O.R. v. Unifund Assurance Company, 2021 CanLII 13001

O.R. vs. Unifund Assurance Company

Citation: O.R. vs. Unifund Assurance Company, 2021 ONLAT 18-012427/AABS

Released Date: 01/20/2021

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:

O.R.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

O.R., Applicant

Aline Avanessy, Counsel

Zoe Mediskos, Paralegal

For the Respondent:

Sally Cacciotti, Adjuster

Paul Omeziri, Counsel

Court Reporter:

Sarah Breretib

HEARD:

In writing and by way of teleconference on October 6, 2020

OVERVIEW

1The applicant, O.R., was injured in an automobile accident on July 5, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Unifund Assurance Company ("Unifund"), the respondent.

2Unifund suspended payment of O.R.'s income replacement benefits ("IRBs") on September 26, 2018 for failing to attend an orthopaedic Insurer's Examination ("IE") assessment. As a result, O.R. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3Case conferences were held in this matter on May 1, 2019, August 23, 2019, October 30, 2019 and June 8, 2020. The matter ultimately proceeded to a combination hearing with a videoconference portion, that was converted to a teleconference, on October 6, 2020 and written submissions submitted both before and after the teleconference portion of the hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is O.R. entitled to IRBs of $400.00 per week from September 27, 2018 to June 2, 2019,² a period during which he failed to comply with a requirement to attend a s. 44 IE assessment?

(ii) Is Unifund liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to O.R.?

(iii) Is O.R. entitled to interest on any overdue payment of benefits?

(iv) Is O.R. entitled to recover his costs of this proceeding because Unifund acted unreasonably, frivolously, vexatiously or in bad faith?

(v) Is Unifund entitled to recover its costs of this proceeding because O.R. acted unreasonably, frivolously, vexatiously or in bad faith?

RESULT

5I find that Unifund is not required to pay IRBs to O.R. for the period of September 27, 2018 to June 2, 2019 when O.R. was non-compliant with s. 44(9) of the Schedule. As a result, no interest is payable and O.R. is not entitled to an award. O.R. is entitled to $250.00 in costs and Unifund's request for costs is denied.

FACTS

6In order for Unifund to assess O.R.'s entitlement to IRBs, O.R. attended the following IE assessments:

(i) A functional abilities assessment on January 19, 2018 with Mr. Danny Monck, kinesiologist;

(ii) A physiatry assessment on January 22, 2018 with Dr. Yuri Marchuk, physiatrist; and

(iii) A psychological assessment on January 30, 2018 with Dr. Howard Waiser, psychologist.

7In his Physiatry Assessment Report dated February 13, 2018,³ Dr. Marchuk recommended, among other things, an MRI of O.R.'s lumbar spine and ultimately concluded that O.R. suffered a substantial inability to perform the essential tasks of his pre-accident employment from a physical perspective.⁴ Based upon Dr. Marchuk's opinion, Unifund accepted that O.R. continued to be entitled to IRBs and notified O.R. on February 28, 2018 that his IRBs would continue to be paid.

8On April 4, 2018, O.R. underwent an independent orthopaedic assessment with Dr. Tajedin Y. Getahun, orthopaedic surgeon. In his April 8, 2018 Independent Orthopaedic Medical Examination report,⁵ Dr. Getahun diagnosed O.R with myofascial strain of the cervical and lumbosacral spine and an annular tear.⁶ Dr. Getahun highlighted a December 3, 2017 MRI of O.R.'s lumbar spine as a document he reviewed as part of his assessment. This MRI report showed an annular rent tear noted in the right paramedian annulus at L5-S1 level with no prominent focal disc protrusion.⁷ In the end, Dr. Getahun opined that O.R. was unable to perform the essential tasks of his pre-accident employment as a result of the nature and severity of his lumbar spine injury.⁸

