Mahdi v. Pafco Insurance Company, 2022 CanLII 120034

Citation: Mahdi v. Pafco Insurance Company, 2022 ONLAT 19-005678/AABS

Licence Appeal Tribunal File Number: 19-005678/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:

Mahad Mahdi

Applicant

and

Pafco Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Kwaku Bona, Paralegal

For the Respondent:

Maia K Abbas, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on October 12, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010, including amendments effective June 1, 2016¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUES

Award

2The respondent submitted that the issue of a special award had not been raised with any notice, and therefore, should not be allowed to be added to the issues in dispute.

3The applicant submitted that the Tribunal has determined that the issue of an award can be raised at any point during a proceeding, as seen in 16-004312 v Aviva Insurance Canada², where the Tribunal found that a request for a special award does not have to be included as part of an injured person’s application and was allowed to be added to the issues in dispute.

4After considering the submission of the parties, I agree with the applicant and find that the issue of an award can be added at any point in the proceeding, as seen in 16-004312 v Aviva Insurance Canada³. I agree that the respondent has not shown me any section of the Schedule or provided persuasive case law that supports its position, and therefore, the issue of an award shall be added to the issues in dispute.

Sufficiency of the Notices of Examination

5The applicant submitted that he was entitled to challenge the sufficiency of the notices of examinations (“NOE”s), and if found insufficient, have them excluded as evidence from the hearing .

6The respondent also argued that the applicant’s arguments regarding the sufficiency of its NOEs were raised without notice or particulars before the applicant’s written submissions. The respondent submitted the applicant was engaged in “trial by ambush”, which was unfair, and said submissions should be struck from the hearing with particular emphasis on the applicant’s inclusion of emails between the applicant and the respondent, as the respondent submitted it was making its counsel a “witness to the hearing” and that the emails were not disclosed in evidence and included without notice.

7The applicant submitted that he disclosed the emails before his written submissions were due and that his arguments should be considered.

8The applicant also relied on emails between the applicant and the respondent’s counsel⁴, where the respondent’s counsel “unofficially”, meaning outside of the context of the hearing, noted that the applicant may be making arguments about the sufficiency of the NOE.

9The applicant relied on the matter of Aviva Insurance Company of Canada v. McKeown⁵ and submitted that he is not barred from challenging the sufficiency of the NOE; in this decision, the Court of Appeal found that an applicant can challenge the adequacy of an NOE.

10The applicant also relied on the matter of M.B. v. Aviva Insurance Canada⁶, where the Tribunal found that it was not material when an applicant raised his arguments regarding the sufficiency of the NOE.

11After considering the submissions and evidence of the parties, I find that the applicant is permitted to raise the issue of the sufficiency of the NOEs at any point of the proceeding, as seen in M.B. v. Aviva Insurance Canada.

12Therefore, this issue will be considered.

Acknowledgement of Expert’s Duty Forms

13Rule 10.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure – October 2, 2017, as amended (”Rules”) states an expert witness is a person who is qualified to provide professional, scientific or technical information and opinion based on their special knowledge acquired via education, training or experience regarding the matters which they will testify.

14Rule 10.2(b) states that the party who wishes to rely on or refer to an expert witness shall provide in writing, a signed statement from the expert in the Tribunal’s required form, acknowledging their duty to provide opinion evidence that is fair, objective and non-partisan, provide opinion evidence that is related to matters within their area of expertise and provide such additional help as the Tribunal may be required to determine a matter in issues.

15Rule 10.4 states that a party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal.

16The applicant submitted that he received NOEs⁷ requesting he attend two Insurers’ Examinations (“IE”s) with Dr. Kelly McCutcheon, psychologist, and Dr. Osama Gharsaa, physician. The applicant submitted that when he received copies of the NOEs and IEs⁸ of Dr. Gharssa and Dr. McCutcheon, the applicant noticed the doctors had not completed their Experts’ Duty Forms.

17The respondent also took issue with the applicant raising the issue of the sufficiency of its Acknowledgement of Expert’s Duty Forms. The respondent submitted that the applicant failed to provide notice and particulars before making his Tribunal submissions and again, engaged in “trial by ambush”; the respondent requested that the Tribunal exclude the applicant’s submissions regarding the issue of the Experts’ Duty Form, contrary to Rule 10.4. The respondent also made submissions about the applicant failing to disclose emails between the parties prior to his written submissions.

