Citation: Hayek v. Unifund Assurance Company, 2021 ONLAT 19-008856/AABS

Released Date: 03/03/2021

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:

Razane Hayek

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Eric Katzman, Counsel

For the Respondent:

Danielle Lecours, Counsel

HEARD: In Writing

September 28, 2020

OVERVIEW

1The applicant was injured in an automobile accident on January 11, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').¹

2The applicant filed an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) on July 31, 2019 claiming entitlement to lost educational expenses plus interest.

3A case conference was held on January 9, 2020 and the matter was initially scheduled for a written hearing on May 12, 2020. A further motion Order dated April 14, 2020 adjourned the hearing to September 28, 2020.

ISSUES

4The issues in dispute were identified in the case conference order dated February 5, 2020 as follows:

i. Is the applicant entitled to lost educational expenses in the amount of $15,153.00 as a result of this motor vehicle accident?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant's claim for lost educational expenses is confined to educational expenses incurred before the motor vehicle accident on January 11, 2019, for the 2019 Winter Term only. Here, the applicant is entitled to lost educational expenses in the amount of $862.69 paid for the room and board for the month of January 2019

6The applicant is also entitled to interest on this amount pursuant to s. 51 of the Schedule.

ANALYSIS

7Before turning to the relevant statuary provisions, it is helpful to briefly set out the background of this case.

Background

8At the time of the accident, the applicant was enrolled in the Business Administration – Human Resources program at St. Clair College in Windsor, Ontario. This is a three-year diploma program comprised of six academic terms. Following the accident on January 11, 2019, she formally withdrew from the program on January 30, 2019, although the effective date of withdrawal was January 11, 2019.²

9The Official Transcripts from St. Clair College confirm that the applicant completed two academic terms prior to the accident, namely the 2018 Winter Term from January 2018 to April 2018, and the 2018 Fall Term from September 2018 to December 2018, and had started the courses for her third academic term (i.e., the 2019 Winter Term from January 2019 to April 2019) when the accident occurred in January 2019. For clarity, I will refer to the Fall Term as the period between September – December 2018 and the Winter Term as the period between January – April 2019.

10As a result of the withdrawal, the Ministry of Training, Colleges and Universities placed the applicant on academic probation on February 9, 2019 for the purposes of financial assistance that she received from the Ontario Student Assistance Program (“OSAP”) for full-time studies (“Notice of Academic Probation”). As the applicant’s enrollment status changed, her OSAP grants turned into loans and, as I understand, she must now repay those amounts.

11As a result, the applicant submitted to the respondent an Expenses Claim Form (OCF-6) dated March 7, 2019, claiming lost educational expenses in the amount of $15,153.00. Under Part 2 – Expenses of the OCF-6, the applicant referenced that the claimed expenses were for an “OSAP Grant”. Appended was a 2018-19 OSAP Notice of Reassessment and Certificate of Loan/Grant Approval dated February 9, 2019 and the Notice of Academic Probation.

12Subsequently, on April 5, 2019, the respondent denied the request for reimbursement and sent correspondence to the applicant advising that it was unable to consider payment for the OSAP Grant in the amount of $15,153.00 as it required additional documentation. Specifically, the respondent noted that the Notice of Academic Probation states that she could appeal her academic probation status if her lack of academic progress was due to extenuating circumstances beyond her control, such as a medical condition.

13However, at paragraph 14 of the applicant’s main submissions, the applicant requests payment for the following:

a. Ontario Student Grant (OSG) converted to a loan $5,284

b. Federal grant converted to a loan $2,682

c. Loan 2018-2019 $3,990

TOTAL $11,956

14This breakdown does not correspond to the $15,153.00 amount set out in the Expenses Claim Form (OCF-6) dated March 7, 2019 claiming lost educational expenses or the Tribunal order which set out the amount in in dispute.

15The respondent concedes that the applicant's accident-related injuries prevented her from continuing in the program for the 2019 Winter Term. However, it submits that the quantum of lost education expenses to which the applicant is entitled is nil because the applicant allegedly failed to make reasonable efforts to mitigate her losses insofar as she failed to take any action to appeal her academic probation status, or appeal the grant to loan conversion. The respondent explains that it would be unfair to require it to pay for any portion of the grant to loan conversion given that the applicant has not acted prudently or reasonably in the circumstances.

