17-003172 v Certas Home and Auto Insurance Company, 2018 CanLII 39481

Licence Appeal Tribunal

Date: 2018-03-27 Tribunal File Number: 17-003172/AABS Case Name: 17-003172 v Certas Home and Auto Insurance Company

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:

Applicant

Applicant

And

Certas Home and Auto Insurance Company

Respondent

DECISION

Adjudicator: S. F. Mather

Appearances:

For the Applicant: K. Bona, Paralegal For the Respondent: B. Pak, Counsel

Heard both in Person and in writing: January 23, 2018

Overview

1[The applicant] (the “applicant”) was involved in a motor vehicle collision on October 30, 2014 and on October 31, 2014 sought income replacement benefits (“IRBs”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”) from Certas Home and Auto Insurance (the “respondent). At the time of the accident the applicant was 19 years old and working through a temporary employment agency as a self-employed metallic painter.

2The applicant received a lump sum payment for IRBs for the period November 8, 2014 to June 3, 2015. The benefits were terminated on the basis of two Insurer’s Examinations (IEs) that concluded that he did not suffer a substantial inability to perform the essential tasks of his self-employment. The applicant, now 23 years of age, has not worked since the accident and seeks on-going IRBs relying on his daily use of marijuana to control his anxiety, depression, stress, paranoia and pain as a reason why he remains unable to return to work.

3The respondent alleges that the applicant made a wilful misrepresentation of his employment situation in his application for IRBs and seeks a repayment of all of the IRBs it has paid to the applicant. In the alternative the respondent seeks a repayment of a portion of the IRBs because the lump sum payment was based on the applicant being an employee rather than self-employed. The applicant agrees there has been an overpayment but disputes the amount of the overpayment.

4After four case conferences the parties were unable to resolve their dispute and by an Order dated October 23, 2017 the application was set for a written hearing.

ISSUES

5The issues before me are:

1. Is the applicant entitled to IRBs of $367.50 per week from June 3, 2015, to date and ongoing, and denied on June 3, 2015?
2. Is the respondent entitled to the repayment of IRBs paid to the applicant from October 31, 2014 to June 30, 2015, or to the repayment of any portion of these benefits?
3. Is the applicant entitled to interest for the overdue payment of benefits?
4. Is the applicant entitled to a lump sum award because the respondent unreasonably withheld or delayed IRBs payments?
5. Is the applicant entitled to costs?

Result

6I find that:

1. The applicant is not entitled to IRBs after June 3, 2015.
2. The respondent overpaid IRBs to the applicant for the period November 8, 2014 to June 3, 2015 in the amount of $2,437.49.
3. The applicant is not required to repay the overpayment.
4. The applicant is not entitled to an award under Regulation 664.
5. The applicant is not entitled to costs.

PRELIMINARY ISSUE

7The medical reports filed by the respondent do not include signed statements of the experts acknowledging their duty to the Tribunal as required by the Tribunals Rules². In his reply submissions the applicant asks that I refuse to consider these “multiple so called expert reports” as evidence because they do not comply with the Tribunal Rules.

8Rule 10.4 requires a party challenging an expert’s report to give notice and reasons for the challenge to the other party as soon as possible and no later than ten days before the hearing and this was not done. The applicant asks me to waive this requirement because the tight timelines³ for written submissions agreed to by the parties on December 15⁴, 2017 prevented him from complying with the Rule.

9Rule 3 allows me to waive a rule in order to facilitate a fair, open and accessible process and to ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

10I decline to make an order excluding the medical reports being satisfied that it would be unfair to refuse to consider the reports when the respondent was not made aware of the applicant’s objection until one day before the hearing. The respondent’s reports were prepared for the purpose of adjusting the file and not for the purpose of the hearing and at the time they were prepared an acknowledgment was not required. In addition to being unfair it would also not be efficient, proportional or lead to a timely resolution of the matter to adjourn the hearing to allow the respondent the opportunity to obtain the written acknowledgments.

11The applicant’s objection is based on the credibility of the authors. The fact that there are no acknowledgements of an experts duty will go to the weight I give to the reports.

