Citation: Yusuf v. Aviva General Insurance, 2021 ONLAT 19-010940/AABS

Licence Appeal Tribunal File Number: 19-010940/AABS

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:

Liban Yusuf

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Kwaku Bona, Paralegal

For the Respondent:

Chantalle Youkhana, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, L.Y., was involved in an automobile accident on February 22, 2017, and sought reimbursement for a visitor expense from Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). Aviva denied the request for reimbursement on the basis that it determined that the expense was not reasonable and necessary. L.Y. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues I am asked to decide are as follows:

a. Is L.Y. entitled to a reimbursement of GBP £2,650 (would suggest indicating what the quantum in CDN is in parenthesis) incurred towards the visitor expenses and submitted on an expense claim form (OCF-6) on May 8, 2017 and denied on September 15, 2017?

b. Is L.Y. entitled to interest on any overdue payment of benefits?

FINDING

3I find that L.Y. is not entitled to a reimbursement for the visitor expense. There is no outstanding payment of benefits, therefore no interest is payable.

BACKGROUND

4L.Y. was a passenger in a car that was involved in an accident on February 22, 2017. He sustained various injuries noted in an OCF-3 as: whiplash, neck pain, headache, sprain and strain of spine and lower back pain. While not an issue in dispute, I note that the accident-related injuries are captured under the definition of “minor” under the Minor Injury Guideline (the “MIG”).

5L.Y. received treatment at Mount Sinai Wellness and Chiropractic, and due to the injuries sustained, he moved from Kitchener to Toronto to receive support from friends and extended family members. The evidence pertinent to this proceeding is that the immediate family members, specifically his parents, sisters and brothers, all reside in London, England.

6Approximately five months after the accident, the immediate family members travelled from London to Toronto. The family spent GBP £2,650 for a return flight. In accordance with s. 22 of the Schedule, L.Y. submitted the flight expense to Aviva, which was denied, resulting in the within dispute.

ANALYSIS

7Pursuant to s. 22 of the Schedule, the insurer shall pay for reasonable and necessary expenses incurred not more than 104 weeks after the accident by family members, including parents, brothers, and sisters as a result of the accident in visiting the insured person during his or her treatment or recovery.

8L.Y. has failed to establish, on a balance of probabilities, that the visitor’s expenses were reasonable and necessary.

9At this point, L.Y.’s injuries are not disputed to be anything more than predominantly minor injuries. He argues that Aviva’s reliance on the fact that his injuries are captured within the MIG is not dependent on whether the OCF-6 is payable. I disagree.

10There is limited evidence of L.Y. receiving treatment from a family physician. Further, despite L.Y.’s attendance at various hospitals, there are no referrals to any specialists. In addition, diagnostic imaging (CT head scan and cervical spine x-ray) reported within normal limits and resulted in unremarkable findings. The treatment records are not indicative of an individual who required regular care from family members, let alone regular care from family members travelling from overseas. For example:

a. February 23, 2017 – a Motor Vehicle Collision personal injury report notes that the two passengers of the vehicle L.Y. was travelling in were treated for minor injuries and released;

b. April 14, 2017 – L.Y. called an ambulance to take him to hospital, complaining of mild headache, shoulder discomfort and knee pain. He was discharged home with no support services. I note that he reported he had been feeling unwell for three days prior to the hospital visit;

c. From the records of family physician, Dr. Oguamanam, it appears L.Y. has only seen her once post-accident; and

d. At an examination under oath on July 31, 2017, L.Y. stated that he was capable of performing all of his personal care tasks.

11A key fact that brings in to question the true intention of the family visit is that at the time of the examination under oath, L.Y. stated that his family intended to visit, but went on to state that as soon as the family found out he was in an accident, they came to see him. Again, the accident took place in February 2017, and the family did not arrive until July 2017. This is not indicative of an individual that needed extensive or immediate family care. This is especially so, considering the alleged assistance he received from friends and extended family after his move from Kitchener to Toronto, for the sole purpose of receiving post-accident care.

12I agree with Aviva that there has been no evidence put forth by L.Y. that satisfies his onus that his injuries are not predominantly minor and therefore required the assistance of five family members from overseas to aid in his recovery. Further, there is no evidence that his accident-related injuries were of such a severity that his overseas family members would be able to provide him the necessary medical treatment better than that of any local medical practitioners.

13In addition to the above, the evidence from the examination under oath was that his family was intending to visit during the summer regardless of whether he was in an accident. Further, there is no persuasive evidence that the family members would not have come had the accident not occurred. I find that L.Y. has failed to explain what any one family member was required to do for him, let alone why five family members were needed to provide care as a result of his injuries.

Time limit for proceedings

14The denial of the disputed OCF-6 is dated September 15, 2017. The Tribunal application is dated September 16, 2019. As a secondary dispute, the parties disagree on whether the application was filed late.

15For completeness, L.Y. submits that his application was within the statutory limitation period. His position is that the clock started to tick from September 16, 2017, one day after the denial to pay the incurred expenses. L.Y. admits that the application was filed and served on September 16, 2019. Alternatively, L.Y. relies on s. 7 of the Licence Appeal Tribunal Act 1999, S.O. 1999, c 12, Sched. G (LAT Act). This section affords me the discretion to extend the two-year limitation period set out in section 281.1 of the Insurance Act, R.S.O. 1990 c I.8 and s. 56 of the Schedule.

16Aviva submits that the application was late, and that the Tribunal has no jurisdiction to extend the limitation period. While the Tribunal has the discretion, as clearly set out in s. 7 of the LAT Act, I find the issue is moot based on my findings, above.

17It is not necessary for me to bar L.Y.’s claim or to extend the limitation period for him to apply, as I find that L.Y. has failed to establish that the expense is reasonable and necessary, therefore, an analysis to extend the limitation period to allow him to apply under s. 7 is not necessary, as the applicant has not established that there is merit to his claim.

CONCLUSION

18I find that L.Y. has failed to prove that he is entitled to the disputed OCF-6 as it is not reasonable and necessary. As no benefits are payable, no interest is payable under s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10, as amended.