18The applicant acknowledged his failure to comply with Rule 10.4, and the ten-day requirement, but submitted that this was because the respondent only provided the Experts’ Duty Forms three days before the hearing. The applicant submitted the purpose of Rule 10.4 was to prevent “fraud of so-called expert assessors, as seen in Aviva Insurance Company of Canada v. McKeown⁹ and the Fighting Fraud and Reducing Automobile Insurance Rates Act¹⁰.

19The respondent submitted that since the applicant originally received the IEs and forms for Dr. McCutcheon and Dr. Gharsaa on May 10, 2017, and March 20, 2018, for Dr. Mathood, it was inappropriate for the issue of the sufficiency of the NOEs to be raised without complying with Rule 10.4.

20After reviewing the submissions and evidence of the parties, I find that the applicant did not comply with Rule 10.4 and I decline to exercise my discretion to waive compliance with that requirement; accordingly, the applicant may not advance this argument. Though I do agree that there may be issues with the respondent’s submission of the Experts’ Duty Forms, the applicant has not advanced evidence that he complied with Rule 10.4 and put both the respondent and Tribunal on notice with reasons for the challenge to the respondent’s experts’ qualifications with 10 days notice.

21Moreover, I would have expected the applicant to raise the issue of the missing Experts’ Duty Forms as soon as his counsel received the IEs, which, based on the Case Conference Report and Order¹¹, stated that all documents for the hearing were to be exchanged no later than July 30, 2021. The applicant does not account for the reason he failed to address this earlier, despite having representation, and I found his arguments to be unpersuasive.

22Therefore, the respondent is entitled to rely on the reports of Dr. McCutcheon and Dr. Gharsaa, however, I will still consider the applicant’s arguments about the doctors’ IEs with respect to the weight afforded to them.

ISSUES

23The issues for the Tribunal to determine are:

i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from January 4, 2017, to date and ongoing?

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

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

LAW

24Section 12(1)1 of the Schedule states that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident and does not qualify for an income replacement benefit (an ‘IRB’).

25Section 33(1) of the Schedule states that an applicant shall, within 10 business days after getting a request from the insurer, provide the insurer with any information reasonably required to help the insurer determine the applicant’s entitlement to a benefit, a statutory declaration regarding the circumstances of the application, the applicant’s address and proof of their identity.

26Section 36(4)(c) of the Schedule states that within 10 business days after the insurer receives the application and completed disability certificate if the insurer does not pay the benefit or deny the applicant the benefit with reasons, then it shall send a request to the applicant under section 31(1) or (2).

27Section 37(6)(d) of the Schedule states that within 10 business days after receiving an insurer’s examination to determine whether an insured person is still entitled to a specific benefit, the insurer shall provide the insured person with a notice of determination stating that if the insurer determines that the insured person is not entitled to a specified benefit, the date that payment of the benefit will be stopped.

28Section 38(8) of the Schedule states that within 10 business days of an insurer receiving a treatment and assessment plan, it shall give the insured person notice that identifies the goods/services/assessment/examinations described in the treatment and assessment plan that it will pay for or refuses to pay for and provide the medical reasons and all other reasons why said goods/services/assessment/examinations or said costs are not reasonable and necessary.

29Section 42(3) of the Schedule states the insurer shall give the insured person notice that specifies if the insurer agrees or refuses to pay for the expenses in the assessment of attendant care needs within 10 business days after receiving the assessment of attendant care needs and the medical and other reasons for said decision.

30Section 44(5)(a) of the Schedule states that if the insurer needs an examination, it shall arrange for such at its expense and give the insured person notice setting out the medical and any other reasons for the examination.

31Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

32Section 10 of R.R.O. 1990, Regulation 664, Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to the insured person, may award a lump sum of up to fifty percent of the amount to which the insured person was entitled to at the time of the award, with interest, on all amounts owing to the insured person.

non-earner benefit (“NEB”)

GENERAL BACKGROUND

33The parties agree that the applicant submitted an Application for Accident Benefits¹² (“OCF-1”), a disability certificate¹³ (“OCF-3”) and requested to be paid an NEB.

