Shafiqa Qaderi v. Aviva Canada Inc., 2019 ONFSCDRS 8

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 8

Appeal P18-00012

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SHAFIQA QADERI

Appellant

and

AVIVA CANADA INC.

Respondent

BEFORE:

Maggy Murray

REPRESENTATIVES:

Joseph Filice for Ms. Qaderi

Kevin Griffiths for Aviva

HEARING DATE:

December 12, 2018

APPEAL ORDER

Under section 283 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 Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Arbitrator Mills’ Order dated February 7, 2018 and Arbitrator Morris’ Order dated April 26, 2018 are confirmed and this appeal is dismissed.

2. Before the appeal hearing, the parties agreed that the successful party to the appeal would be entitled to $2,500.00 inclusive of disbursements and HST. Ms. Quaderi shall pay Aviva its legal expenses of the appeal proceedings herein, in the amount of $2,500.00, inclusive of legal expenses, disbursements and HST.

February 27, 2019

Maggy Murray Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the Schedule.¹

A four day arbitration was held before Arbitrator Mills in November, 2017 on the issues of Ms. Qaderi’s entitlement to non-earner benefits (NEB’s), attendant care benefits, medical expenses and a special award. Arbitrator Mills’ decision is dated February 7, 2018.²

An expense hearing was conducted before Arbitrator Morris and her decision is dated April 26, 2018.³

Ms. Qaderi appeals both the Order of Arbitrator Mills, excluding her order regarding attendant care benefits, and the Order of Arbitrator Morris.⁴

According to Ms. Qaderi, Arbitrator Mills erred in law because:

i. She did not apply the correct legal test for NEBs;

ii. She mistakenly concluded that medical benefits were not incurred;

iii. She did not consider s. 3(8) of the Schedule; and

iv. She relied on Aviva’s defence that Ms. Qaderi did not comply with s. 38(3) of the Schedule which requires a claimant to sign a treatment plan.

According to Ms. Qaderi, Arbitrator Morris erred in law because:

i. She applied HST to witness attendance fees and witness preparation contrary to the Schedule to the Expense Regulation (Expense Regulation).⁵

Ms. Qaderi did not obtain the transcripts from the arbitration hearing. Her submissions essentially ask me to re-weigh the evidence and to disagree with inferences drawn by the Arbitrators, which is not my role.

II. BACKGROUND

Ms. Qaderi was injured in a motor vehicle accident on September 17, 2014 and sought accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule. She was widowed in 1985 and came to Canada from Afghanistan in 1994. She was 55 years old at the time of the arbitration hearing.

Since 2004, Ms. Qaderi has lived in an apartment with one of her sons, his wife and their two children. She has no formal education and limited English skills. Before the accident, she was seeing a psychiatrist, who identified restricted activities and diagnosed her as suffering from Major Depressive Disorder, Anxiety and Post Traumatic Stress Disorder ("PTSD"). She began receiving Ontario Disability Support Payments ("ODSP") two years before the accident.⁶

Before the accident, Ms. Qaderi attended mosque regularly. Since the accident, she claimed: (i) to be unable to enjoy social gatherings; (ii) she cannot attend the mosque regularly; (iii) she is in constant pain; and (iv) her depression worsened.⁷

Arbitrator Mills concluded that Ms. Qaderi is not entitled to: (i) NEBs; (ii) medical benefits; (iii) attendant care benefits; (iv) a special award; or (v) interest. Arbitrator Mills also found that neither Ms. Qaderi’s medication for her depression or the frequency with which she saw her psychiatrist increased after the accident. Ms. Qaderi is appealing Arbitrator Mills’ Order, except for her decision regarding attendant care benefits.

Ms. Qaderi also appeals the portion of Arbitrator Morris’ expense order wherein she Ordered Ms. Qaderi to pay HST on some of Aviva’s disbursements, namely, for expert witness attendance fees and witness preparation.

For the reasons set out below, the appeal is dismissed.

