Licence Appeal Tribunal File Number: 21-008473/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:
Alexander Campese
Applicant
and
Guarantee Insurance
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Alexander Campese, Applicant Nicholas Whelan, Paralegal
For the Respondent:
Viktoriya Rolik, Claims Representative
Priyanka Monpara, Counsel
Court Reporter:
Rana Sarhan and Briana Lee Victory Verbatim
HEARD: by Videoconference:
September 5, 6 and 7, 2023
OVERVIEW
1Alexander Campese, the applicant, was involved in an automobile accident on June 18, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Guarantee Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
Is the applicant entitled to $3,492.53 for physiotherapy services proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) submitted July 17, 2019?
Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Physio in a treatment plan submitted March 2, 2020?
Is the applicant entitled to a non-earner benefit of $185.00 per week from July 16, 2019, to June 18, 2021?
Is the applicant entitled to attendant care benefits in the amount of $791.34 per month from April 30, 2020 to date and ongoing?
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?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”)?
RESULT
3After reviewing the parties’ submissions and all of the evidence I find:
The applicant’s injuries are not predominantly minor and are not subject to treatment within the $3,500.00 Minor Injury Guideline limit.
The applicant is not entitled to the plan in the amount of $3,492.53 for physiotherapy services, proposed by 101 Physio submitted July 17, 2019.
The applicant is entitled to $2,460.00 for a psychological assessment, proposed by 101 Physio in a plan submitted March 2, 2020, plus interest pursuant to s. 51 of the Schedule
The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from July 16, 2019, to June 18, 2021.
The applicant is not entitled to attendant care benefits in the amount of $791.34 per month from April 30, 2020 to date and ongoing?
The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
The respondent is not entitled to costs pursuant to Rule 19.
ANALYSIS
The applicant’s accident-related impairments fall outside of the MIG because he sustained a concussion and a psychological impairment as a result of the accident.
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant. Both parties agree that there is $936.97 remaining in the $3,500 MIG limit.
5On June 18, 2019, the applicant was involved in an accident when he was rear-ended while stopped in traffic. He reported that the impact threw his body forward and he hit the right side of his face on the steering wheel. He was not assessed by paramedics at the scene and followed up with his family doctor where he reported pain in his neck, back, headaches and anxiety. The applicant submits that his accident-related impairments fall outside of the MIG because he sustained a concussion, chronic pain and a psychological impairment. He relies on the clinical notes and records (“CNRs”) of Dr. Grizzi, his family doctor and the psychological assessment of Dr. Papazoglou, psychologist.
6The respondent argues that the applicant’s accident-related impairments fall within the MIG. It maintains that the applicant’s sustained soft-tissue injuries in the accident which fall within the MIG. Further, it submits that his self-reports to assessors about accident details, his impairments and resulting functional limitations are inconsistent and unreliable. It relies on multiple insurer examination (“IE”) reports completed by Dr. John, neurologist; Sarah Maddix, occupational therapist; Dr. Chan, psychologist and Dr. Heitzner, physiatrist in support of its position.
Concussion
7I find the applicant sustained a concussion as a result of the accident, which falls outside of the MIG, for the following reasons. I find the CNRs of Dr. Grizzi support this diagnosis. In his first CNR dated June 29, 2019 Dr. Grizzi notes that the applicant may have hit his head in the accident and that he sustained a possible concussion. Further, on the same date the applicant complained of difficulty sleeping, headaches, anxiety and having flashbacks of the accident. In a follow up CNR dated July 8, 2019, Dr. Grizzi diagnosed the applicant with a concussion. Although I acknowledge that there were some inconsistencies in the applicant’s self-reports to assessors, I find he was consistent in reporting that he hit his face on the steering wheel following the impact of the collision. Moreover, he was experiencing severe headaches and issues with sleep following the accident.
8Of significance, the respondent raised issues regarding Dr. Grizzi’s neutrality because the applicant’s mother is employed as a receptionist in the doctor’s office. During cross-examination, Dr. Grizzi acknowledged this, and indicated that his employment relationship with the applicant’s mother did not interfere with the doctor patient relationship with the applicant. I believe Dr. Grizzi and accept his testimony on this point.