9On July 7, 2018, O.R. underwent an in-person physiatry IE assessment by Dr. Marchuk to determine the reasonableness and necessity of a proposed treatment plan that is not in dispute. Nonetheless, Dr. Marchuk discussed O.R.'s pre-accident employment noting that it was considered medium desk work that was cognitively demanding and required O.R. to use a computer, problem solve, multitask, concentrate and focus in his Physiatry Assessment Report dated July 20, 2018.⁹ Dr. Marchuk did not provide an opinion in this report regarding O.R.'s entitlement to IRBs but noted that O.R. underwent an MRI in December 2017 which revealed an annular tear.¹⁰ Dr. Marchuk deferred further comment regarding the annular rent tear to the appropriate medical expert as, "according to the Orthopaedic Surgeon on file…the claimant has sustained an annular tear as a result of the index accident."¹¹

10Following "a review of the information and medical documentation provided to date,"¹² Unifund provided notice to O.R. on September 19, 2018 of his required attendance at the following IE assessments to determine his ongoing entitlement to IRBs:

(i) An orthopaedic IE assessment on September 24, 2018 with Dr. Gilbert Yu Ming Yee, orthopaedic surgeon; and

(ii) A functional abilities evaluation on October 4, 2018 with Mr. Monck.

11On September 20, 2018, O.R. responded to Unifund and advised that the proposed IE assessments set out in paragraph [10] were not reasonable or necessary and requested that they be cancelled to avoid any cancellation fees. In this correspondence, O.R. also offered to provide further clinical notes and records ("CNRs") to Unifund although there were no further specifics provided of which CNRs would be produced.

12On September 24, 2018, HVE Healthcare Assessments provided notice to Unifund that O.R. failed to attend the orthopaedic IE assessment that was scheduled for September 24, 2018.¹³

13In correspondence dated September 26, 2018, Unifund notified O.R. that as a result of his failure to attend the scheduled orthopaedic IE assessment with Dr. Yee on September 24, 2018, O.R.'s IRBs were suspended effective September 26, 2018.

14On October 19, 2018, O.R. underwent an independent chronic pain assessment with Dr. Michael Gofeld, physician. In his undated Independent Chronic Pain Assessment report,¹⁴ Dr. Gofeld diagnosed O.R. with chronic cervicogenic headache, cervical facet joint syndrome and chronic low back pain.¹⁵ Dr. Gofeld stated that he disagreed with "the IE report" and added, "the experts ignored a [sic] complex nature of chronic pain and missed the diagnosis of the L5/S1 tear, as well as misdiagnosed the facet joint syndrome, by assigning the neck pain to strain."¹⁶ Dr. Gofeld also reported that O.R. attempted a return to work on August 7, 2018 but was unable to continue and left again in September 2018.¹⁷

15On October 24, 2018, Dr. Marchuk completed a Physiatry Paper Review to determine whether a proposed chronic pain assessment was reasonable and necessary. In his resulting report, Dr. Marchuk noted the December 3, 2017 MRI report, which showed an annular tear, and again deferred comment regarding the tear to the appropriate medical expert, stating that the annular tear was originally diagnosed by an orthopaedic surgeon that had assessed O.R.¹⁸

16On May 1, 2019, Unifund wrote to O.R. requesting repayment of IRBs in the amount of $2,800.00 as their records indicated that he returned to work for a seven-week period between August 2018 and September 2018.

17On May 28, 2019, O.R. attended a functional abilities evaluation with Mr. Monck in relation to his eligibility for IRBs.

18On June 3, 2019, O.R. attended an orthopaedic IE assessment with Dr. Yee to address O.R.'s entitlement to IRBs and to other proposed treatment plans. Following this assessment, Dr. Yee opined that O.R. did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.¹⁹

19On August 26, 2019, O.R. attended a neurology IE assessment with Dr. Galit Kleiner, neurologist, to assess, among other things, O.R.'s entitlement to IRBs. Dr. Kleiner opined that from a neurological perspective, O.R. suffered from a substantial inability to perform the essential tasks of his pre-accident employment.²⁰

20On September 26, 2019, Unifund notified O.R. that payment of his IRBs would be reinstated based upon Dr. Kleiner's conclusion that O.R. was substantially unable to complete his pre-accident employment tasks. Unifund stated that it would reinstate O.R.'s IRBs effective June 3, 2019 noting that this was the date of the s. 44 orthopaedic IE assessment despite Dr. Yee's opinion that O.R. did not meet the eligibility test for IRBs. Unifund also confirmed in this correspondence that no IRB payments would be made for the period prior to June 3, 2019 "as per section [sic] of the Statutory Accident Benefits Schedule as you were in non[-]compliance with refusal to attend the Insurer Examination."²¹

