20-015339/AABS

Licence Appeal Tribunal File Number: 20-015339/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:

Sarah Syed

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Imtiaz Hosein, Counsel

Kianna Abraham, Counsel

For the Respondent:

Matthew Nieuwland, Counsel

Harley Kruger, Counsel

Court Reporter:

Cathy Petrou

Kim Terryberry

Karen Bridgman

HEARD: by Videoconference:

January 16-20, 23-27, 2023

OVERVIEW

1Sarah Syed, the applicant, was involved in an automobile accident on November 4, 2018, 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 certain benefits by Security National Insurance Company, the respondent, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2At issue is whether the applicant sustained a catastrophic impairment within the meaning of ss. 3.1(1)7 and 8 of the Schedule.

3The applicant has exhausted the $65,000 in benefits currently available to her. If she establishes that she sustained a catastrophic impairment, she seeks determinations that she is entitled to attendant care benefits and medical and rehabilitation benefits including costs of assessments, with interest. She also seeks an award under s. 10 of Regulation 664 on the grounds that the respondent unreasonably withheld or delayed payments.

ISSUES

4The issues in dispute are as follows:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the applicant entitled to attendant care benefits in the amount of:

a. $1,879.77 per month from March 15, 2019 to April 28, 2020; and

b. $6,991.09 per month from April 28, 2020 to date and ongoing?

3. Is the applicant entitled to the following medical and rehabilitation benefits:

a. Chiropractic treatment in the amount of:

i. $2,063.42 ($4,263.42 less $2,200.00 approved), proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated December 5, 2018;

ii. $664.47 ($1,964.47 less $1,300.00 approved), proposed by UHN Scarborough in a plan dated January 18, 2018;

iii. $2,514.74, proposed by HealthMax Physio in a plan dated March 16, 2021;

iv. $5,334.80, proposed by HealthMax Physio in a plan dated May 13, 2021;

v. $2,669.23, proposed by HealthMax Physio in a plan dated May 13, 2021; and

vi. $2,669.23, proposed by HealthMax Physio in a plan dated June 15, 2021;

b. Occupational therapy proposed by Okell Rehabilitation Services Inc. in the amount of:

i. $4,289.70, proposed in a plan dated February 10, 2021; and

ii. $1,908.00, proposed in a plan dated March 8, 2021;

c. Rehabilitation treatment proposed by HealthMax Physio in the amount of:

i. $2,669.23, proposed in a plan dated September 20, 2021; and

ii. $2,659.74, proposed in a plan dated October 29, 2021;

d. $4,120.50 for driving rehabilitation, proposed by DriveLab Inc. in a plan dated November 18, 2021;

e. Psychological treatment proposed by HealthMax Physio in the amount of:

i. $2,659.74, proposed in a plan dated December 2, 2021; and

ii. $4,985.18, proposed in a plan dated December 2, 2021;

f. $2,584.50 for physiotherapy treatment, proposed by HealthMax Physio in a plan dated January 21, 2022;

g. $2,737.85 for physical rehabilitation and occupational therapy, proposed by Emma Russel of University Health Network – Scarborough in a plan dated March 18, 2019;

h. $9,730.75 for chiropractic treatment, occupational therapy, optometric services, and an assistive device (virtual reality goggles), proposed by Scarborough West Physiotherapy & Rehabilitation Centre in a plan dated November 5, 2019; and

i. $4,794.53 for occupational therapy and assistive devices (bath chair, whiteboard, and long-handled reacher), proposed by Okell Rehabilitation Services Inc. in a plan dated June 23, 2020?

4. Is the applicant entitled to the following costs of assessments:

a. $2,200.00 for a speech language pathology assessment, proposed by Speech Therapy Centres of Canada in a plan dated August 25, 2021; and

b. $2,200.00 for a psychological assessment, proposed by Hamilton Health Sciences in a plan dated July 7, 2021?

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

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

5At the end of the hearing, the applicant brought a motion for punitive damages.

6The parties advised at the start of the hearing that issues 5 and 6 stated in the Case Conference Report and Order dated August 31, 2021 are no longer in dispute.

RESULT

7The applicant has not sustained a catastrophic impairment.

8As the applicant has exhausted the benefits available to her, she is not entitled to the attendant care, medical, and rehabilitation benefits in dispute.

9The applicant is not entitled to an award under s. 10 of Regulation 664 or punitive damages.

10The respondent is entitled to costs in the amount of $2,000.00.

MOTIONS

11The parties made several motions shortly before or during the hearing, which I ruled on as follows. I address the applicant’s motion for punitive damages in a later section.

Applicant’s motions for productions and an adjournment

12Productions were ordered in the Case Conference Report and Order of August 31, 2021.

13In a Notice of Motion filed on January 12, 2023—two business days before the start of the hearing—the applicant sought an order requiring the respondent to produce her complete accident benefits file as of December 31, 2022, including adjusters’ log notes.

14The respondent opposed the motion on the grounds that the applicant did not file the Notice of Motion and supporting materials at least 10 days in advance of the hearing, as required by Rule 15.2 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Rules”).

15The applicant argued that she was entitled to the requested documents as a matter of procedural fairness because the respondent served new expert reports in September 2022. The applicant conceded that she could have brought a motion for productions at that time.

16I denied the motion because the applicant could have brought the motion in compliance with the 10-day notice requirement but failed to do so. The respondent would be prejudiced by an order requiring it to produce documents at the last minute.

17After I denied the applicant’s motion for productions, the applicant moved for an order requiring the same documents from Ms. Alia Roccasalva, an adjuster whom the applicant called as a witness. The applicant argued that the documents were producible because they were listed in her summons. I denied the motion because it was an attempt to obtain the relief denied in the applicant’s motion for productions.

18Over the first week of the hearing, the applicant repeatedly moved for production of the same documents. I denied the motions for the same reason as the first: it was too late to bring a motion for productions mid-hearing.

19On the third day of the hearing, the applicant requested an adjournment to allow time for the respondent to produce the documents she requested. I denied the request. The applicant had the opportunity to obtain productions in advance of the hearing and failed to avail herself of that opportunity. This omission was not a valid reason for an adjournment.

20During the examinations of many witnesses, the applicant moved for orders requiring the witnesses to produce documents or seek out further information. I denied those motions with one exception. The applicant ought to have obtained this evidence in advance of the hearing. It is inappropriate to order witnesses to gather additional documents and information during their testimony. The exception was Dr. Lawrence Tuff’s clinical notes, which were made an exhibit because he had them before him during his testimony.

