Diana Hordo and Michael Hordo v. CAA Insurance Company, 2022 CanLII 84691

Citation: Hordo and Hordo vs. CAA Insurance Company, 2022 ONLAT 20-012761/AABS

Licence Appeal Tribunal File Number: 20-012761/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:

Diana Hordo/Michael Hordo Applicant

and

CAA Insurance Company Respondent

DECISION

ADJUDICATORS: Tyler Moore Thérèse Reilly

APPEARANCES:

For the Applicant: Diana Hordo, Applicant Michael Hordo, Applicant

For the Respondent: Adriana Eriksen, Adjuster Peter Kazdan, Counsel

Observers: Jaime D’Ambrosio, AB manager CAA Insurance Alannah Maunder, associate counsel with Respondent

Court Reporter: Alyssa Scott

HEARD: by Videoconference: June 13-17, 20, and 24, 2022

BACKGROUND

1The applicants, Diana Hordo (D.H.) and Michael Hordo (M.H.) were involved in an automobile accident on May 6, 2019. M.H was the seat-belted driver, and D.H. was the seat-belted front passenger of a vehicle that was side-swiped. M.H claims that as a result of the accident, he sustained fractured ribs, muscle tears, and injuries to his back. D.H claims that she sustained a minor head injury that caused dizziness, spinal tenderness, and injuries to her right should/wrist/arm. Neither applicant sustained any loss of consciousness, nor did they require ambulance transportation to a hospital.

2The applicants sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The respondent denied certain benefits and the applicants each submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

POST-HEARING MOTION

3The respondent filed a post-hearing Notice of Motion on July 26, 2022. The certificate of service from the respondent confirms that each applicant was served with the motion material. The applicants were to provide any responding submissions to the Tribunal by August 5, 2022. As of the date of this decision, no response from the applicants had been received.

4The respondent’s motion seeks a costs award based on the fact that the applicants advised the Tribunal that Michael Hordo (“M.H.”) needed to attend a medical appointment on the morning of June 24th, and as a result, the applicants could not attend the hearing. The respondent also argues that a number of other hearing dates were cancelled based on allegations made by the applicants. Specifically, the hearing was scheduled to proceed from June 13 to 17; 20 and 24, 2022. The hearings dates of the afternoon of June 13, 14, and the morning of June 24, 2022 did not proceed based on M.H.’s request that he needed to attend a medical procedure on the afternoon of June 13th that would require a day of recovery on June 14th, 2022.

5While the respondent did not provide any evidence that M.H.’s medical appointment and recovery on June 13th and 14th was misstated, the respondent did provide information that instead of attending a medical appointment on the morning on June 24th, that the applicants were actually in attendance at a motion for an unrelated matter in the Divisional Court. We have addressed the issue of a costs award to the respondent later in the decision.

PRELIMINARY ISSUES

6The Tribunal issued a procedural Order on June 13, 2022, addressing the applicants’ refiling of their document briefs, limiting witnesses, and clarifying the remaining preliminary issues in dispute. The hearing was adjourned on the afternoon of June 13th until the morning of June 15th.

7A decision was made at the outset of the hearing to exclude a 245-page document that was filed by the applicants on June 15, 2022. This was based on s. 15 of the SPPA. The respondent objected to the document being admitted because it included material that had previously been considered at a motion before the Tribunal. The materials also included written submissions from the applicants that had been previously considered at the same motion hearing. The Tribunal adjudicators are in agreement and an Order was made to exclude the document.

8Audio call logs of conversations between the applicants and CAA Insurance recorded by the insurer at, or around the time of the accident, were also excluded from consideration. They were determined to be irrelevant based on s. 15 of the SPPA. The audio tapes the applicants wished to introduce had not been filed with the Tribunal. They were determined to be of little relevance because the occurrence of an accident is not an issue in dispute. The respondent’s position was that audio recordings regarding insurance policy renewals pertain to the purchase of a policy and they are not required to determine entitlement to the housekeeping and home maintenance benefit.

