Behnaz Samadi v. Allstate Insurance Company of Canada, 2022 CanLII 124639

Citation: Samadi v. Allstate Insurance Company of Canada, 2022 ONLAT 21-000430/AABS

Licence Appeal Tribunal File Number: 21-000430/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:

Behnaz Samadi

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Claudette Leslie

APPEARANCES:

For the Applicant:

Behnaz Samadi, Applicant

Adesina John, Paralegal

Abtin Toubi, Observer

For the Respondent:

Diana Oliveira, Counsel

Observers:

Denise Felstead (Day 2), Alethia Fluelling(Day 3)

Farsi Language Interpreters:

Margarit Javani (Day 1), Sholeh Kolbadypoor (Day 2), Farahnaz Tafreshi (Day 3)

Court Reporters:

Trina Wannamaker (Day 1), Denise Garginova (Days 2 - 3)

Heard by Videoconference:

July 25-27, 2022

OVERVIEW

1The applicant was involved in an automobile accident on October 5, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The applicant was denied certain benefits by the respondent insurer, Allstate Insurance Company of Canada (“Allstate”). The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on June 22, 2021, and consequently the matter proceeded to a videoconference hearing, scheduled for April 19-22, 2022.

3At the applicant’s request, on the basis of circumstances outside of her control, the hearing dates were subsequently rescheduled to July 25, 26 and 27, 2022. The parties were unable to resolve the matter at a further settlement conference held by teleconference on July 22, 2022, as a result, the 3-day videoconference hearing proceeded.

ISSUES IN DISPUTE

4The following are the issues before me:

i. Is the applicant entitled to an income replacement benefit (“IRB”) of $400.00 per week from September 18, 2020 to date and ongoing?

ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payment to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of the benefit?

iv. Is the respondent entitled to costs? (Added at hearing)

Addition of issue #iv. above: While the parties confirmed at the start of the proceeding that the issues to be determined were limited to issues i.-iii. above, the respondent indicated that it was seeking costs in its closing submissions. The respondent pointed to an adjournment order issued on April 22, 2022 by Vice-Chair Sandeep Johal, adding costs as an issue to be determined, here, at the hearing. While recognizing that adding an issue at the end of the hearing is procedurally inappropriate, I allowed the addition of the issue, with the following stipulations. In the interest of procedural fairness, both parties were required to provide their written, post-hearing submissions regarding costs, as follows: a) the respondent’s within a day of the close of the hearing, and b) the applicant’s within two days of the close of the hearing.

PRELIMINARY/MOTION ISSUES:

5At the onset, I addressed the following preliminary issues raised and/or motions brought forward to be determined, at the hearing.

1. The applicant as witness: The respondent argued that the appearance of the applicant at the hearing was prejudicial as there had been no previous indication that she would be a witness, and as a result, it had not had an opportunity to prepare for cross-examination beforehand. The applicant asserted that there was no reason she should not appear to speak to her application and denied that her appearance was prejudicial to the respondent.

I agree with the applicant, who should reasonably be expected to participate meaningfully in the hearing. Rule 2.10 defines a “Hearing” as an event in which “a party has the opportunity to participate” in any format of hearing. In other words, the very purpose of a hearing is to give the parties to the application an opportunity to take part in the proceeding. In this case, the applicant chose to exercise that right. Regardless of the fact that she did not indicate beforehand that she intended to be present, by not allowing the applicant to testify would, in my view, deny her the opportunity to participate meaningfully in the hearing. Furthermore, the fact that the respondent was knowledgeable of the applicant’s claims and would have undoubtedly been familiar with the applicant’s position in that regard before the hearing, does not lead me to believe that there was a need for special cross-examination preparation, or that it would be detrimental to the respondent’s case to cross-examine the applicant during the hearing process.

2. Order for adjuster(s) appearance: The applicant’s motion to the Tribunal for an order requiring the respondent to produce an adjuster to testify at the hearing, was filed a few days prior to the start of the hearing. As a result, and as per a July 22, 2022 Tribunal order, the motion was carried forward to be determined here. Although the Notice of Hearing was issued on May 11, 2022, the applicant’s counsel indicated that he had only recently been retained/had carriage of the file and had had no time to execute the process for summoning an adjuster. The respondent indicated one of the two main adjusters involved, was no longer with the insurer, and the other was vacationing and was therefore not available. It further submitted that the applicant has been provided with the requested adjuster’s log notes, which document the adjusting activity.