9I find the IE reports of Dr. John do little to discredit the applicant’s evidence because during cross-examination the doctor changed her initial opinion that the applicant did not sustain a concussion as a result of the accident. In Dr. John’s initial IE report dated January 15, 2020, the doctor opined that the applicant did not have a concussion and that he sustained cervical and lumbar strain, thoracic strain, and cervicogenic headaches. The doctor testified that she did not determine that the applicant sustained a concussion as a result of the accident because he denied many of the symptoms associated with a concussion such as sensitivity to light and noise, dizziness, vertigo, poor concentration, memory and cognitive issues. Further, because of the nature of the applicant’s reported headache symptoms the doctor felt these were more than likely caused by his cervical sprain injury. The doctor also testified that the applicant’s symptoms could be as a result of an assault on February 3, 2020, when he was punched in the face by a friend. Of significance, the concussion diagnosis of the family doctor predated this incident by almost 7 months.
10Dr. John was provided with additional medical records (including the records of the family doctor) and was asked to do an addendum report to determine whether her opinion changed. In an IE report dated July 23, 2023 the doctor opined that it is possible that the applicant sustained a mild concussion. During cross-examination, Dr. John acknowledged that since the family doctor’s CNR was the first record following the accident noting a concussion the applicant may have sustained a mild concussion as a result of the accident, but the subsequent head injury sustained on February 3, 2020, likely compounded it.
11I find the severity of the concussion sustained by the applicant in the accident irrelevant for the purpose of the MIG analysis. Further, much was made by the respondent that the applicant was inconsistent in his self-reports throughout the medical record about whether he did or did not lose consciousness following the accident. I do not place much weight on this inconsistency because there does not need to be a loss of consciousness in order to sustain a concussion.
12For the above reasons, I find the applicant has met his onus in proving on a balance of probabilities that he sustained a concussion as a result of the accident. As a result, he is not subject to treatment in the MIG. I will now address my finding regarding the applicant’s accident-related psychological impairment.
Psychological Impairment
13The applicant relies on the psychological report of Dr. Papazoglou, psychologist dated October 5, 2021, who diagnosed him with Adjustment Disorder (with mixed anxiety and depressed mood) and Somatic Symptom disorder with predominant pain.
14The respondent relies on the psychological IE of Dr. Chan dated January 15, 2020, who did not render a psychological diagnosis. During Dr. Chan’s IE the applicant reported very little psychological symptoms during the assessment. The psychometric tests revealed some mild depression and there was no suggestion that he over-endorsed symptoms.
15I prefer the findings of Dr. Papazoglou because the OHIP summary supports that the applicant did not have any pre-accident mental health issues. Further, I find he consistently reported symptoms of anxiety including having panic attacks and poor mood associated with ongoing physical pain to Dr. Grizzi post-accident. Further, Dr. Chan’s initial psychological IE was completed more than one year prior to Dr. Padzoglou’s assessment. I find the CNRs of Dr. Grizzi support that the applicant’s psychological condition deteriorated between assessments. Dr. Chan acknowledged this fact during cross-examination. In addition, I find the nature of the applicant’s complaints to Dr. Grizzi support that he has somatic symptom disorder. For example, he reported ongoing chronic pain in his back, neck and shoulders where there was no physiological foundation. Further, he also reported concerns with his heart where there was no evidence of cardiovascular issues.
16It is important to note that the applicant attained an invalid profile on the Pain Patient Profile (“P3”) administered by Dr. Padzoglou. In his report the doctor explained that there are several reasons that could explain this including comprehension difficulties, inattention to test items, an attempt at impression management or not responding to the measure in a candid manner. Dr. Padzoglou concluded that he did not feel that the applicant was engaging in any over endorsement of symptoms as a conscious attempt to mislead or malinger; rather, it likely represents a “cry for help” and/or cultural factors. I do not find this one instance of an invalid result significant because Dr. Chan, the IE psychological assessor did not have any issues with the applicant over-endorsing symptoms. Therefore, I am prepared to accept in this case that the applicant’s results on this test for the other reasons outlined by Dr. Podzoglou.