Respondent’s motion to exclude Modesta Sabaliauskiene as a witness

21On December 29, 2022, the applicant served her final witness list. The list included a placeholder for a representative of CIRA Health Solutions, either Ms. Sabaliauskiene or Ms. Sylvia Sadler. CIRA is the company that arranged independent assessments for the respondent. The respondent learned that the applicant intended to call Ms. Sabaliauskiene on January 6, 2023. It filed a motion to exclude her as a witness on January 12, 2023.

22The applicant referred me to several letters from CIRA to her counsel. The letters are substantively the same for the purposes of the motion. They advise that independent medical assessments have been scheduled at the respondent’s request, and provide the dates, lengths, and locations of the examinations, and the assessors’ names and disciplines. The letters state that should the applicant request any changes to the scheduled appointments, she must contact the adjuster of her accident benefits file. The letters are not signed by an individual. Ms. Sabaliauskiene’s name is in the header of some letters beside the fax number used to send them.

23The respondent argued that Ms. Sabaliauskiene has no relevant or admissible evidence because it hired CIRA only to arrange the independent assessments, and CIRA did not conduct the assessments itself or instruct the assessors. It submitted that Ms. Sabaliauskiene could provide no evidence regarding the medical assessors’ opinions or how the respondent adjusted the applicant’s accident benefits file. It argued that the applicant was calling an adjuster and the assessors as witnesses and could elicit that evidence from them.

24The applicant argued that because the respondent delegated responsibility for arranging independent assessments to CIRA, Ms. Sabaliauskiene could have evidence relating to what functions were delegated, such as what information was provided to the assessors.

25I granted the motion to exclude Ms. Sabaliauskiene as a witness. The applicant had the opportunity to obtain evidence about the functions delegated to CIRA from the adjuster and the independent assessors. To the extent that Ms. Sabaliauskiene had any knowledge of these matters, which is far from clear, her evidence would have been repetitious. I therefore excluded her as a witness pursuant to s. 15(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22, which provides that a tribunal may exclude unduly repetitious evidence.

Respondent’s motion to quash the summons for Susan Maloney

26Ms. Maloney was one of the adjusters of the applicant’s accident benefits file. She was listed in the applicant’s witness list served on December 29, 2022. The Tribunal issued a summons for her on January 5, 2023.

27The respondent advised that it became aware on January 11, 2023 that Ms. Maloney is on indefinite medical leave. It argued that she should not be required to attend the hearing, and that the applicant would not be prejudiced because it was calling another adjuster as a witness.

28The applicant argued there is no evidence that Ms. Maloney is on indefinite medical leave, and the assurance provided by counsel is self-serving and cannot be accepted as evidence. I disagree. Counsel for the respondent is an officer of the court. It was sufficient to take his word that Ms. Maloney is on medical leave. Requiring the respondent to provide further evidence would have been unnecessary and an unwarranted intrusion into her privacy.

29I granted the motion to quash the summons for Ms. Maloney. I accepted that she is on medical leave, and that her medical issues presented a barrier to her attending the hearing. The applicant was not unduly prejudiced given that she entered the adjusters’ log notes as an exhibit and called another adjuster as a witness.

Applicant’s assertions that I must recuse myself as biased

30On two occasions, the applicant asserted that I was biased and must recuse myself: after I denied her motion for an order requiring Ms. Roccasalva to produce documents, and after I denied her motion for productions from the respondent when she brought it a second time.

31I declined to recuse myself. My decisions were based on the well-established principle that it is too late to request productions on the eve of or during a hearing. I disagree that applying this principle gave rise to a reasonable apprehension of bias. I caution that it is inappropriate to accuse an adjudicator of bias solely on the basis of an unfavourable decision.

Applicant’s motion to state a case for contempt to the Divisional Court

32Midway through the hearing, the application brought a motion for the Tribunal to state a case to the Divisional Court pursuant to s. 13(1)(c) of the SPPA. Section 13(1)(c) applies “where any person without lawful excuse […] does any thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court.”

33The applicant alleged there had been two instances of contempt:

1. CIRA committed the criminal offence of forgery in its preparation of the independent assessment reports; and

2. The respondent breached s. 45(5) of the Schedule by failing to provide copies of independent assessment reports to the applicant within 10 business days of receiving them.

34I dismissed the motion because there were no grounds for stating a case for contempt to the Divisional Court. The alleged misbehaviour did not relate to any person’s conduct in this proceeding before the Tribunal, and therefore could not qualify as contempt of court.

HAS THE APPLICANT SUSTAINED A CATASTROPHIC IMPAIRMENT?

35The applicant alleges that she sustained a catastrophic impairment within the meaning of ss. 3.1(1)7 and 8, referred to as criteria seven and eight.

1. Criterion seven

36The applicant must establish that she sustained physical impairments and a mental or behavioural impairment resulting in a 55% or more whole person impairment (“WPI”) when combined in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Physical impairments are rated using the 4th edition of the AMA Guides, and mental or behavioural impairments using section 14.6 of the 6th edition. WPI ratings are combined using the Combined Values Chart in the 4th edition.

37The applicant submits that her physical impairments amount to a 38% WPI and her mental or behavioural impairment to a 40% WPI, for a combined WPI of 63%. She relies on an assessment of her physical impairments by Dr. Steve Blitzer, a physician specializing in chronic pain, and an assessment of her mental or behavioural impairment by Dr. Leslie Kiraly, a psychiatrist. She also relies on an assessment conducted by Ms. Judith Greenspan, an occupational therapist.

38The respondent submits that the applicant’s physical impairments amount to an 11% WPI and her mental or behaviour impairment to a 15% WPI, for a combined WPI of 24%. It relies on independent assessments conducted by Dr. Nagib Yahmad, a neurologist, Dr. Oleg Safir, an orthopaedic surgeon, Mr. Avi Kaplun, an occupational therapist, and Dr. Tuff, a psychologist and neuropsychologist. Dr. Michael Boucher, a physician specializing in chronic pain, drafted an executive summary. Using the assessors’ findings, he assigned WPI ratings to the applicant’s physical impairments, and combined them with Dr. Tuff’s WPI rating for the applicant’s mental or behavioural impairment. Dr. Boucher did not examine the applicant himself.

a. Spine

39The 4th edition of the AMA Guides addresses impairment of the spine at section 3.3. WPI ratings may be assigned for each of the cervical, thoracic, and lumbar spine regions. If possible, an assessor must place the impairment in a Diagnosis Related Estimate (“DRE”) category, which has a corresponding WPI rating. If more than one spine region is impaired, the regional impairments are combined using the Combined Values Chart to determine the total spine impairment.