The applicant’s motion was denied for the following reasons: a) notwithstanding the issue of the adjusters’ availability, the request is clearly not reasonable at a few days prior to the hearing and could potentially cause a delay in the proceedings; and b) I find no reason to believe that oral testimony is necessary to corroborate the documentary evidence, in this case the log notes, or that the applicant’s case would be prejudiced without the adjuster(s)’ corroborating testimony.

3. Barring of new documentation: The respondent requested that the applicant’s alleged inclusion of a new document, not previously disclosed, in her documentary submissions, should be barred. This issue was resolved upon confirmation that the document in question, a treatment plan of September 14, 2020, was in fact not a new addition. The indication was that the document had been submitted in an earlier documentary brief intended for the previously scheduled hearing in April 2022. The only confirmed change was the respondent’s position from denial to approval of the claim.

RESULT

6Having considered all of the relevant evidence provided, I find that:

(i) The applicant is not entitled to an income replacement benefit for the period claimed and consequently, she is not entitled to interest as no payment is due.

(ii) The applicant is not entitled to an award under Regulation 664.

(iii) The respondent is not entitled to costs.

BACKGROUND

7The applicant was the right, rear seat passenger in a vehicle driven by her daughter on, according to a collision report provided, Saturday, October 5, 2019. The vehicle was stopped at a red light when it was rear-ended by a pickup truck. The applicant reported hitting her right hand and head against the right, rear-door window of the vehicle. Police and ambulance attended the scene, the applicant was examined by the attending paramedics. None of the occupants of the vehicle needed to be transported to hospital. The vehicle was drivable, and they drove home. A few days after the accident on October 11, 2019, the applicant met with her family physician, Dr. Bahar Ghazi-Miraseed, due to pain complaints. The doctor recommended physiotherapy which commenced at Ocean Rehab Inc, shortly thereafter.

8The applicant was employed as a part-time cashier at Canadian Tire at the time, although she reported that she mostly worked full-time hours. She retuned to work immediately following the accident as per her previously scheduled work assignment on October 6, 7, 8, 9 and 10, 2019. The applicant then left for a pre-planned trip to Iran, and to care for her ailing mother on October 14, 2019. She returned to Canada in July of 2020; worked for a short period before returning to Iran in January 2021. She came back to Canada in November of 2021 and left again for Iran on March of 2022. At the time of the hearing the applicant was still in Iran, from where she joined/participated in the hearing. She indicated that she was living with her 80-year-old mother.

9The applicant quit her job at Canadian Tire in January of 2021. Although eligible to work in Iran, I gathered from the applicant’s testimony that she has not done so as her mother provides financial support. She also indicated that she only intends to seek other employment if she recovers.

THE LAW, EVIDENCE AND ANALYSIS

Issue [4] i.: Is the applicant entitled to income replacement benefits of $400 weekly from September 18, 2020 to date and ongoing?

10Section 5(1) of the Schedule requires an insurer to pay an injured, insured individual an income replacement benefit if, as a result of the accident, the insured person suffers a substantial inability to perform the essential tasks of their employment. As per s.6(2), after the first 104 weeks post-accident, the test to qualify for income replacement benefits is more stringent. It is whether the individual suffers a complete inability to engage in any employment for which they are reasonably suited by education, training and experience. In other words, because of their accident-related injuries, they are unable to work at any job they are able to do within the scope of their education, training and experience

11The applicant received IRB payments up to September 27, 2020, when the insurer ceased payments. She seeks to have the payments continued, for the remainder of the pre-104 weeks after the accident, and ongoing for the post-104-week period. There is no dispute that she was a cashier at Canadian Tire at the time of the accident; or that she returned to work immediately after the accident, worked for a few days before leaving for Iran, and that she also worked for a short period in 2020 before quitting her job and returning to Iran in January 2021 and again in March of 2022, where she remained.

