Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 74

FSCO A15-005113

BETWEEN:

ADRIATIK DINE

Applicant

and

INTACT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: April 24, 25, 26, 27, May 1, 2, 3, 4, June 1, 19, 20, July 19, September 8, 20 and 21, 2017, at the offices of the Financial Services Commission of Ontario in Toronto. Written Submissions completed on January 31, 2018

Appearances: Savannah Chorney and Melissa MacLeod for Mr. Dine

Lori Sprott and Sylvia Haak for Intact Insurance Company

Issues:

The Applicant, Mr. Adriatik Dine, was involved in a motor vehicle accident on March 17, 2014. He applied for and received statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ Intact terminated weekly income replacement benefits and refused to pay for various other benefits. The parties were unable to resolve their disputes through mediation, and Mr. Dine applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Dine entitled to receive a weekly income replacement benefit in the amount of $400 per week from April 22, 2015 to date and ongoing?

2. Is Mr. Dine entitled to attendant care benefits in the amount of $6,000 per month, from March 17, 2014 to date and ongoing?

3. Is Mr. Dine entitled to payments for housekeeping and home maintenance services in the amount of $100 per week from March 17, 2014 to date and ongoing for services provided by Marsida Dine?

4. Is Mr. Dine entitled to cost of examination expenses in the amount of $2,070 for a Mental Health Assessment pursuant to a Treatment Plan dated July 27, 2015 by Dr. Hiten Lad?

5. Is Intact liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Dine?

6. Is Intact liable to pay Mr. Dine’s expenses in respect of the arbitration?

7. Is Mr. Dine liable to pay Intact’s expenses in respect of the arbitration?

8. Is Mr. Dine entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Dine’s claims are dismissed.

2. The issue of the expenses of this proceeding is deferred.

Claims Intact Agreed to Pay on the First Day of the Hearing

At the beginning of the hearing, Intact advised that it removed Mr. Dine from the Minor Injury Guideline (MIG) and that it would pay for the following benefits together with interest when it received invoices, if it did not pay the claims within the time period allowed, from the service providers:

1. Medical benefits for:

i. $3,400 for physical rehabilitation pursuant to a Treatment Plan dated November 3, 2014 by Krishna Patel;

ii. $1,543.73 for occupational therapy services by Sophie Bielkowski for a Treatment Plan dated December 17, 2014;

iii. $799.46 for occupational therapy services by Sophie Bielkowski for a Treatment Plan December 17, 2014;

iv. $100.91 for prescription medications pursuant to an Application for Expenses dated June 22, 2015.

2. Cost of Examination expenses for:

i. $2,200 for a Mental Health Assessment pursuant to a Treatment Plan dated July 27, 2015 by Dr. Hiten Lad;

ii. $2,200 for a psychological assessment by Dr. Sharma for a Treatment Plan dated December 22, 2015.

At the conclusion of this hearing, Intact advised that it was not aware that any invoices for the above expenses (1. (i) - (iv) and 2. (i) - (ii)) were submitted to it. The Applicant could not confirm whether or not invoices were submitted to Intact for these items.

The Applicant advised that he was claiming a special award for all the benefits claimed, including the delay in notification about his removal from the MIG and items 1. (i) - (iv) and 2. (i) - (ii).

EVIDENCE AND ANALYSIS:

I considered all the evidence and for the following reasons I find that the Applicant has not discharged his burden.

Witnesses:

I heard testimony on behalf of Mr. Dine from:

i. Himself;

ii. Marsida Dine (Mr. Dine’s wife);

iii. Dr. Fahim (Mr. Dine’s family doctor, who did not testify as an expert witness);

iv. Dr. Hatin Lad (neuropsychologist);

v. Dr. Sharma (treating psychologist);

vi. Ms. Airn Shuster (treating occupational therapist); and

vii. Ms. Mary Jo Corriero (Mr. Dine’s supervisor at RCL, his employer at the time of this accident).

On behalf of Intact, I heard testimony from:

i. Dr. Manu Mehdiratta (neurologist);

ii. Dr. Wendy Campbell (psychologist);

iii. Ms. Naomi Davids-Bruer (occupational therapist);

iv. Ms. Brittany Dale (adjuster from Intact); and

v. Ms. Monique Quintal (adjuster from Intact).

Background:

Since January 2009, Mr. Dine has worked as a courier at the law firm Lofranco Corriero. Mr. Rocco Lofranco is a prominent plaintiff personal injury lawyer in Toronto, Ontario. He is the sole Officer and Director of RCL Management Inc. (RCL), the company that employed Mr. Dine and leased the minivan he was driving at the time of the accident. The parties agreed that although Mr. Dine was working at the time of the accident, s.61(5) of the Schedule² precluded Intact from denying benefits to Mr. Dine because he was allegedly in the course of employment at the time of this accident.

On the afternoon of March 17, 2014, Mr. Dine was making a left-hand turn out of a gas station when a car hit the minivan he was driving. The police came to the accident scene and instructed both Mr. Dine and the driver of the car that hit his minivan to go to the Collision Reporting Centre (CRC). Mr. Dine drove his minivan to the CRC after the police left the accident scene. After attending at the CRC, Mr. Dine completed his remaining courier jobs for the day then went home.

Mr. Dine took two to three days off work, and then returned to work full-time as a courier at Mr. Lofranco’s office, where he continued to work until September 26, 2014, for more than six months after this accident. He applied for accident benefits from Intact on October 10, 2014, more than six months after this accident.

Mr. Dine’s Previous Car Accidents

(i) 2004 Car Accident

Mr. Dine was in a serious accident in 2004. He sustained a traumatic brain injury and orthopaedic injuries as a result of the 2004 accident. He was also deemed to be catastrophically impaired as a result of the 2004 accident. Mr. Dine was working as a truck driver at that time. Mr. Lofranco successfully settled Mr. Dine’s accident benefits claim as a result of the 2004 accident for $715,958.87 in May 2008.³ Part of that settlement included $275,645.63 for income replacement benefits.

(ii) 2009 Car Accident

Approximately five months after Mr. Dine started working for Mr. Lofranco, he was in a second car accident in June 2009. His car was rear-ended. Mr. Dine saw Dr. Fahim, his family doctor, 12 days after his 2009 accident.⁴ He also told his employer, RCL, about this accident. Mr. Dine again retained Mr. Lofranco to represent him as a result of injuries he sustained in his 2009 accident. Mr. Lofranco successfully settled Mr. Dine’s accident benefits claim as a result of the 2009 accident for $42,000.00 in November 2010,⁵ which settlement was in addition to payments he received from his insurer before the 2010 settlement.

Long-Term Disability Benefits

In July 2016, Mr. Dine resolved his long term disability claims as a result of his 2014 car accident with the following insurers:

i. Desjardins, with whom he was insured through his employer, RCL. He was paid $135,000 by Dejardins; and

ii. RBC, from whom he purchased disability insurance himself. He was paid $28,000 by RBC.