ANALYSIS

21Section 44 of the Schedule provides authority to Unifund to request O.R. to attend an IE assessment with a regulated health professional in order to assist in determining whether O.R. continues to be entitled to IRBs. While s. 44 does not specify the number of IE assessments that Unifund can request,²² Unifund may not make a request more often than is reasonably necessary as medical examinations are inherently intrusive and an invasion of privacy.²³

22Section 37(7) of the Schedule permits Unifund to refuse to pay IRBs to O.R. based on his non-attendance at the September 24, 2018 orthopaedic assessment until O.R. attends as required under s. 44(9) of the Schedule.

23Section 37(8) provides that once O.R. complied with s. 44(9), Unifund was required to reconsider his entitlement to IRBs. Upon reconsideration, and pursuant to s. 37(8), Unifund shall resume payment of IRBs and pay any amounts withheld if:

(i) it determines that the O.R. is still entitled to IRBs; and

(ii) O.R. provided a reasonable explanation to Unifund for failing to attend the orthopaedic IE assessment not later than October 9, 2018, which was 10 business days after his non-attendance, or as soon as practicable after this date.

24O.R. submitted that IRBs should be paid during the period of his non-compliance with s. 44(9) because the September 24, 2018 orthopaedic IE assessment as well as the proposed October 4, 2018 functional abilities evaluation were not reasonably necessary.

25Alternatively, O.R. submitted that Unifund is required to pay all IRB amounts that were withheld from September 27, 2018 to June 2, 2019 pursuant to s. 37(8) of the Schedule because O.R. ultimately complied with s. 44(9) and, as a result, Unifund reinstated his IRBs.

Was the September 24, 2018 orthopaedic IE assessment reasonably necessary?

26Unifund submitted that the Tribunal should consider the following criteria set out in 17-002973 v Aviva Insurance Company in determining whether an IE assessment is reasonably necessary:

(i) The timing of the insurer's request;

(ii) The possible prejudice to both sides;

(iii) The number and nature of the previous insurer's examinations;

(iv) The nature of the examination(s) being requested;

(v) Whether there are any new issues being raised in the applicant's claim that require evaluation;

(vi) Whether there is a reasonable nexus between the examination requested and the applicant's injuries.²⁴

27While I am not bound by decisions of other Tribunal adjudicators, I am persuaded by the test outlined in 17-002973 and find the criteria useful in determining the reasonableness of the proposed September 24, 2018 orthopaedic IE assessment.

28In his September 20, 2018 correspondence, O.R. failed to provide any explanation or reasons for his position that the proposed orthopaedic IE assessment was unreasonable. It was not until December 3, 2019 that O.R. informed Unifund of his position that he, "did not attend the Assessment because it was a duplicate. We found [sic] unreasonable and unnecessary that he attends the same appointment with the same assessor in the same year."²⁵

29It is unclear from O.R.'s September 20, 2018 correspondence which IE assessment O.R. was referring to – the September 24, 2018 orthopaedic IE assessment or the October 4, 2018 functional abilities evaluation. In any event, O.R.'s IRBs were suspended solely for his non-attendance at the September 24, 2018 orthopaedic IE assessment and, therefore, an analysis of the reasonableness of the October 4, 2018 functional abilities evaluation is not required. As such, there is no evidence before me that Unifund required O.R. to attend an IE assessment with an orthopaedic surgeon prior to September 24, 2018. Therefore, I disagree with O.R. that the orthopaedic IE assessment was duplicative.

30I agree with O.R. that Unifund scheduled the orthopaedic IE assessment within a year of the previously completed set of IE assessments regarding O.R.'s entitlement to IRBs. The timing of the orthopaedic IE assessment, however, is but one consideration in determining the reasonableness of Unifund's request. Moreover, O.R. failed to submit any case law that supports a finding that an IE assessment is unreasonable if it is scheduled eight months following a first set of IE assessments for the same benefit.

31I also disagree with O.R.'s submission that there was sufficient medical information available to Unifund at the time Unifund provided notice of the orthopaedic IE assessment to O.R.