34The respondent confirmed receipt of the OCF-1 and OCF-3 but refused to pay the NEB. The Explanation of Benefits¹⁴ (“EOB”) noted that section 32 of the Schedule required the applicant to notify the respondent of his intention to apply for the benefit within seven days or as soon as practicable after that day, and since the applicant delayed submitting his OCF-1 and OCF-3, the respondent had been prejudiced. Therefore, no NEB would be paid for the first four weeks from the date of the applicant’s disability.

35The respondent also requested that the applicant provide his family doctor’s clinical notes and records from October 12, 2013, to date, his decoded Ontario Health Insurance Program (“OHIP”) summary for the past five years, and a completed Activities of Daily Living form (“OCF-12”)¹⁵, based on sections 36(4)(c) and 33(6) of the Schedule and noted that failure to provide these documents within the next ten business days would result in the applicant not being paid the NEB.

36Though the parties agreed that the applicant came to Canada as a refugee, they differ in views as to if the applicant had access to OHIP benefits and if the respondent was aware of this.

37The applicant argued that as a refugee in Canada for less than five years, with his refugee claim pending, he did not have access to OHIP and that the respondent was aware of this. Therefore, the applicant was unable to provide his decoded OHIP form or any family doctor’s clinical notes and records. Therefore, the respondent’s requests were unreasonable and made in bad faith, to prevent the applicant from obtaining his benefits.

38The applicant also submitted that the respondent has not provided evidence that he failed to comply with the respondent’s section 36 requests of November 2016.

39The respondent argued that the applicant has not provided any evidence to support his assertion that he does not have access to OHIP, and therefore, has not met his evidentiary burden. Moreover, the respondent submitted it was not aware that the applicant did not have access to OHIP.

Were the Notices of Examination sufficient?

40The applicant disputes the sufficiency of the Notices of Examination (“NOE”) with Dr. McCutcheon¹⁶ and Dr. Gharsaa¹⁷, scheduled for January 17 and March 30, 2017, and the stoppage of the NEBs on this basis.

41The applicant submitted that both Dr. McCutcheon and Dr. Gharsaa’s IEs were scheduled for the following reasons:

Based on the injuries sustained, as a direct result of the motor vehicle accident, the Collision report in which you indicated that you were not injured, we require you to be assessed by an independent medical assessor, to determine if you suffer a “complete inability” to carry on a normal life as a result of the accident and as a result of the accident you sustained an impairment that continuously prevents you from engaging in substantially all of the activities in which you ordinarily were engaged before the accident.

42The applicant submitted that the NOEs failed to provide adequate and sufficient medical and other reasons for the requested IEs and therefore, should be found deficient. The applicant relied on the matter of M.B. v. Aviva Insurance Canada¹⁸, where the Tribunal found that the medical and other reasons of an NOE should: “…at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.”

43The applicant submitted this response failed to provide proper reasons for the requested IEs, and instead arbitrarily requested the IEs, similarly seen in M.B.

44The applicant relied on the matter of Aviva Insurance Company of Canada v. McKeown¹⁹ deficiencies of the NOEs under section 44(5)(a) of the Schedule, the IEs relied upon by the respondent should not be allowed into evidence. The applicant submitted that the Tribunal is bound to follow this decision and that given the incongruent nature of the respondent’s responses to the applicant’s request for an NEB, meaning the respondent finding the applicant is not entitled to the benefit despite being found entitled to it.

45The respondent disagreed with the applicant’s position and characterization of the NOEs. The respondent submitted it denied the applicant’s request for NEBs²⁰ and provided the IEs of Dr. McCutcheon and Dr. Gharsaa, which stated the following:

After their assessments with you, both assessors opined that you do not suffer a complete inability to carry on a normal life as a result of injuries sustained in the subject motor vehicle accident.

Therefore, it is the opinion of Pafco Insurance that you are no longer entitled to the non-earner benefit as you do not meet the test of disability and as such, the benefit has been terminated effective May 18, 2017.

46The respondent submitted that this response establishes that the respondent did not agree that the applicant was entitled to an NEB, and therefore, the applicant’s argument about incongruent findings is incorrect.

