Reyes v. Northbridge General Insurance Company, 2020 CanLII 122072

Citation: Reyes v. Northbridge Insurance Company, 2021 ONLAT 20-001487/AABS

Released Date: 10/13/2021

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:

Jillian Reyes

Applicant

and

Northbridge General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Dinesh Shan, Paralegal

For the Respondent:

Jennifer McGlashan, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Jillian Reyes, was injured in an automobile accident on July 27, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Northbridge General Insurance Company, the respondent.

2The respondent denied the applicant’s claim for income replacement benefits (IRBs) and payment for an accountant’s report. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on June 30, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is the applicant entitled to IRBs of $400.00 per week from January 14, 2020 to date and ongoing?

(ii) Is the applicant entitled to $2,850.00 for payment for the completion of the October 5, 2019 IRB Accounting Report by S&T Accounting (the October 5, 2019 accounting report)?

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

PRELIMINARY ISSUE – Exclusion of Surveillance VIDEO

5In reply, the applicant requested that the surveillance video be excluded from evidence at the hearing. The applicant submitted that it never received a copy of the surveillance video until it was received as part of the respondent’s hearing submissions. The applicant submits that production of the surveillance video with the respondent’s hearing evidence breached the Tribunal’s June 30, 2020 Case Conference Report and Order where the parties were ordered to disclose any other documents that had not been exchanged but that the parties intended to rely upon at the hearing by November 20, 2020.

6I find that I do not need to determine whether the surveillance video is excluded from the hearing record because it did not factor into any of my decisions on the issues in dispute.

RESULT

7I find that the applicant is not entitled to IRBs for the period of January 14, 2020 to date and ongoing, the applicant is not entitled to payment for the October 5, 2019 accounting report, no interest is payable, and the application is dismissed.

ANALYSIS

Income Replacement Benefits

8The applicant is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.

9For the reasons that follow, I find that the applicant is not entitled to IRBs for the period of January 14, 2020 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (January 14, 2020 to July 27, 2021)

10The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident.

11I find that the applicant has failed to meet her burden of proving on a balance of probabilities that she is entitled to IRBs for the period from January 14, 2020 to July 27, 2021.

12The only submissions offered by the applicant to support her entitlement to IRBs was that she “suffers from many physical and mental injuries as a result of the accident and it has substantially limited the Applicant.”³ The only medical documentation submitted by the applicant for the hearing, however, were clinical notes and records (CNRs) of the Dr. Ekhtiari Pain Clinic. These CNRs are largely illegible for the applicant’s visits during the period in dispute.

13The respondent provided a July 30, 2019 Disability Certificate (OCF-3) completed by Dr. Ardeshir Ekhtian, chiropractor. This OCF-3 indicated that the applicant was substantially unable to perform the essential tasks of her pre-accident employment because of the accident. It is well settled that an OCF-3 alone, however, is not sufficient evidence to meet the applicant’s burden of proving entitlement to IRBs. Further, the estimated duration of disability was listed as 9 to 12 weeks, which would have expired before the period in dispute.

14In her hearing submissions, the applicant stated that the respondent did not deny IRBs based on whether the applicant met the test for entitlement but rather IRB payments were denied based on the respondent’s accounting firm requiring more documents. While this appears to be correct from the Explanation of Benefits (OCF-9s) before me, the issue of whether or not the applicant met the entitlement test for IRBs was clearly set out as an issue in dispute in the Tribunal’s June 30, 2020 Case Conference Report and Order. Moreover, the applicant did not address the issue of entitlement in reply when the question of entitlement was raised by the respondent in its submissions.

15On the evidence before me, I find that the applicant has failed to meet her burden of proving on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment and, as a result, is not entitled to IRBs for the period of January 14, 2020 to July 27, 2021.

Entitlement to IRBs beyond 104 weeks of the accident (July 27, 2021 to date and ongoing)

16I find that the applicant is not eligible for IRBs for the period of July 27, 2021 to date and ongoing because she did not prove entitlement to IRBs within 104 weeks of the accident (i.e. from January 14, 2020 to July 27, 2021).⁴

17Even if I am incorrect that one’s entitlement to an IRB in the post-104 period is predicated on their eligibility for an IRB in the 104-week period before, I find that the applicant has not proven entitlement to IRBs from July 27, 2021 to date and ongoing on a balance of probabilities.

