Citation: C.T. v. Aviva Insurance Company of Canada, 2022 ONLAT 20-004000/AABS

Licence Appeal Tribunal File Number: 20-004000/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:

C.T.

Applicant

and

Aviva Insurance Company of Canada

Respondent

MOTION ORDER and PRELIMINARY ISSUE DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Robert Bernstein, Counsel

For the Respondent: Kristofer Angle, Counsel

HEARD: In Writing March 15, 2021

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an incident on August 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”) .The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted on September 28, 2020 before Adjudicator Grieves. A written preliminary issue hearing was scheduled for March 15, 2021.

3At the case conference, the respondent raised the issue of whether this incident was an “accident” in accordance with the Schedule.

4The substantive issues in dispute include: a claim for non-earner benefits, treatment plans for psychological services, chiropractic treatment, occupational therapy, an award, and interest.

NOTICE OF MOTION

5The applicant filed a Notice of Motion on March 9, 2021 seeking the following relief:

i. An order dismissing or denying the relief sought by the respondent in its responding submissions dated March 8, 2021;

ii. An order striking paragraphs from the respondent’s responding submissions dated March 8, 2021, at pages 9-14, paragraphs 36 to 69;

iii. An order requesting the motion be heard in written format, on or before the written hearing date of March 15, 2021.

MOTION ORDER

6The applicant’s motion is dismissed. I am not prepared to dismiss or deny the relief sought by the respondent in the preliminary issue hearing prior to a determination on the merits.

7The page limits for the preliminary issue submissions were clearly set out in the previous Case Conference Order released October 1, 2020. The respondent’s page limit for reply submissions was set at 7 pages.

8The respondent does not dispute that its reply submissions were in excess of the 7-page limit. The respondent’s reply submissions were 13 pages in length. Instead of filing a Notice of Motion to vary the previous Order, the respondent simply filed submissions directly contravening the page limits previously set out. Clearly the respondent should have obtained previous Tribunal authorization before contravening the previous Order.

9Page limits are set to ensure there is an element of procedural fairness, avoiding potential inequities in the submissions permitted. This also ensures that parties tailor their submissions to the page numbers allotted, and guards against lengthy submissions which would otherwise overburden the Hearing Adjudicator.

10The applicant submits the respondent introduced new evidence which goes directly to the core of the preliminary issue raised. To deny the applicant the right of a further reply would be prejudicial to the applicant. I disagree.

11I am not prepared to strike the additional 6 pages of reply submissions provided by the respondent, nor the alleged offending paragraphs. However, I place no weight upon the respondent’s reply submissions regarding the potential of “floodgates”¹ being opened relating to meritless claims. Nor do I place any weight upon the respondent’s submission that this application was otherwise an attempt by the applicant to obtain treatment for unrelated conditions which he could not afford.² Similarly, I am unpersuaded that inconsistencies in the applicant’s self-reporting or failure to report the incident to police or Hamilton Transit suggest he was attempting to conceal evidence.³

12Given that I place no weight upon these reply submissions, I am not amenable to permitting an applicant sur-reply on the preliminary issue.

PRELIMINARY ISSUE

13Whether the incident on August 21, 2018 was an “accident” as defined in s. 3(1) of the Schedule.

PARTIES’ POSITIONS

14Aviva submits it is unable to confirm the applicant’s version of events. The applicant has provided no direct evidence to corroborate that an “accident” occurred pursuant to s. 3(1) of the Schedule. The applicant provided an unsworn statement in November 2018 regarding the incident but refused to discuss material facts. Similarly, the applicant refused to provide details of the incident to address inconsistencies regarding the location and three different versions of how the incident occurred. When confronted with these discrepancies at the Examination Under Oath (“EUO”), he stated it was a “mistake”. The applicant’s case turns on his credibility, and the inconsistencies in his accounts cast serious doubt on the facts as alleged. Based solely on the applicant’s subjective self reporting and lack of any additional evidence, Aviva submits the applicant does not satisfy the purpose test or the causation tests to establish this was an “accident” pursuant to the Schedule.

15The applicant submits that Aviva has breached its duty to act in utmost good faith as a first party insurer. Aviva has failed to conduct a fair and thorough investigation of this incident and failed to commence an EUO until more than two years after the incident occurred. The applicant has a clear memory of the event and has provided a consistent version of the event, aside from an honest mistake regarding the location of the incident. The applicant sustained serious, objective injuries and sought medical attention immediately. There is no evidence to suggest the applicant wilfully misrepresented any facts related to this incident. However requests to Aviva regarding copies of correspondence with the City of Hamilton, call logs, and surveillance evidence went unanswered. Aviva has provided no proof these requests were made. Otherwise, there is no plausible explanation other than that an “accident” occurred pursuant to s. 3(1) of the Schedule.