III. ANALYSIS

Appeals from an Arbitrator’s order are restricted to questions of law.⁸ An appellate body, whose jurisdiction is limited to reviewing errors of law:

i. Cannot review errors of fact;

ii. Is not entitled to review findings of fact just because it believes the findings to be wrong unless the tribunal committed an identified error of law.⁹

This was a fact-based decision. In that regard, the Divisional Court stated in Kanareitsev v. TTC Insurance Co. "when results involve a fact-driven analysis, appellate review must take 'proper account of the distinct advantage' of the first-instance decision maker's assessments. The appeal judge must not try the case de novo or simply substitute his or her views for those of the trial judge."¹⁰ Moreover, an Arbitrator's reasons simply need refer to the principal evidence relied upon by the Arbitrator and provide a justification for the conclusions.¹¹

NEBs are payable when an insured person sustains an impairment as a result of an accident, does not qualify for an income replacement benefit,¹² and as a result of and within 104 weeks after the accident “suffers a complete inability to carry on a normal life.”¹³ The insurer is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life.¹⁴ “A complete inability to carry on a normal life” is defined as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”¹⁵

According to the Court of Appeal,¹⁶ the test for entitlement to NEBs requires an analysis of:

i. The claimant's activities and life circumstances before the accident to his or her activities and life circumstances after the accident;

ii. The claimant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case;

iii. All of the pre-accident activities in which the claimant ordinarily engaged. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

i. The Arbitrator’s Analysis of the Legal Test for NEBs:

Ms. Qaderi’s written submissions on appeal state:

Arbitrator Mills failed to analyze entitlement to NEBs for the period beginning March 17, 2015.¹⁷Arbitrator Mills found that:

… in January 2015, the Applicant reported to the Insurer’s assessor that she felt thirty percent better and that she was able to deal with most of her personal care independently. She could not trim her fingernails and her daughter-in-law helped her with that. As of February 2015, she reported that her balance and mobility had improved. In April 2015, she reported being able to complete most of her personal care tasks independently but with difficulty. She still required her bed linens changed and help with toenail cutting and bathtub cleaning. By May 2016, the Applicant had returned to most of her pre-accident activities, but they were significantly reduced due to ongoing pain (emphasis added).¹⁸

… However, I note that she can participate in most of her pre-accident activities to some extent and that she does so continuously (emphasis added).¹⁹

… However, the Applicant is beginning to attend mosque again and while she cannot pray in the same manner as previously she is able to observe her faith and has begun to do so consistently.²⁰

… she is participating in some meal preparation and housekeeping activities. She has started to grocery shop and while she cannot carry heavy bags this is just one aspect of that activity and there is no evidence before me to suggest that she was carrying heavy bags before the accident. In addition, she is now attending some activities with her grandchildren together with other adults, and while she is yet to be able to prepare the elaborate meals that she did before the accident she is able to undertake some light meal preparation.²¹

In sum, I find that while the Applicant continues to suffer from some accident related injuries, the weight of the evidence does not support a finding of a complete inability to engage in the normal activities of her daily life and she has not met the test for entitlement to non-earner benefits.²²

Based on the above, Arbitrator Mills analyzed Ms. Qaderi’s entitlement to NEBs for the relevant time periods.

ii. The Arbitrator’s Conclusion That Medical Benefits Were Not Incurred:

Ms. Qaderi claimed over $28,000 in medical benefits from Aviva for various medical items such as a mattress, a social work assessment and rehabilitative support worker services.

Regarding medical benefits, s. 15 of the Schedule states:

(1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident (emphasis added) …

Arbitrator Mills concluded that “None of (the) treatment plans submitted by the Applicant were incurred.”²³

Ms. Qaderi’s written appeal submissions contained an invoice²⁴ indicating that $2,192.38 of the treatment plan authored by Melissa D’Ambrosio was incurred.²⁵ She argued in her reply that the invoice should be admitted as fresh evidence pursuant to Palmer v. R.,²⁶ which is the leading Supreme Court of Canada case on fresh evidence.

