Branden v Co-Operators General Insurance Company

2021 CanLII 18917

Ontario Licence Appeal Tribunal

Vice-Chair Boyce upholds our successful tribunal decision, despite the Co-operators Insurance Company’s request for Reconsideration.

After we successfully disputed our client’s accident benefits insurer’s application to deduct her long-term disability (LTD) from her entitlement to income replacement benefits (IRBs), the accident benefits insurer appealed and requested that the decision be reconsidered by the Tribunal.

Adjudicator Boyce dismissed the accident benefits insurer’s arguments in reconsideration. Specifically, the adjudicator disagreed that he committed an error by selectively ignoring the calculation sheet that the accident benefits insurer relied upon. Rather, the adjudicator noted that he explicitly stated that the calculation sheet provided was not compelling evidence of a settlement that would allow it to properly deduct from an IRB.

In addition, the adjudicator disagreed that it was an error to emphasize the importance of a breakdown of benefits in our client’s settlement. The Statutory Accident Benefits Schedule (SABS) provides that an insurer can deduct LTD payments from IRBs payable if the applicant has been paid LTD benefits. However, on the specific facts of this case, the adjudicator found that the client’s decision to settle her LTD claim was a decision to compromise her pursuit of her action because once LTD benefits were denied, they were no longer “available” to our client. The settlement of $120,000 did not qualify as any income continuation benefit plans because it did not specifically describe how the funds were allotted. The adjudicator agreed with our position that our case was distinguishable because our client’s lump sum LTD settlement was meant to cover all claims against the LTD insurer. There was no way to understand or breakdown the LTD lump sum settlement, which included other heads of damages, interest, costs and disbursements.

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