Nayef v. Aviva Insurance Company of Canada, 2023 CanLII 107296

Citation: Nayef v. Aviva Insurance Company of Canada, 2023 ONLAT 22-001964/AABS

Licence Appeal Tribunal File Number: 22-001964/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:

Tarek Nayef

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

PANEL:

Sandra Driesel and Trina Morissette

APPEARANCES:

For the Applicant:

Tarek Nayef, Applicant

Rayian Nayef, Counsel

For the Respondent:

Sheryl Corcoran, Analyst

Kevin So, Counsel

Heard by Videoconference:

June 27 and 28, 2023

OVERVIEW

1Tarek Nayef, the applicant, was involved in an incident on March 7, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

The respondent’s Book of Authorities is excluded from submissions for this hearing:

2The applicant raised a motion to exclude the respondent’s Book of Authorities because it was only filed the day before the start of the hearing. This matter was directed to hearing through a Case Conference Report and Order (“CCRO”) dated December 9, 2022. According to the CCRO, the parties were to submit all documents, including the authority briefs, by 10 calendar days before the hearing. The applicant submits he called the respondent approximately 5 days before the hearing and he was told the respondent would not be submitting an authority brief. He argues that this late filing prejudices him by restricting his ability to review and address these submissions. The applicant requests the Tribunal exclude the Book of Authorities pursuant to Rule 9.4 of the Common Rules of Practice & Procedure:

9.4 FAILURE TO COMPLY WITH DISCLOSURE RULES

If a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witness to give evidence, without the consent of the Tribunal.

3The respondent did not provide a reason as to why this information was not submitted as ordered. Therefore, in accordance with Rule 9.4, we determined the authority brief is excluded because the respondent failed to comply with the Tribunal order.

SUBSTANTIVE ISSUES

4The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 24, 2020 to March 7, 2021 (the 104-week mark)?

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

Revision to issues in dispute

5The following has been changed regarding the issues in dispute since the CCRO dated December 9, 2022 was issued:

i. On consent and according to a letter in evidence dated March 10, 2020, from Aviva to the applicant, the NEB was stopped effective March 11, 2020. The letter further states that a last cheque was issued to the applicant for a NEB that covered the period from March 10, 2020 to March 23, 2020. Based on this information, the period in dispute for the NEB has been changed as shown above.

ii. On June 12, 2023, the applicant advised the Tribunal and the respondent that he was withdrawing issue #2 (as listed in the CCRO): $3,976.18 for physiotherapy services recommended by Physio Connect Physiotherapy.

iii. At the start of the hearing, the applicant withdrew issue #3 (as listed in the CCRO): a request for an award under section10 of Regulation664.

RESULT

6The applicant is not entitled to a non-earner benefit as he has failed to meet his burden to prove that he suffers a complete inability to carry on a normal life as a result of the accident.

BACKGROUND

7The applicant testified that on March 7, 2019, while he was in his parked car, a tractor trailer to the left of him began to make a sharp right turn. The trailer began to drive over the applicant’s vehicle (a Volkswagen Golf). The applicant states the windshield started to crack and he feared the sides of his vehicle were going to crush. As he was panicking to find a way out, the transport driver realized the applicant was under the trailer and came to a stop. The air bags did not implode, and the applicant was able to exit the vehicle by the passenger side.

8The applicant exchanged licence and insurance details with the transport driver at the scene. Neither the police nor emergency services attended the scene. After going into a shop to have a coffee, the applicant drove his vehicle to a repair shop where he was told the vehicle had structural damage and it was not safe to drive.

9The applicant claims that he suffered knee and back problems from scrambling inside the vehicle in an attempt to find a means to exit. He submits that in addition to physical injuries, he sustained psychological injuries that prevent him from carrying on his normal life as he had prior to the accident.

10The respondent argues that the applicant’s testimony is not credible as it contradicts the medical and factual evidence produced at the hearing. It submits the applicant has an extensive pre-accident medical history and that he has failed to provide medical evidence that he suffers a complete inability to carry on a normal life as a result of this accident.

ANALYSIS

Non-Earner Benefit (“NEB”)

11Section 12(1) of the Schedule provides that an insurer shall pay a 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.”

12The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391, which generally focuses on comparing the applicant’s pre- and post-accident activities. The burden of proving entitlement to a NEB lies with the applicant.

13The applicant submits that despite his extensive pre-accident medical conditions and the fact that he has been on Ontario Disability Support Program (“ODSP”) for at least 4-5 years before the accident, he had learned to manage his limitations and lived a balanced life. He was able to take care of his children and himself. The applicant submits that he had a fulfilling social life which included attending the mosque on a daily basis and volunteering (including teaching ESL, coaching soccer and assisting as a parking coordinator). His hobbies included gardening, reading and keeping connected with friends and family through social media.

14Post accident, the applicant submits the pain he sustained prevented him from doing any of the activities noted above. The applicant ceased all volunteer activities, no longer socialized with family and friends, and could not keep his head up to watch television or use his phone due to unbearable neck pain. Driving caused him anxiety and he would not drive anywhere unless it was absolutely necessary.

