M.O. v. BelairDirect, 2021 CanLII 11867

Citation: M.O. vs. BelairDirect, 2021 ONLAT 19-004223/AABS

Released: January 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:

[M.O.]

Applicant

and

BelairDirect

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Monica Chakravarti, Adjudicator

APPEARANCES:

For the Applicant:

Kevan Wylie, Counsel

For the Respondent:

Darrell March, Counsel

Heard by way of teleconference and in writing

OVERVIEW

1The applicant, Mr. O. was involved in a motor vehicle accident on November 28, 2017. Mr. O. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) from the respondent, BelairDirect (“Belair”).

2Mr. O then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) to determine his entitlement to a non-earner benefit (“NEB”), and his entitlement to the costs of physiotherapy services and a chronic pain assessment, as well as the threshold issue of whether Mr. O’s injuries are minor as defined in the Schedule. Mr. O also sought an award under O.Reg 664.

3In response to Mr. O’s application to the Tribunal, Belair raised preliminary issues. Belair submitted that Mr. O is barred from proceeding with his appeal because he did not attend the scheduled insurer examination (“IE”) with Dr. Kopyto as required pursuant to section 44 of the Schedule and that Mr. O failed to attend and fully participate in the proceedings before the Tribunal.

4A preliminary issue hearing was ordered by way of the Tribunal’s Order of February 10, 2020 consisting of written submissions along with a teleconference hearing for the cross examination of any affiants. An affidavit from Belair’s representative was provided and that affiant was cross examined. No other affidavits were tendered as evidence in this hearing.

5The respondent served their written submissions first. The applicant then provided his responding written submissions. In the responding written submissions for this hearing, Mr. O withdrew his claim for the physiotherapy services and the costs of the assessment (and with it the threshold issue of “minor” injuries) leaving only a claim for entitlement to the NEB and the award as the substantive issues in dispute.

6Therefore, I am to determine the preliminary issue of whether Mr. O can proceed with his application for NEBs. Further in response to the withdrawal of the claims (via the written submissions of Mr. O and not sooner), Belair has asked that I consider costs payable to Belair.

PRELIMINARY ISSUE

7The preliminary issues to be decided are:

a. Pursuant to section 55(1) paragraph 2 of the Schedule is the applicant barred from proceeding to a hearing for NEBs because the applicant failed to attend an insurer’s examination pursuant to section 44 of the Schedule?

b. Should the Tribunal dismiss the appeal without a hearing because the appellant failed to participate and attend the proceedings?

c. Is the respondent entitled to costs?

RESULT ON THE PRELIMINARY ISSUE:

8I find that:

a. Mr. O. is non-compliant with section 44 of the Schedule and therefore Mr. O is barred from proceeding with his claim for NEB. I am not prepared to exercise my discretion under s. 55(2) of the Schedule to allow Mr. O to apply to the Tribunal regarding his entitlement for NEBs despite his non- compliance with section 44 of the Schedule. Therefore, Mr. O’s claim for NEBs is dismissed, as is his claim for an award with respect to NEBs.

b. Belair is not entitled to costs of the proceeding.

PROCEDURAL ISSUE

9Mr. O submits that I do not consider a portion of Belair’s written submissions and submits that Belair’s submissions are in excess of the ten pages that were allowed pursuant to the Tribunal’s Order of February 10, 2020. I find that Belair’s submissions are ten pages in length and will be considered in their entirety. The submissions begin on what is labelled page 3 but includes the title of proceedings, the actual submissions however total ten pages in length and will be considered in their entirety

ANALYSIS

10Under section 44(1) of the Schedule, an insurer has the right to require an insured person to attend IEs with a regulated health professional of its choice in order for the insurer to determine the initial or continuing entitlement to benefits.

11Section 44(9)2(iii) of the Schedule states that “if the attendance of the insured person is required, the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.

12On March 4, 2019 in response to a disability certificate received February 8, 2019, Belair advised Mr. O that they require an assessment by a health practitioner and an occupational therapist (OT) to determine eligibility for NEB.

13The assessment by the OT was an in-home assessment and was completed at Mr. O’s home on March 18, 2019. The other I.E. was scheduled for the next day March 19, 2019 with Dr. Kopyto, the medical practitioner. Mr. O failed to attend the I.E. with Dr. Kopyto. Mr. O submits that he did not attend due to inadvertence and it was non-intentional. No further explanation was provided, and no direct evidence was provided from Mr. O.