32O.R. submitted that Unifund had O.R.'s family doctor's CNRs which spoke to the extent of O.R.'s injuries. The updated records of O.R.'s family physician, Dr. Marcos Gobrial, were not provided to Unifund until July 17, 2019. It is also not clear what portions of Dr. Gobrial's CNRs that Unifund had prior to July 17, 2019, but the last CNR entry was dated November 9, 2017, which was prior to the first set of IE assessments in January 2018 regarding O.R.'s IRB entitlement. Additionally, the CNRs of Dr. Moises Maria, neurologist, were not provided to Unifund until October 4, 2019 and the CNRs of Dr. Vahid Salimpour, physician advising on medical cannabis use, were not produced until sometime in October 2019. Therefore, I disagree that O.R. had provided Unifund with any original or updated CNRs at the time Unifund provided its September 19, 2018 notice of the scheduled IE assessments.

33O.R. also submitted that Unifund had the independent medical assessments reports by Dr. Gofeld and Dr. Getahun which substantiated O.R.'s entitlement to IRBs and, therefore, Unifund's request for an orthopaedic IE assessment was redundant. I disagree.

34Although Dr. Gofeld's report is undated, the assessment date is listed as October 19, 2018. Therefore, Dr. Gofeld's report could not have been in existence prior to Unifund sending its September 19, 2018 notice to O.R. regarding the proposed IE assessments as O.R.'s assessment with Dr. Gofeld had not yet taken place.

35O.R. also underwent his own orthopaedic assessment by Dr. Getahun on April 4, 2018 in which Dr. Getahun ultimately opined that O.R. was unable to perform the essential tasks of his pre-accident employment as a result of the nature and severity of his lumbar spine injury. In arriving at his opinion, Dr. Getahun reviewed a December 3, 2017 MRI of O.R.'s lumbar spine which showed an annular rent tear in the right paramedian annulus at L5-S1 level with no prominent focal disc protrusion.

36The December 3, 2017 MRI report was not provided to Unifund until April 11, 2018.²⁶ As such, I find that the orthopaedic IE assessment was not redundant because:

(i) the December 3, 2017 MRI report was new evidence that had not been provided to Unifund prior to O.R. undergoing the first set of IE assessments regarding his entitlement to IRBs in January 2018; and

(ii) the MRI report required evaluation given Dr. Getahun relied upon it in arriving at his opinion that O.R. was was unable to perform the essential tasks of his pre-accident employment as a result of the nature and severity of O.R.'s lumbar spine injury.

37Once the December 3, 2017 MRI was received by Unifund, it was reviewed by Dr. Marchuk as part of his July 20, 2018 report which addressed entitlement to a treatment plan. Dr. Marchuk noted that the MRI report revealed an annular tear but deferred further comment regarding the annular rent tear "to the appropriate medical expert." The "appropriate medical expert," according to Dr. Marchuk, appeared to be an orthopaedic surgeon given Dr. Marchuk's statement that it was the orthopaedic surgeon on file that had determined that O.R. sustained an annular tear as a result of the accident.

38John Pincivero, adjuster with Unifund, testified at the teleconference portion of the hearing. Mr. Pincivero stated that it was as a result of Dr. Marchuk's comments in his July 20, 2018 report that Mr. Pincivero requested an orthopaedic IE assessment to assess O.R.'s entitlement to IRBs.

39Even though Dr. Marchuk deferred comment in his July 20, 2018 report regarding proposed treatment and not to entitlement to IRBs, I find that it was reasonable for Unifund to request O.R.'s attendance at an orthopaedic IE assessment given that the December 3, 2017 MRI report was recently provided to Unifund and also because O.R. had attended his own orthopaedic assessment with Dr. Getahun. I find that Unifund has established a nexus between the type of assessment sought and O.R.'s injuries as it was Dr. Getahun, an orthopaedic surgeon, that had diagnosed the tear. It was also reasonable for Unifund to seek out an opinion of its own assessor regarding IRB entitlement given Dr. Getahun directly addressed O.R.'s entitlement to IRBs in his April 8, 2018 report.