The fresh evidence has to meet the four part test set out in Palmer v. R., namely:

1. It has to be relevant to the issue on appeal;

2. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

3. It must be credible in the sense that it is reasonably capable of belief;

4. It is evidence that could affect the result of the appeal.²⁷

I note that the invoice is for services between February 25 to July 15, 2016. It is unclear why this invoice was not obtained before the arbitration hearing and relied upon as evidence at the arbitration hearing.

Although fresh evidence has been considered by decision makers at this tribunal,²⁸ Ms. Qaderi was required to seek leave to have it admitted as evidence on appeal. It is neither fair nor reasonable to allow the invoice to be used in Ms. Qaderi’s appeal material without leave, on notice, being first sought. Even if I ignored the requirement that leave be granted, I would reject the invoice being admitted in evidence on appeal because the second part of the Palmer test has not been met.

For the above reasons, the invoice is not admissible as fresh evidence on this appeal.

iii. Section 3(8) Of The Schedule:[^29]

Section 3(8) of the Schedule states:

If … a Court or arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

Ms. Qaderi submitted that: “an appellate court cannot understand whether Arbitrator Mills considered whether the treatment plans were unreasonably denied based on the evidence.”³⁰ I disagree.

Based on the evidence presented at the hearing, the Arbitrator concluded that: “None of (the) treatment plans submitted by the Applicant were incurred.”³¹ And, not reciting all the evidence does not mean an Arbitrator failed to consider it.³²

Furthermore, Ms. Qaderi did not obtain the transcripts from the arbitration hearing for reference on the appeal so, it is not clear whether she advanced this argument at the arbitration hearing.

iv. Aviva’s Defence That Ms. Qaderi Did Not Comply With s. 38(3) Of The Schedule That Requires A Claimant To Sign A Treatment Plan

Section 38(3) of the Schedule states:

A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement (emphasis added);

According to Ms. Qaderi:

i. The first time that Aviva raised that defence that she did not sign the treatment plans was in its closing submissions at the arbitration hearing; and

ii. Arbitrator Mills erred when she denied the treatment plans for non-compliance with s. 38(3) of the Schedule which requires that they be signed by a claimant.

I disagree with the above for reasons that include the following:

i. Aviva stated in its Response to the Application for Arbitration³³ that:

The insurer denies that an (sic) OCF18s that complied with the requirements of section 38(3) of the SABS were properly submitted by the Applicant or on the Applicant’s behalf …³⁴

According to the above, Aviva raised the defence that Ms. Qaderi did not comply with s.38(3) of the Schedule in its Response to the Application for Arbitration, which was served on Ms. Qaderi almost two years before the Arbitration hearing began. Contrary to Ms. Qaderi’s submission that Aviva raised this defence for the first time during the closing submissions at the Arbitration hearing, Aviva did not rely on a new reason for denying the treatment plans that Ms. Qaderi’s submitted in its closing submissions.

ii. There is a legislative requirement, contained in s. 38(3) of the Schedule, that a treatment plan be signed by a claimant unless the insurer waives that requirement. If an Arbitrator concludes that a treatment plan was not signed by a claimant, the Arbitrator can dismiss the claim for the treatment plan whether or not the insurer raised that as a defence.

v. Harmonized Sales Tax on Expenses:

The harmonized sales tax (HST) is 13% in Ontario.

Arbitrator Morris awarded $1,239.96 for disbursements, plus HST (13%) on the disbursements in the amount of $161.19, which totals $1,401.15 for disbursements.³⁵ The disbursements were for the following items:

$300.00 for office expense associated with this arbitration

$ 39.96 for courier expenses

$400.00 for hearing attendance by an expert

• $500.00 for preparation for a medical expert

$1,239.96 TOTAL

Ms. Qaderi submitted on appeal that:

i. The amounts set out in the Expense Regulation,³⁶ excluding the items listed in s. 4, are inclusive of HST;

ii. HST is only payable on the $300.00 for office expense and the $39.96 for courier expenses, which totals $44.19 in HST.

I disagree.

