Citation: Ali v. The Co-operators General Insurance Company, 2023 ONLAT 20-006796/AABS

Licence Appeal Tribunal File Number: 20-006796/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:

Mohamed Ali

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Kwaku Bona, Paralegal

For the Respondent:

Laura Emmett, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on December 22, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by the Co-operators General Insurance Company, (the “respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The following issues are to be decided:

a. Is the applicant entitled to receive a non-earner benefit (“NEB”) of $185.00 per week for the period January 22, 2018 to date and ongoing?

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

c. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3I find that:

i. The applicant is not entitled to receive a NEB of $185.00 per week from January 22, 2018 to date and ongoing.

ii. The applicant is not entitled to an award or interest.

PRELIMINARY ISSUE

Motion to Strike the Applicant’s Submissions

4Before proceeding to decide the issues in dispute, the respondent submits I should strike the applicant’s submissions dated October 21, 2021, beyond page 10. The case conference dated March 24, 2021, limited party submissions to 10 pages, and the applicant’s submissions are 12 and half pages.

5The respondent relies on A.Y. v. Aviva² and F.H. v. Certas Direct Insurance Company.³ Both Tribunal decisions saw the applicant submit submissions beyond the page limit set out in the Tribunal Order, and the Tribunal declined to consider submissions after the maximum page limit as the applicant did not seek permission for additional pages from the Tribunal.

6In reply submissions, the applicant submits that “it is given knowledge with this tribunals’ jurisprudence that case conference orders pertaining to the number of pages in written submissions do not include evidence and case law citations.” The applicant did not cite any Tribunal decisions to support his position.

7I am persuaded by the Tribunal decisions provided, the case conference dated March 24, 2021, set a page limit of 10 pages for the submissions. The applicants’ submissions came in at 12 and half pages. If the applicant needed additional pages to properly state his case, he should have sought permission from the Tribunal.

8For the reasons above, the applicant’s submissions are struck beyond the 10-page limit set out in the case conference and are not considered when rendering my decision on the substantive issues.

Claim for an Award Pursuant to Regulation 664

9The respondent submits that the applicant’s submissions included a claim for an award, which was not an outlined issue in dispute in the case conference. The respondent submits that the applicant cannot unliterally add an issue to a dispute.

10The respondent relies on Selby v. Security National Insurance Company⁴ which provides that when a party seeks to add an issue, the proper process is to either obtain the consent of the respondent or bring a motion. Failing to follow this process is prime facie prejudicial as the respondent has the right to know the case it must meet prior to the hearing, not during the hearing.

11The applicant provides that Selby has no resemblance to the matter before the Tribunal, provides that the decision undermines the overarching purpose for raising a special award at anytime in the proceeding. The applicant relies on 16-004312 v. Aviva Insurance Canada⁵ where the Tribunal found that a request for an award does not have to be included as part of an application and was allowed to be added to the issues in dispute.

12After considering the submissions of the parties, I agree with the applicant and find that the issue of an award can be added at any point in the proceeding. Adding the issue of an award to the issues in dispute, even at the hearing, promotes efficiency and is consistent with prior decisions of the Tribunal.⁶

13As a result, I am prepared to add the issue of an award pursuant to s. 10 of Regulation 664.

14However, I do not find that the applicant is entitled to an award, as based on my findings there was no withholding of benefits to the applicant by the respondent.

ANALYSIS

Non-Earner Benefit

15The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

16Section 12 states and the Tribunal has recognized that a respondent is not required to pay an NEB for the first four weeks after the onset of a disability or any period more than 104 weeks after the accident.

17Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

18“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”⁷

19The seminal case of Heath v. Economical Mutual Insurance Company⁸ (“Heath”), referenced by both parties, requires an assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period prior to the accident. The Court of Appeal outlines several principles for the determination of entitlement to a NEB:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

iv. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

v. Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.⁹

20The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.¹⁰

21The applicant submits that he is entitled to an NEB due to a myriad of injuries and impairments caused by the accident, from January 22, 2018, to date and ongoing.