In addition, Dr. Fahim, Mr. Dine’s family doctor, completed a Canada Pension Plan (CPP) benefit form⁶ on behalf of Mr. Dine and he receives CPP benefits in the amount of approximately $1,100 per month. CPP, Dejardins and RBC only deal with disability, not causation, for the payment of benefits.

Parties’ Positions

According to Mr. Dine:

i. He sustained cognitive, physical and emotional difficulties as a result of the 2014 car accident;

ii. After the March 2014 accident, he increased his medication and continued to work;

iii. His wife quit her job to stay home and look after him;

1. Dr. Dhaliwal, a psychiatrist, made a referral to Dr. Koponen, a neurologist, who wrote to Ministry of Transportation to revoke his licence.

According to Intact:

1. Within eight months of settling his 2004 accident benefits claim, Mr. Dine went to work for Mr. Lofranco as a courier driver;

ii. Mr. Dine was working as a courier driving approximately 300 km per day at time of the his 2014 car accident;

1. Mr. Dine continued working full-time for more than six months after the accident without modified job duties;

2. On September 16, 2014, RCL’s insurance premium on the minivan Mr. Dine was driving at the time of the 2014 accident increased from approximately $2,000 to over $11,000 because Mr. Dine had received three tickets. The RCL policy premium increase would take effect October 30, 2014. Mr. Dine was the only driver listed on RCL policy which insured the minivan he drove for work;

3. One week after Mr. Dine found out that the RCL policy premium was increasing by more than five times, he stopped working;

4. On September 22, 2014, over six months after the accident, Mr. Dine saw Dr. Fahim for a physical examination and told her that work was fine and did not mention the 2014 accident to her;

5. On September 26, 2014, Mr. Dine returned to Dr. Fahim, said he was stressed and couldn’t sleep, and also mentioned the March 2014 car accident to her for the first time;

6. Mr. Dine filed an Application for Accident Benefits seven months after the accident;

ix. There is no medical evidence that shows that Mr. Dine cannot drive;

1. On October 6, 2014, Mr. Dine told Dr. Fahim he was going to lose his job;

2. Mr. Dine doesn’t meet the post-104 week test for income replacement benefits.

Credibility of the Applicant

In January 2009, within eight months of his accident benefits claim for his 2004 accident settling, Mr. Dine began working for Mr. Lofranco as a courier driver and gofer. There is no medical evidence that between May 2008 and January 2009, Mr. Dine’s medical condition improved. So, Mr. Dine began working, despite the fact that:

i. In November 2005, Dr. Anderson (family doctor) opined that Mr. Dine would never be able to return to work;⁷

ii. In July 2007, Dr. Ogilvie-Harris (orthopaedic surgeon) opined that Mr. Dine’s injuries as a result of the 2004 accident “preclude him from returning to the labor market;”⁸ and

iii. In February 2008, Dr. Feinstein, a psychiatrist, opined that Mr. Dine was completely unable to engage in any employment for which he is reasonably suited by education, training and experience.⁹

Intact thought that Mr. Lofranco was perhaps a benevolent employer. I disagree. Based on the evidence I read and the testimony I heard, Mr. Dine was both competent and capable of fulfilling his job duties for RCL.

Mr. Dine claimed that his alleged injuries resulted in chronic pain and psychological impairment. However, I heard no reliable evidence that the changes found in Mr. Dine’s medical condition were caused or contributed to as a result of the car accident of March 17, 2014.

In this case, credibility is key and it is due to a lack of credible evidence that this Application for Arbitration is dismissed. I found that much of Mr. Dine’s evidence was not reliable for reasons that include:

i. In an insurer’s examination conducted on behalf of Intact on September 4, 2015 by Dr. Kiraly, a psychiatrist, Mr. Dine told Dr. Kiraly that: “He (did) not report any previous psychiatric history … (or) major medical illness;”¹⁰

ii. Mr. Dine reported to Dr. Kiraly that he lost his licence for “medical reasons.” ¹¹ However, Mr. Dine lost his licence because he did not submit medical information to the Ministry of Transportation as he was requested to do;¹²

iii. Mr. Dine complained to Dr. Fahim¹³ and Dr. Lad, a neuropsychologist he saw at the request of his lawyer in 2015,¹⁴ of forgetfulness. Dr. Lad’s memory testing results indicated that Mr. Dine did not have any memory problems;

iv. Mr. Dine performing well on the memory tests administered by Dr. Lad is inconsistent with his “effortful failure”¹⁵ on other tests.¹⁶ Even people with severe brain injuries, children with fetal alcohol syndrome and people with lobotomies all pass the Green Memory Test. Mr. Dine, however, did not pass the Green Memory Test, and his score was lower than those who are institutionalized, over 80 years old and have advanced dementia;¹⁷

v. Mr. Dine testified that after the 2014 accident, he stopped seeing friends. He told his psychiatrist that his social life is poor and he does not meet people.¹⁸ However, in the psychology insurer’s examination (IE) report of April 2015, he reported that he has close friends whom he continues to see weekly, and that he maintains a positive relationship with his aunt, uncle and a male cousin who he also sees weekly;¹⁹

vi. Mr. Dine reported to Dr. Dhaliwal, his psychiatrist, that he had flashbacks of the 2014 accident.²⁰ However, in the psychology IE report of April 2015, he reported that he did not have flashbacks of the accident;²¹

vii. Mr. Dine reported to Dr. Mehidratta that his tinnitus began in February 2015.²² However, he reported to his occupational therapist that his tinnitus began two days after the accident.²³ And, he reported to Dr. Campbell that his tinnitus began in June 2014.²⁴

viii. Mr. Dine reported to Dr. Campbell that before the accident, he would care for his eight birds.²⁵ However, he advised the occupational therapist that before the accident, his wife cared for the birds;²⁶

ix. Mr. Dine reported to the physiatrist that he wakes up at 8:00 am and eats between 2:00 and 3:00 pm.²⁷ However, he reported to Dr. Campbell that he wakes up between 6:30-7:00 am and eats between 4:00 and 5:00 pm;²⁸

x. Mr. Dine reported to Dr. Mehidratta that he hit his head on the driver’s side window.²⁹ However, he reported to an occupational therapist that he could not recall if he hit his head on the inside of his car after the accident;³⁰

xi. Mr. Dine reported to Dr. Lad that his wife stopped working because he couldn’t look after their kids.³¹ However, Mr. Dine told Dr. Sharma that his wife stopped working to look after him.³²

Mr. Dine testified that he waited over six months to tell Dr. Fahim about the 2014 accident and did not tell her about it contemporaneously with it happening because he was afraid Dr. Fahim would “pull”³³ him from work and he would lose his job.