12As per the above provisions, to determine the applicant’s entitlement to IRB, I must answer the following questions: a) what are the essential tasks of the applicant’s employment? b) what are the accident-related injuries she sustained; and c) is the applicant substantially unable to perform the essential tasks of her employment as a result of injuries she sustained? In all cases, the applicant bears the burden of proving, on a balance of probabilities, that she is entitled to the benefit.

13The applicant submits that she sustained physical and psychological impairments that prevented her from engaging in the essential tasks of her employment as a cashier. Specifically, she submitted that activities such as prolonged, sitting, standing and walking caused increased pain, that is her reason for quitting her job. The applicant further states that the respondent submissions otherwise, should be discredited, on the basis that it did not conduct a holistic, including psychological examination of the applicant and/or whether she was able to perform her tasks as a cashier. The respondent submits that neither the applicant’s evidence, nor the physiatry assessment it commissioned supports her claim or suggests that she was prevented from performing the essential tasks of her employment.

14I have considered all of the relevant evidence submitted, as well as the following chronology of events. The applicant returned to work immediately following the accident, she worked for a few days before leaving for Iran on October 14, 2019; due to Covid pandemic travel/flight limitations and/or restrictions, the applicant indicated she needed to work and get treatment and returned to Canada at the first opportunity in July 2020. While in Canada, she collected the Canada Emergency Response Benefit (“CERB”) available during the pandemic and worked for several weeks, before quitting her cashier position at Canadian Tire and leaving for Iran in January 2021. She returned to Canada in November 2021, left for Iran in March of 2022, where she remains as of this hearing. All considered, my analysis of the evidence provided, does not establish that, on a balance of probabilities, the applicant was unable to perform the essential tasks of her employment as a cashier.

What are the essential tasks of the applicant’s employment?

15I gathered that the essential tasks of her job are as follows. The applicant self-described her tasks generally, as: standing behind the cash register; cleaning lanes and stacking shelves; although she would be in pain after her shift. The unsigned Canadian Tire cashier job description submitted indicates the following: customer service, including constant interaction with customers, friendly and courteous service, smiling, greeting and directing customers, while operating cash register, processing purchases, balancing cash, returns products to stock, complete other tasks as required, etc. The physical demands and working conditions are outlined as follows:

• Standing/walking for 9 hours; lifting and/or carrying of merchandise items, as required, on a regular, frequent and unassisted basis. Merchandise item may vary in weight from "light" to "heavy"; lifting and turning repeatedly throughout the shift; lifting above the shoulder, from floor to shoulder and floor to waist; ability to go up and down a ladder and stairs while carrying merchandise; walking and carrying things at the same time and pushing/pulling, as required.

What are the applicant’s accident-related injuries?

16I accept the above self-reporting and job description of the applicant’s employment as a cashier. I must now determine what accident-related injuries she sustained, before addressing whether her condition prevented her from performing the aforementioned tasks. The respondent concedes that the applicant may have sustained soft tissues injuries, that were treatable over a short period, under the Minor Injury Guidelines (“MIG”). As indicated above, it paid IRBs, ceasing to do so based on its physiatry, insurer’s examination (“IE”). In identifying the applicant’s injuries, I have considered the following relevant evidence submitted.

17The evidence indicates that she visited family doctor, Dr. Bahar Ghazi-Mirsaeed, six days after the accident due to pain complaints. Among other things, he recommended physical treatment, physiotherapy/massage of her neck, upper/lower back and right elbow. On two other occasions, October 19 and November 16, 2020, during the Covid pandemic, the applicant followed up with her family doctor, including by phone. On both occasions, including after a lengthy discussion on November 16, 2020, the doctor provided the applicant with lifestyle, relaxation suggestions, and the use of breathing exercises as a coping strategy. Upon the family doctor’s recommendation, the applicant started treatment at Ocean Rehab Inc. on October 11, 2019, attending a few times each week, with the last documented treatment date noted as November 18, 2020.

18A disability certificate (“OCF-3”) dated October 11, 2011, was completed by chiropractor Madiheh Moslehi Baharanchi of Ocean Rehab Inc. who diagnosed the applicant’s accident-related injuries as:

tension-type headache; whiplash associated disorder [WAD2] with complaint; radiculopathy, lumbar region; rotator cuff syndrome; sprain and strain of elbow; and sprain and strain of lumbar spine.