The eligibility criteria for lost educational expenses

16Section 21(1) of the Schedule sets out the eligibility criteria for entitlement to lost educational expenses as follows:

The insurer shall pay for up to $15,000 for lost educational expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident if,

(a) at the time of the accident, the insured person was enrolled in a program of elementary, secondary, post- secondary or continuing education; and

(b) as a result of the accident, the insured person is unable to continue the program.

17Further, section 21(5) provides some additional guidance regarding what qualifies as a lost educational expense. Specifically, section 21(5) provides a time limit for the eligible expenses to be claimed and defines a lost educational expense as follows:

“lost educational expenses” means expenses incurred before the accident for tuition, books, equipment or room and board in respect of the program term or program year in which the insured person was enrolled at the time of the accident, if the expenses are related to the program that the insured person is unable to continue. [emphasis added]

18Sections 21(1) and 21(5) of the Schedule must be read together for the purposes of determining whether the applicant is entitled to lost educational expenses. I also note that an insured is only limited to expenses incurred for only one program term or program year prior to the collision. The applicant needs to establish the following three criteria, which I will address below individually:

(1) The expenses were in relation to the program in which she was enrolled in at the time of the accident.

(2) The expenses were related to the program that she was unable to continue.

(3) The expenses were for tuition, books, equipment or room and board in respect of program term or program year that were incurred before the accident.

19In my view, the applicant has satisfied these criteria only with respect to part of the room and board expenses.

(1) The expenses were in relation to the program in which she was enrolled in at the time of the accident

20The parties agree that, at the time of the accident, the applicant was enrolled in the Business Administration - Human Resources program at St. Clair College and that the expenses at issue were in relation to this program. This was a three-year diploma program composed of six academic terms with each semester running for four months. The applicant was able to complete two academic terms before the accident.³ There is nothing further for me to add and the applicant has satisfied this criterion.

(2) The expenses were related to the program that she was unable to continue

21The parties also agree that the applicant was unable to continue in the Business Administration - Human Resources program that she was enrolled in at the time of the accident.

22At paragraph 16 of its submissions, the respondent concedes that the applicant's accident-related injuries prevented her from continuing in the Business Administration - Human Resources Program for the 2019 Winter Term - i.e., January 11, 2019 to April 30, 2019.

23The medical evidence in this case establishes that the applicant sustained a fracture of her right scaphoid (wrist) which was complicated by necrosis. Mr. C. Murray-Watters, Registered Physiotherapist, in his report/patient note on July 26, 2019 stated that the applicant:

will not be able to write or type, which will impede her from completing further education studies at present. Currently enrolled at St. Clair College in the business/HR program. Moreover, I cannot determine when this patient will be able to return to her schooling, but I do not see it being in the near future.⁴

24Moreover, the respondent’s own IE assessor, Dr. J. Out, psychologist, in her Psychological Assessment report dated February 24, 2020, diagnosed adjustment disorder with mixed anxiety and depressed mood. Dr. Out viewed the applicant’s prognosis as “guarded” and concluded that the applicant suffered a complete inability to lead a normal life as a result of the accident and was “no longer able to attend school.” ⁵ Notably, this in-person assessment, which was vey thorough and lasted 1 hour and 30 minutes and included psychometric testing, was done more than a year after the accident and the applicant had not returned to school.

25Section 21(5) clearly says that such expenses are recoverable if the “insured person is unable to continue.” I accept Mr. Curtis Murray-Watters’s opinion and the other undisputed supportive medical records,⁶ including Dr. Out’s opinion, that the applicant is unable to return to her schooling because of her accident-related wrist injury. Therefore, I find that the expenses were related to the program that she was unable to continue, and that she has satisfied this second criterion as well.

26Although the respondent concedes the applicant was unable to continue her program, it seems to qualify its position by stating that she was only unable to continue in her program for the 2019 Winter Term - i.e., January 11, 2019 to April 30, 2019. Therefore, the respondent argues that the applicant's claim for lost educational expenses is confined to educational expenses incurred before the motor vehicle accident on January 11, 2019, for the 2019 Winter Term.

27I agree with the respondent on this point. Any of the lost education expenses are confined to expenses incurred before the motor vehicle accident on January 11, 2019 and in relation to the 2019 Winter Term only. In my view, this makes practical sense given the Schedule’s purpose. There is no reason for an applicant to be compensated for expenses related to previous academic terms that she completed and, thus, are unaffected by the accident. To receive benefits for previous, completed terms would be a windfall and would not serve to compensate the applicant, or address her injuries, in connection with the accident.