I place little weight on Mr. Dine’s stated reason for not telling Dr. Fahim about his accident contemporaneously with it occurring for reasons which include:

i. Mr. Dine told his employer, RCL about his 2014 accident right after it happened and he took two to three days off work because of the accident;

ii. Mr. Dine told Dr. Fahim about his 2009 car accident within 12 days³⁴ of it happening and showed no apparent concern for the possibility he would be “pulled off work” as he termed it;

iii. Mr. Dine was represented by Mr. Lofranco, whom he was working for when he was in the 2009 accident. Mr. Lofranco successfully negotiated a settlement of Mr. Dine’s 2009 accident benefits case for over $42,000.00.

Evidence

(i) Dr. Fahim (Family Doctor)

On September 22, 2014, Mr. Dine went to Dr. Fahim, his family doctor, for the first time after this accident. He told her that work is “fine.”³⁵ On September 24, 2014, Mr. Dine returned to Dr. Fahim and told her that had been having trouble sleeping for the past two days.³⁶

Dr. Fahim wrote Mr. Dine the following medical notes:

i. On September 26, 2014, a note that stated he should “rest for a week.”³⁷

ii. On October 6, 2014, a second note that stated that Mr. Dine is “unable to go to work until further notice.”³⁸

iii. On November 27, 2014, a third note that stated Mr. Dine is “unable to go to work until further notice.”³⁹

iv. On December 22, 2014, a fourth note that stated: “This Accident re-aggravated a pre-existing head injury from a previous Motor Vehicular Accident on July 23, 2004.”⁴⁰

Even where additional evidence was adduced on behalf of Mr. Dine, I found such evidence unreliable. An example of this is the evidence of Dr. Fahim, who testified that she is an “advocate”⁴¹ for Mr. Dine. Following this hearing, the parties provided written submissions regarding Dr. Fahim’s testimony that she is an “advocate” for Mr. Dine. It was submitted by the Applicant that:

i. A doctor should advocate for their patients and “Advocacy involves the responsible use of expertise and influence to advance patients’ health care interests.”⁴² However, this hearing was about Mr. Dine’s entitlement to statutory accident benefits from his motor vehicle insurer, not his health care interests; [emphasis added]

ii. The use of Dr. Fahim’s response that she is a patient advocate to impugn her credibility violated the rule of Browne v. Dunn.⁴³

According to Intact:

i. The evidence of any treating physician, whether qualified as an expert or not, is subject to the same evidentiary gatekeeping rigours applied by any trier of fact in terms of consistency, reliability and overall credibility;

ii. The rule in Browne v. Dunn does not apply to Dr. Fahim’s testimony that she is an “advocate” for Mr. Dine.

I find that the rule in Browne v. Dunn does not apply to Dr. Fahim’s testimony that she is an “advocate” for Mr. Dine. Specifically, the rule applies to impeachment by contradictory evidence, which was not the case regarding Dr. Fahim’s testimony that she is an “advocate” for Mr. Dine.

I found Dr. Fahim’s evidence of little assistance to this tribunal because she did not provide her evidence in an impartial manner, but rather, was biased, inconsistent, unreliable and not credible. To use her own word, she viewed herself as Mr. Dine’s “advocate,” contrary to the College of Physicians and Surgeons of Ontario’s Policy Statement regarding doctors testimony which states that:

physicians must not advocate for any party involved in the legal proceeding (they) … must be honest, objective and impartial. They must ensure that the opinions they provide are reasonable, fair, balanced, and substantiated by fact, scientific evidence or experience, and sound clinical judgment.⁴⁴

All witnesses giving evidence before a tribunal must be impartial and objective, regardless of who they appear on behalf of.

I place little weight on Dr. Fahim’s evidence for reasons that include:

i. Her clinical notes and records regarding Mr. Dine were not accurate and she repeatedly discounted as mistakes the entries in her records that did not support Mr. Dine’s case;⁴⁵

ii. She testified that Mr. Dine “definitely” only purchases his prescriptions from one pharmacy.⁴⁶ However, Mr. Dine purchased prescriptions from more than one pharmacy.⁴⁷ And, Mr. Dine told RBC that he purchases prescriptions from four pharmacies;⁴⁸

iii. She testified that she is an “advocate”⁴⁹ for Mr. Dine, which indicates, contrary to Mr. Dine’s submission, that she is neither impartial or neutral. Although Dr. Fahim was not testifying as an expert at this Hearing, she gave opinion evidence. I find that cases dealing with expert evidence are helpful. Specifically, experts must provide their evidence in a neutral manner, and their primary duty is to the tribunal. It is the duty of a witness “to provide opinion evidence that is fair, objective and non-partisan.”⁵⁰

Furthermore,

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation [citation omitted].

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise [citation omitted]. An expert witness... should never assume the role of an advocate.⁵¹

iv. She testified that Mr. Dine appeared “sad” when she saw him at her office on September 22, 2014 but the word “sad,” does not appear in her clinical notes and records for Mr. Dine’s September 22, 2014 appointment. She provided no explanation for her spontaneous recollection of Mr. Dine’s state of mind despite it not being recorded in her clinical notes and records;

v. She testified that she uses templates to make her clinical notes and records and that sometimes she makes errors;⁵²

vi. In a December 6, 2007 letter for Mr. Dine, Dr. Fahim recommended ongoing therapy and that his needs in this regard were “long term” as a result of his 2004 accident. Dr. Fahim testified that by “long term,” she may have meant a few months.⁵³ I found this explanation disingenuous.

(ii) Ms. Airn Shuster (Treating Occupational Therapist)

I place little weight on Ms. Shuster’s (treating occupational therapist) opinion for reasons which include:

i. She did not demonstrate an understanding of Mr. Dine’s pre-2014 accident injuries;⁵⁴

ii. Her report of March 15, 2017⁵⁵ does not mention Mr. Dine’s accidents of 2004 or 2009 and she assumed all of Mr. Dine’s problems are as a result of his 2014 accident;

iii. Mr. Dine did not produce all of Ms. Shuster’s clinical notes and records to Intact, therefore Intact did not have a fair opportunity to cross-examine Ms. Schuster on all her clinical notes and records.

(iii) Dr. Wendy Campbell (Psychologist), Dr. Manu Mehdiratta (Neurologist), Ms. Naomi Davids-Bruer (Occupational Therapist), Ms. Brittany Dale (Adjuster) and Monique Quintal (Adjuster)

Mr. Dine submitted that Dr. Campbell was not credible because in an internal e-mail⁵⁶ exchange at the IE facility. Dr. Campbell said that Mr. Dine was “fairly hostile with me at one point … because he was raising his voice, I felt a bit unsafe.” However, I prefer Dr. Campbell’s evidence that it was not for a nefarious intention that this was omitted from her report. Rather: (i) this exchange was brief and occurred at the end of their interview; and (ii) because this exchange was brief, it would not have been fair to Mr. Dine to include it in her report and cast him in an aggressive light.

