J.C. v. Aviva Insurance Canada, 2019 CanLII 72199

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:

J.C.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: LINDSAY LAKE

APPEARANCES:

For the Appellant: J.C. Sharon Mackay, Counsel

For the Respondent: Tara Bull, Litigation Specialist Cara Boddy, Counsel Marcin Panasewicz, Counsel

Court Reporter: Cindy Harriman

HEARD In person on: February 26, 2019 in St. Catharines, Ontario and in Writing

OVERVIEW

1The applicant, J.C., a single parent of three daughters, was injured as a passenger in an automobile accident on August 23, 2016 (the “accident”). J.C. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Aviva Insurance Canada (“Aviva”), which denied J.C.’s claim for a non-earner benefit. As a result, J.C. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”).

2The matter proceeded to a combination hearing with the in-person portion heard on February 26, 2019, in St. Catharines, Ontario, and the written portion of the hearing, excluding arguments on the issue of costs, submitted in advance of the in-person portion. Closing written submissions on costs were ordered following the end of the in-person portion of the hearing in accordance with Rule 19.3 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”).

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is J.C. entitled to a weekly non-earner benefit (NEB) in the amount of $185.00, for the period of August 23, 2017 to date and ongoing, which denied by Aviva on April 16, 2018?

(ii) Is J.C. entitled to interest on any overdue payment of benefits?

(iii) Is J.C. entitled to recover the costs of this proceeding because Aviva acted unreasonably, frivolously, vexatiously or in bad faith?

RESULT

4Based on the evidence before me, I find that:

(i) J.C. is not entitled to NEBs for the period of August 23, 2017 to date and ongoing;

(ii) There is no interest owed as there are no overdue payment of benefits; and

(iii) J.C. is not entitled to his costs of this proceeding.

ANALYSIS

Non-Earner Benefits (NEBs)

5I find that J.C. has not proven on a balance of probabilities that he is entitled to NEBs for the period of August 23, 2017 to date and ongoing.

6The test for entitlement to a NEB is set out in section 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

7Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

8“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”¹

9Both parties cited Heath v. Economical Mutual Insurance Company,² wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.³

10Heath also outlines several principles for the determination of entitlement to NEBs, which include:

(i) there must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

(ii) the applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

(iii) all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

(iv) the applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

(v) “engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

(vi) if pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.⁴

11Further, the Tribunal has held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less he or she is able to dedicate to the same activity post-accident to discharge his or her burden of proving that he or she is prevented from engaging in “substantially all” of the pre-accident activities in which he or she ordinarily engaged.⁵

a) Reasonable Time Period

12The court in Heath did not state what the reasonable time period was to examine a claimant’s pre-accident activities. In this case, neither party made submissions on this issue. I find that examining the period of time from approximately 1 year prior to the accident up until July 2016, as well as the period of time from July 2016 to the date of the accident as a reasonable period of time in this case to assess J.C.’s pre-accident activities because it encompasses two very distinct periods of time in J.C.’s pre-accident life.

b) Activities Important to J.C.

13J.C. testified that the following were important activities to him: 1) reading to his daughters; 2) maintaining his family home; 3) riding his bicycle; 4) collecting scrap metal; and 5) watching movies. Of these five activities, J.C. did not testify which were of greater importance to him. As such, I placed equal weight on all of these activities in conducting my assessment.

c) Pre-accident activities from August 2015 to July 2016

14J.C. testified that from October 2015 up until approximately July 2016, his three daughters, aged 8, 5 and 4, lived with him. J.C. testified that during this time he was responsible for getting his daughters ready for school, which included getting them dressed, making their lunches and preparing breakfast. J.C. testified that he walked his daughters to and from school and enjoyed playing in the park with them every weekend and a couple of times per week. He also enjoyed the following activities with his daughters: playing tag; giving them piggy-back rides; walking; and tobogganing with them. J.C. testified that he attended the library with his daughters once or twice per week and would read to his daughters daily or every other day.