Schedule to the Expense Regulation (Expense Regulation)[^37]

Section 4 of the Schedule to the Expense Regulation states:

The amount of the following disbursements made by or on behalf of the insured person or the insurer may be awarded:

1. For long distance telephone, facsimile and other telecommunication charges.

2. For typing, printing and reproducing copies of documents.

3. For the delivery, by mail or courier, of items relating to the arbitration, appeal, variation or revocation hearing.

4. For other out-of-pocket expenses incurred in furtherance of the arbitration, appeal, variation or revocation hearing.

5. Any applicable taxes paid in respect of the expenses referred to in this section.

The maximum amount that may be awarded for the attendance of an expert witness is $200 per hour of attendance, up to a maximum of $1,600 per day.³⁸

The amount of the expenses paid by or on behalf of the insured person or the insurer to an expert witness for preparation for a hearing at which the witness testifies may be awarded, to a maximum of $500. ³⁹

HST Payable When Goods or Services Are Purchased

The items listed at s. 4. of the Schedule to the Expense Regulation (namely, long distance telephone, facsimile, typing, printing, delivery, by mail or courier and other out-of-pocket expenses) refer to “taxes paid” because tax is payable when those items are purchased.

Superintendent’s Guidelines

Subsection 268.3(1) of the Insurance Act, R.S.O. 1990, c.I.8, states that the "Superintendent may issue guidelines on the interpretation and operation of the Schedule or any provision of that Schedule." Subsection 268.3(2) addresses the effect of a guideline:

Subject to section 268.2, a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule.

The Financial Services Commission of Ontario Professional Services Guideline (the Guideline), Superintendent’s Guideline No. 03/14 states the following regarding HST:

Harmonized Sales Tax (HST)

The applicability of the HST to the services of any health care professionals or health care providers listed in this Guideline falls under the jurisdiction of the Canada Revenue Agency (CRA). If the HST is considered by the CRA to be applicable to any of the services or fees listed in this Guideline, then the HST is payable by an insurer in addition to the fees as set out in this Guideline.⁴⁰

Although the Guideline is applicable to the maximum hourly rates that are payable under the Schedule by health care professionals, such as occupational therapists and physiotherapists,⁴¹ I see no reason for treating HST differently under the Schedule to the Expense Regulation.

Arbitrator Morris correctly added HST to the disbursements that she found were payable by Ms. Qaderi.

Conclusion:

Arbitrators Mills and Morris made findings on the issues and evidence before them and exercised their discretion appropriately. I find no error of law. Accordingly, the appeal is dismissed and the orders of Arbitrators Mills and Morris are affirmed.

IV. EXPENSES

Before the appeal hearing, the parties agreed that the successful party to the appeal would be entitled to $2,500.00 inclusive of disbursements and HST. Ms. Quaderi shall pay Aviva its legal expenses of the appeal proceedings herein, in the amount of $2,500.00, inclusive of legal expenses, disbursements and HST.

