CITATION: Agyapong v. Jevco Insurance Company et al, 2018 ONSC 878
DIVISIONAL COURT FILE NO.: DC-25/17 DATE: 20180212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Wilton-Siegel, Thorburn and Ellies JJ.
BETWEEN:
KOFI AGYAPONG
Applicant
– and –
JEVCO INSURANCE COMPANY and THE FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
Murray Tkatch, for the Applicant
Paul Omeziri, for the Respondent, Jevco Insurance Company
Deborah McPhail and Brendan Forbes, for the Respondent The Financial Services Commission of Ontario
HEARD at Toronto: January 16, 2018
Wilton-Siegel, J.
REASONS FOR JUDGMENT
[1] The applicant, Kofi Agyapong (the “Applicant”), brings an application for judicial review seeking to quash the decision dated January 25, 2016 of Arbitrator Wilson (the “Arbitrator”), which dismissed the Applicant’s application for arbitration under the Statutory Accident Benefit Schedule – Accidents On or After November 1, 1996, O. Reg. 403/96 (the “SABS”) (the “Decision”). The Decision was the subject of an appeal before the Director’s Delegate Rogers, who dismissed the appeal and upheld the Decision for reasons dated December 16, 2016 (the “Appeal”).
Factual Background
[2] The Applicant sustained injuries following two motor vehicle accidents. On July 2, 2005 he was struck by a car while riding his bicycle, and on July 12, 2005 he was struck by a pick-up truck. He was insured by the respondent Jevco Insurance Company (“Jevco”). The latter accident is herein referred to as the “Accident”.
[3] The Applicant submitted an application for statutory accident benefits on form OCF-1 to Jevco based on the Accident. Specifically, he claimed the non-earner benefit (“NEB”) and the housekeeping and home maintenance benefit (“HH”). By letter dated June 21, 2006, Jevco confirmed receipt of the OCF-1. The Applicant apparently submitted an initial Disability Certificate (“OCF-3”) dated July 5, 2006 to Jevco at some undetermined time after that date, possibly after April 2007 based on a letter that refers to it. In any event, Jevco does not assert that it never received this OCF-3, as it had a copy in its records. The Applicant asserts that the initial OCF-3 provided sufficient evidence to support his entitlement to NEB and HH payments. However, it appears that Jevco neither made any NEB or HH payments after receiving the initial OCF-3 nor took any action to assess the Applicant or to deny his entitlement to the benefits claimed.
[4] Instead, in early January 2011, for reasons that are not in the record, Jevco requested an updated OCF-3 pursuant to s. 37(1) of the SABS. Section 37(1) of the SABS stipulates that an insurer shall request that the insured person submit a new disability certificate if the insurer “wishes to determine if [the] insured person is still entitled to a specific benefit”. The Applicant submitted a second OCF-3 dated January 5, 2011.
[5] After conducting a number of insurer examinations, Jevco advised the Applicant pursuant to an OCF-9 that it had determined, based on the conclusions of Jevco’s assessors, that he was not entitled to an NEB payment as of March 30, 2011. The OCF-9 did not address the payment of the HH claimed.
Applicable Law
[6] The following provisions of the SABS are relevant to the issues herein:
(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:
The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. …
(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
(1) In this section and section 37,
“specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 22.
(2) An insured person who applies for a specified benefit shall submit with the application a disability certificate completed no earlier than 10 business days before the date the application is submitted.
(3) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
(a) pay the specified benefit;
(b) send a request to the insured person under subsection 33 (1) or (1.1); or
(c) notify the insured person that the insurer requires the insured person to be examined under section 42.
The Decision
[7] The Arbitrator reached his decision that the Applicant was not entitled to the benefits claimed on the basis of two principal findings.
[8] First, the Arbitrator dismissed the Applicant’s claim that, by virtue of Jevco’s failure to comply with the provisions of s. 35 (3) of the SABS, he was entitled to the NEB and HH payments claimed for the period from the date of delivery of the initial OCF-3 until the date on which Jevco denied his claim, being March 30, 2011, subject to the 104-week limitation in respect of the HH payments discussed below. The Arbitrator held that the principle in the decision of the Court of Appeal in Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, 103 O.R. (3d) 73 (C.A.) applied such that a failure of an insurer to comply with the provisions of s. 35(3) of the SABS does not give rise to a deemed entitlement to benefits for the period until delivery of a valid notice of termination if an insured has failed to provide proof of entitlement in accordance with the SABS.
