The requirement under section 7(4) of the Ontario Statutory Accident Benefits Schedule [1] for insurers to fund accounting reports on behalf of insured persons is a reasonable one. To be eligible for funding by the insurer, the reports must be:
- for a person applying for an Income Replacement Benefit (IRB);
- prepared by an accountant; and
- reasonable and necessary for determining entitlement to an IRB. [2]
The IRB calculation provisions of the Schedule are somewhat complex, particularly for self-employed insureds. The calculations, in some but not all respects, are similar to calculations under the Income Tax Act (Canada) and are subject to inclusions, exceptions and, in some circumstances, interpretation. Funding for an insured to assist in the IRB calculation serves the interests of both the insurer and the insured by allowing a timely calculation by a qualified professional. [3] The resultant calculation should reduce the potential for disputes, allowing for more prompt payment and potential savings to the insurer in not having to fund their own report at potentially greater cost. Although many insurers rely on internal IRB calculation software, the insight and expertise of an accountant may assist the parties with the more complex calculations, assumptions and variables to account for an insured’s specific situation. If the IRB amount can be addressed early on, the insurer and the insured can focus appropriately on treatment, rehabilitation and return to work. The section 7(4) accounting report can also serve to level the playing field in the event of a quantum dispute.
Unfortunately, section 7(4) has been applied in situations where it is simply not warranted. Some insureds’ representatives take the position that the words “the insurer shall pay” is a license to refer their clients for provision of accounting reports in circumstances where they are simply not required, giving rise to an increase in expense and disputes, contrary to the intent of the provision.
In many cases, the requirement of “reasonable and necessary” is overlooked, due to the focus on “shall pay.” Fortunately, a number of License Appeal Tribunal (LAT) decisions provide guidance to hold the accountants accountable.
In disputes concerning whether such reports are reasonable and necessary, several principles have emerged:
- The onus of proving satisfaction of the conditions in section 7(4) rests squarely with the insured; [4]
- In simple circumstances, where the insured is not self-employed and the IRB calculation is straightforward, an accounting report would not be reasonable or necessary; [5]
- Receipt of additional payments beyond employment wages, such as short-term disability or EI payments, do not make an accounting report reasonable and necessary; [6]
- Factors to consider include whether or not the work absence is short, whether there is an actual income loss, and whether there is any actual dispute with respect to IRB quantum. Failure to satisfy these types of considerations have all resulted in findings that accounting reports are not reasonable or necessary; [7]
- The cost of the accounting report being well below the $2,500.00 limit does not displace the requirement for the report to be reasonable and necessary; [8]
- Miscalculations or errors by insurers in their IRB calculation do not displace the insured’s onus in proving the report to be reasonable and necessary; [9]
- An insured cannot rely on delays in providing information, providing inaccurate information or discrepant information to justify the reasonableness requirement. [10]
With these guiding principles, insurers have a basis on which to hold the accountants (and insureds) accountable for expenses incurred under section 7(4). Replacing the focus on “shall pay” with a focus on “reasonable and necessary” is the standard which must be met to justify payment.
[1] O. Reg. 34/10, Statutory Accident Benefits Schedule – Effective September 1, 2010, as amended.
[2] Note: accounting reports determine quantum, not entitlement. Entitlement is established under s. 5 which provides the employment and disability criteria.
[3] A member of a designated body within the meaning of the Public Accounting Act (Ontario), 2004.
[4] S.M. v. Aviva General Insurance Company, 2020 CanLii 12712 (ON LAT)[S.M.] at para. 4.
[5] M.G. v. Intact Insurance Company, 2020 CanLii 34445 (ON LAT)[M.G.] at paras. 9 and 23.
[6] Ibid at para. 29; S.G. v. Wawanesa Mutual Insurance Co., 2019 CanLii 76979 (ON LAT) at para 51; reconsideration denied at 2020 CanLii 378 (ON LAT) at para. 12; S.M., supra note 4 at para. 10.
[7] 16-004674 v. The Co-operators, 2017 CanLii 77361 (ON LAT) at paras. 51 and 53.
[8] 17-006692 v. Certas Home and Auto Insurance Company, 2018 CanLii 95551 (ON LAT)[ 17-006692] at para. 5.
[9] Ibid at para. 20.
[10] M.G., supra note 5 at para 10; 17-006692, supra note 8 at para. 20.