In the certificate, as well as a subsequent treatment plan dated August 27, 2020, the chiropractor explains that the applicant suffered a complete inability to conduct the essential tasks of her employment/carry on a normal life because:

“Prolonged sitting, standing, stair climbing, and walking increase the pain. Activities such as bending, lifting, overhead reaching, pulling, pushing, driving, also aggravate her symptoms. The headache cause difficulty with focus and concentration. Impaired activities include sleeping, cooking, cleaning, and performing household chores. These limitations lower patient's mood.” Nine (9) to twelve (12) weeks is the expected recovery period noted in the OCF-3.

19I gather from various, Persian language translated notes, that the applicant for the period of February 23, 2020 to approximately June 31, 2020, while she was in Iran, she received various prescribed medications, including for depression and sleep issues, as well as physiotherapy treatments lasting at least two weeks in each instance. It appears, for example the applicant received 10 physiotherapy sessions from February 18, 2020 to March 2, 2020 for low back pain; and an MRI conducted in Iran in October 2020 for “spinal column and its contents, lumber area” indicates “no significant discopathy or stenosis”. When questioned about the absence of any supporting CNRs from the prescribing physicians, the applicant indicated that it was common practice in Iran for specialists in any area of medicine to provide a prescription, without examination and based solely on the complaints reported by the individual, as appeared to be the case here. The respondent pointed out, and I acknowledge the indication, that medical practice/standards in Iran may differ from that of Canada, including how medication and or treatment is prescribed.

20Back in Canada, on October 3, 2020, due to ongoing complaints of “low back pain with radiation to both legs, left greater than right” the applicant submitted to an MRI, under Dr. Sogoal Kachooie’s authorization. The following appears under the heading of “Interpretation” of the MRI: “Multilevel degenerative disc and facet disease, with severe left-sided neuroforaminal stenosis at L5-S1. No significant disc herniation or central canal stenosis.” As a result, the applicant received a one-time pain injection prescribed by Dr. Kachooie, on October 8, 2020.

21As proposed in the August 27, 2020 treatment plan by her treating chiropractor, the applicant confirmed that she had spoken to her employer about her low back pain, and the need for modifications to her work schedule; which she testified that her employer accommodated. Notwithstanding, in November of 2020, the applicant requested a note from her family physician to inform her employer that she was unable to return to work. She indicated that she later terminated her employment due to back pain in January of the 2021, and that she has not worked since.

22In its submissions, the respondent’s IE physiatrist testified as to her findings relating to the applicant’s accident-related condition; and the respondent also pointed me to evidence showing the applicant’s work history for the period in question. I note here that in instances where the applicant could not recall details, or where the applicant’s recollection varied from that of the respondent, I relied on, and applied more weight to the documentary evidence submitted.

23The respondent’s expert witness, Dr. Rajka Soric, a physiatrist since 1983 with a sub-specialty in musculoskeletal pathology, testified that she saw the applicant, accompanied by a Farsi interpreter, in her office, on August 20, 2020 for the purpose of conducting a physical assessment in keeping with her area of expertise. As an IE assessor, Dr. Soric explained she did not have a physician-patient relationship with the applicant, due to the fact that the applicant was referred to her by the assessment centre, for a one-time consultation. Dr. Soric explained her methodology in carrying out the assessment, including discussion of the applicant’s medical history, presenting symptoms and a review of documents, she considered key to her assessment. For example, the doctor testified her review of the MRI conducted in Iran indicated nothing of significance; and her impression of the one conducted later in Canada was that “it looks good for a 58-year-old woman” including “a lot of unremarkable” notations.

24Dr. Soric testified that she conducted a physical testing of the applicant paying special attention to areas such as spine alignment, rotations, muscle tone, strengths, gait, her elbow. Her examination included touching the applicant’s spine, lower back, and her right elbow. The doctor testified she found nothing remarkable about the applicant’s right elbow and that her spine was aligned. When the applicant bent backward the doctor observed there was pain. Ultimately, she found no atrophy, no sensory deficit, the applicant’s elbow was normally aligned, and the degeneration of the joints in the applicant’s spine was subject to pain. Despite the applicant’s pain complaints, the doctor testified that based on her examination, she found no physical abnormalities residual impairment, or limitations in her movement, which would have signified an impairment, that would support the applicant’s pain complaints. Based on her examination, the doctor concluded that the results were normal, and she found no abnormalities that would have consequently, triggered or required consideration in the context of the applicant’s job activities.

