Licence Appeal Tribunal File Number: 21-014404/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:
Bhupinder Jaspal
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Sandra Driesel
APPEARANCES:
For the Applicant:
The applicant did not appear
Marc Golding, Paralegal
For the Respondent:
Carmela Malia, Adjuster
James Kolumbus, Counsel
Interpreter:
Yash Kapur (in the Punjabi language)
Court Reporter:
Guido Riccioni
Heard by Videoconference
March 6, 2023
OVERVIEW
1Bhupinder Jaspal, the applicant, was involved in an automobile accident on November 2, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties attended a case conference(“CC”). on September 16, 2022. The adjudicator ordered the matter to proceed to a three-day videoconference hearing. The Case Conference Report and Order (“Order”) issued October 14, 2022, states that the parties agreed the final exchange of productions would be 30 calendar days from the CC.
3A ‘Notice of Videoconference Hearing’ was sent to the parties November 16, 2023, advising the hearing was scheduled for March 21, 22 and 23, 2023. With the CC Order linking specific deliverables to the date of hearing, the parties had consented to the following:
i. 10 calendar days prior to the hearing (approximately March 13, 2023*) the parties would file a document brief (if possible, a single joint document book).
ii. The parties witness lists were to be finalized by 30 days before the hearing (approximately February 21, 2023*). The order did show the applicant had intended to call four witnesses, including the applicant. The respondent was to confirm a maximum of four expert witnesses.
*Approximate dates shown consider the next business day if dates ordered fell on a weekend or holiday date.
4On February 22, 2023, the applicant filed a request to adjourn the scheduled hearing. Two reasons were cited for this request: assessments of the applicant were in process for catastrophic impairment, and counsel had a conflict in scheduling. The respondent’s position on the adjournment request was unknown when Vice-Chair Lake issued an order (released March 1, 2023) denying the adjournment request.
5On March 7, 2023, the applicant filed a ‘Notice of Motion’ requesting the hearing format be changed to a written hearing. The next day the respondent contacted the Tribunal to object to this motion. On March 10, 2023, the Tribunal issued a ‘Notice of Motion to be Heard at Scheduled Event’ advising the parties that the Tribunal will hear the motion file by the applicant at the hearing scheduled to proceed March 21, 2023.
ISSUES
6The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period from December 30, 2020, to November 2, 2021?
ii. Is the applicant entitled to an attendant care benefit in the amount of $2,391.48 per month, for the period from December 27, 2019, to date and ongoing, denied July 6, 2020?
iii. Is the applicant entitled to $2,000.00 for an orthopaedic assessment by Downsview Healthcare Inc., denied December 16, 2020?
iv. Is the applicant entitled to the following treatment plans for chiropractic services:
(i) $4,092.45 denied June 19, 2020?
(ii) $4,119.93 denied December 16, 2020?
(iii) $565.72 ($1,680.03 less approved amount of $1,114.31) denied December 20, 2019?
(iv) $5,077.28 denied January 14, 2020?
(v) $5,881.47 denied November 27, 2019?
(vi) $3,776.09 denied January 28, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
Preliminary issues
Motion by the applicant to convert to a written hearing
7At the start of the hearing, counsel for the applicant requested a decision on the motion he filed to have the hearing converted to a written hearing. He cited his reasons for this request to be as noted in his Notice of Motion filed March 7, 2023:
i. Both parties failed to serve their witness lists as ordered (CC Order issued October 14, 2022) by 30 days before the scheduled start date of the hearing. He takes the position that a videoconference hearing with no witnesses is a waste of the Tribunal’s time and resources and therefore it should be rescheduled to a written hearing.
ii. In his submission he added the fact the applicant would not be attending the hearing because she is not in good health and her age and language barrier would cause her stress to attend. Therefore, the hearing can proceed in writing.
8The respondent’s counsel objected to the motion stating he was prepared to proceed with the hearing, without witnesses. He further submits that he is not obligated to produce any witnesses. He noted that the ‘Notice of Motion to be Heard at the Scheduled Event’ did not give inference that the scheduled hearing would not proceed because of the motion. He noted that he submitted a document brief as ordered with the intent the hearing would proceed.
9With the exception of the motion filed by applicant, neither party made any additional written submissions regarding the motion to change the hearing venue.
Decision regarding the format of the hearing
10I made a decision to proceed with the hearing in the format scheduled for the following reasons:
11In the Notice of Motion, the applicant has suggested that without witnesses, the hearing should proceed in writing because a videoconference would ‘obviously not be fruitful, and certainly a waste of the Tribunal’s time and resources.’ However, when questioned, the applicant failed to provide any evidence to suggest that a witness is mandatory for a hearing to proceed by videoconference, and he did not provide any submissions as to why or to what ‘extent a Tribunal’s time and resources differ from a process of resolving a dispute through the receipt and review of evidence by videoconference or doing so through a written submission process.
12It is not obligatory that a party rely on witnesses to present their case and, I agree that ideally if there are no witnesses, a written format might be considered. However a change in venue once a hearing is scheduled to start would result in a further, unnecessary delay of addressing this matter. I also believe, contrary to the applicant’s submissions, that adjourning to convert this matter to a different venue would result in additional costs to the parties and the Tribunal.
