Hutchinson v. Aviva General Insurance Company, 2022 CanLII 27503

Licence Appeal Tribunal File Number: 19-006130/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:

Camille Hutchinson

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Applicant did not attend Rajwant Singh Bamel, Counsel

For the Respondent: Aviva General Insurance Company Marcin Panasewicz, Counsel

Court Reporter: Alyssa Scott

HEARD: by Videoconference: March 7, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on December 9, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (‘Schedule”)¹.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2This matter has a long history of adjournments, partly arising out of COVID protocols and partly from adjournment requests from the parties. The hearing before me was almost two years after it was first scheduled for a hearing three years after the appeal was filed.

3The parties first attended a case conference before Adjudicator Sharma on October 23, 2019. He ordered an in-person hearing for June 11 and 12, 2020. On April 23, 2020, the Tribunal informed the parties that the in-person hearing would not be proceeding. However, if the parties were to consent, then the Tribunal would convert the in-person hearing to a teleconference hearing. The respondent did not consent to the change of the hearing format.

4On May 8, 2020, the applicant’s counsel filed a notice of motion to change the hearing format to a teleconference hearing. The motion hearing was heard by Vice-Chair Maedel on May 25, 2020. The motion was denied because the Tribunal was not satisfied that this matter could be adequately completed via teleconference due to the number of witnesses and the potential documentary evidence issues. The parties were ordered to attend a case conference on June 29, 2020.

5The parties attended a case conference before Adjudicator Goela on June 29, 2020. The parties consented to a three-day in-person hearing on March 17 to 19, 2021. On October 21, 2020, the parties were informed that the matter would proceed as a videoconference hearing due to COVID protocols.

6On March 15, 2021, the applicant’s counsel filed a request for an adjournment due to a scheduling conflict. The request was on consent. On March 16, 2021, Adjudicator Makhamra granted the adjournment request. The videoconference hearing was adjourned to March 7 to 9, 2022.

7On March 3, 2022, the applicant’s counsel filed a notice of motion with the Tribunal seeking an order that the hearing scheduled to be heard on March 7, 2022 be converted from a videoconference hearing to a written hearing. In Schedule A of the notice of motion, it is stated that “Applicant has suggested that she is mentally not prepared to proceed with the in-person hearing. Also, testifying in person will have [sic] effect on her mental health.”

8In response to the motion, the respondent’s counsel objected to the notice of motion proceeding at or prior to the hearing on the basis of Rule 15.2 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 (‘Rules’) which requires at least 10 days advance notice prior to a motion. He submitted that Rule 15.3 guarantees the responding party to a motion the right to meaningfully respond. Moreover, allowing the applicant’s motion to proceed on short notice will prejudice the respondent’s right to respond to the motion. The respondent requested that the applicant’s motion not be scheduled to proceed any sooner than 10 days from March 3, 2022.

9The parties were informed that the motion would be heard at the hearing.

ISSUES

10The issues in dispute were identified and agreed to as follows:

a. Is the applicant entitled to a medical benefit in the amount of $3,335.98 for psychological treatment recommended by Toronto Health Care in a treatment plan (OCF18) submitted on September 18, 2018 and denied on September 20, 2018?

b. Is the applicant entitled to a medical benefit in the amount of $627.92 for psychotherapy CD recommended by Toronto Health Care in a treatment plan (OCF18) submitted on September 18, 2018 and denied on September 20, 2018?

c. Is the applicant entitled to a medical benefit in the amount of $13,706.56 for chronic pain treatment program recommended by Toronto Health Care in a treatment plan (OCF18) submitted on December 13, 2018 and denied on December 18, 2018?

d. Is the applicant entitled to physiotherapy treatment recommended by Toronto Health Care in the amount of $1,438.30 submitted on August 19, 2019 and denied on February 18, 2020?

e. Is the applicant entitled to interest on any overdue payment of benefits for the issues in dispute listed above and for the following issues in dispute resolved at the case conference?

i. Is the applicant entitled to a medical benefit in the amount of $1,311.57 for physiotherapy recommended by Toronto Health Care in a treatment plan (OCF18) submitted on March 9, 2018 and denied on March 19, 2018?

ii. Is the applicant entitled to a medical benefit in the amount of $1,743.05 for physiotherapy recommended by Toronto Health Care in a treatment plan (OCF18) submitted on March 28, 2018 and denied on April 10, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $1,467.85 for physiotherapy recommended by Toronto Health Care in a treatment plan (OCF18) submitted on May 17, 2018 and denied on May 31, 2018?

f. Is the applicant entitled to an award under s.10 of Regulation 664, R.R.O. 1990 because the respondent unreasonably withheld or delayed the payment of benefits in dispute and for the following issues in dispute resolved at the case conference?