9The issue of costs was deferred to be heard as an issue at the hearing by way of the Motion Order of Terry Hunter on June 6, 2022.

THE FOLLOWING ARE THE AGREED TO BE THE SUBSTANTIVE ISSUES TO BE DECIDED AT THE HEARING:

D.H.

10Is the applicant entitled to a non-earner benefit of $185/week from June 3, 2019 to May 6, 2021?

11Is the applicant entitled to housekeeping and home maintenance benefits of $100/week from May 6, 2019 to May 6, 2021?

12Is the applicant entitled to $753 for dental services that was proposed by Dr. Mendolia and denied on August 29, 2019?

13Is the applicant entitled to $2,050 for chiropractic and acupuncture services, that was proposed by Islington Village Chiropractic Health Centre and denied on September 3, 2020?

14Is the applicant entitled to $30 ($1330 less $1300 approved) for chiropractic and acupuncture services, that was proposed by Islington Village Chiropractic Health Centre and denied on October 31, 2019?

15Is the respondent liable to pay an award under R.R.O 1990, Regulation 664 Automobile Insurance Act because it unreasonably withheld or delayed payments to the applicant?

16Is the applicant entitled to interest on any overdue payment of benefits?

17Is the applicant entitled to costs?

18Is the respondent entitled to costs?

M.H.

19Is the applicant entitled to a non-earner benefit of $185/week from June 3, 2019 to May 6, 2021?

20Is the applicant entitled to housekeeping and home maintenance benefits of $100/week from May 6, 2019 to May 6, 2021?

21Is the applicant entitled to $1260 for chiropractic and acupuncture services, proposed by Islington Village Chiropractic Health Centre which was denied September 3, 2020?

22Is the applicant entitled to $159.31 ($1260 less $1,100.69 approved) for chiropractic and acupuncture services, proposed by Islington Village Chiropractic Health Centre which was denied on November 7, 2019?

23Is the respondent liable to pay an award under s. 10 of O.Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

24Is the applicant entitled to interest on any overdue payment of benefits?

25Is the applicant entitled to costs?

26Is the respondent entitled to costs?

RESULT

27The applicants are not entitled to non-earner benefits for the period in dispute. They have not met the onus of establishing a complete inability to carry on a normal life as a result of the accident.

28The applicants are not entitled to housekeeping/home maintenance benefits. They have not demonstrated that they had optional policy coverage for such.

29The disputed treatment plans have been previously approved by the respondent. The parties were in agreement with this, and as a result, they are not in dispute.

30The applicants are not entitled to interest on any overdue payment of benefits.

31The claim for an award is dismissed.

32The applicants are not entitled to costs. The respondent is entitled to $500 in costs.

ANALYSIS

Are the applicants eligible for non-earner benefits?

33The applicants both elected non-earner benefits because they were not eligible for income replacement benefits.¹ Pursuant to section 12 of the Schedule, an insured must suffer a complete inability² to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for a non-earner benefit. The test for a non-earner benefit is outlined in Heath v. Economical Mutual Insurance Company;³

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

34Heath also holds that, in order to qualify for a non-earner benefit, the changes in an insured’s life must be of such significance to continuously prevent them from engaging in substantially all activities in which they engaged before the accident.⁴ Unfortunately, the applicants’ testimony provided limited insight into the activities they engaged in prior to their motor vehicle accident apart from M.H being a pilot, and both M.H. and D.H. running a United Nations Development Program (“UNDP”) consulting firm.

M.H.

35M.H. submits that he suffered a complete inability to carry on a normal life as a result of the accident. He maintains that following the accident, he could not genuinely engage in his pre-accident activities. We find, however, that the documentary evidence does not support this.

36On May 25, 2019, Dr. Wong, M.H’s family doctor completed an OCF-3. Dr. Wong listed M.H’s injuries as an abrasion to the left neck secondary to cellulitis, abrasion to the abdomen, cervical spine muscle strain, right lumbar muscle strain, vertigo, contusion of the right elbow, and fractured ribs 6-7 on the left.