18To be eligible to receive IRBs 104 weeks post-accident, 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.⁵

19The applicant provided no evidence that she would meet the stricter post-104-week IRB eligibility test based on her education, training, or experience. In the transcript of the Examination Under Oath (EUO) of the applicant dated July 27, 2020, submitted by the respondent, the applicant testified that she obtained a diploma from Seneca College as a law clerk but that she never worked as a law clerk. The applicant confirmed in this EUO that she had no other paid employment experience as she was a stay-at-home mother. I have no other evidence before me beyond the applicant’s self-reports in the EUO of her inability to work from July 27, 2021 and ongoing in any other employment, considering her education as a law clerk. The applicant’s self-reports alone are not enough to discharge her burden of proving entitlement to IRBs in the period of 104-week post-accident.

20Therefore, in the alternative, I find that the applicant has failed to prove on a balance of probabilities that she is entitled to IRBs for the period from July 27, 2021 to date and ongoing.

The October 5, 2019 Accounting Report

21The applicant relied upon s. 7(4) of the Schedule to support her claim for payment for the October 5, 2019 accounting report.⁶

22Section 7(4) of the Schedule obligates an insurer to cover the cost of a report prepared for the purpose of calculating an insured person’s income if they are applying for an IRB based on employment or self-employment. The report must be prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004⁷ and be reasonable and necessary for the purpose of determining the insured person’s entitlement to an IRB. I find that the applicant’s claim for payment fails on the third prong of this test.

23Section 4 of the Schedule sets out how to determine an insured person’s pre-accident gross employment income for the purpose of calculating IRBs.

24It is undisputed that at the time of the accident, the applicant was self-employed. As such, s. 4(3) applies to the applicant’s claim as she only based her claim for IRBs on her income from self-employment.

25Section 4(3) provides that IRBs are calculated on income from the most recent completed taxation year. It also provides that the weekly income (or loss) from self-employment is 1/52 of the amount of the insured’s income (or loss) for the last completed taxation year.

26Section 7(2) sets out the methodology of calculating weekly base amount as 70% of the pre-accident gross weekly employment income and weekly self-employment income less the pre-accident weekly losses from self-employment.

27The weekly amount of IRBs payable is then calculated as, pursuant to s. 7(1), the lesser of the weekly base amount, as calculated under s. 7(2), minus and any “other income replacement benefit assistance,” or $400.00.

28I find that the proposed weekly IRB amount as set out in the October 5, 2019 accounting report of $400.00 (based on a weekly base amount of $479.18)⁸ is incorrectly calculated. The October 5, 2019 accounting report calculated the applicant’s weekly base amount of IRBs based on the applicant’s income from the 52 weeks prior to the accident,⁹ and not on the applicant’s income from the 2018 taxation year. I find that this was an error as the 2018 taxation year was the most recent completed taxation year prior to the accident, as required by s. 4(3) of the Schedule.

29I agree with the respondent that the applicant’s income as reported to the Canada Revenue Agency for the 2018 taxation year was $0.00.¹⁰

30Therefore, I find that the applicant is not entitled to payment for the October 5, 2019 accounting report as it was not reasonable and necessary because:

(i) The October 5, 2019 accounting report incorrectly calculated a weekly IRB amount that was not in accordance with s. 4(3) of the Schedule;

(ii) The quantum of IRBs payable would be $0.00 based on the applicant’s income in the last taxation year had the applicant been entitled to IRBs, which I have found she is not; and

(iii) The October 5, 2019 accounting report was not needed to determine the quantum of IRBs payable had the applicant established entitlement.

Interest

31As there are no benefits owing, no interest is payable.

CONCLUSION

32For the reasons outlined above, I find that:

(i) The applicant is not entitled to IRBs from January 14, 2020 to date and ongoing;

(ii) The applicant is not entitled to payment for the October 5, 2019 accounting report;

(iii) No interest is payable; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The issue of whether the respondent was liable to pay an award under Regulation 664 was listed in the Tribunal’s June 30, 2020 Case Conference Report and Order. However, as neither party provided submissions on this issue, I accept that it is no longer in dispute and does not require a determination by the Tribunal.
3. 3Applicant’s Written Hearing Submissions, para. 8.
4. 4See the Ontario Court of Appeal Decision in Wadhwani v. State Farm Mutual Automobile Insurance Company, 2013 ONCA 662 at paras. 12-13.
5. 5Schedule, s. 6(2)(b).
6. 6Applicant’s Document Brief, tab 2.
7. 7S.O. 2004, c. 8.
8. 8Supra note 6 at page 3.
9. 9Ibid. at page 10.
10. 10Ibid. at Appendix A “Supporting Documentation,” Canada Revenue Agency Notice of Assessment for the 2018 taxation year.