16In reply Aviva submits that it does not dispute the applicant is owed a duty of good faith. Aviva conducted a reasonable, joint investigation with the City of Hamilton, the steps of which were chronologically laid out in the Adjuster’s log notes. The investigation was thorough and complete, and the applicant has simply used an “honest mistake”⁴ to attempt to explain away his many inconsistent statements regarding this incident. This incident was never reported to the City of Hamilton and following an exhaustive search, no objective evidence has been uncovered. The applicant has failed to establish on a balance of probabilities there was an “accident” as defined in the Schedule.

INCIDENT

17The incident occurred on August 21, 2018, between approximately 4:14 pm and 4:30 pm in the City of Hamilton.

18The applicant was walking towards a transit bus at the stop located at Main Street East and Walnut Street.⁵ The bus began to pull away from the bus stop, the applicant knocked on the side of the bus as it drove away. He made momentary eye contact with the driver before losing his balance and slipping off the curb. His right foot was allegedly run over by one of the rear bus tires.⁶ A witness asked if the applicant was ok.⁷ The applicant got onto the next bus and the driver asked if he required an ambulance. He declined and rode the bus to his residence.⁸

19Upon reaching his residence, he contacted his sister who took him to [the hospital]. The applicant indicated the impact broke his ankle-foot orthotic (“AFO”) and he was bleeding from cuts sustained to his right foot and lower leg.⁹

20An x-ray indicated an undisplaced Weber B fracture of the distal fibula at the right ankle.¹⁰ He was placed in a rigid splint/walking boot and a small abrasion was dressed. He utilized the walking boot for approximately 6-8 weeks and was eventually fitted with a new AFO once swelling was reduced.

21The applicant was 55 years old at the time of the incident. He has several underlying health conditions including cerebral palsy, a mild intellectual disability, a previous diagnosis of bipolar disorder, and a history of deep vein thrombosis in his legs. He was also born with his right leg being 2/3 of an inch shorter than his left, which leaves him prone to falls. He wears a thermoplastic articulated AFO on his right foot to prevent foot drop and to assist him in walking. In August 2019 he was also assaulted and suffered a head injury and concussion in an unrelated incident.¹¹

DEFINING AN “ACCIDENT”

22Section 3(1) of the Schedule defines an “accident” as an “incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prothesis or other medical or dental device”.

23If the incident is not found to be an “accident”, then the applicant cannot apply for accident benefits through the Schedule.

24Both parties cite the Court of Appeal for Ontario’s decision in Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”)¹² in reference to the two-part framework adjudicators should consider when making this determination:

i. Did the incident arise out of the use or operation of an automobile?

ii. Did this activity directly cause the impairment?

25This first stage is a determination of whether the incident involves the “ordinary and well-known activities to which automobiles are put”. Or, in another way, for what “purpose was the vehicle being used at the time of the incident?”

26The second stage then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the impairments. Though there is no mechanistic means of conducting this stage of the analysis, the case law generally focuses on the following factors: the “but for” consideration; the “intervening act” consideration; and the “dominant feature” consideration.

• The “but for” consideration screens out trivial acts and events that could not be a possible cause of the impairments;

• The “intervening act” consideration asks the adjudicator to determine if some other event took place that can better explain the cause of the impairments; and

• Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity at issue is what “most directly caused the injury”.

27However, regardless of the analytic tools at an adjudicator’s disposal, the ultimate question has to be whether the incident “directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prothesis or other medical or dental device”. Without this causal link, there is no “accident”.

28Additionally, the case of Webb v. Wawanesa Mutual Insurance Company Co., reminds the decision-makers to apply the definition of an “accident” in a common-sense fashion that focuses “on the nature of the risk covered by automobile insurance”¹³. Though I am not bound by arbitration decisions of the Financial Services Commission, I find this case to be persuasive in my analysis.

ANALYSIS

29The evidentiary burden of establishing whether this incident was an “accident” remains on the applicant, despite this preliminary issue being raised by the respondent.

