M.Y. v. Aviva Insurance Canada, 2019 CanLII 130606

Citation: M.Y. vs. Aviva Insurance Canada, 2019 ONLAT 17-007683/AABS

Tribunal File Number: 17-007683/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:

M.Y.

Appellant(s)

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Cezary Paluch, Adjudicator

APPEARANCES:

For the Applicant:

M.Y., Applicant

Andrew Frazke, Counsel

For the Respondent:

Christine Mansbridge, Representative

Michael White and Michael Silver, Counsels

HEARD IN PERSON:

July 16, 17 and 18, 2019

OVERVIEW

1On February 26, 2015, M.Y. (the “applicant”) was injured in an automobile accident when another vehicle suddenly came out of a parking lot directly in front of her. M.Y. was forced to stop her car and was rear-ended by another driver (“the accident”). Airbags did not deploy. An ambulance was not called, and M.Y. was able to drive the car from the scene. M.Y. did not lose consciousness and did not seek immediate medical attention but reported onset of neck and back pain as well as headaches. Damage to her vehicle included a dented front and rear bumper.¹

2At the time of the accident, M.Y. was 37 years of age and worked at a factory, […] (TBC), as a Door Team Member responsible for assembling inside door panels. After the accident, she attempted to return to work from February 15, 2017 to August 8, 2017 and again from November 13, 2018 until March 2019. However, M.Y. claims that she is still unable to work because of continuous neck and back pain and debilitating headaches.

3The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'')from the respondent. The respondent denied IRBs based on the findings of various s. 44 IE reports. The applicant feels that, due to her injuries and pain, she is unable to work.

4As a result, she submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) and the matter proceeded to an in-person hearing.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Is the applicant entitled to receive an income replacement benefit (“IRB”) in the amount of $400.00 per week for the period of February 26, 2017² to date and ongoing?

(ii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

(iv) Is either party entitled to costs?³

6During the second day of the hearing, the respondent filed a Notice of Motion and supporting materials requesting⁴ that the clinical notes and records of Spinetec Healthcare Solutions (Spinetec) and Meditecs Independent Medical Examinations (“Meditecs”) be excluded from the hearing. The parties agreed to make oral submissions regarding this motion immediately following completion of the hearing on the substantive issues and to file case law afterwards.⁵ Since the motion was provided to the applicant at the hearing, I offered to allow the applicant time to prepare and file written responding materials, but counsel advised that he would prefer to make oral submissions on the same day at the hearing and did not wish to provide written submission. Both parties also consented to me hearing the motion and providing my reasons as part of this decision. I address this motion first.

RESULT

7The respondent’s motion is dismissed.

8With respect to the substantive issues in dispute, based on the totality of the evidence before me, the applicant has failed to demonstrate that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. As a result, she is not entitled to an IRB in the amount of $400.00 per week for the period of February 26, 2017 to date and ongoing. Therefore, no interest is payable. The applicant is also not entitled to an award.

9No costs are awarded to either party.

ANALYSIS

10A two day⁶ in-person hearing was conducted. Only the applicant testified at the hearing and no other witnesses were called on her behalf. The respondent did not call any witnesses. I have considered all of the evidence led during the hearing and only summarized what I found relevant to my determination below.

Respondent’s Motion to exclude clinical notes and records of Spinetec and Meditecs

11The respondent filed a Notice of Motion requesting an order to exclude the records of Spinetec and Meditecs.

12The only evidence proffered by the respondent was an affidavit by an associate counsel of the respondent in which he alleges that the applicant’s counsel, Ms. Masgras, is married to the sole officer and director of Spinetec and who registered the business name of Meditecs. I do not have any documentary proof or viva voce evidence that in fact Ms. Masgras is married to [O.I.] and what is the current nature of that relationship, if any. All I have is a general one-line statement in an untested Affidavit that [he] believes that Ms. Masgras is married to [O.I.] without any evidence supporting this statement or any proof to verify the nature of that relationship. Without this factual foundation, it is difficult to understand if Ms. Masgras has any corresponding financial interest, as a spouse, in any of the medical examination facilities and what the extent of that interest is, if any.

