Citation: Barrie v. Intact Insurance Company, 2022 ONLAT 20-004866/AABS

Licence Appeal Tribunal File Number: 20-004866/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Alison Barrie

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake, Vice-Chair

APPEARANCES:

For the Applicant:

Alison Barrie, Applicant

David Shellnutt, Counsel

For the Respondent:

Monique Quintal, ADR Specialist Natasha Vadera, Dispute Management (May 18, 2021)

Daniel Himelfarb, Counsel, Joseph Tumini, Counsel Evonne Alkhatib, Articling Student (February 26, 2021) Caleb Luis Medeiros, Articling Student (August 26, 2021)

Court Reporters:

Guido Riccioni (February 26, 2021), Michelle Gordon (April 23 and May 18, 2021) and Alison Minors (August 26, 2021)

Heard by Videoconference:

February 26, April 23, May 18, and August 26, 2021 followed by Written Closing Submissions

BACKGROUND

1The applicant, Alison Barrie, was injured in an automobile accident on October 30, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Intact Insurance Company, the respondent.

2A case conference was held on November 19, 2020 and a combination hearing was scheduled to address the sole issue of whether the respondent is liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payment of benefits to the applicant.

3At the commencement of the videoconference portion of the hearing, the applicant requested that two partially denied treatment plans be added to the issues in dispute. This request was granted but, as a result, the videoconference portion of the combination hearing was adjourned to April 23, 2021 and proceeded on May 18, 2021 and August 26, 2021. The parties’ claim for costs were also added as issues in dispute. Written closing submissions were completed in November 2021.

4On November 9, 2021, the respondent filed a motion seeking permission to file a sur-reply or, in the alternative, strike certain portions of the applicant’s reply closing submissions. A motion hearing took place on November 16, 2021 and I denied the respondent’s motion in its entirety. The parties were informed at that time that my reasons for denying the respondent’s motion would form part of this decision.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Is the applicant entitled to $2,718.21 ($5,536.39 less $2,818.18 approved) for chiropractic services recommended by Dr. Samira Razmy, chiropractor, in a treatment plan (OCF-18) dated February 25, 2020?

(ii) Is the applicant entitled to $947.71 ($3,491.48 less $2,543.77 approved) for psychological services recommended by Dr. Fahimeh Aghamohseni, psychologist, in an OCF-18 dated December 2, 2020?

(iii) Is respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iv) Is the respondent entitled to recover the costs of this proceeding because the applicant acted unreasonably, frivolously, vexatiously, or in bad faith?

(v) Is the applicant entitled to recover the costs of this proceeding because the respondent acted unreasonably, frivolously, vexatiously, or in bad faith?

RESULT

6I find that the applicant is not entitled to the unapproved portions of the February 25, 2020 and December 12, 2020 OCF-18s, an award, or interest. The parties’ claims for costs are also dismissed.

RESPONDENT’S MOTION TO FILE SUR-REPLY SUBMISSIONS

7On November 9, 2021, the respondent filed a motion seeking leave to file sur-reply submissions or, alternatively, have portions of the applicant’s reply submissions struck. Following a motion hearing on November 16, 2021, I denied the respondent’s motion in its entirety.

8The respondent’s motion for relief was based on the applicant referring to four Tribunal decisions² that were neither referred to in her initial closing submissions nor in the respondent’s closing submissions. As a result, the respondent sought an opportunity to respond to these decisions.

9In Godber v. Aviva Insurance Company (Godber),³ the Tribunal held:

Sur-reply submissions should only be provided in limited or exceptional circumstances. They are not intended to be an additional opportunity for parties to bolster their case or supplement previous submissions.

Sur-reply submissions may only be necessary when a party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute.⁴

10I am persuaded by Godber and the test that it particularizes as to when a sur-reply may be warranted. By applying the test in Godber, I find that the facts in this matter do not warrant a sur-reply.