17Finally, Dr. Chan did not have the benefit of reviewing Dr. Grizzi’s CNRs when he did his initial assessment. The doctor testified that it is possible that the applicant’s psychological condition changed but that he could not provide a psychological diagnosis in a paper review report without seeing the applicant in-person.
18I find the applicant has proven on a balance of probabilities that his accident-related injuries fall outside of the MIG because he sustained a psychological impairment as a result of the accident.
The applicant is entitled to the OCF-18 for the psychological assessment in the amount of $2,460.00 recommended by 101 Physio.
19Section 25.1(1) provides that an insurer shall pay for cost of examination expenses for the purpose of determining whether an insured sustained an accident-related impairment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the cost of examination is reasonable and necessary. To do so, the applicant must show a link between the assessment being sought and the impairment.
20The OCF-18 dated March 12, 2020 was authored by Dr. Waxer, psychologist and recommended a psychological assessment in the amount of $2,460.00 for the purpose of assessing whether the applicant sustained a psychological impairment and whether treatment was necessary. The OCF-18 sought an assessment in the amount of $2,000.00 plus fees for form completion plus tax. The OCF-18 attached a pre-screening report which noted that the applicant was experiencing various psychological symptoms.
21The respondent sent the applicant an explanation of benefits (EOB) dated March 16, 2020 denying the OCF-18 relying on the paper review of Dr. Chan who determined that the OCF-18 was not reasonable and necessary. In light of my decision that the applicant sustained a psychological impairment as a result of the accident, I find the psychological assessment to be reasonable and necessary to determine the extent of the applicant’s impairments and whether treatment was reasonable and necessary.
22The applicant has met his onus on a balance of probabilities that the OCF-18 for a psychological assessment in the amount of $2,460.00 is reasonable and necessary.
The applicant is not entitled to the OCF-18 in the amount of $3,492.53 for physiotherapy services, proposed by 101 Physio.
23To receive payment for a treatment and assessment plan under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
24The OCF-18 dated June 25, 2019 was authored by Raji Rahani, physiotherapist and the goal of the OCF-18 was pain reduction and increase range of motion (“ROM”) to return the applicant is daily activities. The OCF-18 recommended various modalities of treatment including physical therapy, chiropractic treatment, acupuncture, osteopathy for a total cost of $3,492.53.
25The respondent sent the applicant an EOB dated July 29, 2019 advising that it felt that the MIG applied and the applicant could seek treatment in the MIG. The correspondence asked the service provider to submit a treatment confirmation form in order for the applicant to receive treatment in the MIG.
26I do not find the applicant has established that the OCF-18 for physiotherapy is reasonable and necessary for the following reasons. The applicant testified that he received temporary relief from pain following treatment, however, the pain would come back and his symptoms have gotten worse over time. I find the applicant’s reports of the benefits from treatment to be inconsistently reported to assessors throughout the medical record. Some reports note that he received little benefit from treatment and others reported that he found treatment temporarily beneficial. Further, the applicant also reported to assessors that he voluntarily stopped treatment to see if it made a difference and nothing changed when he stopped therapy. Finally, I have not been directed to any evidence that any past treatment received by the applicant has achieved the goal of increasing his range of motion.
27It is well established law that treatment is considered reasonable and necessary if it results in the temporarily relief from pain and improvement in function. Based on the reasons noted above, the applicant has not met his onus in proving on a balance of probabilities that the OCF-18 for physiotherapy will achieve its objectives of pain reduction to increase function or that it will increase his range of motion.
The applicant is not entitled to a NEB in the amount of $185.00 per week from July 16, 2019, to June 18, 2021.
28Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (CanLll) (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.
29In support of his claim for a NEB, the applicant relies on the OCF-3 of Dr. Gizzi, dated July 15, 2019, which supports that he had a complete inability to carry on a normal life as a result of the accident. He also relies on Dr. Gizzi’s CNRs.
30The respondent argues that the applicant is not entitled to the NEB for the time-period claimed as a comparison of his pre- and post-accident daily activities does not support that he has a complete inability to carry on a normal life, nor does the medical evidence support it. It relies on the multidisciplinary IEs reports of Dr. John, Dr. Chan, Dr. Heitzner and Ms. Maddix. For the following reasons, I agree with the respondent.