I found Dr. Wendy Campbell (Psychologist), Dr. Manu Mehidiratta (Neurologist), Ms. Naomi Davids-Bruer (Occupational Therapist), Ms. Brittany Dale (Adjuster) and Monique Quintal (Adjuster) all credible.

Income Replacement Benefits:

Law

The test for eligibility for income replacement benefits for the first 104 weeks after the accident is whether the insured suffered a substantial inability to perform the essential tasks of his employment at the time of the accident. After 104 weeks, the test changes and is more difficult to satisfy. It is whether the insured suffers a complete inability to engage in suitable employment based on one’s education, training and experience.⁵⁷

The parties agreed that Intact paid Mr. Dine $11,600 for income replacement benefits for the period October 2, 2014 to April 22, 2015.

Mr. Dine is from Albania. He went to high school in Albania. Mr. Dine came to Canada from Albania as a refugee when he was 26 years old and he began working as a truck driver.

At the time of the accident Mr. Dine was working as a courier for Lofranco Corriero. He took two to three days off following this accident and continued to work until September 25, 2014, over six months after the accident,.

Mr. Dine testified that before the 2014 car accident, he would:

i. Arrive at Mr. Lofranco’s Yonge Street office between 8:00 a.m. and 8:30 a.m. and open the doors;

1. Help the receptionist and distribute mail;

2. Start his driving at 10:00 am and would go to Mr. Lofranco’s Scarborough office and pick up the mail, return to Mr. Lofranco’s Yonge Street office at around 11:00 am, get mail from downstairs, bring the mail back up and open and distribute it;

3. Stay at the Yonge St. office until 1:00 pm and assist, then he drove to Mr. Lofranco’s Mississauga office and do what he did at the Scarborough office. Then he would go to Mr. Lofranco’s Brampton office and do what he did at the Scarborough office;

4. Transport Mr. Lofranco’s lawyers if it was raining and bring them to FSCO;

5. Transport Mr. Lofranco’s clients periodically;

6. End his day at the office at about 3:30 pm.

In March 2015, Dr. Dhaliwal (Mr. Dine’s psychiatrist) opined that Mr. Dine has symptoms of major depressive disorder with anxiety, broken sleep, feels tired, sad and his functional capacity is markedly impaired.⁵⁸ Although Mr. Dine continued working full-time after this accident, Dr. Dhaliwal reported that Mr. Dine “is totally disabled since the accident.”⁵⁹ I place little weight on Dr. Dhaliwal’s opinions because they are based exclusively on Mr. Dine’s self-reports, does not include any symptom validity testing⁶⁰ and contain incorrect assumptions.

In an insurer’s examination conducted on behalf of Intact on September 4, 2015 by Dr. Kiraly, a psychiatrist, reported that: “(Mr. Dine) does not report any previous psychiatric history … (or) major medical illness.”⁶¹ Dr. Kiraly concludes that Mr. Dine “will need at least 6-9 months before an attempt to return to work can be made.”⁶² I place little weight on Dr. Kiraly’s report for reasons that include:

i. He administered subjective psychological tests⁶³ to Mr. Dine. According to Dr. Campbell’s testimony,⁶⁴ the tests were subjective, and highly amenable to manipulation;

ii. Dr. Kiraly did not administer any symptom-validity testing;

iii. The history portion of his report⁶⁵ is incorrect and did not note that Mr. Dine had psychiatric issues as a result of his 2004 car accident;

iv. Dr. Kiraly incorrectly notes that Mr. Dine did not inform his employer about the 2014 accident.⁶⁶

Dr. Sharma (treating psychologist) opined that Mr. Dine is unable to return to his pre-accident work and that he suffers from a complete inability to engage in any occupation for which he is qualified based on age, training and experience.⁶⁷ I place little weight on Dr. Sharma’s opinion for reasons which include the following:

i. Dr. Sharma’s complete clinical notes and records were not provided to this tribunal, although additional records were given to Mr. Dine’s counsel;

ii. Her report does not mention Mr. Dine’s 2009 accident and states: “Mr. Dine reports no other motor vehicle accident except for the one in 2004;”⁶⁸

iii. At page one of her report, Dr. Sharma states: “There were no … language problems”. However, at page 10 of her report, she states that “Mr. Dine’s PAI (Personality Assessment Inventory) was invalid which could be due to a combination [of] difficulties or inability in understanding the test questions;”

iv. Although Dr. Sharma claimed to have reviewed Mr. Dine’s pre-2014 clinical notes and records, they are not discussed anywhere in her report;

v. Self-report, clinical observation and testing were the basis of her opinion;⁶⁹

In an insurer’s examination report (IE) of April 2015, the physiatrist opined that Mr. Dine worked for over six months after the 2014 accident and there were no indications of musculoskeletal problems when he saw Dr. Fahim on September 22, 2014. Consequently, from a physical medicine point of view, Mr. Dine could resume working full-time.⁷⁰ Dr. Mehidratta, neurologist,⁷¹ and Dr. Campbell, psychologist⁷² who conducted IE’s also reported that Mr. Dine did not suffer a substantial inability to perform the essential tasks of his employment as a result of the accident. Dr. Campbell also noted that Mr. Dine was exaggerating his symptoms.⁷³

In addendum reports of May 2015, based on additional information provided by Mr. Dine’s counsel, the physiatrist⁷⁴ and Dr. Campbell⁷⁵ both remained of the opinion that Mr. Dine did not suffer a substantial inability to perform the essential tasks of his employment as a result of the accident.

Mary Jo Corriero, the Office Manager at RCL testified that after the 2014 accident, Mr. Dine was lethargic and she had to coax him, for example, to get the mail. She also testified that she was not aware that Mr. Dine was having difficulties doing his job as a result of the accident.

Conclusion on Income Replacement Benefits

I find that Mr. Dine has failed to meet his burden of proof to establish, on the balance of probabilities, that he sustained an impairment as a result of the accident such that he suffered either a substantial or complete inability⁷⁶ to perform the essential tasks of his employment.

Attendant Care:

Law

Mr. Dine claimed attendant care benefits in the amount of $6,000 per month for the period March 17, 2014 to date and ongoing. The parties agreed that the maximum amount of the attendant care Mr. Dine is entitled to is $3,000⁷⁷ per month from March 17, 2014 to March 17, 2016 because there has not, to date, been a determination that Mr. Dine is catastrophically impaired.