11The four decisions referred to by the applicant in her reply hearing submissions do not raise a new legal argument, introduce additional issues, or provide an inaccurate statement of the law or facts critical to the determination of the issues before me. The applicant was responding to case law referred to by the respondent in its closing submissions. I do not agree with the respondent that the applicant should have somehow anticipated the case law that the respondent would be relying upon in its closing without any notice of same such that the applicant should have raised the four decisions at the outset. I also do not agree with the respondent that the applicant is restricted to distinguishing case law relied upon by the respondent without reference to case law simply because it was done in reply. Finally, the respondent conceded at the motion hearing that none of the four decisions relied upon by the applicant in her reply submissions are binding upon me.

12For all these reasons, I denied the respondent’s motion.

ANALYSIS

13Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

14The applicant has not met her onus of proving that the unapproved portions of both the February 25, 2020 and December 12, 2020 OCF-18s are reasonable and necessary on a balance of probabilities and, therefore, she is not entitled to the unapproved portions of these two treatment plans.

a) Chiropractic Treatment

15The February 25, 2020 OCF-18 was completed by Dr. Samira Razmy, chiropractor, and sought funding for completion of the OCF-18, two total body assessments, chiropractic treatment, provider travel time to treatment, brokerage service (which was described as discussions about the applicant’s file, injuries, therapy, and progress with senior case manager/therapist), a therapy table, pain relieving gel, and education promoting health and preventing disease.

16In the treatment plan, Dr. Razmy noted under “barriers to recovery” that the applicant had surgery following a left radial head fracture and that the applicant was left-hand dominant. Dr. Razmy also noted that the applicant owns a bar and was a bartender, she had significant loss time from work, and she had poor mobility, disrupted sleep, nightmares, fear of being in a car and public spaces. In the additional comments portion of the treatment plan, Dr. Razmy noted that the applicant suffered from panic attacks and anxiety, and that the applicant would:

…highly benefit from in-home therapy due to her difficulties being mobile. She doesn’t have a car and reports that she would not be compliant if she had to travel because she has a fear of being in a car, doesn’t have a car, [sic] very busy having to manage the huge changes for her business (she had to hire bartenders since her lost time from work due to her significant injuries), constantly guarding [her] left arm.

17On March 10, 2020, the respondent denied the proposed treatment plan because there was “insufficient documentation” provided by the applicant’s health practitioner that would support her removal from the Minor Injury Guideline (MIG).⁵ The respondent then requested various medical documents from the applicant’s family physician, clinical notes and records (CNRs) from St. Joseph’s Fracture Clinic, St. Michael Hospital, a release form to obtain medical documentation from any other physician or specialist that the applicant had attended from October 30, 2018 to present, and a copy of the applicant’s OHIP summary.

18Also on March 10, 2020, the respondent sent a further letter to the applicant advising that the February 25, 2020 OCF-18 was partially approved. The amounts of the treatment plan not approved were as follows:

(i) $87.19 for completion of the OCF-18;

(ii) $564.00 for chiropractic treatment (1-hour sessions approved as opposed to 1.25-hour sessions as requested);

(iii) $1,240.82 for provider travel time to treatment;

(iv) $564.00 for documentation, support activity;

(v) $56.41 for the second total body assessment request; and

(vi) $169.20 for brokerage service.

19The respondent’s March 10, 2020 letter explained its denials as follows: it required additional information regarding the nature and type of treatment in order to consider approval of 1.25-hour chiropractic treatment sessions; no reasonable explanation was provided as to why the attending service provider would require travel to the treatment sessions above regular business practice; “documentation, support activity” is included as part of the treatment sessions in accordance with the Professional Services Guideline (Guideline);⁶ the second total body assessment appears to be a duplicate request; and because the applicant’s injuries were non-catastrophic, the applicant did not qualify for brokerage services. The non-approved portion for completion of the OCF-18 appears to reflect the permitted hourly rate of Dr. Razmy under the Guideline of $112.81 as opposed to her hourly rate listed on the OCF-18 as $200.00 for this service.