ENTITLEMENT TO IRBs

12The Schedule⁵ requires an insurer to pay an IRB to an insured person who suffers from an impairment as a result of an accident if the insured person was employed or self-employed at the time of the accident and as a result of and within 104 weeks after the accident suffers a substantial inability to perform the essential tasks of his or her employment or self-employment. Impairment is defined in the Schedule to mean “ a loss or abnormality of a psychological, physiological, or anatomical structure or function”⁶

13After the first 104 weeks of disability the “test” for entitlement is more stringent and as a result of the accident the insured person must be suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

14The burden of proof is on the applicant show that he meets the tests set out in the Schedule. For the reasons provided below I am not satisfied that the applicant has met his burden of proof and I decline to order IRBs be paid to the applicant beyond June 3, 2015.

Impairments

15The applicant has not satisfied me on the balance of probabilities that he sustained an impairment(s) in the accident which resulted in him being substantially unable to perform the essential tasks of his employment when the benefits were terminated or in his complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

16The applicant has a high school diploma and is an unskilled worker with a history of drug abuse⁷. He came to Canada in 2013 after completing a drug rehabilitation program in California⁸. His work history is short. He worked as a shipper receiver from October 2013 to February 2014 when he was terminated⁹ because of “various attendance exceptions and overall work performance

Marijuana Use

17The applicant states in his affidavit¹⁰ that prior to the accident he used marijuana recreationally, after work, on weekends or socially. Following the accident he used marijuana for medicinal and rehabilitation purposes approximately six to ten times daily. In February 2015 he began using marijuana at an even higher frequency on a daily basis for his injuries from the accident. According to his affidavit his marijuana use helps with controlling his anxiety, depression, stress, paranoia and pain.

18The applicant further states that as a result of his marijuana use he was substantially unable to perform the essential tasks of his employment and that he will be unable to return to the workforce without a drug rehabilitation program.

19If I understand the submissions of the applicant correctly, he believes that his dependency on marijuana is an impairment which is a result of the accident. He also believes that as a result of this impairment he suffered a substantial inability to perform the essential tasks of his employment for 104 weeks after the accident and he now suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience

20The only evidence provided by the applicant to substantiate his claim that the accident resulted in his dependency on marijuana is his own affidavit and an adjuster’s log note¹¹. Neither his affidavit nor the adjuster’s log note convinces me that he his daily marijuana use is an impairment caused by the accident. I find that his affidavit is self-serving and lacks credibility for the following reasons:

• There is no mention of a marijuana dependency being caused by the accident in his initial submissions and he provides no evidence to corroborate his story other than his own self-report to the adjuster. The February 5, 2015 entry in the adjuster’s log notes states “insd advised he smokes marijuana 6-10 times per day and is awaiting approval for medical marijuana as this helps with the pain (insd advised that it was recreational prior to the MVA)”. This note does not indicate that his frequency of use increased after the accident.

• On May 22, 2015 during an Insurer’s Examination (IE). The applicant reported to psychiatrist Dr. S.W. that he was smoking marijuana just as much even prior to the accident as after the accident and that he was smoking during breaks at work. This report provided by the respondent is clearly contradictory to the statements in his affidavit where he states that he never smoked at work and that his frequency of use increased after the accident. The applicant offers no explanation of discrepancy in his accounts. I prefer the self-reporting he told to Dr. S.W. as it was much closer to the date of the accident and before his application was filed to the Tribunal.

• The Insurance Examination Report (IE) of Dr. G.G.¹² provided by the respondent states that the applicant reported smoking 6 to 10 joints per day and that prior to the accident he was doing this for recreational purposes. This report does not indicate that his marijuana use increased after the accident.

• The applicant told both the adjuster and Dr. G.G. that he was seeking approval for medical use of marijuana. There is no evidence to show that the applicant sought any approval for medical use of marijuana. The Clinical Notes and Records (CNRs) of his family doctor do not indicate that he ever disclosed his use of marijuana to his family doctor.

21For the reason that there is no evidence other than the applicant’s self-reports to support his contention that his marijuana use increased as a result of the accident that accident I am not satisfied that accident resulted in the applicant becoming dependant on marijuana to relieve his symptoms from the accident. I am unable to conclude that his use of marijuana after the accident:

• resulted in his substantial inability to perform the essential tasks of his employment in the first 104 weeks after the accident or,

• resulted in his complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience after 104 weeks

22The applicant argues that I must accept his affidavit at face value because the respondent did not provide any affidavit evidence to challenge his sworn affidavit or any evidence to the contrary. I do not agree. The burden of proof is on the applicant to provide credible evidence to show that his marijuana use resulted in his inability to work. I find his evidence to be self-serving and lacking credibility in the face of other more compelling and consistent evidence discussed above such as the report of Dr. S.W. provided by the respondent.