15During this period of time, J.C. collected Ontario Works and worked odd or casual dry-walling/construction jobs doing mudding and taping. J.C. also testified that he would spend approximately 9 to 10 hours per week collecting scrap metal which also was a source of income for him. On cross-examination, J.C. confirmed that he had no documentation to show the amount of money he made from mudding and taping, or from collecting scrap metal, or the number of hours that he worked doing either of these activities. Aviva called into question J.C.’s claim of working prior to the accident and noted that on his application for accident benefits (OCF-1), J.C. indicated that he was “unemployed” at the time of the accident. J.C. also reported to one of his treating physicians that he was not working outside of the home in March 2016.⁶

16J.C. has not had a driver’s licence since he was 18 years old. His main mode of transportation was by bicycle and his secondary mode of transportation was walking. J.C. testified that he would cycle every day prior to the accident both on his own and with his daughters after school. He was also able to walk for hours on a daily basis.

17J.C. testified that prior to the accident, he watched approximately 20 hours per week or more of movies. J.C. also slept approximately 8 hours a night, he required no medications to sleep and that he had no difficulties falling asleep prior to the accident. J.C. also testified that he cleaned the family home for approximately 8 hours per week prior to the accident.

d) Pre-accident activities from July 2016 to August 23, 2016

18Approximately one month prior to the accident, J.C. testified that his daughters were removed from his care by the local Children’s Aid Society (CAS). I found J.C.’s testimony about the timing of the removal of his daughters by CAS to be confusing and not altogether clear. What was clear from his testimony was that this was a time of instability for J.C., as he was having personal struggles and described himself as “doing his own thing” and “shutting down.”

19Very little evidence was adduced about J.C.’s activities of daily living for this period of time. J.C. did confirm that approximately one month prior to the accident he was not working in his mudding and taping position.

e) Post-accident activities

20J.C. testified that his daughters returned to live with him in September 2017 – one year later. At this time, J.C. resumed waking his daughters up for school, preparing their breakfast, lunch and dinner and assisted with their personal care. J.C. testified that he struggled with food preparation, burning food and setting off the smoke detector, as he would forget food cooking on the stove as a result of his memory issues. As a result, J.C. remains in the kitchen while cooking.

21J.C. testified that he did not attend the library within the first year after the accident and only recently returned to travelling to the library with his daughters. J.C. testified that he reads less to his daughters since the accident, only once or twice per week, because it was too hard to stay focused as he gets “sidetracked.” J.C. also testified that he attends the park less often with his daughters, only approximately twice on the weekends, because he cannot stand for long periods of time and has difficulties pushing his daughters on the swings as it aggravates his back.

22J.C. testified that he was unable to return to his mudding and taping work due to the injuries he sustained in the accident. He described an incident where he almost fell off a ladder due to his balance issues while undertaking this work. He also attempted to collect scrap metal, but he could not stay focused on it and confirmed that he was not collecting scrap metal at the time of the hearing.

23J.C.’s primary modes of transportation are walking and public transit, as he is no longer able to ride a bicycle due to his balance issues. He testified that he attempted to ride his bicycle but fell off of it and eventually sold it. J.C. confirmed on cross-examination, however, he was not medically restricted from riding a bicycle.

24J.C. testified that he is only able to watch approximately 4 hours of movies per week due to lack of attention. J.C. testified that he is unable to sleep for more than 3 to 5 hours per night because of pain and uses prescription medication on a daily basis to facilitate sleep. J.C. also testified that he was not able to maintain the cleanliness of his home at the same level that he did prior to the accident and it would take him days to complete housework due to exhaustion. He testified that he was only able to clean approximately 2 to 3 hours per week.

f) Is J.C. entitled to NEBs?

25In making my determination on whether or not J.C. suffers from a complete inability to carry on a normal life as a result of the accident, I am placing no weight on his casual activity of mudding and taping. Despite J.C. confirming that he is unable to mud and tape drywall post-accident, J.C. failed to provide clear evidence of the amount of time that he engaged in this activity pre-accident such that a comparison as to the frequency and time commitment to this activity could be made.

