S. A. v. Guarantee Insurance, 2018 CanLII 130870

Tribunal File Number: 18-002962/AABS

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. A.

Applicant

and

Guarantee Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant:

Margaret Gratsias

Representative for the Applicant:

Kwaku Bona

Counsel for the Respondent:

Caroline Meyer

Interpreter:

Fowzia Ahmed (Somali)

HEARD:

Combination Hearing: November 19 and 27, 2018

OVERVIEW

1The applicant, S.A., was injured in a motor vehicle accident on February 5, 2016. She claims that, as a result of the accident, she sustained injuries to the left side of her body: her neck and left shoulder, left arm, breast and knee, as well as her mid- and lower back. She also alleges she suffers from headaches, dizziness, depression, and difficulty sleeping. S.A. sought benefits from the respondent, Guarantee Insurance (“Guarantee”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2Guarantee denied S.A.’s claim for Non-Earner Benefits (“NEBs”) on the basis that she does not suffer from a complete inability to carry on a normal life, as required by the Schedule. S.A. disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

3A case conference was held but the parties were unable to come to a resolution and proceeded to a combination hearing.

ISSUES IN DISPUTE

4The following are the issues to be decided as per the Tribunal’s Case Conference Order dated July 30, 2018:

(1) Is the applicant entitled to NEBs in the amount of $185.00 per week from July 1, 2016 onwards?

(2) Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

5I find that S.A. is not entitled to NEBs for the period in dispute as she has not demonstrated a complete inability to carry on a normal life as a result of the accident. Accordingly, as no benefits are due, interest is not payable.

ANALYSIS

Non-Earner Benefits

6In order to receive NEBs, S.A. must prove that she suffers a complete inability to carry on a normal life as a result of the accident.² A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident.³ I find that S.A. is not entitled to NEBs for the period in dispute.

7During the in-person portion of the hearing, S.A.’s testimony focused on her pain and how it impedes her day-to-day living and, specifically, the practice of her religious faith. Where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities.⁴ On S.A.’s testimony of her daily activities, I do find that it is evident that she suffers from pain. However, I find that her pain does not practically prevent her from independent self-care or engagement in her daily activities. For example, despite S.A.’s claim that she can no longer complete housekeeping tasks, she also revealed that many of her reported pre-accident activities remain unchanged or are only slightly reduced post-accident: she performs light housekeeping tasks; she is independent in her dressing, toileting, showering and self-care; she prepares some meals; she helps her children with homework sometimes, she goes shopping and she is able to drive locally.

8The seminal authority of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 requires an assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period of time prior to the accident.⁵ The evidence led concerning S.A.’s pre-accident activities and how her impairments as a result of the accident have led to a complete inability to carry on with them post-accident was inconsistent and, in my view, somewhat vague. S.A.’s written submissions and testimony focused heavily on her faith. When asked at the hearing why she no longer attends her mosque, why her children do not attend, why she is unable to read the Quran anymore or take her kids to play on “Eid Days,” she simply stated that she “doesn’t feel good” or that she “can’t take it” or that she “doesn’t feel like reading.” When asked why she can no longer perform the ritual of prostration required by her faith, S.A. explained that the physical elements of praying “are like exercise” and that the up and down movements bother her back and knees. Further, S.A. explained that she could not bend down, even with medication. These statements are contradicted by those she makes in various reports, notably the Psychology Report, where she states that physical exercises actually help her feel better.⁶

9I found S.A.’s statements about her physical pain to be consistent, but also found that her complaints about her physical limitations were undermined by the evidence. For instance, Guarantee provided surveillance evidence of S.A., consisting of a report featuring still photos as well as an 18-minute video. The surveillance footage—which I found to be compelling evidence—revealed S.A. shopping and running errands over a period of weeks and, on one particular day, attending at an IKEA. During the in-person portion of the hearing, the Tribunal permitted Guarantee to play a short clip of S.A. as she departed the IKEA. The footage revealed S.A. pushing her shopping cart of items to her car, lifting a desk chair from her cart across her body at chest height, using both arms and then placing the chair into her vehicle. She then repeated this process with a small table. On the day in question, the still photos also show S.A. bending at the waist to retrieve items on the store floor and also driving her vehicle. On this evidence, the inconsistencies in S.A.’s reporting of her physical impairments was shown, and I find that S.A.’s impairments are not continuous and uninterrupted as a result, as required by the Schedule. When asked at the hearing how she was able to perform these movements but not the movements associated with her faith, she stated that on the day she visited IKEA, she took two Tylenol 2’s and was in considerable pain throughout her trip and afterwards. S.A. also remarked, candidly, that she “can bend sometimes” and is “not a complete handicap.” While S.A. does not have to prove that she is handicapped, she does have to prove that she has a complete inability to carry on a normal life. I find the surveillance evidence alone severely hampers her case.