Other Impairments

104 Weeks Post Accident

23The applicant’s written submission reviews the evidence he relies upon to support his claim for IRBs¹³ after June 3, 2015. The respondent concedes that the applicant suffered soft tissue injuries to his musculoskeletal system in the accident¹⁴ but does not agree that after June 3, 2015 the soft tissue injuries resulted in him being substantially unable to complete the essential tasks of his employment. The applicant argues that in addition to soft tissue injuries the applicant suffers from anxiety, depression and chronic pain as a result of the accident which impaired his ability to perform the essential tasks of his employment for the full 104 weeks after the accident.

24The applicant states in his affidavit that he was a painter at the time of the accident and lists the essential tasks of his work in his affidavit as, carrying, lifting loads, constant standing, bending, climbing ladders, focus etc. For the reasons provided below I am not satisfied on the balance of probabilities that the applicant suffered any impairment as a result of the accident which resulted in a substantial inability to perform the essential tasks of his self-employment after June 3, 2015.

25In reviewing the evidence I have focussed my attention on the applicant’s evidence of his condition and abilities around and after June 3, 2015 which includes the Clinical Notes and Records (CNRs) of his family doctor, the hospital records of Rouge Valley Ajax, and the chronic pain assessment of Dr. P. I have already determined that the applicant’s affidavit is self-serving and lacks credibility.

26I do not give much weight to the Application for Benefits, Minor Injury Discharge Report, Disability Certificates, or Functional Impairment Evaluation of Dr. D.M because they are all dated within the first four months after the accident and do not reflect the applicant’s condition as of June 3, 2015 when the benefits were terminated.

CNR’s of Family Doctor[^15]

27The CNRs of the family doctor do not support a finding that the applicant sustained an impairment in the accident that resulted in him applicant being unable to return to work after June 3, 2015. The applicant’s first visit to his family doctor was not until six weeks after the accident when he reported neck, shoulder, upper/lower back pain and headaches. His second visit was not until over 6 months later after his IRBs had been terminated. On June 15, 2015 the applicant had the same complaints of neck, shoulder, upper/lower back pain and headaches that he had on his first visit in December 2014.

28The family doctor’s CNRs chronicle the complaints (self-reports) of the applicant and do not include much evidence of the family doctor’s assessment of the applicant’s condition. It is not until September 2015 that the doctor notes the applicant reported anxiety and it is not until November 24, 2015 over a year after the accident that applicant reports numbness in his legs and depression.

29There is nothing in the CNR’s to indicate that the family doctor made any assessment as to whether the applicant was substantially unable to return to work and complete the essential tasks of his self-employment.

30Most significantly, the CNRs of the family doctor include a letter¹⁶ from Dr. L. a physical medicine and rehabilitation doctor who the family doctor referred the applicant to in the fall of 2016.

31Dr. L. examined the applicant and her report states unequivocally that she did not find any impairment. Her impression was that the applicant had “generalized deconditioning” which I understand to mean he was out of shape. Dr. L’s recommendations were that the applicant stop sleeping during the day, exercise his upper and lower body, walk daily and discontinue his use of a cane which had not been prescribed. Dr. L offered to continue to see the applicant. There is no evidence that the applicant saw Dr. L again and there is no evidence that the applicant ever visited his family doctor again after October 13, 2016.

32I give the report of Dr. L much weight in reaching my conclusion Dr. L’s report was prepared at the request of the applicant’s family doctor and not at the request of the applicant’s lawyers or the respondent. I have no reason to question the credibility of Dr. L. in her reporting letter to the family physician. The applicant makes no reference to the report of Dr. L. in his submissions.

33To substantiate that chronic pain prevents him from returning to work the applicant relies on a medical note of the family doctor dated September 6, 2015 recommending that the applicant be referred for a multi-disciplinary pain assessment. The corresponding CNR for the date of the note indicates that the family doctor was asked by the applicant’s lawyer for the referral. Evidence that the applicant’s lawyer sought a referral for a chronic pain assessment is not evidence that he was substantially unable to perform the essential tasks of his employment.

Hospital records of Rouge Valley Ajax[^17]

34The applicant has provided hospital records of two visits he made to Rouge Valley Hospital. On the August 15, 2015 he complained of back pain and left the hospital without treatment. On November 16, 2016¹⁸ he complained of nausea and vomiting. While hospital notes indicate that the applicant reported depression, anxiety, and chronic back and neck injuries from the accident the applicant was not assessed for these issues.