40Dr. Blitzer and Dr. Boucher both assigned a 5% WPI for impairment of the cervical spine. They agreed that the impairment fell within DRE Category II due to non-verifiable radicular complaints. DRE Category II corresponds to a 5% WPI rating.

41Dr. Blitzer and Dr. Boucher disagreed on the WPI rating for the thoracic spine. Dr. Blitzer identified tenderness in his physical examination and diagnosed a thoracic back strain. He opined that the impairment fell within DRE category II, and therefore assigned a 5% WPI rating. On cross-examination, he confirmed

that he did not base his rating on muscle guarding, non-uniform loss of range of motion, or non-verifiable radicular complaints, which may indicate a DRE Category II impairment.

42Dr. Boucher did not assign a WPI rating because no impairment of the thoracic spine was identified in Dr. Safir’s report. Although the applicant reported to Dr. Safir that she experienced constant pain in her neck, upper, and lower back, and pain radiating along her spine, it appears that he did not conduct a physical examination of her thoracic spine region or measure its range of motion.

43I find that the applicant suffers from pain due to a strain of her thoracic spine. She reported back pain in this region to both Dr. Blitzer and Dr. Safir. Dr. Blitzer conducted a physical examination of this region and explicitly considered whether the applicant had sustained an injury. It is not clear that Dr. Safir turned his mind to this issue, and his report does not positively state that there had been no thoracic spine injury. Consequently, I prefer Dr. Blitzer’s evidence on this point.

44DRE Category II applies where the clinical history and examination findings are compatible with a specific injury. The applicant’s thoracic strain meets this criterion. Dr. Boucher opined that a soft-tissue injury such as a strain would fall in DRE Category I, which is assigned a 0% WPI rating. I disagree. DRE Category I applies where a person has no significant clinical findings and no indication of impairment related to injury or illness. However, Dr. Blitzer’s examination yielded significant clinical findings that indicate an impairment. I see no authority in the AMA Guides for the proposition that soft-tissue injuries categorically fall within DRE Category I.

45I find that the applicant’s thoracic spine region impairment falls in DRE Category II, which corresponds to a 5% WPI rating.

46Dr. Blitzer and Dr. Boucher also disagreed on the WPI rating for the lumbar spine. In his assessment, Dr. Blitzer noted that the applicant experienced pain and numbness in her right leg, which in his view were indicative of radiculopathy. However, electrodiagnostic testing had not been done to confirm a diagnosis of radiculopathy. As non-verifiable radicular complaints fall in DRE Category II, which correspondents to a 5% WPI and radiculopathy falls in DRE Category III, which corresponds to a 10% WPI, Dr. Blitzer split the difference and assigned an 8% WPI. Dr. Boucher placed the impairment in DRE Category II due to non-verifiable radicular complaints. On cross-examination, he stated that it was inappropriate to place the impairment in DRE Category III without confirmation by diagnostic imaging or electrodiagnostic testing.

47The AMA Guides state that DRE Category II applies if there are non-verifiable radicular complaints, but no objective sign of radiculopathy. DRE Category III applies if the patient has significant signs of radiculopathy, such as loss of relevant reflex(es) or measured unilateral atrophy of greater than 2 cm above or below the knee. The impairment may be verified by electrodiagnostic findings.

48I find that DRE Category II is the appropriate category. The applicant’s symptoms of pain and numbness are not objective evidence of radiculopathy within the meaning of DRE Category III. They are complaints potentially indicative of radiculopathy that have not been verified. The appropriate WPI rating for the lumbar spine is therefore 5%.

49Combining 5% WPI for each of the cervical, thoracic, and lumbar spine regions, the applicant’s total spine impairment is 15% WPI.

b. Shoulders

50The 4th edition of the AMA Guides addresses shoulder impairments at section 3.1j. WPI ratings are assigned based on the extent to which a person’s range of motion is limited in three planes: flexion and extension, abduction and adduction, and internal and external rotation.

51Dr. Boucher assigned a 1% WPI rating for impairment of the applicant’s right shoulder based on Dr. Safir’s finding that the applicant had lost some range of motion in the flexion and external rotation planes. Although Dr. Safir found that applicant had the same range of motion in both shoulders, he only diagnosed the applicant with an injury to her right shoulder. This was presumably because the applicant only reported feeling pain in her right shoulder.

52Dr. Blitzer found that the applicant could achieve a full range of motion in both shoulders, but with difficulty at the extremes. He did not assign a WPI rating, but opined that the applicant’s ability to perform repetitive shoulder movements in the areas of difficulty was impaired. He testified that it would be appropriate to assign WPI ratings for the left and right shoulders given that the applicant reported to him that she experienced pain in both. The applicant also reported experiencing pain in both shoulders to Ms. Greenspan, Mr. Kaplun, Dr. Kiraly, Dr. Yahmad, and Ms. Katie Ng, an occupational therapist who conducted an attendant care needs assessment and who provides treatment to the applicant.

53I find that the applicant sustained injuries to both shoulders in the accident because she consistently reported pain in both shoulders to the assessors. As Dr. Safir found that her range of motion was limited in both shoulders, I find that her total WPI rating is 2%.

c. Headaches

54Headaches are one of the applicant’s most significant symptoms. She testified that she always has a headache of at least three out of ten in intensity, and that she will experience episodes of higher intensity. She may also feel pressure behind her right eye. Exposure to too much light or noise will set off a headache. For that reason, she often wears tinted glasses and earplugs both indoors and outdoors. She also wears prism glasses to assist with difficulties focusing her eyes. Bending over may also set off a headache. She testified that she uses a reacher to pick items off the floor, and that she must pray sitting in a chair.

55The applicant testified that headaches are connected with her other most significant symptoms: nausea, fatigue, and dizziness. These symptoms appear to be mutually reinforcing. When she has a severe headache, particularly in combination with these other symptoms, she will rest in a dark, quiet place—usually her bedroom. She takes Naproxen, an analgesic, for her headaches. On the advice of her treating neurologist, she has begun to take supplements to reduce her dependency on Naproxen.