37In November 2019, M.H. was able to prepare for, and argue, a case in-person at a motion hearing before the Ontario superior court.⁵ This was an unrelated matter. We find that it supports a level of recovery.

38On December 18, 2019, Dr. Wong reported that the M.H. required physiotherapy and massage therapy for his epicondylitis, partial muscle tears/tendonitis, and broken ribs.⁶ Dr. Wong made no mention that the applicant was unable to carry on a normal life as a result of his injuries.

39Video surveillance of M.H. captured by the respondent in October 2020 showed that M.H. had the ability to drive a vehicle, bend to get in and out of the vehicle, and go into/out of restaurants carrying food bags. He required no assistance, and did not appear to be in any distress. We find that this does not support that the applicant suffered an inability to carry on normal activities as a result of the accident.

40M.H. testified that he was medically cleared by his doctor, who specializes in aviation medicine, for a valid aviation license towards the end of 2021. He was deemed medically fit to pilot an airplane. That does not support a complete inability to carry on his normal life.

D.H.

41D.H. also submits that she suffered a complete inability to carry on a normal life as a result of the accident. She maintains that following the accident, she could not genuinely engage in her pre-accident activities. We find that the evidence does not support this.

42According to hospital records from the date of the accident, the applicant had normal vitals, no dizziness, no loss of consciousness, no cervical or lumbar spine tenderness, and right shoulder tenderness but a good range of motion. She had full and painless range of motion of her right elbow, despite some abrasions. Her pain was limited mostly to her right arm. She was diagnosed with a minor head injury, and pain in the right shoulder/elbow/wrist. X-rays were normal.⁷

43D.H testified that she was on vacation at a cottage with M.H. in July 2019.

44On August 8, 2019, Dr. Mendolia, dentist, submitted an OCF-3 on D.H.’s behalf. He indicated that D.H. did not suffer a substantial inability to engage in all of the activities in which she was ordinarily engaged in before the accident.⁸

45On October 24, 2019, Dr. Rakkar, chiropractor, submitted a Minor Injury Treatment Discharge report (OCF-24). Dr. Rakkar indicated that D.H. did not have difficulty performing regular activities of daily living as a result of the accident, and that this had discussed this with D.H. Dr. Rakkar also noted that D.H. had improved both in terms of functional abilities and her level of pain with treatment.⁹

46In November 2019, D.H. was able to prepare for, attend, and participate in an in-person motion hearing before the Ontario Superior Court with M.H.¹⁰ Again, this was an unrelated matter. We find that is also supports a level of recovery.

47In October 2020, video surveillance footage shows that D.H. was able to actively engage in regular activities of daily living without any apparent distress or support. She was observed bending to get in and out of a vehicle, walking, and setting up/lifting pumpkins to make a fall display on her front porch.¹¹

48While we do not dispute the fact that the applicants sustained physical injuries as a result of the accident, the evidence does not support that those injuries caused either one of them a complete inability to carry on normal life as a result of, and within 104 weeks of the accident.

49The applicants initially opted for non-earner benefits over income replacement benefits because they submitted that they were retired and not actively employed. The respondent, however, submitted evidence to suggest that the applicants were, in fact, earning income and the election for a non-earner benefit was not appropriate. They should have been claiming income replacement benefits. Although the applicants selected the non-earner benefits, the evidence shows that they had employment contracts, companies they owned/directed, reported income, and they both received the Canadian Emergency Relief Benefit (“CERB”) which indicates that they had additional sources of income.

50According to Dr. Wong’s OCF-3 dated May 25, 2019, M.H. was working for a UNDP as a volunteer. That role involved visiting foreign countries in combat zones where he provided consultant work. Dr. Wong noted that the pre-requisite for non-earner benefits was not applicable to M.H.¹²

51M.H. submitted that he was the chair of UNDP and that D.H. was the president. The applicants also acknowledged that M.H. was being compensated three hundred thousand U.S. dollars and D.H. was being compensated two hundred and fifty thousand U.S. dollars for their work with that organization. D.H. went on to designate herself on her email signature as president of INC Environment Inc. and provided a business address for that company.¹³

52The applicants both testified that the compensation amounts they quoted for their work with the UNDP was what they could have earned had they been able to fulfill their contract. That is not, however, what they actually earned. The contract was not fulfilled because of the injuries they sustained as a result of their accident.