40Finally, O.R. suggested that it would have been more reasonable for the orthopaedic IE assessment to take place via a paper review rather than requiring his in-person attendance. I disagree. Mr. Pincivero testified that he determined that it would be more beneficial for an in-person assessment as Unifund had not received any progress reports or any indication of how O.R. was progressing since the first set of IEs regarding entitlement to IRBs were completed. Mr. Pincivero also conceded that while O.R.'s attendance at another IE may seem invasive, this concern was overridden by Dr. Marchuk's recommendations regarding an assessment with an orthopaedic surgeon, as this was a specialist that Unifund had not yet engaged in the assessment of O.R.

41For all of the reasons set out above, I find that Unifund's request for O.R. to attend the September 24, 2018 orthopaedic IE assessment was reasonably necessary and, therefore, O.R. was required to attend. As a result, I find that O.R. was in non-compliance with s. 44(9) of the Schedule for the period of September 25, 2018 to until he attended the orthopaedic IE assessment with Dr. Yee on June 3, 2019.

As a result of reinstating O.R.'s IRBs effective June 3, 2019, is Unifund required to pay all IRB amounts withheld from September 27, 2018 to June 2, 2019?

42O.R. submitted that he provided a reasonable explanation to Unifund on September 20, 2018, which was before the deadline set out in s. 37(8)(b)(ii) of the Schedule, that he would not be attending the September 24, 2018 orthopaedic IE assessment. O.R. submitted his September 20, 2018 letter and explained that "the IE was refused on the basis that the IE's [sic] were not reasonable or necessary since medical documentation would suffice as evidence to provide [sic] the extent and nature of his injuries."²⁷

43As discussed in paragraph [28] above, O.R.'s September 20, 2018 letter does not provide any reasons why O.R. was of the opinion that the proposed IE assessments were not reasonably necessary. Further, this was the only correspondence provided to Unifund prior to the deadline to provide a reasonable explanation set out in s. 37(8)(b)(ii) of the Schedule.

44O.R., however, provided additional correspondence to Unifund on December 3, 2019 regarding his non-attendance at the September 24, 2018 orthopaedic IE assessment. In this letter, O.R. stated that he, "did not attend the Assessment because it was a duplicate. We found [sic] unreasonable and unnecessary that he attends the same appointment with the same assessor in the same year."²⁸

45While the December 3, 2019 correspondence was dated well outside of the 10^th business day from O.R.'s non-attendance at the September 24, 2018 orthopaedic IE assessment, s. 37(8)(b)(ii) of the Schedule also provides that an insured person may provided a reasonable explanation for their non-compliance "as soon as practicable." No submissions were provided by O.R. as to any reason why he was unable to provide a reasonable excuse until December 3, 2019. In any event, as I have found that the September 24, 2018 orthopaedic IE assessment was not duplicative,²⁹ I find that O.R.'s December 3, 2019 correspondence to Unifund did not provide a reasonable explanation for his non-attendance at the September 24, 2018 orthopaedic IE assessment.

46As I have found that the September 24, 2018 orthopaedic IE assessment was reasonably necessary and that O.R. has not provided a reasonable explanation for his non-attendance, I find that Unifund is not required to pay IRBs to O.R. from September 27, 2018 to June 2, 2019, which is the period Unifund suspended O.R.'s IRBs for his non-compliance with s. 44(9) of the Schedule.

Award

47Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

48As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

49As there are no benefits owing, no interest is payable.

Costs

50Rule 19.1 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") 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.

51Both parties in this matter are requesting their costs. For the reasons that follow, I find that O.R. is entitled to costs in the amount of $250.00 and Unifund's request for costs is denied.

O.R.'s claim for costs

52Of note is the fact that Unifund is successful in this matter. The usual course would be for a cost award to be made in favour of the successful party. The Rules and the Statutory Powers Procedure Act,³⁰ however, reflect a different policy. By incorporating the behaviour of a party in a proceeding as a trigger for an award of costs, the section makes behaviour the focus rather than success in the dispute. Thus, a successful but unreasonable party may be subject to a costs award.³¹

53O.R. submits that he is entitled to his costs of the proceeding in the amount of $1,000.00 because Unifund acted unreasonably, frivolously, vexatiously or in bad faith by:

(i) Filing a notice of motion and necessitating the parties' attendance at a Motion hearing for an order quashing O.R.'s summons to have Mr. Pincivero attend to be examined and converting the matter to a full written hearing; and/or

(ii) Refusing to accept service of the summons to witness on Mr. Pincivero's behalf and/or providing Mr. Pincivero's personal address to effect personal service which necessitated a further motion hearing for an order of substituted service.