56The 4th edition of the AMA Guides addresses headaches at section 15.9. WPI ratings can only be assigned for a permanent impairment, meaning a condition that is stable and unlikely to change in future months despite medical or surgical therapy. The AMA Guides state that the vast majority of patients with headaches will not have permanent impairments, but headaches can present in a persistent, constant form.

57The AMA Guides state that impairment related to headaches should be estimated according to the procedure set out in section 15.8, using a Pain Intensity-Frequency Grid with categories for the frequency of pain (i.e. intermittent, occasional, frequent, and constant) on one axis and for the intensity of pain (i.e. minimal, slight, moderate, and marked) on the other. This is a qualitative assessment that does not translate to a percentage rating for WPI. The AMA Guides state that in some cases, such a rating may be determined if the condition causing the pain can itself be evaluated according to the criteria applicable to a particular organ system. For example, a WPI may be derived for trigeminal neuralgia by referring to the impairment criteria for the trigeminal nerve.

58Dr. Blitzer assigned a 14% WPI for headaches. He testified that the accepted practice among assessors is to analogize headaches to trigeminal or occipital neuralgia, which are assigned WPI ratings using the tests for the corresponding nerves set out in chapter four of the AMA Guides. Roughly speaking, the trigeminal nerve connects to the front of the head, and the occipital nerves connect to the back of the head. The applicant does not actually suffer from either form of neuralgia.

59Dr. Blitzer derived WPI ratings by applying the tests for both forms of neuralgia, then determined that trigeminal neuralgia was the more appropriate analogue. He noted that the applicant experienced some degree of cranial discomfort all the time, that the worst headaches were associated with nausea and sensitivity to light and sound, that when the applicant experienced the worst headaches, she would withdraw to a quiet, dark place, possibly for much of the day or night, and that she did so two days per week.

60The impairment criteria for impairment of the trigeminal nerve are set out in Table 9 at page 145 of the AMA Guides. Mild impairment due to uncontrolled facial neuralgic pain may be assigned a WPI of 0% to 14%. Dr. Blitzer placed the applicant’s headaches at the top of that range due to their severity. He reasoned that withdrawal to a dark, quiet room all the time would imply 35% WPI, the highest possible rating for severe impairment. Because the applicant withdraws to her room two days per week, he considered 14% WPI to be appropriate.

61According to Table 23 at page 152 of the AMA Guides, impairment of the greater occipital nerve due to pain is assigned a WPI of 5%. Assigning 5% for the greater occipital nerves on both sides of the head, Dr. Blitzer derived a total WPI rating of 10%.

62Dr. Blitzer chose the 14% rating for trigeminal neuralgia for two reasons. First, the rating was higher than the rating for occipital neuralgia, and therefore more reflective of the applicant’s high level of impairment. Second, trigeminal neuralgia is more consistent with the physiology and pathology of migraine headaches, which are not specific to the back of the head, and which can be associated with the applicant’s other symptoms, including nausea, dizziness, and sensitivity to light and sound.

63Dr. Boucher did not assign a WPI rating for headaches. He gave several reasons:

1. An assessor is only permitted to assign a rating by analogy for impairments that are not listed in the AMA Guides. Because headaches are discussed at section 15.9, rating by analogy is inappropriate.

2. The vast majority of headaches are not assigned a rating because they are episodic, and therefore do not qualify as permanent impairments. In exceptional cases, severe headaches may be assigned a rating of 1% to 3%.

3. A rating cannot be assigned for a cervicogenic headache, meaning a headache caused by the applicant’s cervical strain. Dr. Boucher relied on Dr. Yahmad’s conclusion that the applicant’s headaches were cervicogenic.

64Dr. Boucher testified that he has seen assessors analogize headaches to occipital neuralgia, and that he might allow it even though he disagrees that rating by analogy can be done. However, in his view it is inappropriate to analogize headaches to trigeminal neuralgia, which is a much more serious pain condition than headache.

65I accept Dr. Blitzer’s rating of 14% WPI.

66While the vast majority of headaches may not qualify as permanent impairments, the applicant’s headaches appear to fall within the exception. The applicant’s headaches wax and wane, but are always present to some extent. Given that more than four years have passed since the accident, this condition is stable and unlikely to change in future months.

67Dr. Boucher appears to rely on s. 2(6) of a previous version of the Schedule (as amended O. Reg 34/10) for the proposition that rating by analogy can only be done for impairments not listed in the AMA Guides. However, that provision was repealed as part of the 2016 amendments to the Schedule (O Reg 251/15) and does not apply in this case. In any event, that principle does not exclude the possibility of assigning a WPI rating for headaches. The AMA Guides do not provide a method for assigning WPI ratings for headaches, but they also do not specify that headaches have a WPI rating of 0%. To the contrary, they contemplate that headaches can cause permanent impairments. In this case, declining to assign a WPI rating for headaches would fail to account for the main cause of the applicant’s impairment. Dr. Blitzer and Dr. Boucher acknowledged that it is the practice of at least some assessors to assign WPI ratings by analogy to the trigeminal or occipital nerves. This appears to be the most structured way to assign a rating that the AMA Guides provide.

68In my view, there is little sense in attempting to determine in the abstract whether occipital or trigeminal neuralgia is the more appropriate analogue. The applicant does not suffer from either condition, and Dr. Blitzer and Dr. Boucher disagree on whether her headaches resemble one more than the other. Assigning a WPI rating simply by choosing between them would be artificial. The ultimate issue is the level of impairment that the headaches cause, meaning the extent to which they interfere with the applicant’s ability to carry out activities of daily living. Dr. Blitzer’s description of the impairment caused by the applicant’s headaches was consistent with the other evidence, particularly the testimony of the applicant and Ms. Ng, her treating occupational therapist. I therefore accept his WPI rating.

69I see no support in the AMA Guides for the propositions that cervicogenic headaches cannot be assigned a WPI rating and that a WPI rating of only 1-3% can be given for headaches.

70I find that the applicant’s WPI rating for headaches is 14%.

d. Sleep disorder

71Section 4.1e of the AMA Guides addresses sleep disorders caused by impairments of the cerebrum or forebrain.

