Licence Appeal Tribunal File Number: 21-003387/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:
Osbert Handy
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATORS:
Lyndra Griffith Terry Prowse
APPEARANCES:
For the Applicant:
Murad Huseynov, Paralegal
For the Respondent:
Peter Pietraszek, Counsel
Varshni Skantharajah, Counsel
HEARD: by Videoconference:
July 4 and 5, 2022
BACKGROUND
1The applicant was involved in an automobile accident on December 6, 2020 and sought benefits pursuant to the Statutory Accident Benefits (the “Schedule”) effective September 1, 2010 (including amendments effective June 1, 2016). The respondent denied certain benefits claimed by the applicant. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). for a resolution of the dispute.
2A case conference was held on August 24, 2021, and the matter proceeded to a videoconference hearing.
3The respondent filed two Notice of Motions prior to the hearing. After confirming with the applicant that he required time to review the Motion materials, we granted the time remaining on July 4, 2022, to do so.
ISSUES IN DISPUTE
4The issues in dispute were as follows:
a. Is the applicant entitled to an income replacement benefit (IRB) of $389.71 per week from April 5, 2021 to March 3, 2022?
b. Is the applicant entitled to $425.62 ($1,440.91 less $1,015.29 approved) for physiotherapy services, proposed by Ortho Neuro Physiocare in a treatment plan (OCF-18) dated March 31, 2021?
c. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
5RESOLVED ISSUES: The parties agreed that the Minor Injury Guideline was no longer an issue in dispute.
NOTICE OF MOTION 1 – SEEKING ORDERS TO QUASH SUMMONSES
6The Motion is approved.
7On June 30, 2022, the respondent submitted a Notice of Motion to the Tribunal, seeking orders to quash the summonses obtained by the applicant to Rebecca Castelino, Alexander Parks and Stephanie Brooks, for the following reasons:
a. The testimony of Mr. Park and Ms. Castelino was not relevant;
b. The testimony of the AB adjusters/managers was unduly repetitious, and their evidence was available in the log notes;
c. The summonses were not served personally, in contravention of section 12(3) of the Statutory Powers Procedure Act (“SPPA”); and
d. The number of adjusters/managers called constituted an abuse of process.
8The applicant objected to the Motion, stating that the witness list was submitted on May 6, 2022, within the timelines stipulated in the August 31, 2021, Case Conference Report and Order (CCRO). The applicant asserted that the respondent could have submitted the Notice of Motion to the Tribunal much earlier, but chose to do so at the 11th hour, which was an abuse of process. The applicant stated that the summonses were served at the office of the respondent, but when queried, acknowledged they were sent to the respondent’s office via courier and not directly served on the individuals. The applicant asserted that the respondent could have delivered the summonses to its employees but did not.
9Section 25 of the Statutory Powers Procedure Act, RSO 1990 (SPPA) authorizes the Tribunal to determine its own procedures and practices, which includes establishing rules. Rule 15 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”) clearly stipulates what the parties must do when filing a Notice of Motion with the Tribunal. It requires that a party submit a Notice of Motion and all supporting materials “…at least 10 days in advance”, or in accordance with any other schedule as may be determined by the Tribunal.
10We granted the respondent’s Motion on the basis that none of the witnesses were properly served summonses in accordance with Section 12(3) of the SPPA.
NOTICE OF MOTION 2 – MATERIAL MISREPRESENTION
11The Motion is denied.
12On June 30, 2022, the respondent submitted a second Notice of Motion to the Tribunal. The Motion sought a finding that the applicant knowingly misrepresented his primary address to reduce his insurance premiums, thereby contravening the requirements set out in section 31(1)(b) of the Schedule. The respondent relied on several documents, including telephone transcripts, audio recordings, the transcript of an Examination Under Oath (EUO) and the report of an investigator. The respondent stated that the late timing of the Motion was due to repeated requests to the applicant for information related to his primary address that went unanswered and that there was no choice but to file the Notice of Motion. The respondent also requested an Order for the applicant to repay the IRBs in the amount of $6,879.22.
13The applicant opposed the Motion, asserting that there was nothing wrong with phoning around to investigate ways to reduce insurance premiums. He stated that given the respondent’s late filing, he did not have an opportunity to review or prepare a response. He submitted that the investigator’s report was hearsay evidence and should be excluded on that basis. The applicant argued that the respondent’s filing of this second Notice of Motion at the 11th hour was an abuse of process.
14We informed the parties that we would be reserving the decision until after the conclusion of the videoconference hearing. Having done so, we deny the respondent’s Motion.