[9] Second, the Arbitrator held that the Applicant had failed to establish that the Accident was the cause of the injuries that he continued to experience, whether the applicable test of causation was the “but-for” test or the “material contribution” test. Essentially, the Arbitrator found that the Applicant’s significant problems were much the same before and after the Accident.
Jurisdiction of the Court
[10] The Court has jurisdiction to hear this application pursuant to s. 2 and s. 6(1) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1.
Standard of Review
[11] The Applicant submits that the standard of review should be correctness, noting that this standard applies when there are issues outside a tribunal’s specialized areas of expertise, issues of statutory interpretation, and general questions of law that are important to the legal system.
[12] I am of the view that the appropriate standard of review of the Decision is reasonableness. In particular, the standard of review of the statutory interpretation of s. 35(3) of the SABS is reasonableness, as the exercise falls squarely within the Arbitrator’s expertise in the interpretation of a home statute: see Pastore v. Aviva Canada Inc., 2012 ONCA 642 at para. 18. Similarly, the standard of review of the Arbitrator’s determination with respect to the application of the principles of causation to the Applicant’s case is reasonableness for the same reason. In addition, neither of these issues is of central importance to the legal system as a whole.
[13] In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.
The Issues
[14] The Applicant raises two principal issues which will be addressed in turn.
Was the Arbitrator’s Determination that There Was No Deemed Entitlement to Benefits under Section 35(3) Unreasonable?
[15] The Applicant submits that, once he complied with his obligations under s. 35(2) of the SABS by submitting an application and an OCF-3 which described injuries that on their face entitled him to NEB or HH payments, his entitlement to such benefits was presumed or deemed until Jevco demonstrated otherwise, which Jevco failed to do until March 30, 2011 in respect of the NEB claim. In other words, the insurer must “pay first, challenge later”.
[16] The Applicant asserts that this result follows from the plain and ordinary meaning of s. 35(2). He says that this interpretation makes sense when read in conjunction with the attendant care benefits sections of the SABS, which require an insurer to pay benefits until it is challenged by way of evidence. The Applicant also says that, as consumer protection legislation, the legislator would not have intended that a benefit would be denied almost eleven years after the first OCF-3 was submitted, absent rebuttal evidence. The Applicant suggests that the principle in Stranges applies only in the circumstances of a defective notice of termination respecting benefits actually being paid.
[17] I do not agree and find the Arbitrator’s finding on this issue to be reasonable for the following reasons.
[18] First, s. 35(3) is silent on the consequences of an insurer’s failure to comply with the provisions therein. There is nothing in the plain meaning of that provision that compels the result proposed by the Applicant. Second, there is nothing in Stranges that limits the operation of the principle therein in the manner proposed by the Applicant. In my view, the principle in Stranges is equally applicable to the present circumstances. In Stranges, the Court of Appeal held at para. 9 that an insured is required to prove an entitlement to benefits notwithstanding an inadequate notice of the insurer. Third, the Applicant’s interpretation would have the result that an insured putting forward an apparently valid but in reality fraudulent claim, or an exorbitant and unreasonable claim in the case of a claim for an HH payment, would nevertheless be entitled to the benefits claimed until discovery by the insurer. Fourth, as was noted by Director’s Delegate Rogers in the Appeal, there are significant financial sanctions under the SABS that apply in the event an insurer fails to honour its obligations under s. 35(3) in respect of a valid claim. There is therefore no need to interpret s. 35(3) with a view to ensuring compliance by insurers – to “send a message to insurers”, as the Applicant suggests.
Were the Arbitrator’s Findings Regarding Causation Unreasonable?
[19] The Arbitrator found that the Applicant had not established proof of an entitlement to either the NEB or the HH payments claimed. I will address each separately after making a number of general observations that inform the conclusions reached herein.
[20] The Applicant says that he was prejudiced by two factors: (1) the ten-year lapse between the date of the Accident and the date of the hearing before the Arbitrator; and (2) the multiple accidents that he suffered that caused his injuries.