15Having sustained an injury that is proven to be accident-related or which has resulted in a minor life change because of the accident does not automatically entitle the applicant to a NEB. Again, as in Heath, the applicant must demonstrate that his life circumstances have changed and that the change(s) are significant enough to continuously prevent him from substantially engaging in the activities that he engaged in before the accident.

16We agree with the respondent and find that the applicant has not provided evidence to show he meets the disability test for a NEB. He has failed to advance any medical evidence to show that he has any physical or psychological injury resulting in a complete inability to carry out a normal life.

17Dr. S. Bhangu, physiatrist, determined from his assessment of January 17, 2020, that the applicant does not suffer a complete inability, and states “from a musculoskeletal perspective no clinical indication to impose any specific restrictions.” The doctor notes in his report that the applicant states he is doing his activities of daily living as he did before the subject accident, but his pain feels worse, so it takes him longer. The doctor also notes that while the applicant appears to have a phobia as a driver, he continues to drive.

18Dr. B. Ballon, psychiatrist, completed an assessment on January 30, 2020, concluding he was unable to make a determination of whether or not the applicant suffers a complete inability to carry on a normal life because there was not enough medical information to make a conclusion. This report also notes the applicant reports to be independent in all his daily activities. This doctor suggests that it was difficult to determine if the accident is directly related to the adjustment issues the applicant reports because there are complicating factors such as the applicant’s use of cannabis, tobacco and his use of opioids. There is no mention of any effect to his functioning or abilities because of anything accident-related.

19Dr. B. Ballon’s addendum report of March 6, 2020, opined “it appears [the applicant’s] self-report at times did not align with the medical documentation.” The report comments on the applicant’s self-reporting and of intentionally hiding his income while on ODSP and how he has not wanted to share many of his activities due to his divorce. The doctor notes, “this raises many issues of validity and reliability in his self-report.” Again, Dr. Ballon concludes that from a psychiatric perspective, the applicant does not suffer a complete inability to carry on a normal life as a direct result of this accident.

20As a result of an occupational therapy assessment conducted in the home of the applicant on January 16, 2020, by Ms. A. Bhalnagar, O.T., she reports the applicant demonstrates sufficient range of motion, strength and sitting/standing tolerances to be independent in most of the activities of daily living.

21The applicant’s son, A. Nayef, provided testimony from his home in Alberta. The applicant had reported several times that this son had to leave school and get a job to help assist his father because of his post-accident condition and because the insurer cut off the NEB causing financial hardship. His son stated that his father no longer engages in some of his pre-accident activities such as fixing cars, coaching children, helping with parking at the community centre, teaching ESL or doing hobbies, like gardening and reading. The son testified that he moved to Alberta in 2020, a week after the NEB was denied by the insurer, and he is engaged in a car business there. He says his father resides alone in Ontario but travels back and forth frequently to be with him in Alberta. As much as the son provided his account of his father’s pre- and post-accident activities and his opinion that he believes his father has not returned to all of his pre-accident activities, he did not testify to the fact that his father now suffers from a complete inability to function as he did prior to the accident.

22The testimony from the applicant himself was not helpful in supporting his position that he suffers a complete inability to carry on a normal life. His account of the accident remains consistent as reported to assessors and his many doctors. He admits to a number of pre-existing medical conditions but claims none of them restricted his activities and functioning until he was injured in this accident. He reports he can no longer coach because he now depends on a cane, yet he admits to coaching before with the cane and that he can sometimes function without it. He also failed to provide any evidence that a medical professional instructed him to use a cane for any reason. He has not explained how he can no longer teach ESL by explaining the functioning required for that and how he is now restricted. He admits to driving when necessary. He admits he lives alone and is independent with his self-care. He admits to being able to travel back and forth to Alberta to be with his son. The applicant has failed to explain how he conducts his activities of daily living without the assistance of his son when he has reported his son had to give up his schooling to take care of him.

23While we find that certain admitted behaviour by the applicant raises credibility concerns, such as working and failing to report any additional income while receiving ODSP, as well as claims to being guarded about his pre-accident activities because of his divorce, we find this means that we cannot put much weight on his subjective reporting without other supporting evidence or testimony. His testimony alone was not supportive of the Heath test or his entitlement to a NEB because he could not provide us with any evidence that he could not carry on a normal life after the accident. As we have noted above, he also failed to provide a medical or professional opinion that he suffers a complete inability which may have supported his claim to the NEB.

24Pursuant to Heath, where it is the applicant’s burden to identify activities that he could do pre-accident that he can no longer do post-accident, the applicant has not proven his entitlement to a NEB. Therefore, the respondent does not have to pay this benefit for the period in dispute as the applicant has failed to demonstrate that he suffers a complete inability to carry on a normal life as a result of the accident.

ORDER

25The applicant is not entitled to a non-earner benefit.

26Because the applicant is not entitled to the benefit in dispute, interest is not payable.

27The application is dismissed.