14Belair rescheduled the I.E. with Dr Kopyto for May 7, 2019 and Mr. O did not attend for a second time. Mr. O submits that he did not attend due to inadvertence and it was non-intentional. Again, there is no direct evidence from Mr. O on the non-attendance of the I.E. just the submission by his counsel of inadvertence and non-intention.

15Mr. O admits that he failed to attend the I.E.s scheduled for March 19, 2019 and rescheduled (due to his non-attendance) for May 7, 2019 with Dr. Kopyto and therefore I make the same finding. I further find that Mr. O has failed to prove on a balance of probabilities that he had a reasonable explanation for his non-attendance of the I.E.s scheduled for March 19, 2019 and rescheduled for May 7, 2019.

16However, Mr. O submits he should not be barred from proceeding despite the non-attendance at the I.E. for the below reasons:

17Firstly, Mr. O submits that the I.E. with Dr. Kopyto was not reasonably necessary because Belair had the in-home OT assessment with respect to NEB, Belair had a psychological assessment (not with respect to NEB) and Belair had a further psychological assessment which was a paper review with respect to NEB.

18Secondly, Mr. O submits that the purpose of the I.E. with Dr. Kopyto was simply to buttress Belair’s position on NEB.

19Lastly, Mr. O submits that there is no prejudice to Belair by his non-attendance at the I.E.

20I do not agree with the submissions of Mr. O and find that Mr. O was in breach of section 44 of the Schedule and his application should be barred for the reasons noted below.

21Firstly, there is no dispute that Mr. O did not attend the I.E. with Dr. Kopyto. In other words, Mr. O was given two chances to attend and he failed on both. This is enough for a finding that Mr. O was in breach of section 44 and that pursuant to section 55 he is barred from proceeding at the Tribunal with his claim for NEB.

22Secondly, I am not persuaded by Mr. O’s submission that the I.E. with Dr. Kopyto was merely to buttress Belair’s position because, at the time of the filing of the application with the Tribunal, Belair had not even made a determination of the NEBs.

23Mr. O was aware via correspondence from Belair that Belair needed a medical assessment along with an OT assessment to determine NEB, yet Mr. O did not attend the I.E. He did, however, file an application with the Tribunal on April 6, 2019 before a determination was ever made by Belair, and even before Belair or Mr. O received the results of the in-home assessment. Put simply, Belair did not have a position on the NEBs until the second non-attendance of the I.E. so it cannot be said that Dr. Kopyto’s I.E. was going to be used to buttress a position when the “position” was non-existent.

24With respect to the submission that Belair had enough information and the I.E. with Dr. Kopyto was not reasonably necessary, I find that this argument is untenable. At the time of the request of the I.E. with Dr. Kopyto, Belair had no assessments dealing with NEBs. Mr. O submitted an OCF-3 on February 8, 2019 – over one year following the Accident. At the time of the filing of the application at the Tribunal, Belair had no assessments with respect to NEBs. At the time Mr. O was to attend the rescheduled appointment on May 7, 2019, Belair still had no assessments dealing with NEB. The first assessment with NEBs was conducted on March 18, 2019 (the OT in home assessment), however, the report was not finalized until June 12, 2019. I find that the assessment with Dr. Kopyto was reasonably necessary in light of the above facts, and specifically in light of the fact that Mr. O made a claim for NEB over one year following the Accident and nine months following the close of the accident benefits file by Belair due to inactivity.

25With respect to the lack of prejudice to Belair, Mr. O states that Belair has two section 44 reports dealing with NEB and both reports are “favourable” to Belair. Further, Mr. O submits that Belair had in fact examined him with respect to entitlement to the non-earner benefit issue and did not need this I.E.

26A lack of prejudice to Belair is not enough to excuse Mr. O from his non-compliance with section 44. Mr. O was also told that the purpose of the examination was to address entitlement to NEBs. He was asked to attend the I.E. so that Belair could determine entitlement. At the time this took place, Belair had no reports dealing with NEB. While I am not making a finding on prejudice as one is not warranted, given the evidence as a whole and the fact that Mr. O had no valid reason for his non-compliance, the argument for prejudice could be made as Belair was frustrated in its ability to adjust the NEB entitlement and to respond fully to the Application when it was filed on April 16, 2019.

27Mr. O raises no issues with respect to the notice or the type of assessment. Simply put, Mr. O was afforded two opportunities to attend the I.E assessments and he failed to do so.