10I also find that S.A. failed to prove that her impairments were caused by the subject accident. During the hearing, S.A. repeatedly stressed that all of her pain, physical impairments and psychological impairments were directly attributable to the accident. However, as was detailed throughout submissions and raised repeatedly during the in-person portion of the hearing, S.A. is in the end-stage of renal failure and was in this condition at the time of the accident. This condition has resulted in S.A. being on the kidney transplant list for 3-4 years now and she receives regular dialysis treatments for her condition. At the hearing, S.A. denied that her back pain, arm pain and depressive symptoms are a result of her condition, indicating that any issues in the past were “minor issues” that simply required fixing, alluding to issues in her arm related to the incorrect placement of her dialysis tube. In addition, it was revealed that S.A. was involved in a second accident, a hit-and-run that occurred in February, 2018. While S.A. indicated that she did not sustain any injuries or make a claim relating to that accident, an OCF-1 was completed and signed on March 15, 2018. On cross-examination, S.A. was adamant that she thought the OCF-1 was for back pain treatment and, in any event, her day-to-day impairments come as a result of the original, subject accident only. Further, there is evidence in the file and in the testimony she provided in her examination under oath that S.A. was receiving Ontario Disability Support Payments (“ODSP”) in the year prior to the accident. Guarantee made numerous requests for S.A.’s ODSP file, but undertakings by her representative could not be fulfilled due to a Ministry backlog. Although I do not make a finding on causation, I find that S.A.’s pre-existing condition and the intervening accident make it difficult to pin her impairments solely on the subject accident.

11In addition, the medical evidence is largely unhelpful in proving S.A.’s case. While she attended for physiotherapy, massage and chiropractic treatment in the past, at no point in the last year has S.A. sought physiotherapy treatment or psychological counselling for her impairments, despite her position that both are contributing to her complete inability to carry on a normal life. When asked at the hearing why she has not sought treatment of any kind recently, she indicated that she did not know how to. The Insurer’s Examinations conducted by Guarantee reveal that S.A.’s accident-related impairments do require treatment beyond the Minor Injury Guideline, but are otherwise unremarkable. The reports consistently indicate that S.A.’s injuries, with the exception of her dialysis-related impairments, were soft tissue in nature.

12On this basis, while I find that S.A. does suffer from pain and the Tribunal has sympathy for her condition, I find that she has not presented the evidence necessary to meet the stringent test for entitlement to NEB’s. Accordingly, I find that S.A. is not entitled to NEB’s for the period in dispute.

Interpretation and s. 14

13On several occasions during the one-day hearing, S.A.’s representative objected to the accuracy of the Somali interpretation being provided by the Tribunal-appointed interpreter. The first two objections related to specific words uttered by S.A. in response to questions during direct examination—in this case “Quran” and “Ali”—that were then not repeated verbatim by the Somali interpreter in her English response to the Tribunal. S.A.’s representative was listening to S.A.’s responses and when the Somali interpreter did not repeat “Quran” and “Ali” as stated, he objected, arguing to the Tribunal that the applicant was not receiving accurate interpretation. S.A.’s representative also objected during cross-examination when S.A. changed her response to a question after asking for clarification on the word “protruding”. At the close of the proceedings, S.A.’s representative explained that the basis for his objections was to preserve S.A.’s potential s. 14 Charter claim.⁷ The Tribunal indicated that it was alive to the submission and accepted the case law submitted by S.A.⁸, but declined closing submissions on this issue specifically.⁹

14Section 14 of the Charter protects the right of a party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted to have the assistance of an interpreter. The seminal case outlining the scope of s. 14 and the right to interpretation is the Supreme Court of Canada case R. v. Tran.¹⁰ In Tran, the SCC held that “the constitutionally guaranteed standard of interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency and contemporaneousness.”¹¹ Additionally, the Court held that “the standard for interpretation will tend to be lower than it might be for translation, where the source is the written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.”¹²

15Tran outlined the test where there is an allegation of deficiency in the standard of interpretation. First, the claimant must show that there is a need for interpretation. Second, the claimant must show that there has been a departure from the basic constitutionally guaranteed standard. Third, the claimant must show that the departure occurred in the course of proceedings when a vital interest was involved.¹³ If the claimant cannot show an air of reality to the claim that the interpretation was insufficient in the specific hearing under consideration, a breach of s. 14 will likely not be found.¹⁴

16First, S.A.’s need for a Somali interpreter is obvious, as one was requested for the hearing and provided by the Tribunal. Although it was evident during the hearing and in the documentation that S.A. understands English, it is not her native tongue.