28In this case, there is no evidence that the applicant will have to retake any of the courses that she completed in the 2018 Fall Term and, therefore, the educational expenses incurred for this are not "lost" and, therefore, not recoverable.

(3) The expenses were for tuition, books, equipment or room and board in respect of program term or program year that were incurred before the accident

29The applicant must prove that the expenses were incurred for tuition, books, equipment or room and board in respect of the program incurred before the accident. Incurring debt through OSAP because of an accident is not enough to qualify for lost education expenses. I also note that the Notice of Grant to Loan Conversion confirms that the grant to loan conversion occurred on November 7, 2019, nearly 11 months after the motor vehicle accident.

30I find that the applicant's claim for lost educational expenses is confined to educational expenses incurred before the motor vehicle accident on January 11, 2019, for the Winter Term only.

Quantum – Eligible Expenses

31Again, at paragraph 14 of her main submissions, the applicant requests payment for the following:

a. Ontario Student Grant (OSG) converted to a loan $5,284

b. Federal grant converted to a loan $2,682

c. Loan 2018-2019 $3,990

TOTAL $11,956

32The respondent submits no lost educational expenses are payable but that, if the Tribunal finds that the respondent is liable for the grant to loan conversion amount, the quantum of lost educational expenses is $7,1072.00 made up as follows:

a. Ontario Student Grant (OSG) grant to loan conversion $5,284.00

b. Federal grant to loan conversion $2,682.00

c. Loan $945.00

d. Less Tuition Refund ($1,803.80)

TOTAL $7,107.20

33I am not prepared to make a finding that any of the grant to loan expenses are payable for the following reasons.

34I found the written submissions regarding how the grant money was spent difficult to follow and not clear. For example, the applicant submitted an Expenses Claim Form (OCF-6) dated March 6, 2019 claiming lost educational expenses in the amount of $15,153.00. This form under part 2 merely refers to $15,153.00 for an “OSAP grant” and there was no further breakdown or particulars.

35Nevertheless, at para. 14 of the submissions, the applicant submits that she is entitled to $11,956 or, in the alternative, $8,388.23 by referring to para. 28 and the bank records contained at Tab 10 as evidence as to where the funds went. Problematically, the amounts have not been properly itemized and linked or explained how they come within the categories of tuition, books, equipment or room and board for the Winter Term. I had difficulty reconciling these three amounts: $15,153, $11,956, and $8,388.23.

36To add to the complexity, by the applicant’s own admission, not all the money taken from the Ontario and federal governments has been accounted for in the bank records provided.⁷ At paragraph 28 of the applicant’s Factum, the applicant claims various expenses for rent, utilities and tuition fees for the Fall Term incurred between September of 2018 to January 11, 2019 in the amount of $8,388.23. My review of these expenses is that virtually all of them were incurred for the 2018 Fall Term.

37In any event, I can not simply make a finding that the applicant is entitled to the entire amount of the grants that were converted to loans. In other words, the question is whether what’s being claimed falls under educational expenses. The applicant must still prove that any requested expenses come within the ambit of the enumerated categories in section 21(5). I also cannot apply what OSAP proclaims the funding was intended to be used for as the applicant suggests but have to see what in fact the funds were used for. More importantly, the applicant needs to prove that the funds were used for tuition, books, equipment or room and board.

38Although I sympathize that the applicant may have taken the grants, which have now turned to loans, she still must prove that they are proper “lost educational expenses” as that term is defined. In other words, I cannot simply consider the entire amount of the grants converted to loans ($5,284 and $ 2,682) or the $3,999 loan, as face value to be payable expenses as this is not what the Schedule requires.

39Again, section 21(5) defines “lost educational expenses” as expenses for: i) tuition, ii) books, iii) equipment, or iv) room and board. The total amount of $7,966 and any OSAP loan amount must have been spent only on these items only to be compensable. I address each of these four categories below.

i) Tuition

40With respect to tuition, the applicant submits that her tuition bill for the Fall 2018 Term amounts to $2,280.20, which was not refunded. The applicant concedes that $1,803.80 in tuition for the Winter 2019 Term was returned to OSAP, so this amount clearly does not qualify as a lost educational expense.⁸ As mentioned previously, the tracking of all of these numbers and how the money was spent was difficult to follow. In my view, the applicant has not proven her entitlement to lost tuition.

