Citation: Mais vs. Aviva Insurance Canada, 2020 ONLAT 19-008068/AABS
Released Date: 12/02/2020
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:
Simon Mais
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam
APPEARANCES:
For the Applicant: Pasquale Maiolo – Did not Attend Paralegal
For the Respondent: Kelvin Brown Counsel
HEARD by Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1Simon Mais (the “applicant”) was involved in a motor vehicle accident on July 14, 2017 (the “accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). 1
2The applicant was denied non-earner benefits (“NEB”) by Aviva Insurance Canada (the “respondent”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
PRELIMINARY ISSUE – RESPONDENT’S MOTION TO DISMISS THE APPLICATION
3On June 10, 2020 the respondent served a motion on the applicant’s legal representative for an Order dismissing the applicant’s application as abandoned. The grounds for the motion are that the applicant did not produce certain documents by February 7, 2020 as required by the Tribunal’s December 4, 2019 case conference Order (“Order”), the applicant did not serve and file written submissions for this hearing by May 25, 2020 as required by the Order and because there are no submissions for this hearing from the applicant, the respondent is unable to file written submissions in response.
4On June 11, 2020 both the applicant and the respondent were notified by the Tribunal that the respondent’s motion would be heard at this written hearing and the applicant may serve any submissions and materials it intends to rely on to the other party and with the Tribunal on or before June 22, 2020.
5The applicant did not file any material in response to the respondent’s motion. The motion is before me at this hearing.
6The respondent’s motion is dismissed. Although the grounds for the motion are set out in the respondent’s Notice of Motion, the evidence filed in support of the motion is not relevant to this hearing but instead involves another applicant in another Tribunal file. As a result, the respondent has not established its grounds for the motion. I will proceed with the hearing.
ISSUES
7The issues to be decided in this hearing are:
i. Is the applicant entitled to receive NEB in the amount of $185.00 per week for the period of July 14, 2016 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
8I find that the applicant has not proven his entitlement to NEB. There is no interest. No award made. The applicant’s application is dismissed.
LAW
9Section 12 of the Schedule requires an insurer to pay NEB to an insured person who does not qualify for an income replacement benefit and who suffers from “a complete inability to carry on a normal life” as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.
10Section 3(7)(a) further provides that a person suffers a “complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
11The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.
12The Ontario Court of Appeal2 set out the approach to determining whether an insured has satisfied the s. 3(7) test:
There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.
The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period of time prior to the accident. The duration will depend on the facts of the case.
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.
The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
“Engaging in” should be interpreted from a qualitative perspective. 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 the activity.
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.
ANALYSIS
Is The Applicant Entitled to NEB?
13The applicant did not file any written submissions or evidence for this written hearing. In accordance with the Order, the applicant had until March 25, 2020 to do so. The Order was made on consent of both parties.
14I find that the applicant has not discharged his burden to establish that he suffers from a complete inability to carry on a normal life as a result of the accident and as a result is not entitled to NEB for the period claimed.
Interest
15As there is no benefit payable, there is no interest.
Award
16Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. There is no payment owing and as a result, no payment was unreasonably withheld or delayed. No award is made.
ORDER
17For the reasons outlined above, I find that the applicant has not proven his entitlement to NEB. There is no interest. No award made. The application is dismissed.
Released: December 2, 2020
Avril A. Farlam, Vice Chair
Footnotes
- O. Reg. 34/10.
- Heath v. McLeod, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.