[21] With respect to the former, as is discussed below, the Applicant’s problems of proof regarding the cause of his injuries are not related to either the lapse of time or to the multiple accidents that he suffered but rather to the conflicting evidence regarding his condition before and after the two accidents and the failure of his treating physician to testify in circumstances where his testimony was necessary to permit reliance on his statements in the OCF-3s that he signed. I would add that the Applicant appeared in oral argument to suggest that his problems of proof in this case support his interpretation of the operation of s. 35(3) as discussed above. I do not agree. I do not think that there is anything in the circumstances of a failure of an insurer to respond to a completed application that would render such an interpretation necessary to address the Applicant’s particular evidentiary problems in this case.
[22] With respect to the latter, which raises the question of the proper approach to causation in the present case, the following considerations are relevant.
[23] First, the issue for the Arbitrator was whether the Applicant had sustained an impairment as a result of the Accident. Accordingly, the question was the consequence rather than the causation of the Accident. As the Supreme Court noted in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C. R. 181 at para. 49, the typical case in which the “material contribution to injury” test is applicable in a tort claim is one in which two or more parties contributed to or created a risk that resulted in injury and the issue is whether one party’s contribution to the risk was more than trivial. In the context of a claim of an entitlement to NEB or HH payments, the issue is limited to whether a claimant’s injuries were the result of an accident however it occurred and, where there are multiple accidents, whether the injuries resulted from the first or the second accident.
[24] The significance of this observation is that, in the present circumstances, there is no difference between the concept of a “material contribution to the risk of injury” and the Arbitrator’s consideration of whether there was a “material contribution to the disabilities suffered” as a result of the Accident. The latter is a reasonable approach to the requirement of the SABS that the Applicant establish that he sustained an impairment as a result of an accident.
[25] Second, as a legal matter, it is not clear to me that the circumstances of this case require that the “material contribution” test be applied to the extent it is not the usual test in relation to claims asserted under the SABS.
[26] In Clements, the Supreme Court described the circumstances in which the “material contribution” test applied in the following manner at para. 13:
To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.
[27] In the current context, the issue becomes, as mentioned, whether the Applicant’s injuries resulted from one or more accidents suffered by him. In these circumstances, the issue is purely evidentiary and the policy considerations of tort law do not come into play. The circumstances are therefore much closer to the case where the Applicant is simply unable to meet the burden of establishing that his injuries would not have resulted “but-for” the Accident.
[28] However, given the conclusions expressed below, it is not necessary to address which test is applicable in the present circumstances and, accordingly, I decline to do so.
[29] Third, although the Applicant denied this, it appears that his view of the application of the “material contribution” test is that common sense requires a finding that the Accident contributed to his disabilities without any further evidence. For this purpose, he relies on the Arbitrator’s statement that “it makes sense that being knocked over by a motor vehicle will likely contribute to an accident victim’s overall level of complaint”. I do not agree with this bald assertion of the Applicant. Section 12(1)1 of the SABS requires that the Applicant establish not that such Accident “likely contributed” to his injuries but that it did so on a balance of probabilities. In addition, it requires that such a contribution be more than de minimus, that is, that there be a material contribution. The Arbitrator made it clear that in his view the evidence did not establish a material contribution to the particular injuries the Applicant was alleging resulted from the Accident, namely the ongoing depression, knee, neck, lower back and left shoulder pain . For the reasons set out below, I consider that was a reasonable finding on the evidence before him.
[30] Fourth, the Applicant seeks to rely on the proximity in time of the accident of July 2, 2005 and the Accident. Apparently applying the “material contribution” test as he understands its operation, the Applicant says that it makes sense that it is more likely than not that each accident contributed to the Applicant’s injuries and that, being so close in time, it is impossible to separate out the respective contributions of the two accidents to his condition. Setting aside the fact that I do not agree with the manner in which the Applicant applies the “material contribution” test, I would observe that the difficulty with the Applicant’s evidence is not the separation of the effects of the two accidents but rather the evidence of the Applicant’s condition before the first of the two accidents and his injuries after the second. Moreover, there is evidence of the nature of the Applicant’s injuries after the first accident as is discussed below in the context of his credibility.