41The payment summary document dated June 2, 2020 provided from St. Clair College⁹ details an overview of the expenses for the applicant’s 2018-2019 program year and shows a balance owing of $0 (under the financial history). I did not see any tuition payments included in any of the banking record. The applicant must show that the money she received or borrowed for tuition meets the eligibility criteria in section 21 of the Schedule.

ii) Books

42I did not see any expenses related to books. There is nothing further for me to add.

iii) Equipment (Internet, Telephone)

43The applicant is requesting that she be compensated for internet bills at $90.34 per month for five months for a total of $451.70, and cell phone bills at $73.45 per month for five months for a total of $367.25, explaining that internet for her computer to do school work and a telephone so that she can communicate with her school are reasonably connected to education expenses as either “equipment” or “room and board.”

44I do not accept this argument for two reasons. First, I do not see how monthly service charges for internet and a telephone come within the definition of educational expenses as equipment. In my view, “equipment” means a physical resource such as a computer that is required to enroll in the program. Second, and even if I am wrong, I do not have any corroborating evidence such as an affidavit as part of the submissions that the telephone or internet expenses were actually required for her program and used for school purposes and not for personal use. I also do not have the actual invoices to determine who the actual account holder was.

iv) Room and Board

45The applicant’s rent was $862.69 per month and was paid to Adelaide Developments, as demonstrated by the bank records.¹⁰ From September 2018 to January 2019, this amounts to $4,313.45. I do not approve this global amount given my finding above that any lost education expenses are confined to expenses incurred before the motor vehicle accident on January 11, 2019 for the 2019 Winter Term only. These rental expenses were all incurred in 2018 save and except for one amount of $862.69 paid on January 2, 2019 for the January rent. I approve this amount as it was incurred prior to the accident during the Winter Term.

46The applicant also appears to claim every food item under this category such as food purchases from supermarkets (Food Basics) and visits to restaurants (Tim Hortons, Howard Grill, Windsor Palace and Shawarma Queen). The applicant submits that food expenses from September 2018 to the date of the collision are $975.63. These amounts are not approved as, in my view, they are not proper “lost educational expenses” and qualify as “room and board”. Room and board is commonly known as lodging and food usually furnished for a set price.¹¹ In my view, a college residence dorm and meal plan would fall into this category. As well, if I am wrong, I do not have any corroborating evidence such as the actual invoices or what items were purchase and for whom.

Mitigation

47For completion, the respondent argues that the applicant should have appealed the grant to loan conversion, and it would be unfair to require the respondent to pay for any portion of the grant to loan conversion of $7,966.00. Given my finding that I am not prepared to make any order for payment related to the grant to loan conversion, or any lost educational expenses, I do not need to address this argument. I also note that I have do not have information whether this was even possible. There was no cross-examination of any witnesses on this point. Moreover, in reply submissions it appears that the applicant did apply for a review of her OSAP obligations and did receive relief by way of a temporary suspension of her payments without the elimination of any debt.

Costs

48The applicant in para. 3 of her Factum/Submissions lists costs as an issue. Costs were not a listed issue in the case conference order dated February 5, 2020. The applicant has not addressed or explained why she is entitled to costs and how she comes within Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. Rule 19.1 provides that the Tribunal may award costs when a party has acted unreasonably, frivolously, vexatiously or in bad faith. The test to find bad faith and unreasonable, frivolous, vexatious behavior is very high and I do not have any evidence that this threshold has been met. Costs are denied.

CONCLUSION/ORDER

49For these reasons provided above, I find that the applicant is only entitled to lost education expenses in the amount of $862.69 for the room and board for the month of January 2019.

50Interest is payable on this amount pursuant to the Schedule.

Footnotes

1. 1Ontario Regulation 34/10.
2. 2See Disability Certificate (OCF-3) completed by Mr. Murray-Watters of The CARE Institute dated February 4, 2019 at Part 6 indicating that, as a result of the accident, the applicant was unable to continue in an educational program that she was enrolled in at the time of the accident.
3. 3Respondent’s Brief at tab 5, St. Clair College Course Overview for Business Administration - Human Resources Program.
4. 4Applicant’s factum at tab 4.
5. 5Applicant’s factum at tab 7.
6. 6Applicant’s factum at tab 8.
7. 7Applicant’s factum at para. 28.
8. 8Applicant’s factum at tab 3 – Application for Withdrawal and Refund form dated February 8, 2019.
9. 9Applicant’s factum at tab 9.
10. 10Applicant’s Factum at tab 10.
11. 11https://www.merriam-webster.com/dictionary