Under s. 19(1)(a) of the Schedule, Intact is obliged to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Long-Term Care Homes Act, 2007 or a chronic care hospital. “The monthly amount payable for the attendant care benefit is determined in accordance with the … document entitled “Assessment of Attendant Care Needs (“Form 1”).”⁷⁸

An aide or attendant for a person includes a family member or friend who acts as the insured person's aide or attendant, even if the family member or friend does not have any training in or qualifications to provide attendant care.⁷⁹

Optional Benefits

Mr. Dine purchased Optional Benefits pursuant to s. 28 of the Schedule for attendant care benefits. Section 28(1)4. of the Schedule provides that:

28(1) Every Insurer shall offer the following option for benefits:

4. An optional … attendant care benefit of up to the following maximum amounts, instead of the maximum amount specified in subsection 18 (3) …

i. $1,000,000 if the insured person did not sustain a catastrophic impairment as a result of the accident.

ii. $2,000,000 if the insured person sustained a catastrophic impairment as a result of the accident.

Economic Loss

As for the meaning of "incurred," s. 3(7)(e) of the 2010 Schedule provides that “an expense in respect of goods or services” is not incurred unless:

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person (emphasis added);

Moreover,

s.19(3)4. … if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a result of, providing the attendant care (emphasis added).⁸⁰

Therefore, for an expense to be considered to have been incurred, where the aide or attendant does not provide attendant care as part of their usual employment, occupation or profession, an Applicant must prove that the person who provided the goods or services sustained an economic loss as a result of providing the goods or services to the insured person.

Analysis

On March 16, 2016 (two years less a day from the date of Mr. Dine’s 2014 accident), Mr. Dine submitted attendant care expenses to Intact follows:

i. $8,163.73 per month for the period March 17, 2014 to February 26, 2015 in the total amount of $92,716.64; and

ii. $7,975.25 per month for the period February 27, 2015 to March 16, 2016 in the total amount of $100,591.05.

Two Form 1’s⁸¹ were completed by Sophie Bielkowski, an occupational therapist, on February 26, 2015, more than 11 months after his accident. They were received by Intact on June 10, 2015.⁸² Ms. Bielkowski did not testify at this Hearing.

i. In the first Form 1, Ms. Bielkowski recommended 24 hour a day attendant care at a cost of $8,163.73 per month from the day of the accident to February 26, 2015 even though Mr. Dine was working full-time as a courier driver for over six months after this accident;

ii. In the second Form 1, Ms. Bielkowski recommended $7,975.25 per month for the period February 27, 2015 and ongoing.

Dr. Fahim testified that Applicant needed attendant care 24 hours a day even though he continued to work full-time for over six months after the accident.

Mrs. Dine’s Evidence

Both Mr. and Mrs. Dine testified that Mrs. Dine was Mr. Dine’s attendant care service provider. Mrs. Dine testified that:

i. She helped Mr. Dine with tasks such as shaving, taking a bath, doing his nails, dressing, haircare and made sure he wore clean clothes;

1. She watched Mr. Dine “all the time” because she was afraid that he would leave the oven or tap on or commit suicide;

iii. When they moved in October 2015, they bought a corner lot to avoid neighbours because sometimes Mr. Dine urinates on neighbouring properties;

iv. She cannot leave Mr. Dine alone “because he needs it”;

1. From September 26, 2014 to January 30, 2015, Mr. Dine was home alone and she was working four hours a day and she tried to leave things prepared for him so he would not have to do anything;

vi. She provided roughly the same level of care to Mr. Dine after his 2014 accident that she did in 2008 as a result of his 2004 accident;

vii. In the six months after the 2014 accident when Mr. Dine continued to work full-time, she telephoned him regularly when he was working.⁸³

Mrs. Dine testified that she did not receive an increase in pay from her work at a pharmacy as a customer service assistant. However, Mrs. Dine’s Record of Employment (ROE)⁸⁴ showed that she earned more money in the spring and summer of 2014, after Mr. Dine’s accident than when she started working at the pharmacy.

I place little weight on Mrs. Dine’s testimony regarding attendant care benefits for reasons that include:

i. Mrs. Dine was asked several times when she was cross-examined whether she provided any supervision to Mr. Dine while she was working. It was obvious that she felt uncomfortable when asked that question, feigned misunderstanding and it was repeated for her several times, notwithstanding the clarity of the questions and the assistance of an interpreter;

ii. According to the attendant care expenses that were submitted and signed by Mrs. Dine, Mr. Dine received the same amount of care from March 17, 2014 to February 26, 2015, despite the fact that he continued to work full-time⁸⁵ for six months after the accident as a courier driver and Mrs. Dine worked more in the summer after this accident than she did before the accident.

It is implausible that Mrs. Dine provided attendant care services, every week of the first 104 weeks after the accident, including for the first six months after this accident while Mr. Dine was working full-time as a courier driver. Although Mrs. Dine testified that she called Mr. Dine regularly while he was working to check up on him, no telephone records were in evidence to substantiate that she actually phoned him regularly throughout the day. Moreover, on the Applications for Expenses, the same care was provided as per the Form 1 from March 2014 to February 2015.⁸⁶

As well, Mr. Dine submitted the attendant care benefits claim to Intact on March 16, 2016, which is two years less a day from the date of the accident. It is most likely that if the expenses truly were incurred, they would have been submitted to Intact and claimed when they were incurred, not almost two years after the accident. I base this on the fact that:

i. Mr. Dine was in two prior accidents (in 2004 and 2009) and was familiar with the claims process of submitting claims and being reimbursed by the insurer;

ii. Mr. Dine submitted other expenses in relation to this accident on a much more timely basis.

According to the physiatry IE conducted in March 2015, Mr. Dine reported that he is independent in his showering.⁸⁷ He also advised Dr. Sharma that he is independent with his personal care.⁸⁸

I find that Mr. Dine’s claim for attendant care when he was working full-time, as well as thereafter, is not reflective of the attendant care that was provided, if any, because both Mr. Dine and his wife continued to work after his accident, Mr. Dine for a period of six months full-time work, and Mrs. Dine for 10 months after this accident. Despite continuing to work full-time after the accident, however, Mr. Dine claimed attendant care benefits at the same rate while working full-time after the accident and for almost one year afterwards.

In addition, Mrs. Dine has not proven an economic loss as a result of allegedly providing attendant care services to Mr. Dine. In fact, after Mr. Dine’s accident, Mrs. Dine began working more hours at the pharmacy where she was employed. Specifically, before the 2014 accident, Mrs. Dine worked an average of 23.5 hours every two weeks.⁸⁹ After the 2014 accident, Mrs. Dine worked as much as 60 hours every two weeks.⁹⁰ She continued working until she resigned in January 2015. Her resignation letter,⁹¹ states that “due to medical condition” of her husband, she has to stop working. However, I do not find this to be reliable evidence that Mr. Dine had a medical condition, or, if he did have a medical condition, that it was due to the accident.