17Second, when an interpreter is requested by a party, an individual speaking the desired language is provided by MCIS Interpreter Services. The interpreters provided to the Tribunal are certified and are presumed by the Tribunal to have the ability to provide competent interpretation services. As the hearing adjudicator, I do not speak Somali, but had no reason to believe that the interpreter was not providing the basic standard of interpretation. Accordingly, the onus is upon the applicant to demonstrate that the interpreter departed from the basic constitutionally guaranteed standard of interpretation. With the exception of S.A., none of the other individuals present at the in-person hearing spoke Somali. Indeed, the objection to the quality of the interpretation did not come from S.A. herself, but came instead from S.A.’s representative, who began his objection by stating that he does not speak Somali, but had noticed that the words “Quran” and “Ali” had not been included in the interpreter’s English response. As the standard of interpretation is not perfection, I disagreed that the omission of two words over the course of a full-day hearing was evidence of a departure from the accepted standard.

18Third, the interpretation was permitted to proceed because the words (“Quran” and “Ali”) as spoken by S.A. at the in-person portion of the hearing were, in my view, largely inconsequential to the determination of the legal test for NEBs at issue and, in any event, the substance of S.A.’s testimony was littered throughout S.A.’s written submissions on the matter. For instance, the word Quran appears, in italics, throughout S.A.’s written submissions which were reviewed in detail prior to S.A.’s testimony. Suffice to say, even if the interpretation issue were never raised, the Tribunal was very aware in advance of the in-person hearing of S.A.’s claim that reading the Quran was a valued aspect of her pre-accident life. Put another way, while S.A.’s in-person testimony was helpful for context and in evaluating her credibility, it was not so helpful to be vital in determining whether she has a complete inability to carry on a normal life as a result of the accident.

19Finally, at the close of the one-day proceeding, when asked how he procured the case law so quickly, S.A.’s representative admitted to the Tribunal and opposing counsel that he printed off the case law on the issue of interpretation in advance of the testimony which gave rise to his objection on the issue of interpretation.

20For these reasons, the interpretation was permitted to stand, as I found that there was no air of reality to S.A.’s claim that the Somali interpretation she received at the hearing was a breach of her Charter right.

Natural Justice

21In a letter submitted after the proceedings, S.A.’s representative also alleges that the Tribunal’s refusal to hear closing arguments at the in-person portion of the combination hearing was a denial of natural justice. In support of his argument, he cites ss. 3(1) and 10 of the Statutory Powers and Procedures Act,¹⁵ arguing that the right to representation includes closing argument.

22I disagree. There is no mention of closing argument in either of ss. 3(1) or 10 of the SPPA. Further, section 25 of the SPPA and Rule 14 of the Tribunal’s Common Rules of Practice and Procedure provide jurisdiction to make orders with respect to the procedures that apply in any particular proceeding. In addition, the Tribunal’s Case Conference Orders permit the hearing adjudicator to exercise their discretion during the hearing to ensure a timely and efficient proceeding.

23At the case conference heard on July 5, 2018—which S.A.’s representative was in attendance for—the parties were afforded every opportunity to structure the hearing in their desired manner. This includes the potential for allotting time for closing argument, opening statements, etc. Evidently, closing arguments were not contemplated by either party. Instead, the parties, on consent, agreed to a combination hearing consisting primarily of written submissions in advance with a one-day, in-person hearing for the sole purpose of the testimony of the applicant. This is precisely what occurred on November 27, 2018.

24As the Tribunal was following the direction in the Order that the parties agreed would govern their proceeding, I fail to see how S.A. was denied natural justice.

Interest

25As I have found that S.A. is not entitled to NEBs for the period in dispute, no interest is payable.

CONCLUSION

26For these reasons, S.A. is not entitled to NEB’s or interest. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The factors that inform the determination of NEB entitlement are outlined in the seminal case Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 [“Heath”].
3. 3O. Reg. 34/10, at s. 3(7)(a).
4. 4Heath, supra note 2 at para 50.
5. 5Ibid.
6. 6Applicant’s Book of Documents, Tab 6, at page 4.
7. 7Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, at 19.
8. 8S.A. submitted R. v. Match, 2015 BCCA 271 for the Tribunal’s consideration. Although this case is not the seminal authority, it does contain the relevant test.
9. 9S.A.’s representative also attempted to submit further case law on surveillance not included in initial submissions, to which Guarantee objected.
10. 10R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951.
11. 11Id., at 78.
12. 12Id., at 59.
13. 13Id., at paras 42-45.
14. 14See, R. v. Singh, 2010 ONCA 11.
15. 15R.S.O. 1990, c. S.22 [“SPPA”].