Ni v. Aviva Insurance Company of Canada (20-008774)

The claimant requested a special award for IRBs due to an unreasonable delay by the insurer. As of January 16, 2020, the claimant had provided her OCF-1, OCF-2, OCF-3 and OCF-10 to the insurer. On January 30, 2020, the insurer sent a section 33 request for further income-related documents. The insured made repeated section 33 requests for these documents, claiming that they were required for a determination of the claimant’s entitlement to IRBs. The claimant provided most of the requested documents by March 6, 2020. On April 13, 2020, the insurer suspended the claimant’s IRBs for non-compliance. On January 26, 2021, the claimant sent a letter to the insurer advising that she had not received any IRBs since the accident occurred on December 23, 2019. She further advised that the outstanding documents requested by the insurer were not required to determine her eligibility to IRBs. In its response, the insurer acknowledged the claimant’s position as it advised that certain documents that had been previously requested were no longer necessary. On August 9, 2021, the insurer advised the claimant that IRBs in the amount of $23,314.29 and interest in the amount of $1,579.20 had been paid to the claimant for the period from December 23, 2019 to February 9, 2021. The insurer continued to pay IRBs to the claimant from August 9, 2021 and onwards. Vice-Chair Brooks found that the insurer’s conduct satisfied the test for unreasonably delaying payments as it was “imprudent, stubborn and inflexible”. Vice-Chair Brooks found that the claimant had provided all documents necessary for the determination of her eligibility to IRBs as of January 16, 2020. Vice-Chair Brooks awarded the claimant a special award of $11,652.14, which constituted 50 percent of the IRBs paid. She noted that this was the highest rate permitted under the SABS. She found that the insured’s actions fell on the “furthest end of the scale” as it had refused to pay the claimant IRBs for over a year due to alleged non-compliance, when the claimant had already provided all the required documents as of January 2020.