Unifund's motion to quash Mr. Pincivero's summons and change the format of the hearing

54The Tribunal's October 20, 2019 Order provided that the matter would proceed by way of a combination hearing which included written submissions followed by an in-person portion scheduled for March 23, 2020. The Tribunal's October 20, 2019 Order listed an insurance adjuster to be named and summonsed as the only witness for O.R. at the in-person portion of the hearing. Unifund proposed to call no witnesses at that time.

55On September 17, 2019, the Tribunal provided a signed summons for Mr. Pincivero requiring his attendance at the March 23, 2020 hearing.

56On March 16, 2020, Unifund filed a motion to quash O.R.'s summons for Mr. Pincivero and for an order adjourning the in-person hearing and converting the matter to a written hearing.

57Unifund's motion was denied. In the April 6, 2020 Motion Order, the Tribunal declined to quash the summons for Mr. Pincivero as he was the adjuster assigned to the file and had unique knowledge of the continued assessment of the file and the reasons for scheduling the IE assessments. Additionally, the Tribunal noted that there was no reason to change or vary the hearing format. As the in-person portion of the hearing set for March 23, 2020 was ultimately vacated due to the COVID-19 pandemic, the Tribunal ordered the parties attendance at a June 8, 2020 case conference for case management purposes.

58I do not find that Unifund's motion to quash the summons of Mr. Pincivero or to change the format of the hearing to rise to the high threshold of unreasonableness, frivolousness, vexatiousness or bad faith. The backdrop to this motion was increased restrictions being put into place due to the COVID-19 pandemic. It was not unreasonable for Unifund to request a change to a written hearing, which would include a quashing of the summons, given the circumstances. As a result, I find that O.R. is not entitled to costs as a result of Unifund's March 16, 2020 motion.

Service of summons to Mr. Pincivero

59On September 29, 2020, O.R. filed a notice of motion seeking an order granting permission to effect substituted service of the summons to Mr. Pincivero. O.R.'s notice of motion contained email correspondences in which Unifund's counsel required personal service of the summons but at the same time refused to provide Mr. Pincivero's home address for service or to accept service on his behalf by way of email. O.R. maintained that given that Mr. Pincivero was working remotely due to COVID-19 restrictions, he would not be able to be served by personal service at his place of employment. The only proposed solution made by Unifund's counsel in this chain of emails was for Mr. Pincivero to be called as Unifund's witness which would still allow cross-examination by O.R.'s counsel but would negate the need for a summons altogether.

60In granting O.R.'s motion to effect service of the summons to Mr. Pincivero by way of email correspondence, the Tribunal found that Mr. Pincivero was evading personal service.

61I find Unifund's actions in refusing to assist with the service of the summons on Mr. Pincivero to be unreasonable, vexatious, in bad faith and, ultimately, an attempt to thwart an Order of the Tribunal. As a result, O.R. is entitled to an award of costs for this conduct.

62Following the release of the Tribunal's April 6, 2020 Motion Order in which Unifund's request to quash the summons for Mr. Pincivero was denied, Unifund requested clarification of the Order. Specifically, Unifund sought clarification as to whose witness Mr. Pincivero would be given that it provided notice on February 10, 2020 to O.R. that should the Tribunal not quash Mr. Pincivero's summons that Unifund would be calling Mr. Pincivero as its witness.

63On April 29, 2020, the Tribunal issued an amended Motion Order which was the exact same as the April 6, 2020 Motion Order but included the following additional statement: "The adjuster shall be called as the applicant's witness and the respondent shall have the right to re-examine, as anticipated in the previous Case Conference Order."

64I find that Unifund's actions of failing to accept service of Mr. Pincivero's summons via email on his behalf was a direct attempt to thwart the Tribunal's April 29, 2020 amended Motion Order to suit Unifund's request to call Mr. Pincivero as its witness which was previously denied. Unifund's actions are even more egregious given the increased restrictions being put into place due to the COVID-19 pandemic which resulted in Mr. Pincivero working from home. While I agree that there is no obligation on Unifund to provide Mr. Pincivero's personal residential information to O.R., this does not equate to permission to frustrate O.R.'s attempt to serve Mr. Pincivero with a summons to witness by refusing to accept service via email on his behalf.