The Finding Regarding the NEB Claim
[31] As mentioned, the issue before the Arbitrator was whether the Applicant had established that the injuries that he suffered were the consequence of the Accident. To address this question, the Arbitrator addressed two issues: (1) whether the evidence established that, but for the Accident, the Applicant would not have suffered the injuries he exhibited after the Accident; and (2) whether the evidence established that the Accident materially contributed to the Applicant’s injuries in the sense that his condition was materially worsened after the Accident as a consequence thereof. The Arbitrator answered each question in the negative. The Arbitrator also found that, in any event, the Applicant had failed to demonstrate that he suffered a complete inability to carry on a normal life. I will address each of these issues in turn.
Application of the “But-For” Test
[32] The Arbitrator found that the Applicant’s physical and mental condition was essentially the same before and after the Accident. In particular, he found that the physical complaints after the Accident were similar to the problems complained of, and the complaints arising from, the long-standing work-related injuries which pre-dated the two accidents. With respect to the psychological difficulties, he found that these difficulties appear to be similar to the serious and ongoing psychological sequelae of a knife attack for which he was being treated in the months before the two accidents.
[33] The evidentiary problem with the Applicant’s case before the Arbitrator was the failure of the Applicant’s primary treating physician to testify to address this evidence. This doctor had signed the OCF-3s and other claim forms of the Applicant relating to the other incidents in his life. His records, including these forms, were before the Arbitrator. They evidenced an absence of any explanation of the doctor’s thought process in attributing the Applicant’s injuries to the Accident in particular. The Arbitrator commented that they “do not suggest an attribution of causation other than an attribution in a strictly temporal manner, without any weighing of the effect of pre-existing conditions.” In the absence of testimony from the doctor on this matter, the Arbitrator found that “[the] Applicant’s significant problems being much the same before and after the accident, I cannot find that but for the accident, they would not have happened.”
[34] In my view, this was a reasonable determination.
Application of the “Material Contribution” Test
[35] The Arbitrator also held that the language of s. 12(1) required that, in the circumstances where a claimant was already suffering injuries from previous accidents or other events, the claimant was required to establish that there was a material contribution to his injuries as a consequence of the action. In practical terms, the Arbitrator considered that this required proof that the Applicant’s condition was materially worse than before the accident. The Arbitrator concluded that there was an absence of such evidence in this case.
[36] The Arbitrator noted that, after the Accident, the Applicant did not see his doctor until August 2012 and that, at that time, the chief complaints were linked to the earlier assault rather than the Accident. Moreover, a further note of the doctor more than a year after the Accident links the complaints at that time, being depression, PTSB and neck pain, with the pre-accident knife attack rather than the Accident.
[37] The Arbitrator concluded that the evidence before him indicated the possibility of “some minor short-term aggravation of the long-time complaints” as a consequence of the Accident but that, “in the longer term, the claimed psychological ramifications clearly pre-date the subject accident, and the physical injuries reported post-accident appear to be little more than a re-hash of the existing panoply of pain-related complaints.” He concluded that, in the face of what he described as “the confusing and sometimes conflicting information in the medical records”, he had no choice but to conclude that the Applicant had failed to meet the burden of proof. The Arbitrator’s difficulty was the absence of any testimony from the Applicant’s physician as to his analysis for finding that the Applicant’s injuries were materially aggravated as a consequence of the Accident.
[38] In my view, this is also a reasonable determination.
[39] The Applicant says that the Applicant’s involvement in two car accidents in ten days makes it difficult to prove the extent to which each accident was responsible for his injuries. I do not agree. As the analysis above demonstrates, it is not the proximity in time of the two accidents that presents the problem in this case. It is the fact that, according to the records, the Applicant’s injuries were the same before and after Accident notwithstanding the willingness of the Applicant’s physician’s to sign OCF-3s that suggested the contrary. Again, this is a matter of conflicting evidence that could have been cleared up by the oral testimony of the Applicant’s doctor. In the absence of such testimony, the Arbitrator was entitled to draw the conclusions he reached.