72The applicant experiences disturbed sleep. Ms. Ng testified that the applicant ruminates about a cycle of negative thoughts that keep her up, and that neck and shoulder pain may wake her during the night. Dr. Kiraly noted that the applicant reported having difficulty falling asleep and waking up during the night due to pain and nightmares. He opined that her disturbed sleep was a symptom of major depressive disorder with anxiety and post-traumatic stress disorder.

73Table 6 at page 143 of the AMA Guides provides that a rating of 1% to 9% WPI may be assigned for reduced daytime alertness with a sleep pattern such that the patient can carry out most daily activities. Dr. Blitzer assigned a rating of 9%, then reduced it to 6% to avoid potential overlap with other ratings. He testified that there are multiple causes of sleep disorders, both psychological and physical. Physical causes could include pain, a concussion, or disordered breathing, snoring, or sleep apnea caused or worsened by weight gain.

74Dr. Boucher did not assign a WPI for a sleep disorder. In his view, disturbed sleep is properly addressed as part of the WPI rating for mental or behavioural impairment. Specifically, sleep falls under the activities of daily living category under the Psychiatric Impairment Rating Scale. He testified that assigning a WPI as Dr. Blitzer did would result in double counting.

75I find that no WPI rating should be assigned under this category. Section 4.1e concerns sleep disorders caused by neurological injuries, specifically impairments of the cerebrum or forebrain. The applicant does not allege that she sustained such an injury. It appears that certain medical records summarized in the assessment reports state that she sustained a concussion in the accident and suffered from post-concussion syndrome. The records are not in evidence. Dr. Blitzer believed that she had sustained a concussion based on his review of those records, but stated that this was not the focus of his evaluation. Dr. Kiraly opined that the applicant possibly suffered from a mild neurocognitive disorder due to a traumatic brain injury and multiple etiologies. However, it is unclear how the symptoms he identified meet the diagnostic criteria for this disorder, and he relied on one of the medical records not in evidence. Dr. Yahmad and Dr. Tuff opined that the applicant did not suffer from a neurological impairment due to the accident. As a neurologist and a neuropsychologist, respectively, this issue falls squarely within their areas of expertise. The applicant did not call an expert neurologist or neuropsychologist who disagreed with their conclusions.

76Because the applicant does not claim nor does the evidence show that she sustained a neurological injury, a WPI rating for a sleep disorder is not available under this section of the AMA Guides. Sleep disorders caused by mental or behavioural disorders, pain, and impairments of the respiratory system are assessed in different chapters.

e. Disturbance of mental status and integrative functioning

77Section 4.1b of the AMA Guides addresses disturbances of mental status and integrative functioning caused by impairments of the cerebrum or forebrain.

78Dr. Blitzer did not evaluate the applicant for deficits in memory or cognition, but noted that they were mentioned in the medical records he reviewed. He observed that the applicant had been diagnosed with post-concussive syndrome and that there was evidence that she had sustained a traumatic brain injury. He commented that issues relating to memory, concentration, or cognition are often related to similar factors as those that cause the applicant’s fatigue.

79Table 2 at page 142 of the AMA Guides provides that a 1% to 14% WPI rating may be assigned if an impairment exists, but the ability to satisfactorily perform most activities of daily living remains. Dr. Blitzer assigned a 5% WPI rating. He believed the impairment rating would likely be higher, but assigned what he considered to be a conservative rating because he had not assessed the applicant’s cognitive impairments in detail.

80Dr. Boucher did not assign a WPI rating for this category and was not asked to comment on this issue in his testimony.

81I find that no WPI rating should be assigned under this category. The analysis is the same as for sleep disorders. Section 4.1b applies to impairments caused by a neurological injury. The applicant does not allege that she sustained such an injury, nor does the evidence show that she did. Cognitive issues caused by a mental or behavioural disorder or other impairments are assessed under different chapters of the AMA Guides.

f. Adjustment for effect of treatment

82Dr. Blitzer assigned a 3% WPI rating to adjust for the treatment received by the applicant. He testified that a rating can be made to account for the lessening of symptoms due to treatment, the side effects of treatment, and for “treatment burden,” meaning the time and effort that obtaining treatment takes from living one’s life. In his view, the AMA Guides state at page 9 that one may assign a WPI rating of 1% to 3% in such cases. He assigned the maximum of 3% because the applicant’s treatment burden was significant.

83Dr. Boucher did not assign a WPI rating for this category. He testified that an adjustment of this kind is only applied for a condition that is not defined in the AMA Guides, or if there are severe side effects from medication.

84I find that no WPI rating should be assigned under this category.

85The AMA Guides provide that an adjustment for the effect of treatment can be made in two circumstances. First, treatment may result in the apparent remission of the person’s symptoms, but it is still debatable as to whether the person has regained their previous status of good health. This may be the case for a person receiving treated for hypothyroidism or diabetes. In that event, the assessor may increase the impairment estimate by a small amount, such as 1% to 3%. Second, treatments such as immunity-suppressing pharmaceuticals or anti-coagulants may cause their own impairments. In that case, the assessor should use the appropriate parts of the AMA Guides to evaluate the impairment, or if such information is lacking, the assessor may combine an estimated impairment percent with the primary organ system impaired.

86The AMA Guides do not provide that an adjustment of 1% to 3% can be made to account for treatment burden. Treatment burden falls outside the definition of impairment in the AMA Guides as “the loss, loss of use, or derangement of any body part, system, or function” and in s. 3(1) of the Schedule as “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

87A 3% WPI cannot be assigned for the applicant’s treatment burden. It appears that Dr. Blitzer did not assign a WPI rating to adjust for the effects of treatment in the ways permitted by the AMA Guides. If that was his intention, he did not identify what treatments have positive or negative effects, what those effects are, or which of the applicant’s impairments they affect.

g. Mental or behavioural impairment

88Chapter 14 of the 6th edition of the AMA Guides addresses impairment due to a mental or behavioural disorder

89Dr. Kiraly and Dr. Tuff agreed that the applicant suffers from two disorders set out in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-V”): major depressive disorder with anxiety, and somatic symptom disorder with predominant pain. Dr. Kiraly also diagnosed the applicant with post-traumatic stress disorder, and a possible mild neurocognitive disorder due to a traumatic brain injury and multiple etiologies. Dr. Tuff disagreed with those diagnoses. The analysis is the same regardless of whether Dr. Kiraly’s additional diagnoses are correct. The AMA Guides provide that a psychiatric disorder must be the cause of the impairment. It does not matter whether the impairment is caused by depression or post-traumatic disorder specifically. Impairment caused by somatic symptom disorder or a neurocognitive disorder falls outside the scope of chapter 14.