47The respondent submitted that its Explanation of Benefits (“EOB”) complied with section 36(4) of the Schedule and requested more information about the applicant’s entitlement to an NEB²¹, pursuant to section 33 of the Schedule²² and then scheduled IEs²³.

48The respondent submitted that the applicant’s arguments about the sufficiency of its denials should not be used as a weapon to transfer the applicant’s burden of proof; namely, since the applicant provided little information about his accident-related injuries, the respondent was unable to provide the specifics of the denial, and therefore, the respondent’s NOE should be found valid.

49The respondent submitted that should the Tribunal find that the denial itself was improper or inadequate, this does not automatically entitle the applicant to the disputed benefit, as seen in Stranges v. Allstate Insurance Company of Canada²⁴, where the Court of Appeal found that an applicant must show entitlement despite a faulty notice. The respondent submitted that based on Stranges, the applicant must show his entitlement to an NEB.

50The respondent also objected to the applicant’s reliance on emails between counsel about the alleged admission of a breach of section 44(5)(a) of the Schedule and submitted that this evidence was inappropriate, and incorrectly conflated this email as an admission of a breach of the Schedule. The respondent’s counsel also submitted that no such breach occurred.

51The respondent submitted that the NOEs in dispute provided sufficient reasons for the assessments since the applicant had not provided medical documents beyond his OCF-1 and OCF-3²⁵ and the respondent did not have information about the applicant’s function.

52The respondent also submitted that excluding these IEs based on the alleged breaches of section 44(5) of the Schedule was not supported in caselaw given the significant and prejudicial impact it would have on the respondent.

53The applicant disagreed with the respondent’s arguments and submitted that the IEs should be excluded based on the decision of Aviva Insurance Company of Canada v. McKeown²⁶, where the Court of Appeal found that “consequences of noncompliance with s. 33 (2) are much less onerous than noncompliance with s. 44 of the SABS….”

54Based on McKeown, the applicant submitted that the respondent breached section 44(5)(a) and this breach was not “procedural” nor “technical” but rather substantive that extinguished the applicant’s right to the NEB. The applicant submitted that this breach requires strict compliance since the Schedule has the purpose of consumer protection.

55After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the disputed NOEs are not deficient.

56I agreed with the applicant’s general submission that the NOEs with Dr. McCutcheson and Dr. Gharsaa were lacking details concerning the medical and other reasons for the denial of the NEB. Normally, NOEs would address the applicant’s specific medical history.

57However, given the applicant’s position that he could not provide OHIP or family doctor clinical notes and records, the onus lies on him to substantiate this position. In this case, the applicant did not provide any evidence to show that he does not have access to OHIP, such as a government document that confirms this. Therefore, I am not persuaded by this argument.

58In terms of the sufficiency of the NOE, I adopted the principles of M.B. v. Aviva Insurance Canada²⁷, which I found to be persuasive as it addressed the specific issue in dispute.

59When reviewing the entirety of the NOE of December 8, 2016, I noted that it specifically addressed the applicant’s circumstances, namely that he reported not being injured as a result of his accident. I also noted that the NOE specifically stated that “there is insufficient compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the MIG.”

60Though I agree the NOEs do not request specific, outstanding documents from the applicant, given the context of the NOEs, and that the respondent continuously asked the applicant for his OHIP and family doctor records, I find that this notice is sufficient.

61Given that the applicant failed to address this, it is clear to me prima facie that the disputed NOEs addressed the details about the applicant’s conditions forming the basis of the respondent’s decision and the information the respondent still requires.

62Therefore, I find the NOEs to be valid and that the respondent is entitled to rely on these IEs, as confirmed by Aviva Insurance Company of Canada v. McKeown.

Is the applicant entitled to a non-earner benefit?

63The applicant submitted he suffers a complete inability as a result of the accident in accordance with Heath v. Economical^28. The respondent also relied on Heath, which found that the test for non-earner benefit is one of the most rigid tests under the Schedule. This test is subjective and requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period of time.

64There are six factors from Heath that the Court of Appeal considered when determining if an insured person suffers a complete inability to carry on a normal life pursuant to section 3(7) of the Schedule and, therefore, for the purposes of eligibility for a non-earner benefit.