26I placed little to no weight on the documentary evidence submitted by J.C. for the following reasons:

(i) The August 4, 2017 OCF-3 submitted is not sufficient evidence on its own to demonstrate J.C.’s entitlement to NEBs;

(ii) Several medical reports submitted by J.C. fail to compare J.C.’s pre- and post-accident activities;

(iii) J.C. failed to submit clinical notes and records (“CNRs”) from his family physician, Dr. M.Z., that covered any time prior to the accident, which would have assisted in comparing his pre- and post-accident life; and

(iv) The July 27, 2017 occupational therapy functional assessment report by Alicia Kraft did provide a pre- and post-accident comparison of several areas of J.C.’s life but it was extremely limited regarding the frequency of J.C.’s pre- and post-accident activities.

27While I do not dispute Aviva’s submission that none of the insurer examination reports that were encompassed in the April 6, 2018 multidisciplinary assessment report⁷ reported that J.C. suffered from a complete inability to carry on a normal life, I place little weight on these individual reports because:

(i) They generally focused on J.C.’s pre-accident activity of drywall mudding and taping and made no further comparisons of J.C.’s pre- and post-accident activities;

(ii) They questioned the validity of the results of the tests based on such factors such as unscorable or incomplete responses in questionnaires administered to J.C. as part of the assessments. However, no information was provided as to how the questionnaires were administered and if assistance was available to J.C. if he required it to allow him to fully respond to the questions; and

(iii) The only report that canvassed J.C.’s essential/most important pre-accident activities of daily living was the occupational therapy in-home assessment by Robert Tyndall. This assessment, however, was based on a modified home assessment and, as such, “there were no cleaning tools available to use to simulate cleaning tasks.”⁸ This report also failed to compare J.C.’s abilities in several areas, including his ability to play with his children (as opposed to his ability to care for his children) post-accident.

28As I have placed little to no weight on the documentary evidence submitted by both J.C. and Aviva, the determination of J.C.’s entitlement to NEBs rests exclusively on his testimony.

29Aviva relied upon 17-003731 v Aviva Insurance Canada⁹ for the proposition that an applicant requires, “objective supporting evidence to corroborate [the applicant’s] self-reports” in order to prove entitlement to NEBs. This passage, however, relates to an applicant relying upon a “ticked box” on an OCF-3 for her entitlement to NEBs. As I have stated previously, I agree that more than an OCF-3 is required to demonstrate entitlement to NEBs. I do not accept this passage to stand for the proposition that an applicant’s testimony should be discounted or outright dismissed in determining NEBs if there is no other reliable objective supporting evidence available.

30In this matter, J.C. was consistent in his testimony and was very candid about his interaction with CAS and the period of his instability prior to the accident. Although he became somewhat evasive during cross-examination, Aviva’s Counsel was approaching the witness table to assist J.C. in page turning of the document briefs. As a result of the page-turning coupled with questions about J.C.’s alcohol use, it was reasonable for J.C. to be somewhat evasive. Further, J.C. testified that when he does not understand, he becomes frustrated but that this is not his intention. It is important that when an applicant’s credibility is being determined, that the entire picture is taken into consideration. I find that J.C. testified in a straightforward manner about difficult subject matters and I accept the totality of his evidence as credible and reliable.

31Although J.C. only identified reading to his daughters as an activity that was important to him, it is clear from his testimony that caring for his daughters generally and participating in other activities with them was also equally important to J.C. I also accept that up until J.C.’s period of instability the month prior to the accident, J.C. had no difficulty caring for his daughters. The difficulty in this case arises because from September 2017 and onward, J.C. is still able to engage in most of his parental activities. J.C. even confirmed in cross-examination that he was capable of supervising his daughters and providing them with the necessities of life.

32Heath, however, says that even if J.C. can still perform an activity, if he experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity. I must also determine if pain is the primary reason that J.C. cannot engage in his former activities, as the question is whether the degree of pain practically prevents him from engaging in these activities.