53The applicants provided their tax assessments from 2018 and 2020.¹⁴ They did not provide tax assessments for 2019, or tax returns for any of those years. The tax assessments did show that in 2018, M.H. had an income of $14,302. In 2020, his tax assessment income was $28,837.¹⁵ In 2018, D.H. had an income of $20,175. The applicants submitted that they are both retired and any earnings were from their retirement pensions only. But they failed to show the actual source of their income, even though they were ordered to produce their actual tax returns by adjudicator Marshall on May 27, 2021. The actual tax returns would have shown the income source breakdown.

54The applicants also testified that they both received the Canada Emergency Response Benefit (“CERB”) in 2020. That could have accounted for the additional income. It is important to note, however, that in order qualify for the CERB, individuals must have stopped working for reasons related to COVD-19. They must have also earned a minimum of $5000 before taxes in 2019 from employment income, self-employment income, or benefits related to maternity or parental leave. According to the applicants’ testimony, they did not work in 2019 as they were retired and receiving retirement pensions. We find that this discrepancy calls into question their overall credibility.

55In consideration for the totality of evidence presented, we find that the applicants have failed to establish that they suffered a complete inability to carry on a normal life as a result of the accident. They are not entitled to non-earner benefits.

Are the applicants entitled to housekeeping/home maintenance benefits?

56Section 23 of the Schedule limits payment of housekeeping and home maintenance to persons who are determined to be catastrophically (“CAT”) impaired. Otherwise, it is an optional benefit that must be purchased separately through an insurer.

57Section 28 of the Schedule sets out that housekeeping and home maintenance is an optional benefit that, when purchased, provides $100/week to an insured for no more than 104 weeks after an accident when they are substantially unable to perform the housekeeping and home maintenance services that they normally performed before the accident.

58The applicants’ injuries were not CAT. That is not in dispute. The only other way that they could be eligible for housekeeping and home maintenance benefits, would be if they had purchased it as an optional policy benefit.

59The applicants submitted that they did purchase optional housekeeping and home maintenance benefits. Even if they did not, they argued that they should be eligible through a transitional policy change.

60The applicants’ insurance policy summary with CAA for the period of time between October 5, 2017 and October 5, 2019 shows no additional coverage or premium paid for housekeeping and home maintenance benefits.¹⁶

61The applicants submitted that they discussed the optional benefits with a CAA advisor over the phone. They pointed to hand-written notes made on their policy summary.¹⁷ Unfortunately, the hand-written notes do not confirm that optional coverage was in fact purchased, and no other evidence confirming housekeeping and home maintenance coverage was submitted.

62The applicants also argue that they should be entitled to housekeeping and home maintenance coverage because they had been covered for it in the past. They should still be entitled through a transitional policy. Section 68 of the Schedule, however, sets out that transitional coverage for housekeeping and home maintenance benefits was only for the period of time between September 2010 and September 2011. For example, if the applicants had a policy renewal on August 1, 2010, they would have been covered for housekeeping and home maintenance benefits until their policy renewed again in August 2011. That does not apply here.

63There is no evidence of incurred costs. According to the applicants, they signed a service contract with a company called Tecnorag for housekeeping services.¹⁸ M.H., however, is listed as the sole director of Tecnorag.¹⁹ We find that this calls into question the validity of such a service contract, as Tecnorag is not a housekeeping and home maintenance service provider. Again, there is no evidence of services rendered or of monies paid for any housekeeping or home maintenance.

64We find that the applicants have failed to establish entitlement to optional housekeeping and home maintenance benefits.