13The respondent further alleges that applicant’s counsel would somehow benefit from the clinic finding that the applicant’s impairments are serious. In addition, the respondent alleges there is a reasonable apprehension of bias if the applicant is permitted to rely on the clinical notes and records that originate from these clinics. However, again the respondent provided no proof of the relationship between applicant’s counsel and the clinics and therefore there is no reason to exclude the evidence. Finally, while the respondent could have raised this issue earlier in the process given that applicant’s counsel was present at the case conference, it failed to do so, and its late request may well be prejudicial to the applicant. Lastly, all of the cases filed by the respondent are court cases and can be differentiated from the facts here. For all those reasons, the motion is dismissed.

Entitlement to Income Replacement Benefits (IRB) 104 Weeks after the Accident

The applicant’s position:

14The applicant claims that she suffers from neck and back pain as a result of injuries she suffered in the car accident. She argues that the pain has affected her sleep pattern and she has difficulty falling asleep. She explains that when she last tried to return to work in early 2019, she suffered a breaking point and has been unable to return since that time.

The respondent’s position:

15Aviva does not concede causation and submits that the applicant does not meet the prescribed test for IRB eligibility, and relies on the psychological assessment report of Dr. R. Lewis dated February 26, 2019, and physiatry assessment report of Dr. T. Bentley dated February 6, 2019, as part of a multi-disciplinary assessment, to support its position that the applicant does not suffer from a complete inability to engage in any employment for which she is reasonably suited.

The legal test:

16The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule. The parties agreed at the hearing that the only issue in dispute is the post-104 weeks entitlement to IRBs. For this reason, I have not addressed the 10 days or so of what appears to be pre-104 eligibility (February 16-26, 2017), even though the procedural Order sets out the starting date of February 16, 2017.

17Therefore, to be entitled to ongoing IRBs more than 104 weeks after the accident, the applicant must satisfy the post-104 week disability test by establishing on a balance of probabilities that she suffers a “complete inability to engage in any employment for which she is reasonably suited by education, training or experience” as a result of the accident.⁷ This is referred to as the “complete inability” test or the “post-104 Test.” The “complete inability” test for a post-104 IRB is a higher bar than the “substantial inability test” for a pre-104 IRB.

18The parties’ have not raised any issue of the amount of IRBs that may be payable to the applicant. Their submissions focus solely on whether or not the applicant meets the complete inability criteria for the IRBs. The respondent does not concede causation. Therefore, for analytical purposes, the inquiry can be divided into two main parts:

i) causation; and

ii) complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

i) Causation

19The respondent submits in their written submissions⁸ that the test for post-104 IRBs is based on the “but for test” rather than the “material contribution” test⁹. I agree. The current state of the law is clear that the correct legal test for determining causation in the accident benefits scheme requires that the applicant show that, but for the motor vehicle accident, she would not suffer an impairment in relation to which she claims income replacement benefits.¹⁰ Ultimately, however, causation is a question for the Tribunal, considering the totality of the evidence.

20Here, the evidence shows that before the accident, the applicant was healthy, worked full-time for a number of years at the same assembling factory and was relatively pain- free (save some hip pain and complications with her pregnancy). Moreover, all indications were that, before the accident, she was psychologically healthy and was not diagnosed with any mental illness. Therefore, I find that the intervening act of the motor vehicle accident is responsible for the alleged impairments.

21The medical evidence supports my finding that the applicant’s impairments were caused by the accident. These included the Disability Certificate, dated March 6, 2015, completed by Alex Feier, chiropractor, of Spinetec that concluded she suffered a complete inability to carry on a normal life and is substantially unable to perform the essential task of her employment and cannot return to work on modified hours; the report of Dr. Pilowsky, psychologist, who diagnosed M.Y. with mental health issues as a direct result of the accident; and the reports of the two insurer’s examination (“IE”) assessors who both concluded that the applicant had suffered injuries or impairments as a direct result of the accident.¹¹

22Therefore, I am satisfied that on a balance of probabilities whatever injury or impairment the applicant has sustained or endured was caused by the motor vehicle accident. In other words, but for the motor vehicle accident she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim for the IRB.

