members impacted by the impugned conduct, (iv) threatened litigation, and (v) was not an impediment to the resolution of the claim against FSCO, thereby complying with PACA s. 7(1): at paras. 13 and 17-19.
DISPOSITION
[
23] For the reasons set out above, I would dismiss the appeal.
BACKGROUND:
[1] The plaintiffs have filed 15 proposed class actions against 15 different Ontario auto insurers for failing to comply with the bulletins and guidelines issued by the Financial Services Commission of Ontario (“FSCO”) relating to the inclusion of HST in the calculation of benefits under the SABS.
[2] The FSCO’s bulletins and guidelines apparently made clear that the payment of HST was the responsibility of the insurer and was not to be deducted from any caps or benefits payable under the SABS. The plaintiffs say the defendant insurers ignored these bulletins and guidelines and included HST amounts in the calculation of benefits payable under the SABS.
[3] The plaintiffs also sue the FSCO defendants in identical fashion in each of these 15 actions alleging that Messrs. Philip Howell and Brian Mills, the former and current FSCO superintendents, failed to ensure that the insurers complied with the FSCO bulletins and guidelines.
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[1] In June 2016, Brian Hedley made a claim to his insurer, Aviva Insurance Company of Canada, for statutory benefits under the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “Schedule”) as outlined in two treatment and assessment plans. Aviva denied the plans and requested an insurer’s examination. Mr. Hedley refused to attend the insurer’s examination and commenced an application before the License Appeal Tribunal.
[2] Section 38(8) of the Schedule provides that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations the insurer agrees to pay for, and those it does not agree to pay for. In the case of the latter, the insurer is required to provide in the notice “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”
[3] If the insurer requires an insurer’s examination, the insurer “shall give” the insured person a notice setting out “the medical and any other reasons for the examination” and whether the attendance of the insured person is required at the examination (s. 44(5) of the Schedule).
[4] At the Tribunal, Adjudicator Gregory Flude agreed with Aviva that its reasons denying the plans and requesting the insurer’s examination complied with ss. 38(8) and 44(5) of the Schedule. In approving the reasons offered by Aviva, Adjudicator Flude expanded upon or interpreted the reasons offered by Aviva by reference to the “medical documentation on file.” Mr. Hedley requested a reconsideration of the Tribunal’s decision.
[5] On reconsideration, Executive Chair Linda Lamoureux decided in favour of Mr. Hedley. She cancelled the Tribunal’s decision on the basis that it involved a “significant error of law” because Aviva’s reasons for denying the treatment plans submitted by Mr. Hedley and for requesting that Mr. Hedley attend an insurer’s examination were inadequate.
[6] Aviva appeals the Reconsideration Decision and asks that it be set aside and the Tribunal’s decision be reinstated.
[7] For the following reasons, the appeal is dismissed.
[14] In the Reconsideration Decision, Executive Chair Lamoureux relied on her own decision in 16-003316/AABS v. Peel Mutual Insurance Company, [2013] O.F.S.C.D. No. 211, with regard to the evaluation of the sufficiency of notice under ss. 38(8) and 44(5) of the Schedule:
In evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. It would be naïve or impractical or to expect them to articulate something resembling a medical opinion. Likewise, their reasons should not be measured by the inch or held to a standard of perfection. Moreover, reasonable minds may disagree about the content of an insured’s file. Those allowances should be made. If it offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8).
[15] The Executive Chair found that Aviva’s denial letter fell short of this mark. She observed that both reasons proffered raise obvious questions concerning what medical information was relied on by Aviva to make its determination, and what, specifically, was the inconsistency between that information and the recommended benefits. She also found that the benefits included in the second treatment and assessment plan, together with the assistive devices and part of the therapy included in the first plan, were entirely consistent with Mr. Hedley’s diagnosis of low back pain.
[16] Executive Chair Lamoureux also observed that to provide content and give effect to a justification not provided in the “sparse reasons” that Aviva offered, as Adjudicator Flude had done, would “run counter to the Schedule’s consumer protection objective.”
[17] In the view of Executive Chair Lamoureux, the Adjudicator’s interpretation of Aviva’s obligation under s. 38(8) would “essentially allow an insurer to justify any denial of a plan by merely stating that it had reviewed the plan in light of the medical documentation on file, and without providing any meaningful detail, assert that the plan was not appropriate given the insured’s condition.” She concluded that the Adjudicator’s interpretation constituted a “significant error of law” and granted the request for reconsideration.