20On March 19, 2020, Dr. Razmy emailed the respondent about its failure to approve the provider travel time. Dr. Razmy again restated the reasons in the OCF-18 as to why in-home treatment was warranted for the applicant and added that the situation of COVID-19 also warranted in-home treatment to prevent exposure of the patient/therapist to the public.⁷

21Even if I agreed with the applicant that she would have benefitted from in-home treatment sessions, especially in light of COVID-19, provider travel time to treatment is not payable under the Schedule as it is not an “authorized transportation expense.” Sections 3(1) and 15(2)(c) are clear that authorized transportation expenses are the only types of transportation expenses payable under the Schedule and such expenses only apply to travel time for an insured person or an insured person’s aide or attendant. Therefore, provider travel time to treatment as sought by the applicant is not a payable benefit under the Schedule. Therefore, the applicant is not entitled to payment for the unapproved portions of the February 25, 2020 OCF-18 for provider travel time to the applicant’s home.

22Moreover, even though Dr. Razmy testified at the hearing, she provided no testimony regarding the remaining unapproved portions of the February 25, 2020 OCF-18. As there was no other evidence before me in support of the other unapproved portions of the OCF-18, I also find that the applicant has not proven on a balance of probabilities that the unapproved portions for completion of the OCF-18, the reduction in chiropractic treatment sessions from 1.25 hours to 1 hour, the documentation, support activity, the second total body assessment (which I agree appears to be a duplicate request), and brokerage service are reasonable and necessary and, therefore, they are not payable.

b) Psychological Services

23The December 12, 2020 OCF-18 was completed by Dr. Fahimeh Aghamohseni, psychologist, and sought funding for 12 1.5-hour sessions of “therapy, mental health and additions,” 2-hours for testing, documentation and support activity, and completion of the OCF-18. Dr. Aghamohseni was listed as the only service provider under Part 12 on this treatment plan.

24On January 28, 2021, the respondent fully approved the amounts on the OCF-18 sought for testing and documentation, support activity. The respondent, however, only approved $149.61 of the $200.00 sought for completion of the OCF-18 as well as 1-hour treatment sessions as opposed to 1.5-hour sessions noting, “we require additional information with respect to the nature and type of treatment in order to approve sessions of this length.”⁸

25On March 1, 2021, the respondent wrote to the applicant enclosing a “Provider Confirmation Sign Back” form dated February 11, 2021 that was completed and signed by Dr. Aghamohseni and Sara Gharibi, registered psychotherapist (qualifying).⁹ Different to what was submitted on the December 12, 2020 treatment plan, this form indicated that both Dr. Aghamohseni and Gharibi would be providing services to the applicant. The respondent informed the applicant that this information was inconsistent to the information contained in the treatment plan. As a result, the respondent amended its approval to $1,197.00 for treatment sessions provided by Gharibi as opposed to the originally requested amount of $2,693.04.

26Therefore, the amount in dispute from this treatment plan represents a reduction in the length of the treatment sessions from 1.5-hours to 1-hour, and also the reduction of the hourly rate payable from $149.61 for Dr. Aghamohseni to $99.75 for Gharibi.

27First, I find that the applicant has failed to prove on a balance of probabilities that the unapproved portions of the treatment session lengths is reasonable and necessary on Gharibi’s testimony alone. Gharibi confirmed in her testimony that weekly 45–50-minute treatment sessions were sufficient to achieve the goals of the treatment plan and that 45-minute sessions were generally the maximum amount of time that the applicant could be seated for treatment. Therefore, even though Gharibi testified that the applicant would have benefited from longer treatment sessions, she also testified that 45–50-minute treatment sessions were the best for the applicant because of her physical limitations and also because this length of treatment sessions is grounded in psychological research as being the most effective. As a result, I find that the applicant is not entitled to the treatment session length of 1.5 hours as originally requested on the OCF-18.

28Second, the rates of service providers are prescribed in the Guideline. The maximum hourly rate for psychologists when a person has not sustained a catastrophic impairment as a result of the accident is $149.61. There is no rate specifically noted for psychotherapists. For services provided by health care professionals, unregulated providers, and other occupations not listed in the Guideline, the amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved.