23I now turn to the issue of whether the headaches, physical pain and her psychological problems cause the applicant a complete inability to engage in any employment for which she is reasonably suited by education, training or experience” as a result of the accident.

ii) Complete Inability

Applicant’s Evidence

24I find that M.Y. does not meet the test for eligibility for an IRB post-104 because she does not suffer a complete inability to work in any employment for which she is reasonably suited by education, training or experience.

25The applicant started working full-time at TBC on May 10, 2004 and was employed there at the time of the accident. She worked on the assembly line at the auto factory and was required to assemble inside door panels for motor vehicles. She used screw guns, torque guns and staples to assemble door panels. This position requires weight bearing, bending, lifting, carrying, reaching and fine motor skills.¹²

26At the hearing, the applicant testified that, despite her best efforts, she can longer go back to work because of constant pain, which she has not been able to manage with prescribed pain medication because the medication makes her sleepy and she cannot take it while working. She described some of the physical demands that she was having trouble with when she returned, including being required to stand the entire 8 to10-hour days and carry 20-pound parts. Coping with her pain, headaches and lack of sleep has also affected her mood and her relationship with her husband and her children and resulted in weight gain. However, the applicant also testified that she is not currently depressed but just has stress in her life. It appeared that she was not currently being treated for any mental illness and was not under the care of a psychologist.

27In support of her claim for a post-104 IRB, the applicant relied on the Psychological Report of Dr. J. Pilowsky, dated June 14, 2016 that diagnosed her with Major Depressive Disorder, Symptoms of Posttraumatic Stress Disorder and Somatic Symptom Disorder with Pain. Dr. Pilowsky also concludes that the applicant is “disabled from working at this time”.¹³

28I give little weight to Dr. Pilowsky’s report for the following reasons. Dr. Pilowsky did not testify at the hearing and was not the applicant’s treating psychologist (who may have access to additional records), but it appears that she was only retained with respect to preparing this report. Related to this point is that Dr. Pilowsky did not review any other medical records in preparing her report and relied entirely on the applicant’s self-reporting. Assessing any impairment related to pain is difficult and, in my view, M.Y.’s family doctor records would have certainly assisted Dr. Pilowsky with better understanding M.Y.’s condition.

29Given the timing of the report (about 16 months after the accident), it is evident that the purpose of Dr. Pilowsky’s assessment was to determine the applicant’s psychological difficulties and generally make recommendations as to treatment but not to directly address the IRB criteria. In reading Dr. Pilowsky’s report, it is clear that her focus was recommending treatment and not with respect to the applicant’s ability to work.

30Although, Dr. Pilowsky briefly discusses the applicant’s job tasks at TBC and explains that this type of work was physically demanding, she does not assess in any detail how M.Y.’s psychological issues prevented her returning to work or if she could manage certain tolerances. Further, Dr. Pilowsky does not consider if M.Y. can return to work on modified hours or duties or can work only day shifts, but rather summarily states that she is “disabled from working at this time” without explaining if she is prevented from engaging in any employment for which she is reasonably suited by education, training or experience.

31Although Dr. Pilowsky does acknowledge in her report that M.Y. “deeply enjoyed her position” and felt “well liked,” she does not elaborate if a return to her pre-accident self-employment may be beneficial to M.Y. and help her cope with her depression as she clearly enjoyed it and was good at it. In terms of prognosis, Dr. Pilowsky defers to another practitioner to estimate her chances of recovery. Unfortunately, there was no addendum or updated report from Dr. Pilowsky since she issued her report over three years ago in June 2016 so the report itself is of little assistance as far as the main issue in dispute. For all of these reasons, I give limited weight to Dr. Pilowsky’s report.

32The applicant’s family doctor, Dr. Y. Gebeyehu was also listed as a witness to be called at the hearing, but did not testify. His notes and records were included in the briefs. Most relevant is that Dr. Gebeyehu wrote a letter to the applicant’s employer in March 2019 concluding that M.Y. is not able to return to work.