February 27, 2019

Maggy Murray Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Qaderi and Aviva Canada Inc. (FSCO, A16-000247, February 7, 2018)
3. 3Qaderi and Aviva Canada Inc. (FSCO, A16-000247, April 26, 2018)
4. 4The full citations of each case are used throughout this decision because two different decisions are being appealed.
5. 5R.R.O. 1990, O. Reg. 664, revoked April 1, 2016 by O. Reg. 43/16, s. 6
6. 6Qaderi and Aviva Canada Inc., Westlaw at para.’s 4 and 6 (FSCO, A16-000247, February 7, 2018)
7. 7Qaderi and Aviva Canada Inc., Westlaw at para. 5 (FSCO, A16-000247, February 7, 2018)
8. 8Subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I.8 and Rule 50.1 of the Dispute Resolution Practice Code – Fourth Edition (the Code).
9. 9Belair Direct Insurance Co. v. Green (2018), 2018 ONSC 2782, 80 C.C.L.I. (5th) 44, 292 A.C.W.S. (3d) 853 (Ont. Div. Ct)
10. 10(2008), 2008 CanLII 26262 (ON SCDC), 66 C.C.L.I. (4th) 46, 297 D.L.R. (4th) 373, Westlaw at para. 29 (Ont. Div. Ct.)
11. 11Kanareitsev, Westlaw at para. 32
12. 12Schedule, s. 12(1)1.
13. 13Schedule, s. 12(2)
14. 14Schedule, s. 12(4)(a)
15. 15Schedule, s. 3(7)
16. 16Heath v. MacLeod, 2009 ONCA 391, [2009] I.L.R. I-4838, 177 A.C.W.S. (3d) 483; 249 O.A.C. 164; 73 C.C.L.I. (4th) 31; 83 W.C.B. (2d) 155; 95 O.R. (3d) 785, Westlaw at para. 50 (Ont. C.A.)
17. 17Ms. Qaderi’s Written Submissions, para. 48
18. 18Qaderi and Aviva Canada Inc., Westlaw at para. 16 (FSCO, A16-000247, February 7, 2018)
19. 19Qaderi and Aviva Canada Inc., Westlaw at para. 17 (FSCO, A16-000247, February 7, 2018)
20. 20Qaderi and Aviva Canada Inc., Westlaw at para. 18 (FSCO, A16-000247, February 7, 2018)
21. 21Qaderi and Aviva Canada Inc., Westlaw at para. 19 (FSCO, A16-000247, February 7, 2018)
22. 22Qaderi and Aviva Canada Inc., Westlaw at para. 21 (FSCO, A16-000247, February 7, 2018)
23. 23Qaderi and Aviva Canada Inc., Westlaw at para. 33 (FSCO, A16-000247, February 7, 2018)
24. 24Ms. Qaderi’s Written Submissions, Tab AA
25. 25Ms. Qaderi’s Written Submissions, para. 54
26. 26(1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, 30 N.R. 181, 14 C.R. (3d) 22, 50 C.C.C. (2d) 193, 106 D.L.R. (3d) 212 (S.C.C.)
27. 27Palmer v. R., Westlaw at para. 22
28. 28Almedom and Wawanesa Mutual Insurance Company, Westlaw at pages 9-11 (FSCO, P18-00034, October 27, 2018); Aweys v. Intact Insurance (FSCO P12-00007-P12-00021, February 1, 2013), Plows v. Jevco (OIC P-000175, P-000588, May 22, 1992) and Budd v. Personal Insurance Co. of Canada (FSCO P99-00032, January 8, 2000); Brookes v. Aviva Canada Inc. Westlaw at para.’s 11-18 (FSCO, Appeal P09-00004, December 2, 2009); Aviva Canada Inc. v. Henry Westlaw at para. 19 (FSCO, P13-00016, November 19, 2013); State Farm Mutual Automobile Insurance Co. v. Mujku Westlaw at para. 15 (FSCO, P13-00008, April 10, 2013)
29. 30Ms. Qaderi’s Written Submissions, at para. 57
30. 31Qaderi and Aviva Canada Inc., Westlaw at para. 33 (FSCO, A16-000247, February 7, 2018)
31. 32Movahedi v. State Farm Mutual Automobile Insurance Co., [2001] O.J. No. 5099, Westlaw at para.3 (Ont. Div. Ct.)
32. 33The arbitration record forms part of the Appeal Record, as outlined in Rule 56.4 of the Code.
33. 34Response to the Application for Arbitration, fax page 9 of 12, dated February 4, 2016
34. 35Qaderi and Aviva Canada Inc., Westlaw at para. 14 (FSCO, A16-000247, April 26, 2018)
35. 36R.R.O. 1990, O. Reg. 664, revoked April 1, 2016 by O. Reg. 43/16, s. 6
36. 38R.R.O. 1990, O. Reg. 664, s. 5.(3)
37. 39R.R.O. 1990, O. Reg. 664, s. 5.(4)
38. 40Pages 3-4
39. 41Refer to the Appendix of the Guideline for a full list of the services providers covered by the Guideline.
40. 29Ms. Qaderi’s Written Submissions, at para. 56
41. 37R.R.O. 1990, O. Reg. 664, revoked April 1, 2016 by O. Reg. 43/16, s. 6