Tribunal File Number: 16-000954/AABS
Case Name: 16-000954 v Aviva Insurance Company of Canada
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
S. R.
Applicant
And
Aviva Insurance Company of Canada
Respondent
REASONS FOR DECISION AND ORDER
Adjudicator: Jeffrey Shapiro
Appearances:
For the Applicant: Mark Vella, Counsel
For the Respondent: Elka Dadmand, Counsel
Interpreters: Priscilla Oliver (Tamil Language)
Heard: Via teleconference October 7, 2016, and written submissions completed on November 10, 2016
OVERVIEW
The issue before me is the respondent’s (“the Insurer”) request for its costs in this proceeding to be paid by the applicant (“Mr. R”). The Insurer relies on Rule 19 of the Licence Appeal Tribunal’s Rules of Practice and Procedure, Version 1 (April 1, 2016) (“Rule 19”), due to Mr. R’s alleged ‘unreasonable, frivolous, vexatious, or in bad faith’ actions in this matter.
This proceeding began when Mr. R appealed the Insurer’s denial of his claim for an income replacement benefit and $5,778.89 in medical benefits, arising out of injuries sustained in a March 15, 2015 motor vehicle accident (“the accident”).1
During the October 7, 2016 Case Conference, the Insurer alleged that Mr. R “systematically lied” during this claim.2 In particular, he failed to disclose to medical assessors or during his Examination Under Oath (“EUO”) the existence of a prior “serious” workplace injury and corresponding claim before the Workplace Safety and Insurance Board (“WSIB”).
Mr. R then gave oral notice that he withdraws his appeal. The Insurer then immediately requested its costs. The parties made oral submissions disputing whether the Tribunal retained jurisdiction to address the request. I permitted further submissions in writing to address the issue of jurisdiction following a withdrawal of an application, and if so, the merits of whether the Insurer is entitled to its costs, and in what amount.
The parties have addressed both the jurisdictional issues and the merits, which I have considered. Regarding the merits, I note that the written submissions (1) were supported by some documentary evidence, but as discussed below, the EUO transcript and affidavits were not provided, and (2) focused on whether Mr. R “systematically lied” about the alleged significant WSIB claim or acted in bad faith at any point “in this claim.”
In considering the submissions, I find that while the record may raise concerns about Mr. R’s credibility, the evidence does not establish Mr. R “systematically lied” or acted in bad faith. Thus, I do not address if in fact he intentionally lied “in the claim,” whether those actions establish bad faith “in a proceeding” under Rule 19. Also in light of my findings, it is unnecessary for me to address jurisdictional issues herein.
Issue
- Is the Respondent entitled to its costs in the amount of $9,832.46?
Result
- The Respondent is not entitled to its costs.
Analysis - Is the Insurer entitled to an award of costs?
The parties agree that costs are governed by Rule 19, which provides in part, “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” (emphasis added)
The dispute centers on the inferences that can be drawn from the limited evidence.
Positions of the Parties
The Insurer alleges that on October 2, 2014 – approximately five months before the March 15, 2015 accident - Mr. R was involved in a workplace accident and that accident was not timely disclosed. In fact, it argues, “these material facts were wilfully and blatantly concealed from the insurer prior to September 23, 2016 [when the WSIB file was disclosed],” including Mr. R’s “evidence at the EUO and its claims submission to the insurer [which] was intentionally false and misleading. This conduct is the very definition of bad faith,” addressed in Rule 19.3
The Insurer points to the various steps of the process where the information was withheld, such as the March 24, 2015 Application for Accident Benefits; various Independent Examinations occurring between September 2015 to January 2016; the July 4, 2016 LAT Application, and the September 20, 2016 EUO.
During the EUO, the Insurer claims, Mr. R was asked about prior accidents and yet he denied any; he claimed he was in “excellent health and able to work at the time of the accident”; and stated he left his employment three weeks prior to this accident. Mr. R’s statements to various assessors include that he was “on vacation” from work and he was pursuing other opportunities and never claimed WSIB.4
Yet, days after that EUO, the Insurer received the WSIB file from Mr. R’s counsel.5 That file, the Insurer argues, establishes the existence of the October 2, 2014 workplace accident while lifting pallets, causing injuries to his neck, upper back and bilateral shoulders. The file shows he provided a medical note that he was unable to return from October 3-10, 2014; he anticipated a return on October 16, 2014, but was never able to and never did return; and that he was non-compliant with the claims process, refused sedentary modified work, and abandoned his job.
Mr. R acknowledges there is a WSIB file, but denies it is correct to say he made a claim. The claim was initiated by the employer, not him. He did not intend that one should be started or pursued, and, in fact, he never completed the Form 6 (“Workers Report”) to proceed with the WSIB claim. The file was closed as abandoned. Thus, he “did not consider himself to have a WSIB claim” and did not intend to mislead.
Mr. R also argues that this accident claim is a “meritorious” claim. He was involved in the accident, and there is little dispute he sustained soft tissue injuries (even if there is a dispute of the extent). The Insurer’s own assessor found cognitive difficulties including, but not limited to, difficulty concentrating and forgetfulness.
What Does the Evidence Support?
While the Insurer bases its motion on the assumption that there was a major workplace injury and associated claim, which taints this entire claim to the point of being bad faith, the evidence does not establish that conclusion.