Conclusion on Attendant Care

I do not believe Mr. Dine's testimony that he received attendant care assistance. I find that the expense forms the Applicant submitted are not reliable evidence of the attendant care allegedly provided to him. I have no reliable evidence that the Applicant was substantially disabled from his attendant care activities and if so, how much help Mrs. Dine, his wife and alleged service provider, gave him.

The Applicant failed to adduce sufficient, reliable evidence to meet his onus of proof. He failed to produce sufficient evidence to rebut the opinions of the Insurer's assessors. I have previously explained why I give little weight to the opinions of Dr. Fahim and Ms. Schuster in this case. Based upon the evidence and all the testimony, the Applicant has not proven, on a balance of probabilities, that:

i. He required assistance with attendant care;

ii. Mrs. Dine actually provided attendant care services from the day of Applicant’s accident and for two years after the accident, as outlined in the Applications for Expenses;⁹²

iii. Mrs. Dine sustained an economic loss.⁹³

In addition, pursuant to s. 42(5) of the Schedule an insurer is not required to pay for attendant care expenses for any period before insurer receives Form 1. The first Form 1 is dated February 26, 2015.

For these reasons, the Applicant's claim for attendant care benefits is dismissed.

Housekeeping:

Mr. Dine claimed housekeeping expenses in the amount of $100 per week from March 17, 2014 to date and ongoing. The parties agreed that the claim for housekeeping benefits is for the period March 17, 2014 to March 17, 2016 because there has not, to date, been a determination that Mr. Dine is catastrophically impaired.

Law

Mr. Dine purchased Optional Benefits pursuant to section 28(1)2.(ii) of the Schedule for housekeeping and home maintenance benefits which provides that:

Optional Benefits

ii. … a housekeeping and home maintenance benefit (is) payable (under) … section 23 even if the impairment sustained by the insured person is not a catastrophic impairment, but not for expenses incurred more than 104 weeks after the onset of the disability.

Economic Loss

3(7)(e) … an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person (emphasis added);

The test for entitlement to housekeeping expenses is set out in s. 23 of the Schedule as follows:

The insurer shall pay up to $100 per week 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 a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

Analysis

The test under s. 23 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. If it amounts to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.⁹⁴

Mr. Dine testified that before the 2014 accident, he cooked, cleaned, folded laundry and did all the outdoor work. The invoice submitted includes ironing and grocery shopping, which Mr. Dine did not mention in his testimony.⁹⁵ I find that Mr. Dine’s testimony was not consistent with the documentary evidence.

In an insurer’s examination report (IE) of April 2015, the physiatrist opined that Mr. Dine did not suffer a substantial inability to perform his housekeeping and home maintenance tasks he normally performed before the accident.⁹⁶ Dr. Mehidratta, neurologist,⁹⁷ and Dr. Campbell, psychologist⁹⁸ who conducted IE’s also reported that Mr. Dine did not suffer a substantial inability to perform his housekeeping and home maintenance tasks he normally performed before the accident.

In addendum reports of August 2015, based on additional information provided by Mr. Dine’s counsel, the physiatrist,⁹⁹ Dr. Mehidratta¹⁰⁰ and Dr. Campbell¹⁰¹ all remained of the opinion that Mr. Dine did not suffer a substantial inability to perform his housekeeping and home maintenance tasks he normally performed before the accident.

In September 2015, Mr. Dine reported that he can do his housekeeping, albeit with pain.¹⁰²

Mr. Dine submitted housekeeping claims to Intact on March 16, 2016, which is two years less a day from the date of the accident. I find that it is most likely that if the expenses truly were incurred, they would have been submitted to Intact and claimed when they were incurred, not almost two years after the accident. I base this on the facts that:

i. Mr. Dine was in two prior accidents and was familiar with the claims process of submitting claims and being reimbursed by the insurer.

ii. Mr. Dine submitted other expenses in relation to this accident on a much more timely basis.

I find that Mr. Dine’s claim for housekeeping benefits, even when he was working full-time after the accident, and thereafter, is not reflective of the housekeeping that was provided, if any, because both Mr. Dine and his wife continued to work after his accident, Mr. Dine for a period over six months of full-time work, for Mrs. Dine, and for 10 months after this accident.

Despite continuing to work full-time after the accident, however, Mr. Dine claimed housekeeping benefits at the same rate while working full-time after the accident and for two years after the accident. In fact, after Mr. Dine’s accident, Mrs. Dine began working more hours at the pharmacy where she was employed. She continued working until she resigned in January 2015. Her resignation letter¹⁰³ states that “due to medical condition” of her husband, she has to stop working. This does not mean that her husband: (i) had a medical condition, or, (ii) if he did have a medical condition, that it was due to the accident.

Conclusion on Housekeeping

I do not believe Mr. Dine's testimony that he received housekeeping assistance. I find that the expense forms the Applicant submitted are not reliable evidence of the housekeeping services allegedly provided to him. I do not find it credible that Mrs. Dine actually provided housekeeping services starting the same day as the 2014 accident. I have no reliable evidence that the Applicant was substantially disabled from his housekeeping activities and if so, how much help Mrs. Dine, his wife and alleged service provider, gave him with respect to housekeeping.

The Applicant failed to adduce sufficient, reliable evidence to meet his onus of proof. He failed to produce sufficient evidence to rebut the opinions of the Insurer's assessors. I have previously explained why I give little weight to the opinion of Dr. Fahim and Ms. Schuster in this case. Based upon the evidence and all the testimony, Mr. Dine has not proven, on a balance of probabilities, that he required assistance with housekeeping.

In addition, and significantly, Mrs. Dine has not proven an economic loss as a result of allegedly providing housekeeping assistance to Mr. Dine. In fact, after Mr. Dine’s accident, Mrs. Dine began working more hours at the pharmacy where she was employed. She continued working until she resigned in January 2015. Her resignation letter¹⁰⁴ states that “due to (the) medical condition” of her husband, she has to stop working. This does not mean that her husband: (i) had a medical condition, or, (ii) if he did have a medical condition, it was due to the accident.

Cost of Examination Expense:

Law

Mr. Dine claimed entitlement to cost of examination expenses in the amount of $2,070 for a Mental Health Assessment pursuant to a Treatment Plan dated July 27, 2015 by Dr. Hiten Lad, a neuropsychologist. Section 25 deals with costs of examinations and requires an Insurer to pay reasonable fees charged by a health care professional for preparing assessments, specifically for reviewing and approving a treatment plan.

The test for entitlement to the cost of an examination involves a determination of whether the assessment was reasonably required in connection with a benefit that is claimed. The fees that a health care provider can charge are limited by regulation to $2,000 for each examination and report.