33The CNRs and progress notes from Spinetec detail M.Y.’s attendance for treatment and her reporting of pain in her shoulders, back, and headaches. For example, on July 2, 2015, M.Y. reports shoulder pain at 5/10 and that “pain is better today.” On November 30, 2016, August 17, 24, 2017, March 27, 2018, and April 20, 2018, M.Y. reports neck, back and leg pain which increased with prolong sitting and standing.

34Finally, the Disability Certificate (OCF-3) completed by Alex Feier, chiropractor, on March 6, 2015 (about 2 weeks after the accident), states that the anticipated duration of M.Y.’s disability and entitlement to an IRB was nine to 12 weeks.¹⁴ Alex Feier checked off the box that the applicant is substantially unable to perform the essential task of her employment and that she cannot return to work on modified hours due to neck injury, whiplash, cervical spine, lumbar, thoracic sprain and strain.

35Aviva scheduled a series of IEs to determine M.Y.’s entitlement to IRBs. These IEs, including a Functional Abilities Report and Job Site Report, revealed that M.Y. did not suffer a substantial inability to perform the essential tasks of her employment. It was on this basis that Aviva denied the IRB.

Credibility

36Aviva raised several concerns with respect to the applicant’s credibility. It submitted that these credibility issues call into question the extent of the applicant’s impairment and her complaints and do not support a finding that she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.

37I found that there were several discrepancies in the applicant’s testimony, especially when certain answers were tested against the documentary evidence filed. I found her testimony at times to be contradictory and inconsistent with some of the documentary evidence with no satisfactory explanation provided, such that I had some concerns regarding the applicant’s credibility. For example, the applicant testified that:

i. She only applied one time for short term disability benefits prior to the accident, but the documentary evidence showed it was at least three times.

ii. She hit her head on the steering wheel during the accident but did not have any bruising or lose consciousness. However, the CNR entry of her family doctor, Dr. Gebeyehu, February 27, 2015 (one day after the accident) does not refer to the applicant hitting her head on her steering wheel. It states, “some forward motion than [sic] back (whip-lash)” but does not mention any head injury. It appears that the applicant saw Dr. Gebeyehu again on March 5, 2017, and there is still no mention of any head injury. I also note that she was never diagnosed with a concussion and all x-ray and imaging results were negative.

iii. That she is required to lift parts that weight 20-to-24 pounds at work and this is too heavy for her. This is contrary to the Job Site Evaluation prepared by Danny Monck, kinesiologist, who met with M.Y.’s employer in preparing his report and states the heaviest item that she would be required to lift and carry would be a door that weighs 12 lbs. Moreover, the WSIB Physical Demands Information form notes that in completing her job duties all forces exerted were “light.”¹⁵ Finally, the Functional Abilities Evaluation Report prepared by Dawn Rodie stated that she was able to carry 20 lbs.

iv. Her husband only worked on weekends and never on weekdays. However, when it was put to her that her husband is not able to testify because he is working today (and this was the reason he was not available to testify) she retracted her original testimony and acknowledged that he did sometimes work weekdays.

v. She never attended a hospital in Sioux Lookout on October 27, 2015 but her OHIP summary¹⁶ stated that she went into an emergency department on that day and saw a Dr. L. Willms.

vi. Her voice has changed since the accident but there was no reference in any of the medical notes regarding any issues or complaints she was having with her voice or speech.

vii. She had to stand at work all day for 8 to 10 hours. In contrast, the Job Site Evaluation Report notes sitting at 10%. The WSIB Physical Demands Information form¹⁷ details three break periods totalling about over 60 minutes per work day.

viii. She testified that she was required to work 10-hour days. This was contradicted by several documents. The letter from TBC dated December 21, 2018¹⁸, stated that she was required to work 40 hours a week, plus overtime where applicable. The Job Site Evaluation Report notes 8 to10 hour workdays for a total of 40 to 50 hours a week depending on need. Most importantly her work schedule from 2013-2019¹⁹ revealed that a majority of the time she was working 8-hour days.