35Neither of these records substantiate that the applicant was substantially unable to perform the essential tasks of his employment after June 3, 2015.

The Medical Report of Dr. P. dated June 12, 2017[^19]

36The applicant relies primarily on Dr. P’s report that finds that the applicant suffers from “Total Body Pain Syndrome” and provides the opinion that the applicant was substantially unable to perform the essential tasks of his employment. In an addendum²⁰ to the report dated Dr. P provides the opinion that the applicant is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

37The CNR’s of Dr. P provided by the respondent are brief and indicate that his diagnosis is based mostly on the applicant’s self-report and not on assessments conducted by the Dr. P. His assessment consisted of touching the applicant’s body to see if there was pain.

38I give the opinions of Dr. P little or no weight because they are based on an inaccurate medical history Examples of inaccuracies are:

• Dr. P report describes the applicant as a “previously healthy young man” and does not recognize the applicant’s history of drug abuse and his frequent use of marijuana both before and after the accident.

• Dr. P’s opinion is based on the applicant having taken four kinds of prescription medications for his pain while there is no evidence to show that the applicant took any prescription medication following the accident. The CNRs of his family doctor indicate that he never filled the pain medication prescription he was given by his family doctor following the accident.

39Dr. P’s report acknowledges the report of Dr. L but does not address it. He gives no consideration to Dr. L’s finding six months earlier that the applicant’s pain issues were due to his generalized deconditioning and what the applicant requires is regular exercise.

Functional Assessment of Dr. D.M. dated February 12, 2015[^21]

40The applicant’s only other evidence of functional impairment other than his own self-report and the report of Dr. P is the Functional Assessment of Dr. D.M. done in February 2015.

41Dr. D.M. found that the applicant had a functional impairment as a result of the soft tissue injuries that he sustain in the accident and found that he had an ability to function at a light level. This report however was done 4 months before the period in question and applicant not provided an update to show his condition in June 2015. The only credible opinion provided by the applicant with respect to his physical condition after June 3, 2015 is the report of Dr. L. which finds the applicant was not impaired.

42After reviewing the evidence before me the applicant has not satisfied me on the balance or probabilities that he sustained an impairment as a result of the accident that was still preventing him from performing the essential tasks of his self-employment when his benefits were terminated on June 3, 2015. He has also not shown on the balance of probabilities that after June 3, 2015 and before October 29, 2016 he sustained an impairment as a result of the accident that resulted in him suffering a substantial inability to perform the essential tasks of his self-employment.

Post 104 Weeks

43Having determined that the applicant did not suffered a substantial inability to perform the essential tasks of his employment after June 3, 2015 I am unable to find that he suffered a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience 104 weeks after the accident.

44The reason for this is that the Schedule²² requires that an applicant qualify for IRBs within the first 104 weeks in order to be considered for benefits after 104 weeks. After 104 weeks an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience.

Termination of Benefits

45In his Supplementary Submissions the respondent argues that the applicant improperly terminated his benefits as of June 3, 2015 for two reasons.

46Firstly, he argues that the adjuster had a duty to inform its IE assessors

that the applicant had resumed using marijuana for medical/rehabilitation reasons post-accident. The applicant relies on his own self-reporting of his marijuana use in the adjuster’s log note as the basis for this submission.

47I find no merit in this argument. The notice that the respondent gave to the applicant terminating his benefits²³ refers to two IE reports. The report of S.W. acknowledges the applicant’s use of marijuana²⁴. Both of the IE assessors²⁵ had access to the report of Dr. G.G²⁶ which also identified the applicant’s marijuana use.

48Secondly, the applicant argues that while the Adjuster’s Log notes²⁷ indicate that that respondent issued two stoppages/suspensions of IRBs, one on June 3, 2015 and one on October 15, 2015, it did not pay IRBs to the applicant beyond the June 3, 2015. The applicant argues that the benefit was improperly terminated on October 2, 2015 because he was not provided notice of the second stoppage until he received the adjuster’s log notes.

49I find no merit in this argument. The Notice given to the applicant on May 27, 2015²⁸ clearly stopped the IRBs as of June 3, 2015 and provided the reasons for the stoppage. The applicant does not dispute this Notice.