First, the central evidence presents evidentiary issues, including issues around hearsay, that weaken its strength. In fact, the only account – direct or indirect – of any incident is from the employer’s notes contained in the WSIB file based on a phone call with Mr. R. The IE Reports likewise contain doctors’ versions of Mr. R’s translated statements. While I am entitled to hear and consider hearsay evidence, I give limited weight to this evidence. In my view it does not establish that Mr. R sustained a major workplace injury.
The “evidence” of the EUO testimony presents deeper evidentiary issues. The EUO transcript has not been provided. Rather, the only account of Mr. R’s testimony is counsel‘s unsworn submission. Leaving aside whether counsel can testify at all or via submissions, the account lacks important detail and is conclusory in nature.6
The Insurer cites limited time and the cost for not securing the transcript. It states that if Mr. R takes “the position that he did not lie repeatedly to the Insurer at his EUO…” then the Insurer wants time to order the transcript, but Mr. R will have to pay for “the unnecessary transcript…” This also strikes me as an improper attempt to shift costs and establish facts by implication. I do not approve of this practice. Given that Mr. R concedes he denied a workplace injury at the EUO, I accept that point, but give little weight to other allegations of the EUO testimony, without a meaningful record.
Second, the evidence of the incident I do have only establishes limited facts that point to, at most, a minor incident. The WSIB file shows, based on the employer’s note, Mr. R called his employer on October 14, 2014 advising that he experienced back strain while lifting pallets on October 2, 2014. Based on that call, the employer initiated the WSIB file. It contains a single family doctor’s ‘check box’ absence note, which does not mention a workplace injury, or any injury at all, stating Mr. R “was seen by me at my clinic and will be absent from work/school from [October 3 to 10, 2014] due to [unspecified] medical reason[s].”
Thus, besides a lack of direct evidence establishing a significant workplace incident, there is no medical evidence to establish (1) a significant workplace injury, or (2) an ongoing impairment of any kind. I’m also not convinced that there was any injury at all, given there is no evidence establishing treatment for any injury from the date of the alleged workplace injury to this accident, and only a doctor’s note addressing one week - but again not identifying any injury or condition.
There’s also no evidence that Mr. R pursued a claim, intended to make one, or received any WSIB benefits, nor is the evidence consistent with an injured person seeking a claim. It does not appear Mr. R filled out the required forms or followed-up with his employer, and without explanation, he abandoned his job. I would expect if he was injured, he would seek compensation. Mr. R may have been less than honest to his employer as a reason for missing two weeks of work, but he did not seek WSIB benefits. I accept his explanation that in his mind he did not pursue a claim.7
I do find Mr. R’s statement to an IE assessor that he was “on vacation” is not accurate, but Mr. R’s description that he was pursuing other opportunities may well be accurate. His alleged EUO statement that he left his job several weeks before the accident – for which I have little context – remains troubling. It is possible that Mr. R was significantly injured and intentionally lied in this claim, but from my view, the evidence doesn’t establish that account. The record establishes that Mr. R abandoned his job, with little evidence it was due to a workplace injury.
In conclusion, given Mr. R’s cognitive difficulties, limited English language skills, and my findings above that he never initiated or pursued a WSIB claim and the Insurer has not established that he sustained a significant workplace injury, I find that the insurer has not established that Mr. R acted “unreasonably, frivolously, vexatiously, or in bad faith” as required by Rule 19.
ORDER
- Pursuant to the authority vested in this Tribunal under the provisions of the Act, I direct that the Insurer’s motion under Rule 19 is dismissed.
Released: May 15, 2017
______________________________
Jeffrey Shapiro, Adjudicator
Footnotes
- The benefits are governed by the Statutory Accident Benefits Schedule – Effective after September 1, 2010.
- The allegations of improper behavior are directed solely to Mr. R; none are alleged or implied as to counsel.
- As noted above, the parties do not specially address whether those alleged behaviors constitute bad faith in this proceeding. I understand the thrust of the Insurer’s submission to be that such actions render Mr. R’s claims in this proceeding to be frivolous and in bad faith.
- For example, Dr. Ko’s September 15, 2015 Physiatry Report and Dr. Syed’s November 5, 2015 Psychological Report. (Insurer Tab 4 at p. 2; Tab 5 at p. 8 & 20 ) An interpreter was present at some of the IEs. Dr. Syed’s psychometric testing showed no clinically significant indications that Mr. R attempted to presented himself in a unduly negative or positive manner.
- The Insurer argues (Reply, para. 32) that Mr. R withdrew his claim when he “got caught” concealing a pre-existing injury. It’s difficult to accept that description considering that Mr. R’s counsel supplied the WSIB file.
- I light of my findings, I do not address whether the Insurer properly introduced other evidence in its Reply submission.
- I also note that cases relied upon by the Insurer are distinguishable. For instance, in Truong and Coachman Ins. Co. (FSCO A02-000385, April 24, 2003) the Insurer proved that the applicant was not in the car during the accident. In Fraser and RBC Gen. Ins. (FSCO A15-003232, July 4, 2016) Arbitrator Musson issued costs where the appeal was time-barred by over two years and the direct testimony established the applicant falsified documentary evidence.