31As set out in Heath the first step in determining whether an individual qualifies for a NEB is to compare their pre and post-accident activities of daily living. The applicant provided the following testimony of about his pre-accident activities of daily living:
i) He did not have any health issues or functional limitations;
ii) He had been unemployed in the two-years pre-accident but had been offered a construction job in the two weeks before the accident laying interlock;
iii) He was independent in carrying out his self-care tasks;
iv) He did not have any limitations with driving or accessing the community;
v) He was responsible for housekeeping and home maintenance tasks such as lawn care, shovelling snow and taking out the garbage. He would also assist his mother with grocery shopping. His mother was responsible for all of the interior housekeeping cleaning tasks and did all of the cooking.
vi) He enjoyed getting together with friends to play sports such as hockey, soccer and basketball.
vii) He was socially outgoing and would socialize with friends most nights of the week.
32The applicant testified that following the accident his daily activities have changed in the following ways.
i) He could not accept the construction job laying interlock because of ongoing back and neck pain which interfered with his ability to lift. To date, he has not obtained any employment.
ii) He is no longer independent with self-care tasks and now requires his mother’s assistance with dressing, grooming and hygiene tasks in his home environment.
iii) He still drives but not as often.
iv) He can no longer carry out his pre-accident housekeeping tasks because he cannot lift things because of his chronic pain.
v) He is no longer able to play sports such as hockey, soccer or basketball.
vi) He is now socially withdrawn and prefers to be on his own because of his psychological condition.
33I do not find the evidence supports that the applicant has a complete inability to carry on a normal life as a result of his accident-related impairments. As a starting point, the applicant did not work in the two years prior to the accident, and he continued to be unemployed post-accident. What I found lacking in this case was evidence that the applicant was offered a construction job two weeks prior to the accident.
34I also find that the applicant’s testimony about post-accident functional limitations with driving and personal care inconsistent with his self-reports to assessors. For example, he reported to some assessors that he was fully independent with personal care tasks post-accident, and to others he had limitations with washing his back and toenail care. There was no explanation to explain these inconsistencies and some of the reports were done less than a month of each other. He also reported to most assessors that he was independent with driving post-accident.
35The only functional limitations I find that the applicant was consistent in reporting was that his back and neck pain prevented him from playing sports with his friends post-accident.
36I also find his reports about being socially withdrawn post-accident are inconsistent with the fact that entered a new romantic relationship post-accident and he still visited his grandmother regularly. Finally, I find the medical evidence relied on by the applicant does not support that any accident-related impairment prevents him from carrying out his daily activities. An OCF-3 on its own does not support that the applicant sustained a complete inability to carry on a normal life. Although I have accepted that the applicant sustained a psychological impairment, I find that he did not link that impairment with his inability to carry out his daily activities or how it resulted in a complete inability to carry on a normal life.
37In contrast, the respondent relies on the multi-disciplinary IEs completed by Dr. Heitzner, Dr. Chan, Dr. John and Ms. Maddix. In Ms. Maddix in-home assessment she completed functional testing which support that that none of the applicant’s physical impairments would prevent him from carrying out his activities of daily living. Her report also offers a comparison of a typical day for the applicant both pre and post-accident which demonstrates very little changes to the applicant’s daily activities. The applicant did not submit any reports to refute Ms. Maddix’ opinion on his functional ability to carry out his activities.
38The applicant has not met his onus in proving on a balance of probabilities that he has a complete inability to carry on a normal life as a result of his accident-related impairments.
39The applicant also made arguments that he is entitled to payment of the NEB for the entire period because the respondent failed to comply with its procedural obligations pursuant to s. 36(4) of the Schedule. Therefore, he is entitled to payment of same for the entire period. Neither party spent much time outlining the chronology of events in relation to this issue. Therefore, I am unable to determine that the applicant is entitled to payment of the NEB because of the respondent’s non-compliance with s. 36(4).
The applicant is not entitled to ACBs in the amount of $791.34 per month from April 30, 2020 to date and ongoing.
40Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 20(2) of the Schedule states that ACBs are only payable for non-CAT claimants for a period of 104 weeks post-accident.