RESULT

11The motion to convert the videoconference hearing to a written hearing is denied.

12The applicant is not entitled to the treatment plans in dispute.

13The applicant is not entitled to an award under s. 10 of Regulation 664.

14The applicant is not entitled to interest.

15The application is dismissed in its entirety.

MOTION TO CONVERT

Should the motion proceed?

16At the beginning of the hearing, counsel for the respondent submitted that the motion should not proceed because it is untimely, and that he did not have enough time to prepare a response to the motion.

17The applicant’s counsel submitted that he did not anticipate that the applicant would have psychological issues. They were prepared to proceed. When he found out that she was having issues, he immediately contacted respondent’s counsel.

18Rule 15.2 states that:

A party may have a motion heard at a case conference or hearing, provided the party files the Notice of Motion and all supporting materials with the Tribunal at least 10 days in advance, or in accordance with any other schedule as may be determined by the Tribunal, and serves the Notice and supporting materials on all other parties.

19Rule 3.1 allows the Tribunal to vary its own rules in order to ensure a fair, open, and accessible process. Although the motion was not filed in a timely manner, I exercised my discretion and ordered that the motion would proceed at the beginning of the hearing as it is determinative of the hearing format. However, the hearing was stood down for two hours so that counsel for the respondent could prepare his submissions for the motion.

Motion to convert the format of the hearing

20Counsel for the applicant submitted the applicant’s psychological conditions, such as anxiety and major depressive disorder, are preventing her from proceeding. He did not anticipate this. He submitted that when he spoke to her, she advised him that she was having memories of a previous hearing and could not proceed with the videoconference hearing.

21Applicant’s counsel stated that:

When I started discussing this [the hearing] with the applicant, she requested an adjournment due to psychological trauma. I told her that this would not be a good use of the Tribunal’s time. I suggested that she seek help. She repeatedly referred to a prior hearing and said she cannot go through this again. I told her the adjournment is not guaranteed. I told her that we can proceed without her. She said she wants to be part of the hearing. Without her being part of the hearing, then there is no point of just having experts. Then I told her we can do a written hearing. I made that suggestion, she agreed with it and I proposed it to counsel. However, they refused to provide consent because it was too late. Our position is that she intended to proceed. In 2020, the LAT couldn’t proceed. She requested a teleconference hearing and intended to proceed. And it’s not her fault that counsel left. Today she has brought a request to convert the hearing. Forcing her to proceed would cause great prejudice and would be against procedural fairness without having her present. It is our position that if the respondent is opposed, then we adjourn. I don’t anticipate any psych gets better.

22The respondent submitted that “this is something of a novel issue before the LAT. I don’t believe that it has ever been decided that a party can bring a change [in the hearing format] without providing supporting evidence.” The matter was set to proceed as an in-person hearing and has been contemplated since October 2019.

23The respondent did not take issue with the matter proceeding as a written hearing. It was the respondent’s position that a videoconference hearing would be a waste of time. However, the respondent is taking issue with the timing of the request. In 2019, the applicant requested a videoconference hearing because they needed the applicant to testify. When the applicant brought a motion in June 2020 requesting that it proceed via teleconference, the respondent did not consent because a written hearing would have been more expeditious.

24The hearing that was scheduled to proceed in March 2021 was adjourned because the applicant had requested it. The request was made after the respondent filed its evidence brief. The respondent consented to the request and agreed to accommodate the applicant. The respondent had to cancel its witnesses and court reporter. He stated that, “over a year ago, I said that the matter should have gone in writing.”

25The respondent submitted that with less than two business days notice, the applicant is now seeking to change the hearing format. Counsel for the respondent stated that “I spoke to counsel, and he advised that he was in touch with his client and if the matter could not be resolved, then it would proceed. I told him that I had prepped my witnesses.”

26The respondent submitted that the motion to change the hearing format comes without proper notice. There is no medical evidence about the psychological impairment or an affidavit. It is not even clear that there is a legitimate problem. To grant the motion without evidence would be a procedurally unfair outcome.