The applicants failed to attend a Section 33 examination under oath

65According to s. 33 of the Schedule, an applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. S.33(2) also sets out that an applicant shall submit to an examination under oath, if requested, except during a period when they are incapable of being examined under oath because of their physical, mental, or psychological condition.

66The applicants failed to provide requested medical information in a timely manner to the respondent. They each also failed to attend at least two scheduled examinations under oath. There is no evidence suggesting otherwise. We are satisfied that the respondent successfully sent the applicants several letters of confirmation and made efforts to accommodate the applicants’ schedule so that they could attend an examination under oath.²⁰ They also sent the applicants multiple letters requesting the medical information that was needed to assist the respondent in determining the applicants’ entitlement to benefits like the non-earner benefit. We find that the requests were made in compliance with s.33 of the Schedule.

67The applicants did not notify the respondent that they were incapable of attending and examination under oath because of their physical, mental, or psychological condition. In correspondence they did have with the respondent, the applicants cited only that an examination under oath was a breach of their privacy and that it was unlawful.²¹

68The applicants failed to attend multiple examinations under oath as per s.33 and provide medical information required by the respondent to assist in adjusting the file and determining the applicants’ eligibility for benefits. The respondent was within their rights to suspend the applicants’ benefits as a result.

The treatment plans in dispute have been approved by the respondent

69There are three disputed treatment plans for D.H. and two for M.H. Ms. Erikson testified that all of those disputed treatment plans were approved after the applicants were removed from the MIG on October 27, 2021.²² Their removal from the MIG corresponded to the time that the applicants produced the requested medical evidence the respondent had been asking for since shortly after the accident in May 2019.

70The applicants argue that because of their injuries, they should never have been put in the MIG to begin with. This was only done, however, after the respondent received OCF-23s from their treating health provider at Islington Chiropractic.²³ The applicants’ chiropractor deemed that their injuries were predominantly minor in nature and could be treated under the MIG.

71Based on the respondent’s confirmation that the disputed treatment plans had already been approved, but not necessarily incurred, we find that they are no longer issues in dispute. The applicants consented.

Are the applicants entitled to interest?

72Section 51(2) of the Schedule sets out that if payment of a benefit is overdue, the insurer shall pay interest on the overdue amount. We find that the applicants are not entitled to interest, as no benefits are payable.

Are the applicants entitled to an award?

73The applicants claim entitlement to an award and submit that the respondent unreasonably withheld or delayed approval of the treatment plans in question and housekeeping/home maintenance, as well as the non-earner benefit. They have argued bad faith and a breach of their privacy on multiple occasions. Pursuant to section 10 of Reg. 664, the applicants may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.

74It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Reg, 664, the insurer’s conduce must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.²⁴

75We find that the applicants are not entitled to an award, as no benefits are payable.

Are the parties entitled to costs?

76Pursuant to s.17.1 of the Statutory Powers Procedure Act (“SPPA”) and Rule 19.1 of the Tribunal, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Both the applicants and respondent are seeking costs in this case.

77The applicants alleged that the respondent acted in bad faith, unlawfully, and breached their privacy on multiple occasions. The applicants alleged the respondent shared their medical information with the respondent’s representative without obtaining ongoing consent and failed to adjudicate their files in accordance with the Schedule.

78The respondent submitted at the hearing that they have tried to assist the applicants and have acted appropriately. In turn, the applicants have acted unreasonably, vexatiously, and frivolously. They have made serious and unfounded accusations that obstructed the proceeding. They have alleged that the respondent has conducted illegal activity, submitted fraudulent documents, and admitted to acting in bad faith. None of those allegations are established by the evidence.

79The allegations of bad faith are addressed in the post-hearing motion. As far the allegation of breach of privacy, that is outside of the jurisdiction of this Tribunal and it will not be addressed here.

80We find that the applicants have not met the very high threshold for entitlement to costs. The respondent’s entitlement, however, is addressed below.

Is the respondent entitled costs?