33I find that J.C.’s post-accident activities with his daughters from September 2017 and onward are not so significantly restricted compared to his pre-accident activities (prior to the period of his instability) that it can be said that post-accident, J.C. is unable to “engage in” most of his pre-accident activities with his daughters. JC testified that he is able to complete meal preparation, although he is required to monitor the stove, he resumed attending the library with his daughters and reads to them, but less frequently. He also attends the park with his daughters but also less frequently. I also find that pain did not prevent J.C. from engaging in these activities, as his complaints were primarily regarding his inability to focus and his inattention in completing tasks.

34I also find that J.C.’s post-accident activities of cleaning the family home, collecting scrap metal and watching movies are not so significantly restricted compared to his pre-accident engagement in these activities that it can be said that post-accident, J.C. is unable to “engage in” these activities. J.C. reports a lower level of ability to clean his home when compared to his pre-accident level. J.C. also reports not collecting scrap metal any longer and a reduction in movie watching. While there has been a reduction in these activities, J.C. again reported problems with focus and attention, as opposed to pain, being the primary factors for the change in the amount of time/frequency that he is engaged in these activities.

35Finally, I accept that there is a significant difference between J.C.’s pre- and post-accident activities in terms of his modes of transportation. He testified that he has been unable to cycle post-accident due to balance issues. The inability to ride his bicycle post-accident, however, was only one area of importance to J.C. and, therefore, when equal weight is placed on this activity and the remaining 4 activities of importance, I find it is not enough to establish on a balance of probabilities J.C.’s entitlement to NEBs.

36Based on the evidence before me, I find that J.C. does not suffer from a complete inability to carry on a normal life as a result of the accident from August 23, 2017 to date and ongoing and, as a result, is not entitled to NEBs during this period.

Interest

37As there is no overdue benefits owing, interest is not payable pursuant to section 51(2) of the Schedule.

Costs

38I find that J.C. has failed to prove on a balance of probabilities that Aviva acted Aviva acted unreasonably, vexatiously, frivolously or in bad faith in these proceedings and, therefore, J.C. is not entitled his to costs of the proceedings.

39Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

40J.C. argues that he is entitled to the costs of this proceeding because questions put to him referenced evidence over a decade old, focused on his alcohol use, and were put to him to purposefully agitate him. J.C. also noted that Counsel repeatedly approached him to reference excerpts in the document briefs, which appeared to annoy J.C. and cause him “visible upset.”

41A question regarding evidence from 2011, some 5 years prior to the accident, was objected to and not permitted to be put to J.C. I find the questions put to J.C. regarding his alcohol use were limited, and did not rise to unreasonable, frivolous or vexatious actions by Aviva and did not interfere with a fair, efficient and effective hearing.

42Although Counsel’s repeated approaching of J.C. during his testimony came across as somewhat patronizing, I do not accept that it was done in bad faith. Further, I was the one to ask respondent Counsel to refrain from approaching J.C. and Counsel immediately adhered to my request. I note that J.C.’s Counsel at no time objected to the action and raised the concern for the first time in its request for costs.

43For the reasons above, I find that J.C. has failed to prove on a balance of probabilities that Aviva acted unreasonably, vexatiously, frivolously or in bad faith in these proceedings and, therefore, J.C. is not entitled to costs.

CONCLUSION

44For the reasons outlined above, I find:

(i) J.C. does not suffer from a complete inability to carry on a normal life as a result of the accident from August 23, 2017 to date and ongoing and, as a result, is not entitled to NEBs during this period;

(ii) J.C. is not entitled to interest as there are no benefits owing; and

(iii) J.C. has failed to prove on a balance of probabilities that Aviva acted unreasonably, vexatiously, frivolously or in bad faith in these proceedings and, therefore, J.C. is not entitled his to costs of the proceedings.

Footnotes

1. 116-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
2. 22009 ONCA 391 (“Heath”).
3. 3Ibid. at para. 50.
4. 4Ibid.
5. 516-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
6. 6Consultation Note by Dr. R.D.B. dated March 22, 2016, Written Submissions of the Respondent, tab F.
7. 7Written Submissions of the Respondent, tab B.
8. 8Ibid. at page 65.
9. 92018 CanLII 81898 (ON LAT) at para. 14.