90The AMA Guides provide three scales for determining a WPI rating: the Brief Psychiatric Rating Scale (“BPRS”), the Global Assessment of Functioning Scale (“GAF”), and the Psychiatric Impairment Rating Scale (“PIRS”). WPI is calculated according to all three scales, and the median WPI rating is used.

91Dr. Kiraly assigned the applicant a 20% WPI based on the GAF, a 40% WPI based on the BPRS, and a 40% WPI based on the PIRS, for a median score of 40%. Dr. Tuff assigned the applicant a 15% WPI based on the GAF, a 15% WPI based on the BPRS, and a 20% WPI based on the PIRS, for a median score of 15%.

92I find that the applicant’s WPI rating under the PIRS is 20%.

93The PIRS requires the assessor to score the person’s impairment in six domains from one (no deficit, or a minor deficit attributable to the normal variation in the general population) to five (totally impaired). The six scores are ordered from lowest to highest, the middle two scores are added together, and the sum is assigned the WPI rating set out in Table 14-17.

94Dr. Kiraly’s and Dr. Tuff’s scores in the six domains were as follows:

Dr. Kiraly

Dr. Tuff

Self-care, personal hygiene, and activities of daily living

3

2

Role functioning, social, and recreational activities

4

3

Travel

3

3

Interpersonal relationships

4

2

Concentration, persistence, and pace

4

3

Employability

4

4

Sum of middle scores

8

6

95Dr. Kiraly and Dr. Tuff gave the same scores for the travel and employability domains, and both gave one of their two lowest scores for the self-care, personal hygiene, and activities of daily living domain. It is not necessary to compare their findings in these domains.

96Table 14-14 sets out the scores in the domain of interpersonal relationships. A score of two (mild impairment) is given where the person’s existing relationships are strained, there are tension and arguments with the person’s partner or close family members, and there is loss of some friendships. A score of three (moderate impairment) is given where previously established relationships are severely strained, as evidenced by periods of separation or domestic violence. A score of four (severe impairment) is given where the person is unable to form or sustain long-term relationships, and pre-existing relationships, such as those with the person’s partner or close friends, are ended.

97I find that two is the appropriate score. The applicant is married and lives with her parents in law. She visits her parents two or three times per month. She testified that she is no longer in touch with many of her friends from before the accident, but she is still close with her best friend and speaks with her on the phone once per week. The applicant testified and reported to the assessors that these relationships have been strained because she can be irritable. While this strain is far from trivial, it meets the criteria for a score of two. There is no evidence of the severe relationship strain required for a score of three, such as periods of separation or domestic violence. A score of four cannot apply given that the applicant’s relationship with her partner, family, and best friend have not ended.

98Table 14-15 sets out the scores in the domain of concentration, persistence, and pace. A score of three (moderate impairment) is given where the person is unable to read more than newspaper articles and finds it difficult to follow complex instructions. A score of four (severe impairment) is given where the person can read only a few lines before losing concentration and has difficulties following simple instructions, concentration deficits are obvious even during brief conversation, and the person is unable to live alone or needs regular assistance from relatives or community services.

99I find that three is the appropriate score. The applicant can experience a combination of sensitivity to light and noise, headaches, nausea, dizziness, fatigue, and anxiety that disrupt her concentration. This is a mix of psychiatric and non-psychiatric symptoms. The PIRS is only concerned with impairment caused by the psychiatric symptoms. Nevertheless, taking all these symptoms together, the applicant’s impairment does not meet the criteria for a score of four:

1. She was able to concentrate on and provide responsive answers to the questions posed in her examination in chief and cross-examination. There were no apparent deficits in her ability to follow instructions or engage in conversation. While it was necessary to take frequent breaks, after a break she was able to refocus and continue with her testimony.

2. None of the assessors remarked that their conversations with the applicant revealed obvious concentration deficits, or that she had difficulty following any instructions they gave.

3. The applicant completed questionnaires as part of several applications. She also conducted situational assessments that involved tasks such as preparing invoices, looking up a recipe and making a grocery list, looking up a phone number and the costs of items in a flyer, scheduling appointments in a calendar, and preparing a budget. While the applicant’s performance was impaired by her symptoms, this impairment did not rise to the level of being unable to read more than a few lines of text without losing concentration or having difficulty following simple instructions.

4. While the applicant relies on the support of her partner and family, it is largely not because of deficits in this domain.

100As the applicant’s scores in the domains of interpersonal functioning and concentration, persistence, and pace, are two and three, respectively, the applicant’s two middle PIRS scores are consequently three and three. This is the case regardless of whether the applicant’s score in the last domain—role functioning, social and recreational activities—is three or four. The sum of three and three is six, which corresponds to a WPI rating of 20% according to Table 14-17.

101As the applicant’s WPI rating under the PIRS is 20%, the median WPI is 15% if I accept Dr. Tuff’s ratings under the GAF and the BPRS, and 20% if I accept one or both of Dr. Kiraly’s ratings. As demonstrated in the following section, the applicant’s combined WPI rating is less than 55% even if I accept that her mental or behavioural WPI rating is 20%. I therefore do not find it necessary to compare Dr. Kiraly’s and Dr. Tuff’s ratings under the GAF and the BPRS.

h. Conclusion

102The applicant’s WPI ratings are as follows:

Spine

15%

Shoulders

2%

Headaches

14%

Sleep Disorder

0%

Disturbance of mental status and integrative functioning

0%

Adjustment for the effect of treatment

0%

Combined physical impairment

28%

Mental or behavioural impairment

20%

Combined WPI

42%

103As the applicant’s combined WPI is less than 55%, she has not sustained a catastrophic impairment within the meaning of criterion seven.

2. Criterion eight

104The applicant must establish that she sustained a mental or behavioural disorder resulting in a class four impairment (marked impairment) in three or more areas of function that precludes useful functioning, or a class five impairment (extreme impairment) in one or more areas of function that precludes useful functioning. Impairment is rated in accordance with chapter 14 of the 4th edition of the AMA Guides.