65To establish entitlement to an NEB, the applicant must discharge his burden of proving that he is prevented from engaging in “substantially all” of the pre-accident activities in which he ordinarily engaged. In doing so, the applicant must provide evidence of the frequency and time commitments of his pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident.

66The applicant submitted that he is entitled to an NEB because he sustained an impairment as a result of his accident and suffers a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident and does not qualify for an IRB.

67The respondent also sought to clarify that based on section 12(1) of the Schedule, the applicant was only entitled to an NEB until October 12, 2018, or 104 weeks after his accident.

68The applicant submitted that as a result of his accident, he suffers from pain in his back, chest, shoulders and poor sleep, headaches, and a fear of driving²⁹.

69The applicant relied on the OCF-3³⁰ of Dr. Luela Louis, chiropractor, who examined the applicant two days after his accident and found that the applicant suffered a completed inability to carry on a normal life, to engage in caregiving activities which he engaged in at the time of the accident, and perform his housekeeping and home maintenance services, with an estimated duration of nine to twelve weeks.

70The applicant also relied on the evidence of Dr. Tajedin Getahun, orthopedic surgeon, where the applicant reported his constant back pain, symptoms of anxiety and depressed mood, sleep issues and headaches and diagnosed the applicant with chronic myofascial strain of cervical and lumbosacral spine.

71Dr. Getahun opined that the applicant satisfied the American Medical Association Guides to the Evaluation of Permanent Impairment ³¹ (“AMA Guides 4^th edition”) for chronic pain syndrome, as his symptoms have lasted over three years, he is disengaged from his usual activities of daily living. The doctor also noted that based on the applicant’s self-reported mental health symptoms, his depression should be assessed. Dr. Getahun submitted that the presence of two or more criteria fulfils the presumptive diagnosis of chronic pain syndrome according to the AMA Guides 4^th edition.

72Dr. Getahun also found that the applicant’s impairments were a direct result of his accident and suffers a complete inability to carry on a normal life and perform his housekeeping and home maintenance services as a result of his injuries and impairments from his accident.

73As discussed above, the applicant also took issue with the IEs of Dr. McCutcheon and Dr. Gharsaa due to issues with the reports themselves. The applicant submitted that the doctors failed to complete their required Experts’ Duty Forms, contrary to Rule 10.2.

74Though the applicant submitted that the respondent sent the applicant the required forms on November 10, 2021 and did not specifically challenge the veracity of these documents.

75However, the applicant also took issue with Dr. Gharsaa’s Expert’s Duty form, where the doctor did not include his residence, education, training and experience, contrary to Rule 10.2(a) and (c) and therefore, should be afforded no weight.

76The applicant argued that as the respondent failed to address Dr. Getahun’s findings via an IE, it failed in its duty of good faith to continually adjust the applicant’s claim for benefits. Therefore, the applicant submitted that Dr. Getahun’s evidence should be preferred, as it was the only true assessment of the applicant’s complete inability.

77The applicant also submitted that the respondent had the prerogative to request an updated OCF-3 from the applicant and chose not to do so.

78The respondent submitted that the applicant is not entitled to an NEB, as he has failed to provide persuasive evidence that supports that he suffered an impairment as a result of his accident that caused a complete inability to carry on a normal life within 104 weeks of the accident.

79The respondent submitted that the applicant has not provided evidence with respect to his level of function before his accident and compared it to his activities after his accident. The respondent noted that the applicant has not provided clinical notes and records from a doctor to support his position other than those of Toronto Medical Centre and failed to provide these records with his submissions.

80The respondent also submitted that Dr. Getahun’s report should be afforded little to no weight, as the doctor only met the applicant over a year and a half after the disputed NEB period, nor does it address the applicant’s entitlement to an NEB before October 12, 2018, the end of the disputed period.

81The respondent also relied on the IEs³² of Dr. McCutcheon and Dr. Gharsaa, where both doctors opined that the applicant did not suffer a complete inability to carry on a normal life within 104 weeks of the accident. Dr. McCutcheon found that the applicant did not have a diagnosable psychological injury or condition after his accident, that said injuries were predominantly minor and that the applicant did not require treatment. Dr. Gharsaa found that the applicant did not present with any objective, musculoskeletal impairment beyond what the doctor described as “some self-limiting, pain-focused, decreased range of motion of his neck and his back and diagnosed the applicant with a whiplash associated disorder II (“WAD – II”), and sprain and strain of the lower back with a contusion of the right leg.