65I find that Unifund's actions in refusing to accept service of the summons to witness on Mr. Pincivero's behalf necessitated a further motion by O.R., to which Unifund did not respond, to obtain an order substituting service of the summons. I also do not agree with Unifund's argument, which is included as one of the reasons for its claim for costs, that O.R. should have requested an order for substituted service at the June 8, 2020 case conference which would have avoided the need to bring that motion. There is no evidence before me that supports a finding that O.R. was aware of Mr. Pincivero's evasion of service of a summons prior to June 8, 2020.

66For all of the reasons set out above, I find that O.R. is entitled to its costs in the amount of $250.00 for Unifund's unreasonable, vexatious and bad faith actions in refusing to accept the service of the summons for Mr. Pincivero by way of email. I find that $250.00 is an appropriate amount of costs given that Rule 19.6 of the Rules provides that the maximum amount of costs is $1,000.00 for each full day of attendance at a motion, case conference or hearing. Here, there is no evidence this motion hearing was a full day and it was based on O.R.'s one set of submissions.

Unifund's claim for costs

67Unifund claims that it is entitled to its costs in the amount of $1,000.00 because O.R. acted unreasonably, frivolously, vexatiously or in bad faith by:

(i) Changing his reasons for not attending the September 24, 2018 orthopaedic IE assessment between his initial refusal on September 20, 2018, his December 3, 2019 correspondence and finally in his written hearing submissions;

(ii) Delaying his eventual attendance at the orthopaedic IE assessment which initially resulted in the scheduling of a preliminary issue hearing, which was later cancelled, and also required the parties' attendance at subsequent case conferences on August 22, 2019 and October 30, 2019;

(iii) Serving additional medical documents on September 18, 2020 for the written hearing which was beyond the deadline of February 10, 2020 that was set out in the Tribunal's October 19, 2019 Order and not varied by the Tribunal's June 8, 2020 Order. Unifund submits that the late submission of medical documents necessitated further written submissions from the parties;

(iv) Refusing to agree to a teleconference hearing rather than an in-person hearing when the hearing ultimately proceeded by way of teleconference; and/or

(v) Failing to request substituted service of Mr. Pincivero's summons to witness at the June 8, 2020 case conference rather than bringing a separate motion later seeking an order for substituted service.

68I find that O.R.'s actions do not rise to the high threshold of unreasonableness, frivolousness, vexatiousness or in bad faith as argued by Unifund for the following reasons:

(i) While the reasons for O.R.'s position that the proposed September 24, 2018 orthopaedic IE assessment and the October 4, 2018 functional abilities evaluation were not reasonably necessary lacked particulars and evolved over time, I do not find that this is unreasonable conduct as it is a natural progression of files for positions to change over time;

(ii) O.R. was clear in his reason for ultimately attending the orthopaedic IE assessment with Dr. Yee on June 3, 2019 as it was his position that it was reasonable at that time given that over one year had passed since the first set of IE assessments. O.R.'s delay in attending the IE assessment prior to June 3, 2019, however, did lead to the scheduling of a preliminary hearing despite it ultimately being cancelled. I find that O.R. acted reasonably to have the IE assessment completed before the preliminary hearing took place, which eliminated costs of the preliminary hearing for both parties;

(iii) A further case conference would have been required even if the preliminary hearing had taken place, and the August 22, 2019 case conference was adjourned to October 30, 2019 for the parties to finalize hearing details including witness selection. There is no evidence that the additional case conference held on October 30, 2019 was as a result of any bad faith actions by O.R.;

(iv) I agree that O.R. served and filed late documents on September 18, 2020. Unifund did not object to these documents being included as evidence for the hearing but requested an opportunity to submit further written submissions to address their content. I found this request reasonable and allowed the parties to file further written submissions on the added documents. While unfortunate, there is no evidence that O.R.'s late filing of these documents was done in bad faith or vexatiously towards Unifund. I also agree with O.R. that there was no prejudice to Unifund for these documents being included as evidence for the hearing as Unifund was given an opportunity to make submissions on them despite this becoming an extra step in the proceeding;