Purpose Test

30I am satisfied this incident may have arisen from the ordinary and well-known activities to which automobiles (or, in this case, transit buses) are put. I find the incident comprised the larger activity of attempting to enter a vehicle. The applicant had the intention of entering the vehicle when the alleged incident took place. Similarly, I have no evidence the bus was not being operated the ordinary course as a transit vehicle on August 18, 2018, at the time of the incident.

Causation Test

31However, I do not find the applicant meets the second stage of the Greenhalgh framework, or the causation test.

32I am not satisfied the applicant’s injuries were caused by the use or operation of the transit bus. While the applicant has provided multiple self-reports to various medical and treating clinicians, he has not provided any objective evidence to link his injuries to operation of the bus on the date of the incident.

33I have relied on several forms of evidence in reaching this conclusion. The applicant provided an unsworn statement to the respondent (dated November 22, 2018) regarding details of the incident and priority. An EUO was completed more than two years after the incident on December 18, 2020. I have also reviewed the Adjuster’s log notes, correspondence, and the complete clinical notes and records provided with the parties’ submissions.

34When I examine the totality of this evidence, I cannot determine (on a balance of probabilities) that there is a nexus between the operation of the bus and the injuries sustained by the applicant on August 21, 2018. There is no witness evidence to corroborate the incident – nothing from the witness who allegedly observed the incident, from the bus driver operating the bus that allegedly caused the injuries, nor from the second bus driver who inquired if an ambulance was required. There is no photographic evidence of the applicant’s injuries or his damaged AFO. There are no incident reports or call logs provided by the City of Hamilton, Hamilton Police, or ambulance records. Nor any surveillance or video footage of the alleged incident provided as part of the record.

35Similarly, there is no evidence before me from any medical professional that the injuries sustained are consistent with this type of impact. There was no reconstruction evidence, nor any expert evidence tendered relating to the mechanics of the incident. There was no description of the damage done to the AFO, and there is no record of the damaged brace being shown to the orthotist.¹⁴ The only first-hand descriptions provided regarding the damage to the AFO is that it was “cracked”¹⁵ and “wasn’t crushed”¹⁶, descriptions provided by the applicant and his sister at the EUO.

36While I do not believe this is a “sophisticated plan”¹⁷ to fool the applicant’s entire treatment team, I am satisfied that some form of objective evidence relating to the mechanics of the incident is required to satisfy that the causation test has been met. Again, I have not been provided a single piece of objective evidence that links the applicant’s broken ankle to the operation of the bus in question. The applicant blames Aviva for the inadequacy of the investigation of this incident, but the evidentiary burden remains with the applicant. At the end of the day, while I accept that something took place to injure the applicant on August 21, 2018, there is insufficient evidence to establish that the use of an automobile “directly” caused this impairment and damage to the AFO.

37The applicant has the burden of establishing this was an “accident” on a balance of probabilities. While I am sympathetic to the applicant and his personal challenges, I cannot conclude the applicant’s evidentiary burden has been met in this case.

38Given the lack of evidence related to causation, I am not satisfied an “accident” occurred pursuant to s. 3(1) of the Schedule.

ORDER

39The applicant has not demonstrated the incident on August 21, 2018 constituted an “accident”, as defined in s. 3(1) of the Schedule.

40The application shall be dismissed, and the Tribunal file shall be closed.

Footnotes

1. 1The Respondent’s Reply Submissions on The Preliminary Issue, pg. 12.
2. 2Ibid.
3. 3Ibid. pgs. 13-14.
4. 4Examination Under Oath of Christopher Tipoulow (with Penelope Tipoulow – Power of Attorney) December 18, 2020, pg. 75. (“EUO”).
5. 5EUO, pgs. 44, 47, 75. (“EUO”).
6. 6EUO, pgs. 45-46, 49, 51-54.
7. 7EUO, pg. 55, 76, 77.
8. 8EUO. pg. 54.
9. 9EUO. pg. 31.
10. 10Clinic Note, Dr. Louis Sanders, August 23, 2018. Diagnostics Services Report, Dr. Narry Muhn, August 21, 2018.
11. 11EUO. pg. 68.
12. 122004 CanLII 21045 (ON CA).
13. 13[2012] O.F.S.C.D. No. 102, at para. 70.
14. 14Biomechanical Lower Extremity Assessment by Heather Mackenzie, Certified Orthotist, January 18, 2019, The Applicant’s Submissions on the Preliminary Issue, Tab 4, pg. 62-63.
15. 15EUO, pg. 32.
16. 16EUO, pg. 33.
17. 17The Applicant’s Submissions on the Preliminary Issue, pg. 15.