41Section 3 (7) (e) provides that in order to meet the definition of incurred the following three criteria must be satisfied:
i. The applicant received the service to which the expense relates;
ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense;
iii. The person who provided the service did so
a) in the course of her employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
b) sustained an economic loss as a result of providing the goods or services to the insured person.
42The applicant testified that as a result of ongoing back and shoulder pain he has relied on his mother to wash his back and for assistance with toenail care. Further, his mother and boyfriend have assumed his pre-accident responsibilities of mowing the lawn, shovelling the snow and taking out the garbage. The applicant relies on the Form 1 prepared by Renick Zakrzewski, OT dated March 11, 2020, who recommended that he requires $791.34 per month in ACBs. Under Part 1, the OT recommended that the applicant requires 140 minutes per week for assistance with dressing and undressing; 45 minutes per week for assistance with shampooing his hair and grooming and 210 minutes per week for meal preparation and feeding. Under Part 2, the OT recommended 210 minutes per week for assistance with bathroom and bedroom hygiene and laundry. Under Part 3, the OT recommending 105 minutes per week for assistance with bathing.
43The respondent relies on the attendant care assessment report and Form 1 prepared by Ms. Maddix dated August 20, 2020 who recommended zero in monthly ACBs. I prefer the opinion of Ms. Maddix for the following reasons.
44First, the Form 1 prepared by Renick Zakrzewski was not accompanied by an attendant care assessment report providing the rationale for the various ACB services recommended. It is not clear from the Form 1 whether the OT carried out any functional testing to determine that the applicant was incapable of carrying out any of the functional or self-care tasks recommended on the Form 1.
45Second, I find Ms. Maddix conducted a thorough assessment which included functional physical testing which was noted in her report. She determined that the applicant had the functional capacity to carry out all of the functional and self-care tasks listed on the Form 1. Further, the report provides her rationale to support her opinion that the applicant does not require ACBs as a result of any accident-related impairment. Although the applicant reported experiencing pain on a few occasions Ms. Maddix confirmed that this would not prevent him from carrying out his self-care tasks.
46Finally, the applicant did not submit any evidence to support that any ACBs have been incurred pursuant to s. 3(7) (e) of the Schedule. The applicant argues that I should deem the benefit incurred pursuant to s. 3(8) of the Schedule because Ms. Maddix acknowledged during cross-examination that she did not review the applicant’s Form 1 prior to her assessment. I do not deem the benefit incurred because I do not find that the respondent unreasonably denied the benefit which is a requirement of s. 3(8) of the Schedule. Nor did the applicant direct me to any authority to support that Ms. Maddix’ failure to review the Form 1 breached any procedural obligations in the Schedule.
47The applicant has not met his onus in proving on a balance of probabilities that he requires ACBs as a result of his accident-related impairments.
The applicant is entitled to interest.
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18 for the psychological assessment pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award.
49The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. It is well established law that when considering whether an insurer's conduct in withholding or denying a benefit warrants an award, an insurer's behaviour must be seen to be "excessive, imprudent, stubborn, inflexible, unyielding or immoderate."
50The applicant argues that he is entitled to an award because the respondent ignored medical records throughout the entirety of the claim. Further, it improperly kept him in the MIG when he had been diagnosed with PTSD and a concussion. He submits that the respondent’s conduct prevented him from accessing much needed treatment. Further, the respondent did not act in good faith because it requested a second set of IEs for the sole of purpose of bolstering its position for the hearing.
51The respondent maintains that an award is not appropriate in these circumstances as it simply relied on the opinion of its medical assessors. This is not conduct that meets the threshold for being unreasonable, excessive, stubborn or unyielding. Furthermore, the applicant did not comply with its production requests for the CNRs of Dr. Grizzi for three and a half years post-accident. Therefore, it should not be penalized for not considering these records in adjusting his claim. Finally, the applicant did not provide full particulars in support of his award claim in advance of the hearing. This was procedurally unfair to the respondent because it was unaware of the case it must meet. I agree with the respondent and do not find an award is warranted in this case.