29The applicant’s position is that Gharibi should be paid $149.61 per hour which is the same hourly rate of a psychologist. To support her position, the applicant relied upon two Tribunal’s decision: A.S. v. Aviva Insurance Company Canada (A.S. v. Aviva)¹⁰ and J. V. v. Intact Insurance Company (J.V. v. Intact).¹¹

30In A.S. v. Aviva, Adjudicator Watt found that the hourly rates for psychologist and psychotherapist should be same because the psychotherapist was providing the same cognitive behavioral therapy as a psychologist would.¹²

31In J. V. v. Intact, Adjudicator Parish found that the psychotherapist in that matter was entitled to be paid the same hourly rate as a psychologist based on a review of the psychotherapist’s credentials, specialized training within the area of cognitive behavioural therapy, and her experience.¹³ Specifically, Adjudicator Parish found that the psychotherapist in J.V. v. Intact:

(i) Was a registered with both the Canadian College of Professional Counsellors and Psychotherapists as well as the College of Registered Psychotherapists of Ontario;¹⁴

(ii) Specialized in cognitive behavioural therapy; and

(iii) Cognitive behavioural therapy was not outside her scope of expertise or was a service that could not be provided by a registered psychotherapist.¹⁵

32Adjudicator Parish also held that the psychotherapist should not be disentitled to be paid at the same rate as a psychologist, or psychological associate, for providing a service she is qualified to provide.¹⁶ Further, Adjudicator Parish also found that the cognitive behavioural therapy proposed within the treatment plan justified the hourly rate of $149.61 which aligns with the rate that psychologists and psychological associates are entitled to be paid under the Guideline, as this is also a service which they provide.¹⁷

33The respondent’s position is that Gharibi’s hourly rate should be $99.75. To support its position, the respondent relied upon my decision in Dhanji v. Aviva Insurance Company of Canada (Dhanji)¹⁸ where I found that the applicant had not demonstrated that the higher hourly rate of $149.61 was reasonable and necessary for a psychotherapist’s services based on the psychotherapist’s education and experience. In Dhanji, I also noted that other previous Tribunal decisions found that the lower rate of $58.19 for unregulated service providers applied to psychotherapists. Additionally in Dhanji, the psychotherapist held a master’s degree in education, the disputed OCF-18 did not provide for any cognitive behavioural therapy services, and there was no indication that the psychotherapist specialized in cognitive behavioural therapy.

34Even though I am not bound by any of the decisions relied upon by the parties, I place little weight on the decision of A.S. v. Aviva because Adjudicator Watt solely based his decision on the fact that the type of services being provided (i.e., cognitive behavioural therapy) by the psychotherapist could also be provided by a psychologist and, therefore, the hourly rate of $149.61 was warranted for the psychotherapist. With respect, I disagree with this finding as the Guideline distinguishes hourly rates based on the health care profession or provider, not on the type of services provided.

35I agree with Adjudicator Parish in J.V. v. Intact that a review of a psychotherapist’s credentials, any specialized training within the area of cognitive behavioural therapy, and their experience is required when determining the hourly rate payable for a psychotherapist’s services. That said, the treatment plan at issue in J.V. v. Intact was prepared by a psychotherapist and proposed psychotherapy to be provided by the psychotherapist. Here, the December 12, 2020 OCF-18 was completed by Dr. Aghamohseni, a registered psychologist, and proposed treatment sessions to be provided by her. In effect, Dr. Aghamohseni has mislead the respondent by substituting a different service provider than who was proposed on the treatment plan. Moreover, the supervisory function that Dr. Aghamohseni held over Gharibi does not negate the fact that but for the applicant’s last treatment session that Dr. Aghamohseni attended with Gharibi, it was Gharibi who met with the applicant and provided her with ongoing treatment.

36This matter is also distinguishable from J.V. v. Intact based on Gharibi’s credentials, training, and experience as follows:

(i) At the time of the hearing, Gharibi testified that she was only a qualifying registered psychotherapist that was still required to work under supervision of a psychologist as opposed to being a fully registered psychotherapist as was the case in J.V. v. Intact;

(ii) Gharibi testified that she completed her master’s degree in clinical and counselling psychology in October 2019, which indicated that at most, Gharibi had 15 months of counselling experience when she began treating the applicant in January 2021. While the amount of experience that the psychotherapist had in J.V. v. Intact was not particularized in the decision, it can hardly be said that 15 months is significant experience. Moreover, it is unclear if Gharibi even had 15 months of experience in providing cognitive behavioural therapy. She confirmed that she was not able to provide cognitive behavioural therapy to the applicant until the third treatment session because she was not yet registered with the College of Psychotherapists of Ontario until then;