15Again, Rule 15 of the Rules stipulates that parties must file a Notice of Motion and supporting material at least 10 days in advance, or in accordance with any other schedule. Responding parties have 5 days to submit responding materials.
16In this case, there was no other schedule for the respondent to consider. Therefore, the respondent had 10 days to submit its Motion and materials but failed to do so. The respondent emailed the Notice to the Tribunal on June 30, 2022, less than 1 business day before the hearing was to commence. This did not permit sufficient time for the applicant to respond, which was contrary to the Rules and the principles of procedural fairness and natural justice.
WITNESSES
17The applicant chose not to give any oral evidence and the three witnesses he intended to call were unable to testify due to not being properly served pursuant to the SPPA.
18As a result of the applicant not calling any witnesses, the respondent chose not to call any witnesses.
RESULTS
The applicant’s entitlement to IRBs
19We find that the applicant is not entitled to IRBs.
20Section 5 of the Schedule states that an IRB is payable to an insured person who, within the first 104 weeks following the accident, is substantially unable to perform the essential tasks of their pre-accident employment because of an impairment sustained as a result of the accident.
21The applicant bears the burden of proving on a balance of probabilities that he is entitled to IRBs for the period from April 5, 2021 to March 3, 2022.
22The applicant did not provide any evidence or substantive arguments for why he was entitled to IRBs, after they were denied by the respondent for failing to submit employment data. The applicant did not provide any employment records to show that, because of injuries sustained in the accident, he was substantially unable to perform the essential tasks of his pre-accident employment. Although scheduled multiple times, he did not attend a multi-disciplinary assessment for the purpose of an IRB determination.
23The respondent submits that the applicant had been paid IRBs for a period, but the benefit was terminated because the applicant was working. The respondent submits that it requested the employment data from the applicant on multiple occasions, but that the requests went unanswered.
24The respondent submits that a prescription completed by Dr. Atalla on February 23, 2021 shows that the applicant was unfit to work until March 2021. A report completed by the Sleep Disorders Centre on April 15, 2021, indicated that the applicant worked as a welder in April 2021. The respondent submits that the applicant was working in April 2021 and that there is no evidence that he took any time off work after that period. The respondent further submits that there is no medical evidence which identifies his restrictions. The respondent submits that there is no evidence that the applicant did or did not return to work because he did not adduce any evidence that addresses the essential tasks of his employment.
25The respondent submits that there is simply no objective evidence to establish the applicant’s entitlement to the benefit.
26We agree with the respondent. The burden of proof rests with the applicant to demonstrate his entitlement to IRBs. The applicant has failed to adduce any relevant evidence at the hearing pertaining to this benefit, therefore we find the applicant has not proven on a balance of probabilities of his entitlement to the IRBs.
The applicant’s entitlement to physiotherapy services
27The applicant is not entitled to the $425.62 remaining for physiotherapy services.
28Sections 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.
29The applicant bears the onus of proving entitlement to the proposed treatment by proving that the OCF-18 is reasonable and necessary on a balance of probabilities.1
30The applicant did not make any submissions regarding entitlement to the OCF-18 for physiotherapy services proposed by Ortho Neuro Physiocare.
31As stated above, the burden of proof rests with the applicant, who provided no substantive, objective evidence to establish entitlement to the remainder of the treatment plan.
INTEREST
32As there are no benefits owing, no interest is payable.
AWARD
33The applicant is not entitled to an award.
34Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
35As we have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.
COSTS
36The applicant is not entitled to costs.
37Rule 19.2 of the Rules allows a party to make an oral request for costs at a hearing or at any time before a decision is released. Therefore, the applicant’s request for costs is properly before us.
38While the timing of the respondent’s Notices of Motion were not in accordance with the Rules, there was insufficient evidence from the applicant to demonstrate that the respondent’s actions were unreasonable, frivolous, vexatious or in bad faith, as described in Rule 19 of the Rules and Section 17.1 of the SPPA.
CONCLUSION AND ORDER
39The applicant is not entitled to an IRB of $389.71 per week from April 5, 2021 to March 3, 2022;
40The applicant is not entitled to $425.62 for physiotherapy services, proposed by Ortho Neuro Physiocare on March 31, 2021;
41The applicant is not entitled to interest on any overdue payment of benefits;
42The respondent is not liable to pay an award under s. 10 of O. Reg. 664; and
43The applicant is not entitled to costs.
Released: September 21, 2022
Lyndra Griffith Adjudicator
Terry Prowse Adjudicator