52First, the applicant failed to direct me to the evidence in support of his award claim. For example, he alleges that the respondent did not consider medical records but did not direct to me to the evidence confirming when it was submitted to the respondent and when it failed to consider it. Nor was I directed to any adjuster’s log notes which support that the adjuster’s decision-making process in adjusting his claim was unreasonable or flawed in some way. The applicant relies on various decisions of this Tribunal in support of his claim for an award. I do not find the case law relied upon by the applicant helpful to his position as in those cases evidence was submitted in support of the award. For example, in Kashavarz v. Aviva General Insurance, 2021, CanLII 104419, the adjuster was cross-examined on the adjuster’s log notes. Further, in DY v. Aviva General Insurance Company, 2020, Canlii 20263 (ON LAT) the adjudicator determined that the insurer’s IEs supported the insured’s entitlement to the disputed benefits. Neither has been proven in the present case.
53Second, as highlighted by the respondent an award is not warranted simply because the respondent made the wrong decision in relying on its IEs.
54The applicant has not met his onus in proving that the respondent unreasonably withheld any of the disputed benefits or that its behaviour met the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I do not find that the respondent is liable to pay an award
The respondent is not entitled to costs pursuant to Rule 19.
55Rule 19.1 provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. This is a high bar for conduct to attract a cost award and is an exceptional remedy. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
56The respondent argues that costs are appropriate in this manner because this hearing was initially scheduled to proceed on May 23, 2023, but it had to be adjourned because the applicant’s former paralegal’s licence was under suspension by the Law Society of Ontario. Further, the applicant failed to comply with the deadlines provided for in the Tribunal’s case conference report and order in relation to the exchange of document briefs and witness lists. It submits that it was unreasonable for the applicant to proceed to a hearing with a paralegal with a suspended licence. Moreover, it incurred costs for counsel to prepare witnesses for the hearing and cancellation fees associated with its witnesses’ attendance. The respondent did not make any submissions regarding the amount of costs it was seeking.
57At the initial hearing the applicant’s former paralegal advised that they were unaware that their licence had been suspended prior to the hearing. Further, their licence had been suspended because of unpaid fees as opposed to bad conduct. Further, the applicant was not aware that his representative’s licence had been suspended.
58Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and the amount of costs. The Tribunal shall consider all relevant factors including:
a. The seriousness of the misconduct;
b. Whether the conduct was in breach of a direction or order issued by the Tribunal;
c. Whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process;
d. Prejudice to other parties; and
e. The potential impact an order for costs would have on individuals accessing the Tribunal system.
59I do not find that the high bar for costs has been established in this case. Although it was unfortunate that the hearing had to be adjourned because of the status of the applicant’s former paralegal’s licence, I do not find it would be fair to award costs against the applicant because he was not aware of the suspended licence. I acknowledge that both lawyers and paralegals have a professional and legal obligation to ensure their licence is in good standing. However, I was not presented with any evidence that the paralegal or the applicant was aware that the licence was suspended prior the hearing. In my view, if the paralegal knew in advance of the hearing that their licence was suspended and did not take any steps to remedy the situation in advance of the hearing, I would find this unreasonable conduct. This evidence is not before me.
60Regarding the applicant’s delay in serving his document brief and witness list, I do not find the respondent was prejudiced by this because the hearing was adjourned, and it had time to review the materials to properly prepare for the hearing. Finally, I find that awarding costs in this case would negatively impact individual’s access to the system if claimants are punished for the status of their representative’s licence with the Law Society. As a result, the respondent has not persuaded me that the high threshold for costs is appropriate in this case.
ORDER
61For all of the above-noted reasons, I make the following order:
The applicant’s injuries are not predominantly minor and are not subject to treatment within the $3,500.00 Minor Injury Guideline limit.
The applicant is entitled to $2,460.00 for a psychological assessment,
proposed by 101 Physio in a plan submitted March 2, 2020, plus interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to the plan in the amount of $3,492.53 for physiotherapy services, proposed by 101 Physio submitted July 17, 2019.
The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from July 16, 2019, to June 18, 2021.
The applicant is not entitled to attendant care benefits in the amount of
$791.34 per month from April 30, 2020 to date and ongoing?
The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
The respondent
is not entitled to costs pursuant to Rule 19.
Released: November 1, 2023
Rebecca Hines
Adjudicator