Aslivo v. Aviva Insurance Canada (19-004717)

The claimant applied to the LAT seeking a special award and entitlement to interest on two lump sum payments of IRBs made by the insurer. The insurer sought repayment of an overpayment of IRBs. Vice Chair Flude began the analysis by stating: “While the Schedule has been characterized as consumer protection legislation and should be given a broad and liberal interpretation, it is important to bear in mind that the obligations of the parties are mutual. No level of broad and liberal interpretation can save a consumer who simply refuses to cooperate with an insurer.” With regards to the first lump sum payment of IRBs, Vice-Chair Flude separated the issues into two distinct periods. In the first period, leading up to an IRB response letter / s. 33 request, the insurer was not in compliance with its obligations under the SABS to respond to the IRB application within 10 days. In the second period (after making the request for documents), the insurer was in compliance with the SABS. Vice-Chair Flude found that the insurer was liable to pay interest during the period it was in non-compliance with the SABS. The insurer was not liable to pay interest on the lump sum amount for the period starting when the reasonable s. 33 requests were made until the s. 33 requests were complied with (at which time the insurer paid the lump sum amount). The second lump sum payment was made for a period during which the claimant’s entitlement to IRBs had been terminated based on IE assessments. The lump sum back payment was made after the claimant was re-assessed and it was determined that her condition had deteriorated such that she met the test for IRBs. Adjudicator Flude found that although the insurer had not acted unreasonably when terminating the benefit for a period, interest was payable on the lump sum back payment. The situation was found to be analogous to a claimant being successful in an application for an IRB to the Tribunal. Adjudicator Flude found that the insurer was entitled to repayment of an overpayment of IRBs for a specific period, as claimed. The claimant was not entitled to a special award.