105The four areas of function are:

1. Activities of daily living;

2. Social functioning;

3. Concentration, persistence, and pace; and

4. Deterioration or decompensation in work or work-like settings (adaptation).

106The five classes of impairment are:

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate impairment

Class 4: Marked impairment

Class 5: Extreme Impairment

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

107Dr. Kiraly and Dr. Tuff assessed the applicant with respect to criterion eight. As noted above, they both diagnosed the applicant with major depressive disorder with anxiety and somatic symptom disorder with predominant pain, and Dr. Kiraly also diagnosed the applicant with post-traumatic stress disorder and a possible mild neurocognitive disorder due to a traumatic brain injury and multiple etiologies. Again, the analysis is the same regardless of whether Dr. Kiraly’s additional diagnoses are correct.

108Dr. Kiraly and Dr. Tuff agreed that the applicant suffers from a class three (moderate) impairment in the domain of activities of daily living, a class four (marked) impairment in the domain of concentration, persistence, and pace, and a class four (marked) impairment in the domain of adaptation. If I find that the applicant suffers from a class four (marked) impairment in the domain of social functioning, then she meets the test for catastrophic impairment under criterion eight. Dr. Kiraly and Dr. Tuff disagreed on the severity of the applicant’s impairment in this domain. In Dr. Kiraly’s opinion, it is a class four (marked) impairment. In Dr. Tuff’s opinion, it is a class three (moderate) impairment.

109The AMA Guides state that social functioning refers to an individual’s capacity to interact appropriately, communicate effectively, and get along with others, including family members, friends, and members of the public. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Other indicators of social functioning include the ability to initiate social contact with others, communicate clearly, and interact and actively participate in group activities and cooperative behaviour, and to show consideration for others, awareness of others’ sensitivities, and social maturity. An assessor must consider the number of aspects in which social functioning is impaired and the overall degree of interference with a particular aspect or combination of aspects.

110The three other domains of function are also relevant to the applicant’s ability to socialize:

1. The activities of daily living domain accounts for the extent to which a person participates in social and recreational activities, among others.

2. Concentration, persistence, and pace concern a person’s ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings and activities of daily living.

3. Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder. Deterioration and decompensation may result in difficulty maintaining activities of daily living and continuing social relationships, among other things. Stresses common to the work environment include interacting with supervisors and peers.

111I find that the applicant does not suffer from a class four (marked) impairment in the domain of social functioning.

112The applicant demonstrated that she is able to interact appropriately, communicate effectively, and get along with others. She acted appropriately during her testimony and had no difficulty expressing herself or understanding the questions asked. She also demonstrated consideration for others, awareness of others’ sensitivities, and social maturity. For example, she expressed sincere regret for the burden that her medical condition has placed on her partner, and

appreciation for his support. She testified and reported to the assessors that she can be irritable, and that this puts a strain on her relationship with her partner, her family, and her in laws. However, these relationships have endured, and there were no indicators of significantly impeded function such as altercations. The assessors all observed that she interacted with them appropriately.

113The applicant’s ability to socialize is limited in two significant ways:

1. The applicant can become overwhelmed when she experiences her symptoms of light and noise sensitivity, headaches, nausea, dizziness, fatigue, and anxiety. This impairs her ability to function in social situations. Social situations often provoke these symptoms. For example, the applicant described a visit by a friend, who brought her two daughters. The applicant was overwhelmed by the girls’ noise and activity and could not pay attention to the conversation. After 20 minutes, she cut the visit short and asked her friend to leave. She was embarrassed to do so given that her friend had come all the way from Brampton to visit her in Scarborough. In another example, the applicant was invited to a gathering at a friend’s house. She found it difficult to be around so many other people and couldn’t concentrate on what others were saying or participate in conversations. After 20 or 30 minutes, she told the host that she had to leave. She waited in her friend’s room until her husband arrived to pick her up. She felt embarrassed about having to leave so soon, and guilty about putting her husband to the trouble of driving her to and from an event that she attended only briefly.

2. The applicant lacks motivation to socialize and tends to withdraw and self-isolate. These are products of her depression, fatigue, and anxiety about exposing herself to situations that will trigger her symptoms. The applicant testified that she is no longer in touch with many of her friends from before the accident. She recognized that they were concerned about her and anxious to know how she was doing, but she found it exhausting to repeatedly explain the state of her health, the problems she contends with, and how limited her life has become. The applicant testified that she rarely goes out except for medical appointments. For example, she ate out twice in the last year. One of those times she was unable to stay at the restaurant because the music was too loud and the staff were unable to turn it down. She took the meal to go and ate it at home.

114I find that these impairments are primarily associated with the other three areas of function. The applicant’s vulnerability to being overwhelmed in social situations is an instance of deterioration or decomposition in a worklike setting, and to some extent an impairment of concentration, persistence, and pace. The applicant’s limited participation in social and reactional activities largely falls within the activities of daily living domain. While withdrawal and self-isolation can be indicators of impaired social functioning, in the applicant’s case they do not demonstrate that she is significantly impeded in her ability to interact appropriately, communicate effectively, and get along with others.

115Dr. Kiraly and Dr. Tuff understood the scope of the social functioning domain in different terms. Dr. Tuff testified that social functioning is concerned with social comportment, meaning the applicant’s ability to act appropriately in social situations, and not the amount of social interaction. In his view, a low amount of social interaction may indicate that a person’s social comportment is impaired, but it is not an impairment of social functioning in itself. Dr. Kiraly testified that the scope of social functioning is broader than just social comportment, and that the applicant’s limited participation in social activities is part of her impairment. I find that Dr. Tuff’s interpretation aligns more closely with the definition of social functioning in the AMA Guides. I therefore prefer his opinion to Dr. Kiraly’s.

116As the applicant has not established that she suffers from a class four (marked) impairment in three areas of function, she does not qualify as catastrophically impaired under criterion eight.

IS THE APPLICANT ENTITLED TO THE ATTENDANT CARE, MEDICAL, AND REHABILITATION BENEFITS IN DISPUTE WITH INTEREST?

117As the applicant has not established that she sustained a catastrophic impairment, she continues to be limited to $65,000 in benefits under s. 18(3)(a) of the Schedule. As she has exhausted that limit, she is not entitled to the benefits in dispute. As no benefits are payable, she is not entitled to interest.

IS THE APPLICANT ENTITLED TO AN AWARD?

118Section 10 of Regulation 664 states that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest if the insurer unreasonably withheld or delayed payments.

119As the applicant is not entitled to the benefits in dispute, she is not entitled to an award.

IS THE APPLICANT ENTITLED TO PUNITIVE DAMAGES?