38I made observations of M.Y. during the hearing. She testified on the first day of the hearing for the entire day. She was able to sit for several hours and I did not notice any visible pain behaviour (as she reported numerous times on her visits to Spinetec – that her pain increases with prolong sitting). She had no trouble concentrating. She did not request any breaks, or stretch or sit on the edge of her seat, as if in pain (some of the behaviours noticed by Dr. Pilowsky in her report). She did not attend the hearing on the second day and no reason was provided. I am cognizant that my observations of her are but a snapshot in time in her life. I simply note my observations here.

39Overall, I did not disregard her testimony but, when faced with inconsistent evidence between the applicant’s testimony and the documentary evidence (e.g., the Job Site Evaluation Report discussed below), I preferred the documentary evidence. In a case such as this, where many of the complaints are subjective and pain-related, the consistency and reliability of the applicant’s testimony is essential. This is especially important in a case such as this where the applicant was the only witness at the hearing to testify and her testimony takes on significant prominence.

Employer’s Accommodation

40I also do not accept the applicant’s position that her employer did not try to accommodate her. To the contrary, there was significant documentary evidence presented that TBC was in fact trying to accommodate her needs as they had done in the past. This further supports my finding that, with proper accommodation (for instance, modified light duties and gradual return to work), the applicant is able to perform her prior employment as a Door Team Member with TBC. For example, the following are some examples of the applicant’s employer making efforts to accommodate her:

i. A detailed Accommodation Procedure²⁰ policy document confirms that TBC had a detailed procedure in place to address accommodation requests by all employees including setting out the process and, if required, to create an individual accommodation plan. It appears from the evidence that this procedure was being followed as evidenced by the meetings and interactions between the employer and M.Y.

ii. In January 2013, when the applicant returned to work (after being off due to a medical matter), TBC established a gradual return to work plan and schedule. This shows that they were willing to work with her to accommodate her medical needs.²¹

iii. On March 2, 2019, TBC met with the applicant regarding her current condition and requested that she provide medical information and specific answers to questions related to her request for day shift and light duty work to get a better understanding of her medical condition.²²

iv. An IE Job Site Evaluation Report dated November 22, 2016 prepared by Danny Monck, kinesiologist, who met with the applicant’s employer states that the employer advised that it does provide a return to work program and that a return to work on modified hours is preferable to modified duties.

v. TBC scheduled an independent medical examination (IME) to assess M.Y.’s current restrictions for July 10, 2019. M.Y. was not able to attend on this date and explained at the hearing that this date was not convenient for her. No other reason was provided. An email dated June 20, 2019 from Human Resources Manager at TBC to the assessment centre states that “she replied that she did not see it and would call you…she hasn’t been at work so I can’t imagine why that date wouldn’t work for her.”²³ Another email, dated June 26, 2019, re-scheduled the assessment for August. I also note that the series of emails²⁴ between TBC, the assessment centre and M.Y. regarding this matter support my finding that the employer was actively trying to identify her medical issues to see how best they can accommodate them.

vi. A three-page detailed letter dated April 2, 2019 from the manager of Human Resources at TBC to the applicant attempted to further clarify her medical condition and try to better understand her ability to return to work, with or without conditions. That letter indicated that:

a) In November 2018, the applicant provided a note from her doctor to TBCA stating: “I suggest she may return to work full time with regular duties as of Monday, November 19, 2018.”

b) On March 21, 2019, TBC received a fax from M.Y.’s doctor stating: “[you] were totally disabled on Monday, March 18 and I estimate through Friday, March 22, 2019. This patient may return to work on Monday March 25 – I suggest she should be on modified light duty until patient feels much better.”

c) M.Y. will not be able to return to work until TBC receives medical documentation indicating that she is cleared to return to work.

d) M.Y., we are doing our best to accommodate any medical needs you might have arising from a disability; however, given the history…we are struggling to understand what those needs are.

41In my view, this letter is important as it is very recent correspondence that clearly shows an attempt by M.Y.’s employer to cooperate and accommodate her needs. The line in the last paragraph in the letter best supports this: “we are willing to provide you temporary modified work that meets the current restrictions and limitations” [emphasis added]. In my view, the fact that TBC was so open and willing to offer her modified work further supports my finding that the applicant does not meet the test for entitlement to IRB. It also appears to me that her employer did not understand the full extent of M.Y.’s injuries which explains their response in the April 2, 2019 letter.