(v) Pursuing an in-person hearing in October 2019 prior to COVID-19 restrictions being known and the in-person portion of the hearing ultimately being converted to a teleconference hearing on October 6, 2020 is not unreasonable conduct and was a result of circumstances beyond anyone's control; and

(vi) As discussed in paragraph [65] above, there is no evidence before me that supports a finding that O.R. was aware that Mr. Pincivero would evade service of a summons or that Unifund's counsel would not accept service on his behalf prior to June 8, 2020 such that this issue could have been addressed at the June 8, 2020 case conference.

69Based on the evidence and submissions made by both parties, I find that O.R. is entitled to $250.00 in costs and Unifund's request for costs is denied.

CONCLUSION

70For the reasons outlined above, I find that:

(i) Unifund is not required to pay IRBs to O.R. for the period of September 27, 2018 to June 2, 2019 when O.R. was non-compliant with s. 44(9) of the Schedule;

(ii) As no benefits are owing, no interest is payable and O.R. is not entitled to an award;

(iii) O.R. is entitled to $250.00 in costs; and

(iv) Unifund's request for costs is denied.

Footnotes

1. 1O. Reg. 34/10 (the "Schedule").
2. 2In the Tribunal's June 8, 2020 Case Conference Report and Order, the period in dispute was listed from September 28, 2018 to May 27, 2019. Unifund's correspondence dated September 26, 2018 (Applicant's Submissions at tab 5), however, clearly states that O.R.'s IRBs were suspended effective September 26, 2018. Additionally, Unifund's September 26, 2019 correspondence confirms that O.R.'s IRBs were reinstated effective June 3, 2019 (Applicant's Submissions at tab 6). As a result, I find that the correct period in dispute for O.R.'s IRB claim is from September 27, 2018 to June 2, 2019.
3. 3Applicant's Document Brief, tab 1, page 15.
4. 4Ibid.
5. 5Applicant's Document Brief, tab 9.
6. 6Ibid. at page 6.
7. 7Ibid. at page 5.
8. 8Ibid. at page 6.
9. 9Insurer's Submissions dated March 2, 2020, tab 19, page 18.
10. 10Ibid. at pages 16-17.
11. 11Ibid. at page 21.
12. 12Correspondence from Unifund to O.R. dated September 19, 2018, Applicant's Document Brief, tab 3.
13. 13Insurer's Submissions dated March 2, 2020, tab 5.
14. 14Applicant's Document Brief, tab 10.
15. 15Ibid. at page 18.
16. 16Ibid. at page 21.
17. 17Ibid. at page 14.
18. 18Insurer's Submissions dated March 2, 2020, tab 21.
19. 19Orthopaedic Assessment Report dated June 17, 2019 by Dr. Gilbert Yu Ming Yee, Insurer's Submissions dated March 2, 2020, tab 22, page 9.
20. 20Neurology Assessment Report dated September 10, 2019 by Dr. Galit Kleiner, Applicant's Document Brief, tab 6, page 7.
21. 21Applicant's Document Brief, tab 6.
22. 2216-003144 v Cumis General Insurance Company, 2017 CanLII 22315 (ON LAT) at para. 24.
23. 23Ibid. at para. 25; Schedule at s. 44(1)
24. 242018 CanLII 76451 (ON LAT) at para. 17 ("17-002973"). Criteria (v) as set out in 17-002973 is not accurately quoted from Al-Shimasawi v. Wawanesa Mutual Insurance Company, 2007 CarswellOnt 3473, [2007] O.F.S.C.D. No. 82 and the error is corrected here.
25. 25Insurer's Submissions dated March 2, 2020, tab 11.
26. 26Insurer's Supplementary Submissions, tab 1, page 37.
27. 27Applicant's Submissions, para. 18.
28. 28Supra note 25.
29. 29See paragraphs [28] and [29] above.
30. 30R.S.O. 1990, c. S.22 ("SPPA").
31. 31See 17-005302 v Aviva Insurance Company of Canada, 2018 CanLII 83535 (ON LAT) at para. 43.