22In support of his position, the applicant relies on two Disability Certificates (“OCF-3”). The first is dated January 3, 2018, by Dr. Reza Babaloul, chiropractor and the second is dated February 12, 2019, by Dr. Robert Saito, physician. Both indicate that the applicant suffers a complete inability to carry on normal life without providing details of an analysis, reference or comparison between the period pre-accident and post-accident.

23The only reference to any pre-accident period appears in the OCF-3 of Dr. Saito that states the applicant has a substantial inability to perform housekeeping and home maintenance services that he normally performed before the accident. The applicant relies on this to suggest that it meets the Heath phrase “continuously prevents” him from returning to pre-accident activities of normal living and proves that he sustained a disability or incapacity of the required nature, extent or degree which is and remains uninterrupted.

24It is the respondent’s position that the applicant has not discharged his onus in establishing entitlement to the NEB. The respondent cites Heath¹¹ to demonstrate the high threshold to be met, inclusive of a comprehensive account of pre- and post-accident activity level.

25The respondent submits that the applicant offered no evidence to satisfy his onus that he met the NEB test. The respondent relies on the clinical notes and records (“CNRs”) of the insurer’s assessment completed by Dr. Raymond Zabieliauskas, physiatrist, dated October 15, 2018, which the applicant opined are not relevant to the decision of this case. Dr. Zabieliauskas, reported that the applicant continued to manage his apartment with all of his own cooking and cleaning, he occasionally went out to a restaurant, he was independent in his personal care, and during the day, he watched television, went for walks, or went for a coffee. Concluding that the applicant was able to resume all aspects of his pre-accident life.¹²

26The respondent relies on C.C. v. Erie Mutual Insurance Company¹³ suggesting similarities to the present application, specifically that there was little evidence tendered in support of the claim for NEBs. In that decision the Tribunal found that while not required by the legislation, the applicant “did not rely on any affidavit or viva voce evidence to speak to the Heath factors for this written hearing.” I am persuaded by this decision, and I also find that I have limited evidence to base the applicant’s claims on and certainly not enough to meet the stringent NEB test.

27After considering the submissions and evidence of the parties, I find that the applicant has not met his evidentiary burden of providing compelling evidence in support of his claim that he suffers a complete inability to carry on a normal life as a result of the accident. But rather, the applicant provides vague submissions and evidence to the Tribunal leaving it to the adjudicator to puzzle through a document dump to decipher and then assemble an evidentiary foundation for his case.¹⁴

28The applicant did not provide evidence of the frequency and time commitments of his pre-accident activities compared to his post-accident activities in order to establish that he is prevented from engaging in “substantially all” of pre-accident activities that he ordinarily engaged in.

29Furthermore, the Tribunal has recognized that an OCF-3 is insufficient to demonstrate that the applicant is entitled to NEBs, as this information is not a diagnosis, but rather a preliminary impression of the applicant’s presentation based on what information the applicant provides and the assessors’ cursory examinations. I am persuaded by the only medical evidence before me, provided by Dr. Zabieliauskas who opined that the applicant is able to resume all aspects of his pre-accident life.

30Put simply, the evidence before me is insufficient to establish an NEB claim. As a result, the applicant’s claim for NEB is denied for the disputed period.

Award and Interest

31Given that no benefits are payable, the applicant is not entitled to interest.

32Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to section 10 of Regulation 664. Thus, no award is payable.

ORDER

33I find that:

i. The applicant is not entitled to receive a non-earner benefit of $185.00 per week for the period January 22, 2018, to date and ongoing; and

ii. The applicant is not entitled to an award, or interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 22019 CanLII 119734 (ON LAT) at paras. 20 and 21
3. 32018 CanLII 39445 (ON LAT) at para. 30.
4. 42021 CanLII 48158 (ON LAT) at para. 6.
5. 52018 CanLII 39463.
6. 62018 CanLII 39463.
7. 716-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
8. 82009 ONCA 391.
9. 9Ibid at para. 50.
10. 1016-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT).
11. 112009 (ONCA 391).
12. 12Report, dated October 14, 2018, Dr. Zabieliauskas
13. 132020 CanLII 12735 (ON LAT) at para.11.
14. 14D.T. v. Wawanesa Mutual Insurance Company, 2017 CanLII 144648 (ON LAT) (Reconsideration Decision) at para. 25.```