50The second Notice the applicant refers to²⁹ seeks income information that the respondent had requested under s. 33 of the Schedule in May 2015 and purports to terminate “future entitlement” to benefits. While it is not clear to me why the respondent issued the October 02, 2015 Notice, the fact is that there were no IRBs being paid to terminate. For that reason, whether or not the applicant received the Notice is not of any consequence.

Repayment of Benefits

51The parties agree that the respondent overpaid IRBs to the applicant because it calculated the benefit payable on the basis that the applicant was an employee rather than self-employed. They do not agree on the amount of the overpayment.

52The respondent’s accountant³⁰ calculates the overpayment to be $3,748.00 while the applicant’s accountant³¹ calculates the overpayment to be $2,437.49. I accept the analysis of the discrepancy provided by the applicant’s accountant as it is not refuted by the respondent and find the amount of the overpayment to be $2,437.49.

53The Schedule requires a person to repay to an insurer an IRB that is paid to the person as a result of an error on the part of the insurer or the insured person or any other person³². In order to seek a repayment the insurer must give the person notice³³ of the amount to be repaid within 12 months after the payment of the amount that is to be repaid. The 12 month limitation period does not apply³⁴ if the amount was paid to the person as a result of a wilful misrepresentation or fraud.

54I find that the respondent is not entitled to be repaid the overpayment because it did not give notice to the applicant of the amount to be repaid within the 12 months of the overpayment and because it has not satisfied me on the balance of probabilities that the applicant made a wilful misrepresentation that resulted in the overpayment.

55The respondent did not discover the overpayment until after the applicant filed this application with the Tribunal³⁵ and for that reason it was unable to provide notice of the overpayment within 12 months of the payment.

56The respondent argues that the applicant’s Application for Accident Benefits (OCF-1)³⁶ and the Employer’s Confirmation Form (OCF-2)³⁷ are evidence of his wilful misrepresentation because:

• in his application he states that he was both employed and self-employed at the time of the accident and;

• the OCF-2 is completed on that basis that he was employed rather than self-employed.

57This evidence does not satisfy me on the balance of probabilities that the applicant wilfully misrepresented his situation. The fact that he stated he was both employed and self-employed on his application suggests to me that he was not certain of the terms of his employment. The fact that Airs Powder Coating completed the OCF-2 on the basis of his being an employee also suggests that there was a lack of certainty about the nature of his employment There is no evidence to suggest that the applicant knew he would be entitled to higher weekly benefits if he misrepresented his situation. For these reasons I find that the respondent is not entitled to repayment of the IRBs paid in error.

Award under Regulation 664[^38]

58The applicant asks me to make an award under Regulation 664.

59This regulation allows me to award an additional amount of money to the applicant if I find that the respondent unreasonably withheld or delayed payments of benefits. Section 10 allows me to award an extra lump sum payment of up to 50% of the amount to which the applicant is entitled to together with interest on all amount owing to the insured (including unpaid interest) at the rate of 2 per cent per month compounded monthly, from the time the benefit first became payable.

60The applicant argues that the respondent improperly withheld and delayed IRB payments from the applicant. The applicant alleges that the respondent closed its mind from the outset of the claim and operated on the basis that the accident and the claims for benefits were fraudulent. The applicant relies on the Adjuster’s log notes³⁹ for evidence that the respondent unreasonably withheld or delayed payment of benefits. The applicant points out that the log notes indicate that the respondent conducted Facebook searches and internet searches on the applicant and got its special investigations unit (SIU) involved.

61I am not satisfied that the log notes show that the respondent unreasonably withheld payment of the applicant’s IRBs. The evidence supports the respondent’s contention that it withheld payment of the benefit until May 27, 2015 because the applicant did not provide the respondent with the information it requested and that was required to properly determine the benefits payable. Section 33 of the Schedule allows an insurer to request information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit and to delay payment of a benefit until the insured’ s complies with the request.

62The respondent has provided copies of correspondence⁴⁰ and notices it sent to the applicant as early as February 23, 2015 seeking the information that would allow it to properly determine the applicant’s entitlement to IRBs. The evidence is that the respondent did not receive copies of the applicant’s income tax returns or employment information until they were provided as part of the applicant’s case conference brief.

63I fail to see how the applicant can argue that the respondent unreasonably withheld payments of IRBs in these circumstances.