120At the end of the hearing, the applicant brought a motion seeking $2,000,000 in punitive damages on the grounds that the respondent breached its duty to act in good faith.

121It is settled law that the Tribunal does not have jurisdiction to award punitive damages. This was established in Stegenga v Economical Mutual Insurance Company, 2019 ONCA 615. In Harpreet Grewal v Peel Mutual Insurance Company, 2021 CanLII 40734 (ON LAT), the Tribunal addressed at length the applicant’s arguments regarding the scope of Stegenga, the legislative history of the Schedule, statutory interpretation, policy considerations, and international law.

122The applicant’s motion for punitive damages is denied.

COSTS

123As noted above, the applicant brought motions for a case for contempt to be stated to the Divisional Court and for punitive damages. The latter motion also requested the Tribunal “to issue a caution against respondent’s counsel for abusing the process of the Tribunal, breaching section 5.1-2 of the Rules of Professional Conduct in knowingly advancing false evidence or misstating facts and/or otherwise assisting in fraud, crime or illegal conduct.” The motions allege that the respondent and its counsel engaged in serious misconduct, including criminal offences.

124The respondent seeks costs of $1,000.00 for each of the motions. It submits that the allegations of misconduct are groundless and inflammatory, and that it was unnecessarily put to the expense of responding to them.

125Rule 19.1 of the Rules provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.

126It is necessary to examine the facts underlying the alleged misconduct in some detail.

127The application was filed on December 23, 2020. Catastrophic impairment was not an issue. At a case conference on July 19, 2021, a hearing was scheduled for August 22-26, 2022.

128In a Motion Order dated June 6, 2022, catastrophic impairment and additional medical benefits were added as issues, and the hearing was extended to 10 days. In a Notice of Motion dated June 24, 2022, the respondent requested an adjournment of the hearing because its catastrophic impairment independent assessment reports were still outstanding. In a Motion Order dated June 30, 2022, the adjournment was denied, partly on the grounds that the respondent had provided no evidence of any efforts to expedite the reports. In a Notice of Motion dated July 11, 2022, the respondent made a second request for an adjournment and provided significantly more supporting information. In a Motion Order dated July 19, 2022, the Tribunal granted the adjournment, noting at paragraph 10 that “[o]n review of the materials provided, the Tribunal is also satisfied that the respondent made best efforts to ensure that the assessments were conducted promptly.” The hearing was rescheduled to January 16-20 and 23-27, 2023 and proceeded as scheduled.

129As noted above, the respondent retained CIRA Health Solutions to arrange the catastrophic impairment independent assessments. The assessments were conducted between February and June 2022. The assessors provided drafts of their reports to CIRA. They could not recall the specific dates on which they provided the draft reports, but testified that their usual practice was to complete them within one month of the assessment at most.

130On August 30, 2022, CIRA commissioned Dr. Boucher to prepare an executive summary and provided him the draft reports. In the executive summary, Dr. Boucher compiled the assessors’ key findings, assigned WPI ratings for the applicant’s physical impairments, and combined them with Dr. Tuff’s WPI rating for mental or behavioural impairment to calculate a total WPI rating.

131The applicant examined the respondent’s assessors at length regarding CIRA’s involvement in the preparation of their reports, focusing on whether CIRA made any changes to the reports. The assessors testified that they submitted drafts of their reports to CIRA, which formatted them and proposed corrections for grammatical and typographic errors. The assessors reviewed and approved any

changes, then authorized CIRA to put their electronic signatures on the reports and release them. They left the date on the cover page blank. CIRA dated the finalized reports September 19, 2022 and provided them to the respondent.

132The assessors were clear that CIRA did not propose or make any substantive changes to their reports.

133In the motion to state a case for contempt to the Divisional Court, the applicant alleged that CIRA (acting as the respondent’s agent) committed the criminal offence of forgery by putting “false dates” on the independent assessment reports, and that the respondent breached s. 44(5) of the Schedule by failing to provide the reports to the applicant within 10 days of receiving them. In the motion for punitive damages, the applicant alleged that the respondent breached its duty of good faith that and its counsel abused the Tribunal’s process, breached the Rules of Professional Conduct, and participated in a criminal offence by lying to the applicant and the Tribunal. Specifically, the respondent stated in the July 11, 2022 Notice of Motion that “[t]he earliest possible dates were secured for each assessment” and that the respondent had not yet received any of the independent assessment reports. The applicant argues that these were lies because CIRA did not retain Dr. Boucher until August 30, 2022 and had likely received the draft reports before July 11, 2022.

134I find that the applicant’s allegations of wrongdoing by the respondent and its counsel are frivolous and vexatious. Accusing a person of committing a crime, acting in contempt, or breaching the Rules of Professional Conduct is extremely serious, and should not be done lightly. I see no merit at all in these accusations:

1. The independent assessment reports are dated September 19, 2022 because that is when they were finalized and provided to the respondent. I do not see what is wrong with CIRA putting the date on the cover page, much less why this would be contempt or a criminal offence.

2. I was not directed to any evidence of when the respondent provided the independent assessment reports to the applicant. Even if it failed to do so within 10 ten days, that does not constitute contempt.

3. The respondent indicated in the July 11, 2022 Notice of Motion and supporting materials that it had commissioned an executive summary. The executive summary could only be done once the other assessors completed their draft reports. On review of the motion record, the Tribunal granted the adjournment because it was satisfied that the respondent had

made best efforts to ensure that the assessments were conducted expeditiously. I do not see why it matters that Dr. Boucher specifically was not retained until August 30, 2022.

4. The reports, including the executive summary, were finalized on September 19, 2022, two months after the July 19, 2022 Motion Order and in time for the hearing. The applicant does not argue that she was prejudiced because the respondent delayed in providing the reports. In any event, it is not clear that retaining Dr. Boucher earlier would have expedited the process.

5. Whether the respondent had constructive possession of the draft reports through CIRA is a rabbit hole that I need not go down. The respondent had not received the final reports, which are what it needed to proceed with the hearing.

135I agree with the respondent that the motions were groundless and inflammatory. I find that an award of costs is warranted in the amount of $1,000.00 for each motion. I award costs in this quantum because bringing the motions was highly inappropriate conduct that should not be tolerated, and the respondent was prejudiced by being put to the needless expense of preparing submissions in response.

ORDER

136The application is dismissed.

137The respondent is entitled to costs in the amount of $2,000.00.