(iii) Gharibi failed to answer the question put to her by the respondent whether she considered herself an expert in cognitive behavioural therapy when she started treating the applicant;

(iv) Gharibi’s focus for her master’s degree in clinical and counselling psychology was rehabilitation psychology. Gharibi testified that her background in cognitive behavioural therapy came from her undergraduate bachelor’s degree in psychology. This background, however, did not include any training or practical education, and the only information regarding cognitive behavioural therapy on her curriculum vitae was that she was “Trained in…CBT;”¹⁹

(v) Gharibi had not published any scholarly articles about cognitive behavioural therapy as of the date of the hearing;

(vi) Of the treatment proposed in the December 12, 2020 OCF-18, Gharibi testified that only 50% of it was for cognitive behavioural therapy with the other 50% being for other treatment modalities whereas the treatment plan at issue in J.V. v. Intact was for cognitive behavioural therapy in its entirety; and

(vii) Gharibi testified that she did not have an uninsured patient hourly rate because she had no other clients, which is distinct from the fee for uninsured patients of $150.00 per hour charged by the psychotherapist in J.V. v. Intact.

37As the facts of this matter are distinguishable from J.V. v. Intact, including the education, experience, and training of Gharibi, I find that the applicant has failed to prove that the difference between the hourly rate proposed by the respondent of $99.75 and the hourly rate of $149.61 for Gharibi’s services was reasonable and necessary and, therefore, the applicant is not entitled to the difference. I also find that the respondent agreed to pay a reasonable hourly rate of $99.75 for Gharibi’s services as a psychotherapist in light of the various Tribunal decisions wherein the Tribunal determined that the appropriate hourly rate payable for a psychotherapist was $58.19.²⁰

Award

38Section 10 of Regulation 664 states:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, 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 (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule [my emphasis added].

39At the outset, I find that I have no jurisdiction in this matter to order an award.

40The words in s. 10 above of “in addition to awarding the benefits” are significant. They suggest that an award under Regulation 664 may only be made “in addition to awarding the benefits and interest.” Similarly, the words “at the time of the award” incorporates a required temporal factor that precludes the Tribunal from adjudicating this issue as I have found that the applicant is not entitled to the unapproved portions of the disputed treatment plans. Also, while the applicant maintained her claim for an award in regard to a May 1, 2020 treatment plan for a psychological assessment recommended by Dr. Aghamohseni, this treatment plan was no longer in dispute at time of the hearing. Section 10 is clear that an award can only be made at the same time as the awarding of the benefits and, in this matter, I have awarded none.

41Even if I am incorrect in my finding that I do not have jurisdiction to determine an award in this matter, the threshold for an award still has not been met on the facts in this matter.

42It is well settled that in order to attract an award under Regulation 664, the insurer’s conduct must rise to the high level of being excessive, imprudent, stubborn, inflexible, unyielding, and/or immoderate.

43The respondent partially approved the two disputed treatment plans before me as follows: the February 25, 2020 OCF-18 was partially approved on March 10, 2020 (10 business days difference) and the December 12, 2020 OCF-18 was first partially approved for 1-hour sessions on December 17, 2020 (4 business days difference).²¹ Neither of these partial approvals by the respondent exceeded the timeframe permitted under s. 38(8) of the Schedule such that there was any unreasonable withholding or delaying payment of benefits that would attract an award under Regulation 664. Even if the timeframes were exceeded, the remedies under s. 38(11) would be triggered and such conduct may not even meet the high threshold for an award on its own.