82The respondent also noted that the applicant reported to both doctors that he visited his family doctor shortly after his accident. The respondent submitted that this comment confirmed that the applicant does have a family doctor and chose not to provide these records, despite the multiple requests of the respondent.

83The respondent requested that the Tribunal draw a negative inference from the applicant’s failure to provide the requested medical records discussed above.

84The respondent also relied on the IE³³ of Dr. Julian Mathoo, physiatrist, where the doctor reviewed the applicant’s limited medical records, and found that the applicant suffered predominantly minor, uncomplicated soft tissue injuries as a result of his accident.

85After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that he sustained an impairment as a result of his accident and suffers a complete inability to carry on a normal life as a result of his accident.

86In terms of assessing this evidence, I agreed with the respondent’s submission that, when considering an applicant’s claim to have a complete inability, the Heath decision requires the Tribunal to compare the applicant’s pre-accident and post-accident normal activities. In this case, I was provided with little information regarding this comparison, as noted by the respondent; I was not provided with the applicant’s pre-accident clinical notes and records, a chart comparing the applicant’s pre-and post-accident activities nor an affidavit from the applicant. Since the applicant has the burden of proving that he is entitled to the NEB, and has not discharged his burden, he is not entitled to the NEB.

87I considered the OCF-3 of Dr. Louis; however, I noted that this OCF-3 did not address the disputed period, and only addressed until approximately December 16, 2016, to January 6, 2017. Therefore, I afforded the doctor’s findings limited weight.

88I also weighed the evidence of Dr. Getahun versus that of Dr. McCutcheon and Dr. Gharsaa, who did not agree if the applicant suffered a complete inability to carry on a normal life. However, I agreed with the respondent’s submissions that Dr. Getahun’s findings were made well beyond the period in dispute, and do not address the issue in dispute, if the applicant suffered a complete inability to live a normal life during the disputed period. Therefore, I afforded Dr. Getahun’s findings little weight, beyond diagnosing the applicant with chronic pain syndrome outside of the disputed period.

89Instead, I preferred the findings of Dr. McCutcheon and Dr. Gharsaa, which were made during the disputed period. Though I did consider the applicant’s issues with the respondent’s IEs, I did not find these reasons to be persuasive, as the applicant did not direct me to any relevant caselaw or legislation where this issue was addressed. Moreover, since issues of challenges to expert reports is specifically addressed by Rule 10.4, a challenge that complied with said rule would have been the more appropriate avenue to challenge the findings of the IEs.

90I agreed with the respondent’s submissions that the applicant has not led persuasive evidence to support his position, as I was not provided with evidence with respect to the applicant’s level of function before his accident, or for the period in dispute, after.

91With respect to the respondent’s request to the Tribunal that it draw a negative inference, I found that this was not required, given my findings above. Instead, I found that the applicant has not met the required evidentiary onus.

92Therefore, the applicant is not entitled to the NEB.

interest and award

93Since I have found that the applicant is not entitled to the NEB, he is not entitled to interest.

94The applicant also made submissions with respect to an award due to the respondent’s conduct in adjusting the applicant’s claims for accident benefits.

95The applicant submitted that as a vulnerable person who did not have access to OHIP at the time of his accident, the respondent’s improper NOEs and the termination of the applicant’s NEB, he should be entitled to an award of 50%.

96However, as addressed above, I did not find that the applicant persuasively demonstrated that he was, in fact, not eligible for OHIP, that the NOEs were improper nor the termination of the NEB, I find that the applicant is not entitled to an award.

COSTS

97The respondent chose to raise the issue of costs and requested the amount of $500.00 for the hearing, as the applicant’s “eleventh-hour attacks³⁴” regarding section 44 and Rule 10.

98The applicant disagreed with this position and submitted that it was unclear if the respondent requested a “special award” or costs, but either way, the respondent was not entitled to such. The applicant submitted that the respondent has no standing to add the issue of an award.