25Notably, when questioned about the healing process based on her expertise, the doctor recognized that healing depends on the type of injury, as there was no scientific basis to support how long healing takes. For example, she pointed out that soft tissue injuries healed in a matter of 8-12 weeks, fractures take longer and a complicated past medical history “can have a lot to do with prolonged abnormalities.” Based on her review/examination, the doctor found that the applicant did not have a medical history that would complicate her recovery.

26The respondent provided pay statements/stubs indicating that the applicant worked after the accident, while in Canada, during 2019 up to October 10, 2019 and her total income for the 2020 tax year is indicated as $6,160.42 comprising, employment income of $2,160.42 and $4,000 from, other/CERB pandemic benefit: for the pay period ending on October 21, 2019 she worked 34.64 hours, which corroborates the applicant’s testimony that she returned to work immediately following the accident; for the pay period ending on January 11, 2021, the applicant worked 15.87 hours; 27.27 hours for the November 2, 2020 pay period; 28.80 hours for the November 16, 2020; 27.08 hours for the November 30, 2020 period; for the December 14, 2020 period, 29.81 hours; and for the December 28, 2020 period she worked 27.04 hours.

Regarding Psychological injuries/examination

27I find no merit in the applicant’s argument that the respondent, and the IE physiatrist failed to refer her for alleged, psychological injuries exploration. I find no such referral was warranted. Firstly, I agree that Dr. Soric as an IE physiatry assessor, on a one-time basis, did not have a physician-patient relationship with the applicant, and therefore, this was not a situation wherein she was responsible for the applicant’s overall health care, that would have led to her make any necessary medical referrals. Secondly, the accident-related injuries, complained of, first to her family physician, diagnosed as per the disability certificate completed by the applicant’s chiropractor, as well as the post-accident treatment the applicant received, all related to physical impairment(s), chiefly in her lower back/lumbar region, as opposed to psychological injuries.

28The burden of proof as indicated above, rests with the applicant to prove that she had sustained psychological injuries; not the respondent’s as she asserted. She failed to provide me with any evidence that would indicate that she sustained or was diagnosed with psychological injuries as a result of the accident. I find, there was no need for the respondent to explore such alleged injuries, as the applicant argued. Furthermore, while there are instances when the applicant reported to medical physicians that she was depressed/felt worthless, and she was prescribed depression and anxiety medication, there is no conclusive evidence indicating that her state of mind was accident related, as opposed to other life factors.

Is the applicant substantially unable to perform the essential tasks as a cashier?

29The evidence establishes that the applicant’s injuries were physical in nature. Therefore, I make my decision essentially on the applicant’s physical condition, as her employment as a cashier, was mainly physical in nature. Based on the self-reported/documentary evidence, it appears the applicant sustained soft-tissue, whiplash associated injuries, primarily, in her lower back region, her right elbow and initially in an area of her upper/lower back. Undoubtedly, the purpose of physiotherapy services she received while in Canada, as proposed by her physician, as well as similar physiotherapy sessions she received in Iran, was treatment intended to address injuries of a physical nature, including her repeated complaints of pain in her lower back.

30Based on, among other things, training and experience, I also find the respondent’s witness’ objective, physiatry examination findings, conducted approximately 10 months post-accident, to be reliable and compelling. The doctor found nothing remarkable about the applicant’s right elbow, that her spine was aligned, and she found no physical abnormalities. Although the doctor indicated there was, what I gathered, appeared to be natural, disc degeneration as part of the aging process reflected in the MRI conducted in Canada, the doctor ultimately concluded there was nothing in the applicant’s historic and presenting, physical medical history that required her to consequently, consider whether the applicant’s work activities were impacted. I accept the physiatrist’s conclusion based on her review and physical examination that there were no residual, accident-related injuries.

31Having considered the relevant evidence provided, I am not convinced, nor does the evidence establish that, on a balance of probabilities, the applicant was unable perform the mainly physical, essential demands of her job as a cashier, or that she was unable to work at the job she did before, because of accident-related injuries. My reasons are as follows.