27The respondent’s counsel proposed three suggestions. He suggested that the parties can proceed with the hearing and if the applicant is unable to appear, then she’s free not to testify. The parties won’t have to throw away their costs. The second option is to withdraw the application. If she wishes the insurer to reconsider the treatment plans, she can submit new treatment plans to the insurer. The insurer can determine those and if there is a dispute, then they can come to the Tribunal. The third option is that if the Tribunal determines that the format of the hearing should be changed, then the respondent would be seeking costs to recover the amount of money that was spent for the witnesses.

28The applicant’s counsel was asked whether there was any evidence in support of the need for an accommodation. The applicant’s counsel directed the Tribunal to a psychological assessment report from Dr. Andrew Shaul dated July 29, 2018. Dr. Shaul diagnosed the applicant with adjustment disorder with anxiety, major depressive disorder, and specific phobia (travelling in a vehicle).²

29The Tribunal asked the applicant’s counsel if he had anything else that supports the applicant’s need for an accommodation such as more recent notes. The applicant’s counsel stated “no”. He offered to provide an affidavit about the conversation he had with her or that he could attempt to get something from her.

30He was advised that he should have provided his evidence in advance of the motion. Applicant’s counsel submitted that he did not ask her to go to the doctor or come to the office to do an affidavit because of her psychological state. Based on a previous experience with a different client, he didn’t feel that it was appropriate to ask her to provide something given her state of mind.

31The Tribunal explored different options with the parties. The Tribunal asked if the applicant’s testimony could be spread out over a couple of days so that she could participate and have breaks in between. Another option was to see if the parties could proceed in her absence and rely on the expert evidence given that the parties were ready to proceed and had incurred costs for their witnesses. By requesting a written hearing, the applicant is conceding that she doesn’t need to be present.

32The applicant’s counsel was quite adamant that the matter should proceed in writing. The applicant’s counsel submitted that the applicant wanted to be part of the hearing so that she could respond to the experts’ testimony. If she is not present, then she will not be able to do so. However, in a written hearing, she would have the opportunity to file a reply. Furthermore, even if the videoconference hearing were adjourned, there is no guarantee that her psychological conditions would improve. He argued that it would be procedurally unfair if the matter were to proceed via videoconference.

33The applicant’s counsel was given an opportunity to speak to his client. He informed the Tribunal that he was not agreeable to proceeding via videoconference because “it would be prejudicial to proceed without her guidance.”

34Pursuant to Rule 7, parties, representatives, and witnesses are entitled to accommodation of Ontario Human Rights Code-related needs, including accessibility needs, and should notify the Tribunal as soon as possible if such accommodation is required.³ Parties are expected to fill out the Accommodation Request Form, which requires all necessary information as well as supporting documentation.

35Despite the fact that this form was not submitted by applicant’s counsel, I have turned my mind to the human rights considerations in this case. While I acknowledge that Dr. Shaul has diagnosed the applicant with a variety of psychological conditions, his report is approximately four years old. It does not address the applicant’s ability to attend a videoconference hearing. Aside from this report, the applicant’s counsel did not provide any current evidence that substantiates the need for an accommodation.

36The applicant’s counsel’s reasons for not obtaining that evidence are not satisfactory. Submissions are not evidence. The Tribunal cannot rely on a bald assertion. At the bare minimum, there should be some evidence that supports the need for an accommodation.

37Moreover, since the inception of this file, the applicant has requested a videoconference hearing for a matter that could have been appropriately addressed sooner through a written hearing. This matter has been ongoing since June 10, 2019, which is when the application was first filed. Converting this videoconference hearing to a written hearing now will result in a further delay in the resolution of this file.

38Pursuant to s. 5.1(2) of the Statutory Powers Procedure Act, 1990, the Tribunal shall not hold a written hearing if a party satisfies the Tribunal that there is a good reason for not doing so⁴. I am not persuaded by the applicant’s counsel that the videoconference hearing should be converted to a written hearing.

39By requesting a written hearing, the applicant’s counsel is conceding that the applicant’s testimony is not required. In my view, there is no prejudice in proceeding with the videoconference hearing and have the parties call their witnesses. The medical evidence and expert testimony from both parties will help the Tribunal in making a determination whether the treatment plans are reasonable and necessary.

40The hearing could be structured in a way which would allow the applicant to participate through her counsel. For example, the need to reply could be accommodated by providing the applicant’s counsel an opportunity to speak to the applicant after the experts’ testimony and respond in his closing submissions. This is one of many ways that the applicant could be accommodated. However, in this particular matter, the applicant’s counsel was quite adamant that the applicant wanted a written hearing and did not appear to be open to creating a solution that would meet his client’s needs as well as ensuring the timely resolution of this matter.