99In terms of costs, the applicant submitted that based on section 17.1(2)(a) of the Statutory Powers Procedure Act³⁵ (“SPPA”), the Tribunal shall not make an order to pay costs unless the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith”. The applicant submitted he was unclear as to how he acted in a way that merited costs, and any issues with examinations, forms completion, notices and emails were related to the respondent’s adjustment of the applicant’s claim.

100Rule 19.1 allows a party to make a request for costs when they believe another party acted frivolously, vexatiously or in bad faith. Rule 19.2 states that a request for costs may be made to the Tribunal in writing or orally at the case conference or hearing, at any time before the decision or order is released.

101Rule 19.4 states that submissions on costs shall set out the reasons for the requests, and particulars of the other party’s conduct that is allegedly unreasonable, frivolous, vexatious or in bad faith.

102Rule 19.5 states that when the Tribunal considers ordering costs, it shall consider all relevant factors including “the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system. “

103After considering the chronology of events in this matter, I will decline to award costs. This is because the respondent has not provided me with evidence that convincingly shows that the applicant’s actions were frivolous, vexatious or in bad faith. Instead, I observed what I would describe as the applicant’s legal representative trying their best to make any and all arguments that would serve their client.

104As discussed above, the applicant is entitled to raise the issue of the award at any point before the decision is released, and therefore, I do not find this to be a basis for an order for costs.

105I also declined to order costs with respect to the issues in relation to Rule 10.4, as the applicant’s failure to follow this rule has already resulted in him being unable to challenge the expert’s reports.

106Therefore, no costs are payable.

CONCLUSION and order

107The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from January 4, 2017, until October 12, 2018.

108The applicant is not entitled to interest.

109The applicant is not entitled to an award.

110The respondent is not entitled to costs.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 216-004312 v Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at para. 15.
3. 3Ibid.
4. 4Email from the respondent’s counsel to the applicant’s counsel, dated November 10, 2021.
5. 5Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 as paras. 11, 28, 45, 54 and 61.
6. 6M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) at paras. 15 and 16.
7. 7NOEs from the respondent to the applicant dated December 6, 2016.
8. 8Based on the applicant’s submission on page 4, which indicates a date of November 9, 2021.
9. 9Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 with no paragraph specified.
10. 10Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, S.O. 2014, c. 9 - Bill 15.
11. 11Case Conference Report and Order of Adjudicator Karina Kowal dated April 8, 2021.
12. 12OCF-1 dated November 15, 2016.
13. 13OCF-3 of Dr. Loud dated October 14, 2016.
14. 14Based on the EOB from the respondent to the applicant, dated November 30, 2016.
15. 15Based on the EOB from the respondent to the applicant, dated November 30, 2016.
16. 16Notice of Examination dated December 6, 2016 from the respondent to the applicant.
17. 17Notice of Examination dated February 22, 2017 from the respondent to the applicant.
18. 18M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) at paras. 15 to 16 21 to 26 and 30.
19. 19Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 as paras. 11, 28, 45, 54 and 61.
20. 20Explanation of Benefits from the respondent to the applicant dated May 10, 2017.
21. 21Ibid.
22. 22Explanation of Benefits from the respondent to the applicant dated November 30, 2016.
23. 23Notice of Examination dated December 6, 2016 from the respondent to the applicant.
24. 24Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457 at paragraph 9.
25. 25OCF-3 of Dr. Loud dated October 14, 2016.
26. 26Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 as para. 68.
27. 27M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) at paras. 15 to 16 21 to 26 and 30.
28. 28Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
29. 29Based on the applicant’s OCF-1 dated November 15, 2016, OCF-3 dated October 14, 2016, and the Independent Chronic Pain Assessment of Dr. Getahun dated November 7, 2019.
30. 30OCF-3 of Dr. Luis dated October 14, 2016.
31. 31American Medical Association, Guides to the Evaluation of Permanent Impairment, 4^th Edition, 1993.
32. 32Insurer’s Examination – Multidisciplinary Assessment of Dr. Gharsaa and Dr. McCutcheon dated April 28, 2017.
33. 33Insurer’s Examination – Physiatry Paper Review of Dr. Mathoo dated March 13, 2018.
34. 34Submissions of the respondent, page 13.
35. 35Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.