81The respondent’s post-hearing motion triggered a re-examination of the issue of entitlement to costs. The hearing was adjourned the afternoon of June 13th and for the day on June 14th for two reasons: 1. M.H. stated that he needed to attend a last-minute medical procedure and would require the following day to recover 2. The applicants were having technical difficulties with their computer and they could only join the hearing by telephone. The hearing was adjourned on the morning of June 24th after M.H. stated that he again had to attend a medical procedure at Sunnybrook Hospital.

82In their notice of motion materials, the respondent provided information to confirm that on the morning of June 24th, 2022, the applicants were at a motion heard by Justice Corbett at the Divisional Court.²⁵ They were not attending a medical appointment at Sunnybrook Hospital for M.H., as they had stated. This calls into question whether or not M.H. did, in fact, have to attend a medical procedure and then have a day of recovery on the afternoon of June 13th and the entire day of June 14th.

83We accept the respondent’s argument that the applicants misstated their whereabouts on the morning of June 24th, 2022. We find that the respondent is entitled to a $500 costs award.

ORDER

84The applicants are not entitled to non-earner benefits for the period in dispute. They failed to attend an examination under oath on multiple occasions without providing qualifying reasons, and they failed to demonstrate a complete inability to carry on a normal life as a result of the accident.

85The applicants are not entitled to housekeeping/home maintenance benefits. They have not demonstrated that they had optional policy coverage for such.

86The disputed treatment plans have already been approved by the respondent. As a result, they are not an issue.

87The applicants are not entitled to interest on any overdue payment of benefits.

88The claim for an award is dismissed.

89The applicants are not entitled to costs. The respondent is entitled to a $500 costs award.

Released: September 12, 2022

Tyler Moore, Vice-Chair

Thérèse Reilly, Adjudicator

Footnotes

1. 1Exhibit 67 – TAB 24 of the respondent’s submissions
2. 2S. 3(7) of the Schedule defines a complete inability to carry on a normal life as an impairment that continually prevents a person from engaging in substantially all of the activities in which a person ordinarily engaged in before the accident.
3. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at paragraph 50.
4. 4Ibid.
5. 5Exhibit 98 – TAB 214 of the respondent’s submissions.
6. 6UT6 of the applicant’s submissions, page 11.
7. 7Exhibit 17 – UT8 of the applicants’ submissions page 42.
8. 8Exhibit 54 – TAB 225 of the respondent’s submissions, page 1103.
9. 9Exhibit 53 – TAB 224 of the respondent’s submissions.
10. 10Exhibit 98 – TAB 214 of the respondent’s submissions.
11. 11Exhibit 64 – video surveillance and accompanying report at TAB 187 of the respondent’s submissions.
12. 12Pages 67 to 72 of the applicant’s document brief.
13. 13Exhibit 28 – TAB 92 of the respondent’s submissions.
14. 14Exhibit 16 – UT11 of the applicant’s brief.
15. 15Exhibit 96 – TAB 88-89 of the respondent’s submissions.
16. 16Exhibits 20 and 21 – TAB 8 of the respondent’s submissions.
17. 17Exhibit 22 – TAB D of the applicants’ submissions.
18. 18Exhibit 55 – UT2 of the applicants’ submissions.
19. 19Exhibit 56 – TAB 204 of the respondent’s submissions, page 204.
20. 20Exhibits 31 to 35 – TABS 152,154, 155, 158, and 160 of the respondent’s submissions.
21. 21Exhibit 37 – email from M.H. to the respondent dated July 16, 2019.
22. 22Exhibits 71 and 72 - TABS 82 and 83 of the respondent’s submissions.
23. 23Exhibit 79 – TAB 33 of the respondent’s submissions.
24. 2417-006757 v. Aviva Insurance Canada, 2018 CanLii 81949 (ON LAT) at para. 28, and S.M. v. Unica Insurance Inc., 2020 CanLii 61640 (ON LAT Reconsideration) at para. 39.
25. 25TABS 1 and 2 of the respondent’s post-hearing motion materials