42It is also evident that the applicant has many marketable skills, qualifications and work experience. She previously worked at a senior’s home, a convenience store, and an employment agency. In 2003, she completed a bachelor’s degree in computer science from the University of Windsor trained in data base entry programming, networking and repairing computer hardware problems. In my view, in today’s high-tech society a computer science degree is certainly a desirable degree to have. She also appears to be a very smart and motivated person. Here, the applicant admitted that she has not looked for any other employment since the accident. The issue is not whether she could return to her previous job, but, whether she can engage in any job for which she is reasonably suited by education, training or experience. Therefore, considering alternative employment possibilities for the applicant, especially given the applicant does possess a marketable university degree, is realistic.

Respondent’s Evidence

43The respondent’s denial of the applicant’s entitlement to the income replacement benefit was based on both a physical and psychiatric IE assessment, as well as a Job Site Evaluation Report and a Functional Abilities Evaluation Report.

44Overall, although the respondent did not call any of their IE assessors to testify at the hearing, I still preferred this evidence over that of the applicant because I found both of these reports more current, detailed and thorough. These IE reports also directly addressed the IRB criteria, and the applicant’s functional abilities and were unchallenged.

45For example, the Psychological Report dated February 26, 2019, Dr. J. Rees Lewis, psychologist, concluded that M.Y. is able to perform most of her essential task of her pre-accident employment and recommended that she only work day shift due to her worsened headaches following working evening shift. In conducting his assessment, Dr. Rees considered numerous records, including the CNRs of Dr. Gebeyehu, and commented that M.Y.’s symptoms have improved (since he last saw her in November 2015 to address two treatment plans) and her prognosis was favourable. As this report was prepared in February 2019 (during the time when M.Y. was back at work), Dr. Rees Lewis noted that she has returned to work on a full-time basis as of November 2018.

46Similarly, Dr. T. Bentley in his IE Physiatry Report dated February 6, 2019, diagnosed cervical and lumbar spine range of movements impairments and concluded that M.Y. does not suffer a substantial inability to perform the essential task of her pre-accident employment as a direct result of the accident. When this report was issued, the applicant had returned to work. On March 28, 2019, Dr. Bentley issue another Physiatry Paper Review Report to address a treatment plan and found that the applicant had reached maximum medical recovery.

47An IE Job Site Evaluation Report dated November 22, 2016²⁵ prepared by Danny Monck, kinesiologist, who met with the applicant’s employer to detail the physical demands of M.Y.’s job states that as per information provided by the employer the heaviest item that she would be required to lift and carry would be a door that weighs 12 pounds and the lifting would be “within light strength demands level.” Light was defined as more than 5 kg (about 11 lbs) but less 10 kg (about 22 lbs). This was contrary to what the applicant testified that she was required to carry 20-pound parts. Also, that 90% of each day is spend weight bearing and 10% is spent sitting. The applicant testified that she must stand all day. The report confirms that workers get regular breaks and rotate to a different position every 2 hours.

48A Functional Abilities Evaluation Report dated September 19, 2017, on behalf of the respondent was prepared by Dawn Rodie, physiotherapist to determine M.Y.’s maximum physical abilities. This report concluded that M.Y. demonstrated good functional ability regarding kneeling, crouching and reaching as well as walking and handling activity. M.Y. demonstrated reduced functional tolerance regarding bending, reach testing and standing. Grips strength tests were low, and she was able to carry 20 lbs. on three requested repetitions but declined further weight. The applicant reported to Ms. Rodie that she considered herself 70% recovered. Overall, Ms. Rodie concluded that her performance appeared guarded and testing was limited due to symptom complaint.

49Overall, I found this evidence to be more thorough, compelling and gave it more weight than the applicant’s evidence and testimony because it considered and evaluated M.Y.’s functional abilities as it pertained to her actual job tasks. Moreover, the onus is on the applicant, in this case M.Y., to prove entitlement to IRBs. There is no objective medical evidence supporting the applicant’s claim of a complete inability to work as defined in s.6(2((b) of the Schedule. In the end, I am not persuaded, based on the totality of the evidence before me that M.Y. does have a complete inability as per the Schedule.