32The Schedule does not define the terms, a) “substantial inability” or b) “essential tasks”. Notwithstanding, I find a reasonable understanding of “substantial inability” to mean, posing a considerable amount of difficulty; and “essential tasks in the context of employment to mean the required, crucial/vital tasks of the individual’s role/position. I therefore apply little weight to any occasional tasks the applicant may have been required to perform.

33By her own reporting, the applicant described the essential tasks of her job as standing behind the cash register; cleaning lanes and stacking shelves. I gathered that her tasks would not only involve the use of her hands in operating a cash register, processing purchases, but also that the physical demands and working conditions involved: standing/walking, lifting and/or carrying returning products to stock that vary in weight, lifting and turning repeatedly throughout the shift; lifting above the shoulder, and at times, pushing/pulling, at times. Evidence of the applicant’s post-accident activities demonstrate and corroborate my finding that, on a balance of probabilities, she was able to perform the essential tasks of her job as a cashier. In fact, after accident, the applicant returned to cashiering, immediately and later upon her return from Iran during another period. Except for the periods of her mostly unexplained, extended absences from Canada, the applicant worked up to the date she terminated her employment in January 2021.

• The applicant returned to her job as a cashier immediately after the accident on October 6 -10, 2019); albeit she may have been experiencing some level of discomfort, and as she explained, she did not want to disappoint her employer by failing to appear for the previously scheduled shift.

• I am unable to assess whether she would have been able to continue working, as she left for Iran on October 14, 2019, nine days after the accident, and though pandemic limitations may have played a part, she did not return to Canada until July 2020, eight months later.

• I accept the applicant’s testimony that that she has not worked in Iran and I acknowledge evidence indicating that she received prescription medication and physiotherapy treatment, for among other things, pain, while in Iran. However, without any supporting CNRs from her Iranian physicians, and without any knowledge as how the medical standards, methodology and practice compares to Canada; or whether her consultations were accident related, I place very little weight on this evidence.

• Upon her return to Canada, and before leaving for Iran again in January 2021, the applicant admitted that her employer had acquiesced to her request for shift/task modifications and that she continued to work, as indicated by the pay stubs submitted. She worked: 27.27 hours for the November 2, 2020 pay period; 28.80 hours for the November 16, 2020 period; 27.08 hours for the November 30, 2020 period; for the December 14, 2020 period, 29.81 hours; and for the December 28, 2020 period she worked 27.04 hours. Her total income from employment and CERB, for the 2020 tax year is $6,160.42. December 2020 was the last time the applicant worked.

• There is no dispute that the applicant quit her employment with Canadian Tire as a cashier in January 2021. She indicated she did so because of pain complaints, despite the fact several months prior to January, the IE physiatrist’s examination had found no residual, physical abnormalities. A letter from her family doctor urged the respondent to restore her IRB payments. I acknowledge that the applicant received IRB payments up to September 27, 2020, approximately 11 months after the accident. Notably, and while the indication is there is no scientific basis for estimating recovery periods, based on the applicant’s injuries, her chiropractor in the disability certificate, projected a 9-12 week (a maximum of 3 months) recovery period. No further updated projections were presented

• While the evidence shows that the applicant was able to continue working as a cashier in the short term, after the accident while she was in Canada, due to her extended absences from Canada, I find there was little to no opportunity available for assessing whether she would have been able to continue as a cashier under the modified work circumstances, as she did prior to the accident. Similarly, for the same reason, I am unable to determine whether she would have been able to engage in other suitable employment, based on her education, training or experience, as although she returned to Canada in November 2021, she left for Iran in March of 2022, where she has remained. The applicant also confirmed that she chose not to seek employment while in Iran; and while she indicated that she had no intention of returning to Canadian Tire, she stated she will only seek other employment “if she gets better”.

34All considered, the totality of the relevant, evidence before me does not indicate that the applicant was substantially unable to perform the essential tasks of her pre-accident employment. On the contrary, the applicant returned to work immediately and performed her tasks, post-accident, except during her mostly, unexplained absences from Canada and up to the end of her employment with Canadian Tire. Given there was no compelling evidence of residual, on-going physical impairments or otherwise, I am also not led to believe accident-related issues caused the applicant to end her employment; considering that she left for Iran in January 2021; the same month in which she terminated her employment. The applicant provided no evidence that she had difficulty, or if any, the level of difficulty she experience when performing her role as a cashier, within the modifications made by her employer. I find no reason to believe the applicant is entitled to IRB for the remainder of the 2-year period post accident, or beyond what she has already received; and consequently, she is not entitled to interest as there is no overdue payment owing.