44Therefore, the only other benefit that was originally in dispute between the parties that may attract an award under Regulation 664 if I had jurisdiction was the May 1, 2020 treatment plan for a psychological assessment. The applicant takes issue with the respondent failing to approve the May 1, 2020 until September 23, 2020 based on the following:

(i) Dr. Razmy and applicant’s counsel raised “red flags” about the applicant’s mental health to the respondent as early as March 2020;

(ii) The May 1, 2020 OCF-18 was completed by Dr. Aghamohseni, a psychologist with over 25 years of experience, and included a 2-page addendum notes/report as well as a fulsome account of the applicant’s accident-related mental health issues;

(iii) Despite receiving the May 1, 2020 OCF-18 with the 2-page addendum notes/report, the respondent took the position that it did not have any CNRs or “medicals” to suggest that the applicant was experiencing psychological issues as a result of the accident. Rather, the applicant submitted that Ms. Kajal Bhukal, adjuster, made personal assumptions and non-medical speculation that the applicant’s psychological issues were being caused by COVID-19 rather than from the accident in continuing the respondent’s denial of the May 1, 2020 OCF-18;

(iv) Applicant’s counsel emailed Ms. Bhukal on May 26, 2020 and provided her with “direct quotes” from the applicant after the applicant sought assistance from the Centre for Addiction and Mental Health (CAMH). The applicant received support from CAMH from May 28, 2020 to June 16, 2020;

(v) On July 16, 2020, applicant’s counsel provided the CNRs from Dr. Razmy that detailed “multiple mental health sequela;”²² and

(vi) By requesting an in-person independent medical examination on May 14, 2020 which was originally scheduled to take place on June 24, 2020 by a neuropsychologist but ultimately occurred on August 25, 2020 with Dr. Jason Bacchiochi, psychologist.

45It is trite law that more than just a treatment plan itself is required to show that the proposed goods and services are reasonable and necessary. Requiring documentation in support of a treatment plan prior to its approval does not warrant an award. Here, the only external documentation to the May 1, 2020 OCF-18 that the respondent had was from the applicant’s treating chiropractor, who cannot diagnose psychological injuries, and correspondence from applicant’s counsel. Even after the applicant sought support from CAMH, the CAMH records reflect a print date of October 23, 2020 and, therefore, could not have been provided to the respondent in support of the psychological assessment prior to that time.

46Moreover, an insurer is entitled to seek examinations of insured persons under s. 44 of the Schedule. Here, there are no allegations from the applicant that the insurer’s examination was not reasonably necessary or that she did not receive notice of it in accordance with the requirements under the Schedule. Further, it appears that only one examination took place regarding this treatment plan (the assessment that was conducted by Dr. Bacchiochi on August 25, 2020) as a result of rescheduling due to in-person assessment requests and the COVID-19 global pandemic interference. Again, this conduct does not rise to the high threshold of being excessive, imprudent, stubborn, inflexible, unyielding, and/or immoderate.

47Finally, once the May 1, 2020 OCF-18 was approved on September 23, 2020, the applicant did not undergo the psychological assessment until December 2, 2020, some two and a half months later. Having waited months after the treatment plan was approved to undergo the assessment minimizes the applicant’s argument regarding any unreasonable delay by the respondent.

48The applicant made further submissions regarding the respondent’s actions and her removal from the MIG as a basis for her claim for an award. Removal from the MIG is not a “benefit” and, therefore, no award can be made in this regard.

49For all these reasons, I find that I have no jurisdiction to order an award under s. 10 of Regulation 664 and, even if I did, that the facts in this matter do not warrant an award.

Interest

50As there are no benefits owing, no interest is payable.

Costs

51Rule 19.1 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules) provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

52Both parties sought an order for costs in this matter.

53Of note, the respondent is the successful party in this hearing. The usual course would be for a cost award to be made in favour of the successful party in civil litigation and subject to the Court’s discretion. The Rules and the Statutory Powers Procedure Act (SPPA),²³ however, reflect a different policy. By incorporating the behaviour of a party in a proceeding as a trigger for an award of costs, behaviour rather than success in the dispute is the focus. Thus, I must consider both parties’ claim for costs because a successful but unreasonable party may also be subject to a costs award.²⁴

54The applicant submitted that the behaviour of the respondent and its representatives throughout this matter necessitates a cost award as “she has had to fight tooth and nail for even a modicum of support throughout her relationship with Intact.”²⁵ The applicant’s claim for costs is based upon the following:

(i) The respondent “showing up with an army of Intact supporters to the April 23, 2021 hearing”²⁶ and cross-examining the applicant, a trauma survivor with psychological injuries;

(ii) Forcing counsel to incur upwards of $10,000.00 in legal fees and disbursements including transcripts for multiple hearing dates, witness fees, and an independent medical examination assessment to dispute this claim;

(iii) The respondent brought two separate motions to appeal or vary the Tribunal’s November 25, 2020 Case Conference Report and Order which required the applicant to mount a “spirited response” that required extensive research and preparation;

(iv) Failing to respond to applicant’s counsel’s request for information on January 28, 2021, February 18, 2021, and March 1, 2021 treatment plan denials which, in turn, required the applicant to raise the issue at the hearing as a preliminary matter; and

(v) Failure to produce adjusters’ log notes from May 8, 2020 to November 30, 2020.