41In my view, converting the videoconference hearing to a written hearing right before the hearing is scheduled to start and after several lengthy delays does not benefit the parties and in fact contributes to a further delay of this matter.

42The motion is denied. It was ordered that the matter proceed as scheduled with a hearing by videoconference on March 7, 2022.

Refusal to proceed

43The Tribunal commenced the hearing on the substantive issues. However, applicant’s counsel requested that the hearing commence the following day (March 8, 2022) because he did not have instructions from his client to proceed with the videoconference hearing. The Tribunal advised him that the hearing would not be adjourned to the following day as a significant amount of time had been spent on the motion and the hearing must be concluded in the timeframe that was set. The Tribunal was not prepared to delay the matter any further.

44Applicant’s counsel informed the Tribunal that he only had instructions to obtain an adjournment or to convert the hearing to a written hearing. It should be noted that an adjournment request was not an issue before the Tribunal nor was there a motion to adjourn before the Tribunal. The Tribunal provided counsel an opportunity to speak to his client. Upon returning, counsel informed the Tribunal that he was unable to get a hold of the applicant. He insisted that he could not proceed with the videoconference hearing without instructions from the applicant. He did not say that he was not ready for the hearing.

45Pursuant to 25.0.1(a) of the Statutory Powers Procedure Act, 1990, a Tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding.⁵ Counsel was informed that he was being ordered to proceed. He was aware of this hearing and should have known that he would have to proceed in the event the motion was denied. It is incumbent upon counsel to ensure that he obtains instructions well in advance of the hearing.

46The Tribunal proceeded with the hearing. Throughout the hearing, the applicant’s counsel continued to object to proceeding without the applicant’s instructions despite the Tribunal’s order. He requested another opportunity to speak to the applicant. He was informed that he could have someone from his law firm contact the applicant and if they were to connect with her, then the Tribunal would stand the matter down to allow counsel to speak to the applicant.

47The applicant’s counsel did not provide opening submissions because he did not have instructions. However, he confirmed the issues in dispute. He did not provide the Tribunal with a list of his witnesses because he did not have instructions from the applicant. He did not call any evidence in support of the applicant’s case. The respondent’s counsel provided opening submissions, the list of witnesses and a timetable for their testimony.

48During the proceeding, applicant’s counsel informed the Tribunal that he had received a call from his law firm. The Tribunal stood the matter down. Upon counsel’s return, the Tribunal was advised that he did not speak to the applicant. Rather, he had spoken to a partner at the firm. He informed the Tribunal that it was procedurally unfair for the Tribunal to proceed with the hearing and that his law firm would be bringing a motion. He was informed that the partner’s opinion is not binding on the Tribunal and that the matter was proceeding as ordered.

49In light of the fact that the applicant’s counsel did not call any evidence, the respondent’s counsel informed the Tribunal that he would not be calling any witnesses because the applicant did not meet her onus. The respondent’s counsel submitted that the matter should be dismissed.

50Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. The applicant is seeking payments for physiotherapy, chronic pain treatment program, psychological treatment, and a psychotherapy CD.

51However, the applicant has not advanced any evidence that proves on a balance of probabilities that the expenses are reasonable and necessary. Without any evidence, I am unable to make a determination regarding the applicant’s entitlement. The applicant has not met her onus. The parties were informed that the application was dismissed because the applicant did not meet her onus.

Is the respondent liable to pay an award under section 10 of Regulation 664?

52The applicant seeks a special award under s. 10 of Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant.

53The applicant has not provided any submissions or evidence that proves that the respondent unreasonably withheld or delayed payments to her. Hence, I find that the applicant is not entitled to an award under s. 10 of Regulation 664.

Interest

54The applicant is not entitled to interest on any overdue payment of benefits.

CONCLUSION and ORDER

55I order that the motion to convert the videoconference hearing to a written hearing is denied.

56I order that the applicant is not entitled to the treatment plans in dispute.

57I order that the applicant is not entitled to an award under s. 10 of Regulation 664.

58I order that the applicant is not entitled to interest.

59I order that the application is dismissed.

Released: April 7, 2022

Tavlin Kaur

Adjudicator

Footnotes

O.Reg. 34/10 as amended
Psychological report from Dr. Andrew Shaul and Helen Ilios dated July 29, 2018.
Supra note 1 at 5, Rule 7
RSO 1990, c S.22, s.5.1(2) [SPPA]
Supra note 5 at 9, s. 25.0.1(a)