The Finding Regarding a Complete Inability to Carry on a Normal Life
[40] Based on the foregoing, the Applicant failed to demonstrate that he suffered an impairment as a direct result of the Accident. The Arbitrator went on to find that, in any event, the Applicant had also failed to establish that he suffered a complete inability to carry on a normal life as a result of, and within 104 weeks after, the Accident as required by s. 12(1)1. This finding was based on three factors: (1) the paucity of medical evidence on the issue; (2) the quality of the Applicant’s evidence; and (3) the inadequacy of the testimony of a friend on this issue.
[41] With respect to the second matter, the Arbitrator noted that, among other things, the Applicant conceded that the Accident occurred when he was returning from an appointment with his treating physician that addressed the same pain and symptoms alleged to have resulted from the Accident. More generally, the Arbitrator stated that a “consistent denial of unfavourable facts, combined with [the Applicant’s] serial forgetfulness when challenged on a fact or statement causes me to place little reliance on [the Applicant’s] testimony, except where corroborated by other credible, evidence.”
[42] With respect to the third matter, the evidence of the Applicant’s friend, who shared accommodation with the Applicant after the Accident, was that he assisted the Applicant with housekeeping at that time, apparently doing some cooking and cleaning. The friend confirmed however that he did not assist the Applicant with basic activities of daily living and that the Applicant was essentially independent in meeting his own personal needs. The Arbitrator held that such activities do not imply a complete inability to carry on a normal life. I agree.
[43] Accordingly, based on the evidence before him, the Arbitrator could reasonably find that the Applicant had not suffered a complete inability to carry on a normal life as a result of the Accident.
The Finding Regarding the HH Claim
[44] As mentioned above, Jevco’s OCF-9 did not address payment of the HH claimed and Jevco did not make any payments on account of this claim. To obtain any such benefits, section 22(1) of the SABS requires that the Applicant demonstrate that he incurred additional expenses for housekeeping and home maintenance services “as a result of an accident … if, as a result of the accident, the [Applicant] sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that [the Applicant] normally performed before the accident.” Section 22(4) provides that HH payments are limited to expenses incurred for the period ending 104 weeks after the date of the accident.
[45] As a preliminary matter, I find nothing wrong with the Arbitrators’ decision to address the Applicant’s entitlement to the HH payments claimed given that the Applicant claimed them in his application.
[46] The Arbitrator found that the Applicant failed to prove his entitlement to an HH payment on two grounds which I will address in turn.
[47] First, the Arbitrator concluded that, having found that the Applicant had failed to prove that his post-accident impairments arose as a result of the Accident, there could be no entitlement to HH payments as well. In the circumstances of this case, this was a reasonable finding.
[48] In this regard, the Applicant says that the Arbitrator failed to recognize that Jevco did not present any evidence to rebut his claim for HH payments. Given the finding above regarding the operation of s. 35(3), this submission cannot succeed. The onus of proof rested with the Applicant rather than Jevco.
[49] Second, the Applicant also relied in support of this claim on the testimony of his friend described above. The Arbitrator held that, while these services could be classified as housekeeping services, there was an absence of adequate supporting medical evidence linking the provision of these services to a substantial inability on the Applicant’s part to perform the housekeeping and home maintenance services that he normally performed before the Accident. In addition, a functional abilities evaluation filed by the Applicant, which was not in the record before the Court, did not speak to the test in s. 22(1) of the SABS for an entitlement to HH payments.
[50] Given the foregoing evidence, the Arbitrator concluded, independently of the issue of causation, that the Applicant had failed to demonstrate any expenses that were incurred as a result of an impairment suffered in the Accident. I find this determination to be reasonable as well.
Conclusion
[51] Based on the foregoing, the application is dismissed. Costs in the agreed amount of $1,500, on an all-inclusive basis, are awarded in favour of Jevco.
___________________________ Wilton-Siegel J.
I agree ___________________________
Thorburn J.
I agree ___________________________
Ellies J.
Released: February 12, 2018
CITATION: Agyapong v. Jevco Insurance Company et al, 2018 ONSC 878
DIVISIONAL COURT FILE NO.: DC-25/17 DATE: 20180212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Wilton-Seigel, Thorburn and Ellies JJ
BETWEEN:
KOFI AGYAPONG
Applicant
– and –
JEVCO INSURANCE COMPANY and THE FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Wilton-Siegel J.
Released: February 12, 2018