In a report of February 2016, Dr. Lad himself stated that: “Given the inconsistency in validity measures, the results of psychological testing reflect an inaccurate presentation of his psychological functioning and the findings described in this report only represent Mr. Dine’s own self-report of his difficulties at the time of this assessment.” ¹⁰⁵

In addition, Dr. Watson concluded, in his insurer’s examination, that “it is felt that it cannot be said with a reasonable degree of certainty that there are any diagnosable neuropsychological conditions present that require treatment, especially in light of the noted validity issues, and thus, the disputed OCF-18 Treatment and Assessment Plan dated July 27, 2015 for $2070 is not felt to be reasonable or necessary”¹⁰⁶

I heard no persuasive evidence as to why a Mental Health Assessment pursuant to a Treatment Plan dated July 27, 2015 by Dr. Hiten Lad was reasonable or necessary.

Special Award:

Under subsection 282(10) of the Insurance Act, an arbitrator “shall award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award” plus interest if the arbitrator finds that an insurer has unreasonably withheld or delayed payments.

Intact advised on the first day of the hearing that they would pay for various benefits, and Mr. Dine responded that he is still claiming a special award for the following:

i. $3,400 for physical rehabilitation pursuant to a Treatment Plan dated November 3, 2014 by Krishna Patel;

ii. $1,543.73 for occupational therapy services by Sophie Bielkowski for a Treatment Plan dated December 17, 2014;

iii. $799.46 for occupational therapy services by Sophie Bielkowski for a Treatment Plan December 17, 2014;

iv. $100.91 for prescription medications pursuant to an Application for Expenses dated June 22, 2015;

v. $2,200 for a Mental Health Assessment pursuant to a Treatment Plan dated July 27, 2015 by Dr. Hiten Lad;

vi. $2,200 for a psychological assessment by Dr. Sharma for a Treatment Plan dated December 22, 2015.

Although Intact agreed to pay the above expenses on the first day of the hearing, I heard no evidence that any were payable as a result of the March 2014 accident.

There can be no special award where all of the Applicant's claims are dismissed. No evidence was introduced during the hearing that supported a claim for a special award. Furthermore, since the Applicant failed to prove entitlement to any of the benefits claimed, a claim for a special award cannot be supported and must also be dismissed. Since Intact did not unreasonably withhold or delay payment of benefits, Mr. Dine is not entitled to a special award.

Interest:

The relevant portions of s. 51 of the Schedule state:

(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue.

(3) Interest is payable at the rate of 1 per cent per month, compounded monthly, from the date on which the amount becomes overdue until the earlier of the following dates:

1. The date on which the overdue amount is paid.

(5) Despite subsection (3), if payment of the benefit is overdue on December 31, 2014, interest is payable on the overdue amount at the rate of 1 per cent per month, compounded monthly, from the date on which the amount became overdue until the date on which the overdue amount is paid.

The Applicant failed to prove his entitlement to any overdue accident benefits. Therefore, there is no interest owing to the Applicant.

EXPENSES:

Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, either party may, within 30 days of the date of this decision, make a written request to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code — Fourth Edition.

RULINGS:

Surveillance

The insurer served the Applicant with surveillance material for the periods June 18-22, 2016 and July 26-30, 2016. According to the Applicant, he never received a copy of the unedited surveillance video or handwritten notes of the investigator for the period July 26-30, 2016. According to the insurer, it gave all the surveillance material it had to the Applicant.

Rule 40.1 of the Dispute Resolution Practice Code – Fourth Edition provides that if a party intends to rely on any portion of surveillance, copies of all “videotapes, photographs, investigative reports, notes and summaries taken or prepared” must be provided to the opposing party. I ruled that the surveillance information is excluded because unedited information for the period of July 26-30, 2016 was not provided to the Applicant.

Applicant’s Request to Remove Ms. Sprott As Insurer’s Counsel

On April 4, 2017, the Applicant’s counsel was advised by Ms. Sprott that she was retained to represent Economical Insurance, the accident benefit insurer, in respect of the Applicant’s 2009 motor vehicle accident. Ms. Sprott resolved the matter at a FSCO mediation. According to the Applicant, it would be procedurally unfair to allow Ms. Sprott to act for Intact in the within matter. According to Intact, it would be prejudicial to it if Ms. Sprott was removed as counsel because she has acted as counsel for Intact in this matter since 2015 and could not recall any specifics of Mr. Dine’s 2009 accident.

I ruled that there would not be any procedural unfairness in allowing Ms. Sprott to act as counsel for Intact and the Applicant’s motion to remove her as counsel for Intact was denied.

April 16, 2018

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 74

FSCO A15-005113

BETWEEN:

ADRIATIK DINE

Applicant

and

INTACT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. This Application for Arbitration is dismissed.

2. With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for a determination of the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

April 16, 2018

Maggy Murray Arbitrator

Date

"Despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if,

(a) the person makes an assignment to the insurer of any benefits under any workers’ compensation law or plan to which he or she is or may become entitled as a result of the accident …"

(b) Transcript of Dr. Fahim’s cross-examination on April 26, 2017 at 19 lines 1-21;

(c) Transcript of Dr. Fahim’s cross-examination on April 26, 2017 at 20 lines 3-21;

