In this rehearing decision, the Licence Appeal Tribunal (LAT) awarded a 25% special award under s. 10 of O. Reg. 664, finding that Certas unreasonably withheld and delayed Income Replacement Benefits (IRBs) and medical/rehabilitation benefits. Although the applicant did not establish catastrophic impairment or entitlement to attendant care, Certas’ claims handling was found sufficiently “stubborn, inflexible and immoderate” to justify a substantial award.
Key Takeaway
The decision offers three practical reminders:
- An insurer’s obligation does not end with an initial denial. The duty to reassess entitlement is ongoing.
- Late reversals may support a special award. Reinstating benefits shortly before a hearing, without new evidence or explanation, may suggest the denial was unreasonably maintained.
- Financial hardship remains relevant. It is not required, but evidence of debt, borrowing, social assistance reliance or inability to access treatment may increase the award.
For counsel, the decision also underscores the importance of obtaining insurer log notes where a special award is in issue. In Vivekanantham, internal notes acknowledging uncertainty about entitlement, combined with the timing of benefit reinstatement, were central to the LAT’s analysis.
Background
The applicant was injured on June 1, 2018 in a motor vehicle collision and applied for statutory accident benefits.
After a five-day LAT hearing in 2023, the applicant’s claims were dismissed. On appeal, the Divisional Court found that the LAT failed to address the special-award claim and improperly relied on a psychiatric report where the assessor did not attend for cross-examination.
The matter was remitted to the LAT for rehearing before a different panel.
Issues in Dispute
At the rehearing, the LAT considered:
- Whether the applicant met the catastrophic impairment threshold under Criterion 8;
- Whether she was entitled to attendant care benefits; and
- Whether Certas was liable to pay a special award under s. 10 of Regulation 664.
Decision
Certas was ordered to pay a 25% award on benefits unreasonably withheld or delayed.
The LAT dismissed the catastrophic impairment and attendant care claims.
Reasons for Special Award
Certas removed the applicant from the Minor Injury Guideline (MIG) in September 2022 but did not reassess or pay previously denied treatment plans for more than six months.
The adjuster acknowledged that:
- The treatment plans remained unpaid;
- There was no apparent reason for the continued non-payment; and
- The insurer would ultimately pay treatment plans up to the applicable non-MIG limits.
Once Certas abandoned the MIG position, the continued failure to reassess and pay the plans amounted to unreasonable withholding.
The LAT was also critical of evidence that the MIG removal occurred on counsel’s advice, rather than as a result of a substantive medical reassessment.
The handling of the IRB claim raised similar concerns.
Certas terminated IRBs in May 2019 and reinstated them only in January 2023, shortly before the hearing.
Although the initial termination may have been supported by medical evidence, Certas failed to satisfy its continuing duty to reassess entitlement as the claim evolved.
The LAT emphasized that:
- Internal notes acknowledged that the basis for terminating IRBs was “not very clear”
- The insurer failed to correct an apparent error relating to optional benefits and IRB quantum
- IRBs were reinstated shortly before the hearing
- No new medical evidence appeared to justify the reversal
- No meaningful explanation was provided to the applicant for the change in position
Maintaining the denial for years, despite clear indicators that reassessment was required, supported a special award.
Quantum of Special Award
In assessing quantum, the LAT applied the established special-award factors:
- Blameworthiness of the insurer’s conduct;
- Length of delay;
- Prejudice to the insured;
- Financial benefit obtained by the insurer;
- Deterrence; and
- Proportionality.
The LAT found that a mid-range award was appropriate.
The maximum 50% award was not warranted, given that:
- The insurer initially relied on medical evidence;
- Benefits were ultimately paid; and
- There was no finding of bad faith or deliberate misconduct.
Even so, the conduct was serious enough to warrant a substantial 25% award.
The award was calculated as 25% of the unreasonably withheld benefits, statutory interest and compound interest under s. 10.