Issue [4] ii.: Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

35The applicant requested a special award pursuant to section 10 of Ontario Regulation 664 (“Reg 664”). Section 10 of Reg 664 states that the Licence Appeal Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured if an insurer has unreasonably withheld or delayed payments.

36As indicated above, I find that the income replacement benefit is not payable, consequently there is no amount/payment to which the applicant is entitled; or that would warrant consideration as to whether payment was unreasonably withheld or delayed.

INTEREST

37Having found that the applicant is not eligible for IRBs, and that there is no payment is due/owing, I find that the applicant is not entitled to interest.

COSTS

38The Licence Appeal Tribunal Rules of Practice and Procedure (the” Rules”) 19.1 allow parties to request cost if they believe that the other party in the proceeding acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for such a request including the reasons for the request and the particulars of the alleged conduct. The Rules of the Tribunal are made pursuant to the section 17.1of the Statutory Powers Procedure Act (“SPPA”). The respondent seeks to have costs awarded under this directive.

39The words, “unreasonably, vexatiously, frivolously, or bad faith” are not defined in the Rules or the SPPA. However, in my view, a dictionary definition/reasonable understanding of these terms are as follows: “unreasonable” meaning unwarranted; “vexatious” meaning, acting without reasonable or probable cause or as a means of annoying someone; “frivolous” meaning not having a serious purpose or value; and “bad faith” meaning deceitful or dishonest.

40In its post-hearing submissions, the respondent in essence requests costs totalling $917.56, which represents legal costs for preparing its expert witness, Dr. Soric (whose costs had not yet been invoiced at the time of these submissions, according to the respondent) and for securing a court reporter in preparation for the hearing initially scheduled on April 19-22,2022. On the applicant’s motion, that hearing was adjourned by Tribunal order, issued on April 22, 2022 to the dates of this hearing. The applicant argues that the respondent’s request should be dismissed, on the grounds that her conduct/action was not dishonest, and the request does not meet the test for costs set out under the Rules. I note here that any post-hearing, cost submissions made after the dates specified at the hearing, will not be considered. Considering the facts of the matter and the chronology of events, I find no merit in the respondent’s argument as to why the applicant is liable to pay costs.

• An April 12, 2022, Tribunal order denied the applicant’s request to adjourn the initially scheduled hearing, on the grounds that adding catastrophic impairment reports and witnesses, was not considered reasonable grounds for an adjournment.

• On April 13, 2022, the applicant submitted a second, urgent request to adjourn the initially scheduled hearing, due to the unforeseen resignation of the legal representative with carriage of her file, and who had been afflicted with COVID-19 for two weeks.

• Despite the fact that the respondent did not consent to the request, in an order dated April 22,2022, Vice-Chair, Sandeep Johal granted the adjournment, and the hearing was rescheduled.

41I agree with Vice-Chair Johal (April 22, 2022 order) that, contrary to the respondents claim that a party/hearing should proceed regardless of any circumstances including illness or unforeseen resignation of a party’s legal counsel, a party should not be forced to proceed, due to circumstances beyond their control, as I find was the case here in regards to the initial hearing. Like Vice-Chair Johal, I also agree, the Tribunal does not require medical evidence/proof to corroborate the applicant’s previous representative’s condition/claim as the respondent suggests.

42The Tribunal was satisfied that there were reasonable grounds to adjourn the April 2022 hearing, on the basis of the parties’ submissions, including the unforeseen circumstances outside of the applicant’s control that developed, and I support that decision. I find nothing in the applicant’s conduct that would satisfy my understanding of the terms “unreasonably, vexatiously, frivolously, or bad faith” or that would warrant costs. The respondent’s claim for costs is denied.

CONCLUSION/ORDER

43For the reasons outlined above, I order that:

i. The application/applicant’s claim for IRB, an award and interest, is dismissed.

ii. The respondent’s claim for costs is dismissed.