(d) Transcript of Dr. Fahim’s cross-examination on April 26, 2017 at 27 lines 15-21.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Schedule, s. 61(5) states:
3. 3Exhibit One, Tab 71
4. 4Transcript of Mr. Dine’s Cross-Examination on May 1, 2017 at 42, lines 8-11
5. 5Exhibit One, Tab 73
6. 6Exhibit One, Tab 47 M
7. 7Exhibit One, Tab 58 at 3
8. 8Exhibit One, Tab 65 at 14
9. 9Exhibit One, Tab 68 at 25
10. 10Exhibit One, Tab 27(a) at 5
11. 11Exhibit One, Tab 27(a) at 3
12. 12Exhibit One, Tab 55, letter of April 27, 2015 from Ministry of Transportation to Mr. Dine advising him that he must submit medical information to them by June 26, 2015, or his Driver’s Licence will be suspended. Mr. Dine did not submit the additional information to the Ministry of Transportation. In the Ministry of Transportation’s subsequent letter of July 16, 2015 to Mr. Dine, he was advised that his driver’s licence would be suspended effective July 26, 2015.
13. 13Exhibit One, Tab 45(a), clinical note and record of Dr. Fahim dated January 20, 2015
14. 14Exhibit One, Tab 29 at 10
15. 15Exhibit One, Tab 9(c) at 14
16. 16Such as the Green Memory Test which was administered as part of an Insurer’s Examination
17. 17Exhibit One, Tab 49
18. 18Exhibit One, Tab 5 at 2
19. 19Exhibit One, Tab 9(c) at 10
20. 20Exhibit One, Tab 5 at 1
21. 21Exhibit One, Tab 9(c) at 10
22. 22Exhibit One, Tab 9(b) at 3
23. 23Exhibit One, Tab 13 at 4-5
24. 24Exhibit One, Tab 9(c) at 8
25. 25Exhibit One, Tab 9(c) at 10
26. 26Exhibit One, Tab 13 at 23
27. 27Exhibit One, Tab 9(a) at 6
28. 28Exhibit One, Tab 9(c) at 12
29. 29Exhibit One, Tab 10(b) at 3
30. 30Exhibit One, Tab 10(d) at 7
31. 31Exhibit One, Tab 21 at 3
32. 32Exhibit One, Tab 33 at 3
33. 33Transcript of Mr. Dine’s Examination-in-Chief on May 1, 2017 at 22, line 25
34. 34Transcript of Mr. Dine’s Cross-Examination on May 1, 2017 at 42, lines 8-11
35. 35Exhibit One, Tab 45(a), at p. 42, clinical notes and records of Dr. Fahim
36. 36Exhibit One, Tab 45(a), at p. 43, clinical notes and records of Dr. Fahim
37. 37Exhibit One, Tab 45(a) at 32
38. 38Exhibit One, Tab 45(a) at 36
39. 39Exhibit One, Tab 45(a) at 43
40. 40Exhibit One, Tab 45(a) at 48
41. 41Transcript of Dr. Fahim’s cross-examination on April 26, 2017 at 45, lines 18-20
42. 42Paragraph 2 of Applicant’s Supplementary Written Submissions. College of Physicians and Surgeons of Ontario, “Practice Guide” at p. 8, Tab 2.
43. 43(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). Applicant’s Supplementary Written Submissions at para. 4. The rule in Browne v. Dunn is a rule of fairness: If counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given an opportunity to address the contradictory evidence. An adjudicator is not "required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness." That is, "the rule in Browne v. Dunn is not suited for application to judges." Vasilipoulos v. Dosanjh, [2008] B.C.J. No. 1917, QL at 10, para.'s 35 and 36 (B.C.C.A.)
44. 44#7-12, “Medical Expert: Reports and Testimony” at p. 4. Although this document was not in evidence, the Applicant submitted it as part of their written submissions, and the Insurer did not object in its submissions to its use. Consequently, I am taking judicial notice of it.
45. 45(a) Transcript of Dr. Fahim’s cross-examination on April 26, 2017 at 18 lines 7-25;
46. 46Transcript of Dr. Fahim’s Examination-In-Chief, April 26, 2017, p. 37, lines 2-11
47. 47Exhibit One, Tab 44(a) and (b)
48. 48Exhibit One, Tab 47(n) pp. 8-10
49. 49Transcript of Dr. Fahim’s cross-examination on April 26, 2017 at 45, lines 18-20
50. 50Henderson v. Rise (2012), 2012 ONSC 3459, 111 O.R. (3d) 554 at para. 19 (S.C.)
51. 51National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. ("The Ikarian Reefer"), [1993] 2 Lloyd's Rep. 68, at p. 81 (Eng. Q.B. Comm.), rev'd on other grounds but endorsed on this point, [1995] 1 Lloyd's Rep 455 (Eng. C.A. Civ.), at p. 496 as cited in Moore v. Getahun (2015), 2015 ONCA 55, 248 A.C.W.S. (3d) 844, 124 O.R. (3d) 321, 73 M.V.R. (6th) 169, 65 C.P.C. (7th) 1 381 D.L.R. (4th) 471, 329 O.A.C. 363, QL at para. 52 (Ont. C.A.)
52. 52Transcript of Dr. Fahim’s cross examination on April 26, 2017 at 18, lines 7-25 and at 19, lines 1-21
53. 53Transcript of Dr. Fahim’s cross examination on April 26, 2017 at 40, lines 16-22
54. 54Exhibit One, Tab 28, Treatment Plan, Part 7
55. 55Exhibit One, Tab 39
56. 56Exhibit One, Tab 54, p. 760 - email of May 8, 2015
57. 57Sections 5 and 6 of the Schedule
58. 58Exhibit One, Tab 6
59. 59Exhibit One, Tab 45(b) at 16
60. 60Exhibit One, Tab 16 at 3
61. 61Exhibit One, Tab 27(a) at 5
62. 62Exhibit One, Tab 27(a) at 9
63. 63List of psychological tests administered, Exhibit One, Tab 27(a) at 4-5
64. 64Dr. Campbell is a qualified psychologist.
65. 65Exhibit One, Tab 27(a) at 5
66. 66Exhibit One, Tab 27(a) at 3
67. 67Exhibit One, Tab 33 at 12
68. 68Exhibit One, Tab 33 at 3
69. 69Exhibit One, Tab 33 at 10
70. 70Exhibit One, Tab 9(a) at 8
71. 71Exhibit One, Tab 9(b) at 7
72. 72Exhibit One, Tab 9(c) at 19
73. 73Exhibit One, Tab 9(c) at 18
74. 74Exhibit One, Tab 14(a) at 2
75. 75Exhibit One, Tab 15 at 3
76. 76Wadhwani v State Farm (2013), 2013 ONCA 662, 26 C.C.L.I. (5th) 173, QL para. 12 (Ont. C.A), which stands for the principle that if an Insured does not suffer a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident, the Applicant will not qualify for post-104 week income replacement benefits.
77. 77Schedule, s. 19
78. 78Schedule, s.19(2)
79. 79Schedule, s. 3(7)(c)
80. 80Schedule, s. 19(4)
81. 81Exhibit One, Tab 13
82. 82Intact’s response to this Form 1 incorrectly notes that the Form 1 was received by Intact on February 26, 2015, which is the date on the Form 1
83. 83However, no telephone records were submitted in evidence to corroborate Mrs. Dine’s evidence.
84. 84Exhibit One, Tab 47R
85. 85Except for a few days immediately following this accident.
86. 86Exhibit One, Tabs 13 and 165
87. 87Exhibit One, Tab 9(a) at 6
88. 88Exhibit One, Tab 33 at 5
89. 89Exhibit One, Tab 47R, Record of Employment, lines 25 and 26
90. 90Exhibit One, Tab 47R, Record of Employment, line 5
91. 91Exhibit One, Tab 47Q
92. 92Exhibit One, Tab 165
93. 93Schedule, s. 3(7)(e)
94. 94Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006)
95. 95Exhibit One, Tab 46
96. 96Exhibit One, Tab 10(a) at 8
97. 97Exhibit One, Tab 10(b) at 7
98. 98Exhibit One, Tab 10(c) at 19
99. 99Exhibit One, Tab 25(a) at 3
100. 100Exhibit One, Tab 25(b) at 2
101. 101Exhibit One, Tab 25 at 4
102. 102Exhibit One, Tab 27(b) at 21
103. 103Exhibit One, Tab 47Q
104. 104Exhibit One, Tab 47Q
105. 105Exhibit One, Tab 29 at 14
106. 106Exhibit One, Tab 27(b) at 24-25