Exercise of Discretion and Staying of Proceedings

28Mr. O has asked that I exercise my discretion under section 55(2) of the Schedule and permit his application to continue despite his non-compliance with section 44. Mr. O also asks that I stay the proceeding to allow him to submit to the section 44 examination.

29The evidence persuades me on a balance of probabilities that if the application was stayed, the parties would be in the same position that they are in today in that, Mr. O would not attend the I.E. Mr. O did not attend the case conference that was scheduled for October 3, 2019. I should note that this case conference was scheduled on a date agreeable to Mr. O. Further, Mr. O then did not attend the case conference on November 4, 2019, again, a date chosen by his counsel on his behalf. Mr. O did attend the third case conference of February 19, 2020. In other words, it took two attempts and five months for Mr. O to attend at the proceeding. Further, Mr. O filed no direct evidence from him to assure the Tribunal and Belair that he would in fact attend the I.E. if the matter was stayed.

30As well, Belair points out that the non-attended I.E. was not only with respect to the NEB claim, but it was also with respect to the medical benefits that were withdrawn. Belair submits that the I.E. of Dr. Kopyto was even more necessary because, it would have encompassed an examination from a physical point of view with respect to not only NEBs but the medical rehabilitation issues that were withdrawn. By Mr. O withdrawing the issues in dispute during the submission portion of the hearing, it would appear that Mr. O failed to attend only the I.E.s with Dr. Kopyto dealing with NEBs but, that is not the case.

31Lastly, Mr. O has provided no direct evidence as to why he did not attend the I.E. or the case conferences for that matter. His counsel provided submissions to the Tribunal in the context of the proceedings that Mr. O was out of the country for periods of time, but no evidence has been tendered on this point as Mr. O did not provide an affidavit and was not cross examined on the information. Submissions are not evidence they are submissions only. While the above is not exhaustive when taken as a whole, I am not persuaded that I should exercise my discretion and allow the appeal nor am I persuaded that I should stay the action to allow for the attendance at an I.E.

Participation in the Proceedings

32Belair seeks an Order that the application be barred from proceeding on the basis that Mr. O failed to participate in previous case conferences and the proceeding as whole. As I have already barred Mr. O from proceeding with his application as a result of his non-compliance with section 44 and pursuant to section 55 of the Schedule, I do not need to consider this as the result would either be the same in that Mr. O is barred from proceeding or it would provide an absurd result.

COSTS

33Rule 19.1 of the Tribunal’s Rules provides that a party may make a request to the Tribunal for costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

34Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and the amount of costs. The Tribunal shall consider all relevant factors including:

i. The seriousness of the misconduct;

ii. Whether the conduct was in breach of a direction or order issued by the Tribunal;

iii. Whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process;

iv. Prejudice to other parties; and

v. The potential impact an order for costs would have on individuals accessing the Tribunal system.

35Belair is seeking costs for time and resources thrown away as result of Mr. O’s withdrawal of the issues in this preliminary hearing that were told only to Belair when they received the written responding submissions of the applicant. Further Belair generally seeks its “expenses” in the proceeding.

36While I agree that the last-minute withdrawal of the benefits in dispute is frustrating for Belair, it does not rise to the level that would attract costs and attract a censure. Belair has provided submissions as to why it believes the applicant withdrew the issues at the last minute, however Belair has not provided evidence to show that Mr. O was unreasonable, frivolous, vexatious or acting in bad faith when withdrawing the issues in dispute.

37Further this hearing is with respect to whether the applicant is barred from proceeding with his application. It is not a hearing on the merits of the issues in dispute on the application and whether the applicant is entitled to the benefits in dispute. Therefore, the preliminary issue in dispute was not changed substantially by the withdrawal of the issues in dispute. In other words, the preliminary issue had to be considered regardless of the partial withdrawal.

38Similarly, the withdrawal of the issues in dispute did not frustrate the Tribunal in its ability to carry out a fair, efficient and effective process.

39With respect to Belair’s “expenses” in this proceeding again there is not enough evidence to lead me to believe that the applicant should be paying costs.

40Therefore, based on the above I find that an Order for costs is not warranted

CONCLUSION

41I find that pursuant to section 55 of the Schedule the applicant is barred from proceeding with his claim for non-earner benefits as a result of his non-compliance with section 44 of the Schedule.