Adverse Inference

50In their closing submissions, the respondent requested that the Tribunal draw an adverse inference from the applicant’s failure to call her listed witnesses in the Order. For example, applicant’s husband was listed on the applicant’s witnesses list but did not testify, nor did any of the applicant’s other four witnesses listed in the Order, namely Dr. Gebeyehu, family doctor, Dr. Pilowsky, Dr. Paton, or C. Gosse.²⁶

51Granted, there is no rule that a party must call a witness, and any remedy for failing to call a material witness lies in very limited circumstances within a court or tribunal being able to draw an adverse inference against a party who fails to call such a witness where the failure to do so is not satisfactorily explained.²⁷

52At the hearing, Dr. Paton was a listed witness for the applicant. The applicant at some point during the hearing advised the respondent that Dr. Paton would not be called due to what appeared to be scheduling difficulties. The respondent then immediately moved to summons Dr. Paton, which created a real challenge for the Tribunal to have a summons issued, and then for the respondent to serve the summons without jeopardizing the adjournment of the entire hearing. I tried to cure any potential prejudice by issuing the summons and trying to accommodate the witness. I can only imagine that any witness served with a summons requiring them to attend a hearing the very next day will not be pleased. Indeed, when Dr. Paton arrived at the hearing the next day, he was not happy and expressed his displeasure. Interestingly, and pointing to the peculiarity of this entire situation, the applicant opposed the request to summons Dr. Patton.

53The same situation almost arose regarding the calling of the applicant’s husband when counsel advised only after the completion of the applicant’s testimony that M.Y.’s husband would not be called. Again, with this information in hand, the respondent considered requesting a summons but ultimately did not do so, perhaps at that point recognizing that this would derail the entire hearing and cause further delay. In my view, all of this all could have been avoided if the parties had adhered to their witness lists in the first place or, at the minimum, advised the other side much earlier if they did not intend to call someone. Counsel are expected to cooperate and fully coordinate their witness list in this respect prior to the start of the hearing. Cooperation ensures maximum efficiency of the hearing process for everyone. In this respect, I note that the Tribunal’s Common Rules of Practice and Procedure are drafted to be flexible and permit rapid cooperation as to allow effective participation by all parties.²⁸

54However, I find that this is still not an appropriate situation to draw an adverse inference against the applicant in this case. The applicant was able to explain that because of scheduling challenges and costs these witnesses were not available. I also note that I did issue a summons for Dr. Paton and he was able to attend the hearing and was available to testify. I was also prepared to hear submissions from the respondent if they wanted to have the applicant’s husband summons but they essentially departed from this request. In other words, the respondent was free to call any of the applicant’s witnesses but declined. I would also add that the respondent also did not call all of their listed witnesses. For all of these reasons, I decline to draw an adverse inference from the applicant’s failure to call her listed witnesses in the Order

55For these reasons listed above, I find the applicant is not entitled to an IRB for the post-104-week period to date. As such, no interest is payable. I now move on to the interest, award and cost issues.

Interest

56Having determined that no benefits are overdue, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

57The applicant submits that she is entitled to an award from the Tribunal under s. 10 of Ontario Regulation 664 because Aviva unreasonably withheld or delayed payments. I disagree. Based on my findings, Aviva’s decision to deny entitlement was reasonable and, as such, M.Y. is not entitled to an award. I find that the insurer gave reasonable consideration to all the information then available to it in assessing the claim. I find that there is no evidence that the denial of the IRBs was improper, especially in light of the medical information the insurer had in its possession. I also note that no evidence was led that Aviva unreasonably withheld payment or acted in bad faith.

Costs

58Both parties requested costs in this matter in their final submissions. The respondent sought costs in the amount of $2,500.00 arguing that the applicant has not acted in good faith by not complying with Tribunal orders and not disclosing that certain witnesses would not be called.