Costs

64Rule 19.1 of the Tribunal’s Rules allows a party to make a request to the Tribunal for costs where it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

65Rule 19.4 requires a party seeking costs to set out the particulars of the other party’s conduct that it alleges to be unreasonable, frivolous, vexatious or in bad faith.

66The conduct the applicant points to as being unreasonable and in bad faith is the respondent’s refusal to produce its adjusters’ log notes without an order of the Tribunal. The applicant argues that the motion hearing delayed the hearing of the application and resulted in unnecessary expense.

67I do not find that the respondent requiring the applicant to bring a motion to have the relevance of the log notes determined is behaviour that is unreasonable or in bad faith and I decline to order costs.

68There is no hard and fast rule that adjuster’s log notes must always be produced. The relevance of log notes will depend on the facts of each application and it is open for an insurer to argue that they are not relevant and to require an applicant to bring a motion to have the issue determined if the issue is not dealt with at the Case Conference.

69The motion for production of the log notes did not delay⁴¹ the hearing date. It would be unfair to penalize the respondent with a cost order for taking a legal position on the relevance of the notes.

70For the reasons provided above I Order:

1. The applicant is not entitled to IRBs beyond June 3, 2015
2. The respondent is not entitled to repayment of the $2,438.47 overpayment of IRBs it made to the applicant.
3. The applicant is not entitled to an award as provided for in Regulation 664
4. The applicant is not entitled to costs.

Released: March 27, 2018

___________________________

Susan Mather, Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2Rule 10.2(b) Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
3. 3Response was to be filed by January 15th and reply to response by January 17th for the Jan 18, 2018 hearing
4. 4On December 15, 2017 on motion by the applicant to vary the deadlines for written submission the parties agreed to the following dates: Applicant’s Supplementary Written Submissions, January 8, 2018; Respondent’s Submissions, January 15, 2018; Applicant’s Reply, January 17; Written Hearing, January 18, 2018.
5. 5S. 5(2) O. Reg. 34/10
6. 6S. 3 O. reg. 34/10
7. 10Affidavit of [the applicant] sworn January 8, 2018
8. 11Page 124, Adjuster’s Log Notes, Applicant’s Supplementary Documents to Rely On
9. 12Page 166, Tab 16, Respondent’s Documents
10. 13Paragraphs 6-21 Written Submissions of the Applicant
11. 14Paragraph 71 Respondent’s Written Submissions
12. 16Tab 1, Clinical Notes and Records of family doctor, Applicant’s Documents to Rely On
13. 18Tab 2, Applicant’s Documents to Rely On
14. 20Tab 8, Applicant’s Documents to Rely On
15. 22S. 5(1)(i) and S. 6(2)(b) O. Reg. 34/10
16. 23Explanation of Benefits (OCF-9) dated May 27, 2015 , page 33, Respondent’s Documents; Tab 12, Applicant’s Documents
17. 24Tab 18, Respondent’s Documents
18. 25Tab 17, Respondent’s Documents
19. 26Tab 16, Respondent’s Documents
20. 27Applicant’s Supplementary Documents to Rely On
21. 28Explanation of Benefits, Tab 12, Applicant’s Documents
22. 29Explanation of Benefits, Tab 23 Applicant’s Documents
23. 30Report of BDO dated November 22, 2017, Page 51, Respondent’s Documents
24. 31Report of Davis Martindale dated December 6, 2017, Tab 15, Applicant’s Documents to Rely On
25. 32S. 55(1)(a) O. Reg. 34/10
26. 33S. 52(2)(a) O. Reg. 34/10
27. 34S. 52(3) O. Reg. 34/10
28. 35Application was received by the Tribunal on May 19, 2017
29. 36Page 24, Respondent’s Documents
30. 37Page 30, Respondent’s Documents
31. 39Supplementary Applicant’s Documents to Rely On
32. 40Pages 210 to 226, Respondent’s Document Brief
33. 41Order of the Tribunal made on September 29, 2017 set the hearing for January 18, 2018; Order of the Tribunal dated December 19, 2017 confirmed the January 18, 2018 hearing date
34. 15Tab 1, Applicant’s Documents To Rely On
35. 17Paragraph 13, Written Submissions of the Applicant
36. 19Tab 7 Applicant’s Documents to Rely On
37. 21Tab 13 Respondent’s Written Submissions Brief
38. 38S. 10, O. Reg. 644 made under S. 280 of the Insurance Act, R.S.O. 1990, c. I.8