55The respondent submitted that it was not responsible for the length or format of the hearing as it was the applicant that “demanded” an in-person/oral component to the hearing to examine two of the respondent’s claims handlers. The respondent also submitted that the applicant prolonged the hearing length by submitting an affidavit sworn by the applicant, which gave rise to a right of cross-examination, as well as requesting to add two issues to the issues in dispute on the first day of the videoconference portion of the hearing which resulted in an adjournment. The respondent submitted that it has incurred $22,154.08 for legal fees, disbursements, and taxes in this matter.

56I do not find that either party’s behaviour in this matter rose to the high level of unreasonableness, frivolousness, vexatiousness, or bad faith. I agree with the respondent that matters where treatment plans and an award are in dispute typically proceed in writing and this matter would be no exception. However, requesting a portion of the hearing to proceed by way of videoconference for the purpose of cross-examination does not equate to unreasonableness, frivolousness, vexatiousness, or bad faith behaviour. Neither does adding witnesses to the hearing after the applicant requested to add two partially approved treatment plans to the issues in dispute on the date scheduled for the videoconference portion of hearing despite the treatment plans being partially approved one year prior and 2 months prior to the hearing. In short, neither the applicant nor the respondent has proven on a balance of probabilities that any of the actions cited against the other were unreasonable, frivolous, vexatious, or done in bad faith but were rather zealous advocacy on behalf of their clients. As a result, the parties’ claims for costs is dismissed.

CONCLUSION

57For the reasons outlined above, I find that:

(i) The applicant is not entitled to the unapproved portions of both the February 25, 2020 and December 12, 2020 OCF-18s, an award, or interest;

(ii) The parties’ claims for costs are dismissed; and

(iii) This application is dismissed.

Released: May 24, 2022

__________________________

Lindsay Lake

Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2Corpuz v. Aviva General Insurance, 2021 CanLII 18909 (ON LAT), A.L. v. Aviva Insurance Canada, 2019 77008 (ON LAT), Ali v. Aviva Insurance Company of Canada, 2021 CanLII 73542 (ON LAT), and AJ v. Security National Insurance Co., 2021 CanLII 35586 (ON LAT).
3. 32021 CanLII 69333 (ON LAT).
4. 4Ibid. at paras. 19-20.
5. 5Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
6. 6Superintendent’s Guideline No. 03/14.
7. 7Applicant’s Brief, tab 13.
8. 8Applicant’s Brief, tab 33.
9. 9Applicant’s Brief, tab 34.
10. 102020 CanLII 12787 (ON LAT).
11. 112019 CanLII 76995 (ON LAT).
12. 12Supra note 10 at paras. 22-23.
13. 13Supra note 11 at para. 7.
14. 14Ibid.
15. 15Ibid. at paras. 7-8.
16. 16Ibid.
17. 17Ibid. at para. 11.
18. 182021 CanLII 19424 (ON LAT).
19. 19Applicant’s Brief, tab 46.
20. 20See: S.K. v Aviva General Insurance, 2010 CanLII 151087 (ON LAT); J.A. vs. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT); and S.M.Z. vs. Aviva Insurance Company, 2020 CanLII 27401 (ON LAT).
21. 21Applicant’s Brief, tab 45.
22. 22Applicant’s Written Submissions, para. 65.
23. 23R.S.O. 1990, c. S.22.
24. 24See: 17-005302 v. Aviva Insurance Company of Canada, 2018 CanLII 83535 (ON LAT) at para. 43.
25. 25Applicant’s Written Submissions, para. 107.
26. 26Applicant’s Written Submissions, para. 108.