59Once the respondent asked for costs, the applicant then sought costs in reply submissions alleging that the respondent also did not comply with Tribunal orders or call their listed witness.

60Rule 19.2 allows costs to be requested at any time before the decision or order is released. Further, Rule 19.1 provides that costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

61I decline to order costs against the respondent. Applicant’s counsel did not specify an amount or reference what provision in any order was not complied with and what the impact was on the applicant. I also decline to order costs against the applicant. This issue was only brought to my attention in closing submissions. Also, with respect to respondent’s counsel argument that the applicant did not act in good faith by refusing to call certain witness, I rectified any prejudice by allowing the respondent to call Dr. Paton and was prepared to hear submissions regarding allowing them to call M.Y.’s husband. In any event, cost awards under Rule 19 are not designed to compensate parties for suffering an inconvenience or for the cost of their involvement in a proceeding

62I decline to order costs for either party.

CONCLUSION

63For the reasons outlined above, I find the applicant is not entitled to any of the benefits in dispute or interest. The application is dismissed.

64Neither party is entitled to costs.

65The respondent’s motion to exclude evidence is dismissed.

Footnotes

1. 1See Motor Vehicle Collision Report estimating damage at $2,000.00-$4,000.00 at Tab 1, Exhibit #1.
2. 2The parties agreed at the hearing that only post 104 IRBs are in dispute and not any pre-104 IRBs even though the accident occurred on February 26, 2015, so technically, by my calculation, it appears there is a very short period of pre-104 (from Feb 16 to Feb 26/17) IRB eligibility then a longer period of post-104 (from Feb 26/17 onward). Applicant’s counsel made it clear that M.Y. is only advancing a claim for post 104 IRB and I did not need to address or consider any pre 104 eligibility. For this reason, I have changed the issue to read for the period of “February 26, 2017” ongoing (as opposed to “February 16, 2017” as was in the Order).
3. 3This issue was raised during the hearing during final submissions.
4. 4The first relief item of relief in the motion requesting that Dr. Paton not be permitted to give evidence as an ‘expert” was withdrawn as the respondent decided not to call Dr. Paton at the hearing despite being summons.
5. 5Respondent’s case law was due July 26, 2019 and Applicant’s due July 31, 2019
6. 6A third day was scheduled but not required.
7. 7S. 5(2) of the Schedule.
8. 8Memorandum of Law re: Post-104 IRB and attached case law.
9. 9The material contribution test requires the applicant to prove that the motor vehicle accident materially contributed to the impairment which causes the complaint she puts forward as the basis for her IRB claim.
10. 10See Sabadash v. State Farm et al. 2019 ONSC 1121.
11. 11For example, see Dr. Rees Lewis’s Psychological Report dated February 26, 2019, at page 7 that the applicant has suffered a psychological impairment comprised of difficulties adjusting to her post-accident physical injuries. Dr. Rees Lewis diagnosed her with Adjustment Disorder with mixed Anxiety and Depressive Reaction.
12. 12See Job Site Evaluation Report of Danny Monck dated November 22, 2016 at page 3 of 19.
13. 13Tab 68, Document Brief, Psychological Report, page 8.
14. 14See Disability Certificate (OCF-3) dated March 6, 2015.
15. 15Exhibit # 2, Supplementary Brief, tab 5.
16. 16Exhibit #1, Tab 57, page 263 and 267.
17. 17Exhibit # 2, Supplementary Brief, tab 5.
18. 18Exhibit # 2, Supplementary Brief, tab 8.
19. 19Supplementary Brief, tab 3.
20. 20Exhibit # 2, Supplementary Brief, tab 1.
21. 21See Letter dated January 3, 2013, Supplementary Brief, tab 25.
22. 22See Exhibit # 4, letter dated March 18, 2019.
23. 23Exhibit #2, Supplementary Brief, tab 15.
24. 24See Exhibit #2, Supplementary Brief, tabs 15-18.
25. 25Exhibit # 1, Joint Document Brief, Volume #3, tab 88.
26. 26See Order dated June 20, 2019.
27. 27Patterson v Canadian EMU, 2016 ONSC 6744 at para. 52.
28. 28See Rule 3.1.