13By not making any prior attempt to suggest an alternative accommodation for the applicant, including an option to obtain her testimony through affidavit evidence, the applicant has seemingly conceded that the testimony of the applicant is not necessary. The applicant also failed to provide any explanation as to why other witnesses were not called, so I also concluded the applicant did not find it necessary to have any testimony to support evidence submitted for this case. I find from this, there is no prejudice to applicant to proceed with the videoconference hearing.
14The respondent has also stated that they are not relying on the testimony of any witness. The respondent did not make any submission regarding a potential prejudice by not being able to examine the applicant. From this, I find there is no unfairness to either party to proceeding with the videoconference hearing with the absence of any witness testimony.
Decision to proceed with the videoconference hearing as scheduled
15The applicant requested that if the matter was to proceed with a videoconference hearing that it be adjourned until the next day so that he might be better prepared. As noted above, the applicant failed to submit a document brief as previously ordered by the Tribunal.
16I asked if the applicant was not prepared to proceed with the hearing as scheduled if he might consider withdrawing the appeal. I made this suggestion given the applicant’s previous request to adjourn this hearing because of pursuing a new issue of catastrophic impairment. I suggested the applicant could consider bringing back the issues in dispute with a new application. The applicant noted that this was not an option because of potential statute of limitation issues with the denial dates in this current application.
17The respondent voiced his objection to not proceeding on the first day as scheduled given he was prepared to participate; his client was present, and he had retained the services of a court reporter. He notes that the Tribunal notice to hear the motion at the hearing did not imply the hearing would not proceed as schedule. He notes, and I agree, that the applicant through his lack of preparedness and failure to provide a hearing brief seemingly made the assumption his motion would be granted, and the videoconference vacated before hearing a decision by the Tribunal.
18I considered that an adjournment to the next day would be an unnecessary delay. The motions raised at the start of the hearing with resulting decisions would still provide more than a half day, as scheduled, to deal with the substantive issues. Counsel for the applicant should have known that he would have to proceed in the event his motion was denied. His failure to comply with the Tribunal’s order in preparation for the hearing is not a valid reason for granting an adjournment. The applicant’s motion to adjourn was dismissed, and the hearing proceeded as scheduled.
19Given the applicant failed to submit a hearing brief, the parties were advised that the hearing would proceed, and the applicant may only reference documentary evidence that he has already provided to the respondent in compliance with any prior production order of the Tribunal. My intent here was to be fair to the applicant by letting him make submissions based on any preparation he may have done. Also, there would be no prejudice to the respondent having had prior knowledge of these submissions.
Motion by the respondent to dismiss appeal as being abandoned
20The respondent raised a motion at the start of the hearing to dismiss the appeal through the Rule 3.4(d) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) which states ‘The Tribunal may dismiss an appeal without a hearing if the appellant is found to have abandoned the proceeding.’ He submits the actions of the applicant in (a) not submitting a hearing brief (b) not being prepared to proceed and (c) the applicant’s failure to disclose, until the start of the hearing the fact that the applicant had no intention to appear, suggests the applicant has abandoned the appeal.
21The applicant failed to give submissions regarding this motion.
22I found that the applicant has not abandoned the proceeding. The Rules does not provide a definition of ‘abandoned’, but I considered that the applicant was in communication with the respondent and the Tribunal since the filing of the application up to, and including the hearing. The applicant’s failure to comply with an order or to communicate to the satisfaction of the respondent or albeit the Tribunal, may have other implications, but the applicant has not walked away from the application. In this case, the applicant attended the preceding case conferences and the hearing proceeded as scheduled. The respondent’s motion is dismissed.
Motion by the respondent to request costs
23On the basis of the Tribunal Rules 19.2 & 19.3 the respondent made oral submissions at the start of the hearing that a request for costs against the applicant be added to the issues in dispute. I agreed to add this issue.
Substantive issues
24The applicant submits that prior to the motor vehicle accident (“MVA”) of November 2, 2019, although the applicant retired in 2014, she was independent in all her activities of daily living, and she had an active social life. She argues that when the insurer determined she had reached optimum recovery from the injuries sustained in the MVA, stopping her non-earner benefit and her attendant care benefit that it was premature. She says her health has worsened since the MVA and she has never returned to her pre-accident condition. She is now dependent on her family members for care.
25The respondent submits that insurance examinations support their position that she does not suffer a complete inability to carry on her normal activities of daily living. They add that there is no OCF-1 to recommend the attendant care needs in dispute, and she has not provided any costs from any professional care service, nor has she submitted details of attendant care provided by family members with related economic loss incurred for providing that care. They add that the treatment plans in dispute fail to include reasons for treatment and expected outcome so that the insurer can assess the recommended treatment as reasonable or necessary.
26In response to the respondent’s position, the applicant states the insurer was paying for attendant care until July 2021 and because benefits were stopped, she was forced to depend on family care. Her family doctor records support her continual reports of sleep issues and paresthesia since the MVA. The applicant submits there is an OCF-1 completed by the doctor who completed a section 25 examination that concludes the applicant is still impacted by injuries sustained in the MVA which include constant pain. The applicant argues that because the insurer failed to provide a dissenting opinion to the last section 25 assessments conducted 18–24 months after the MVA, that these reports should stand as the final word that the applicant still suffers from injuries sustained in the MVA and therefore all treatment plans in dispute are reasonable and necessary as is her need for attendant care. In addition, the assessments support the fact that she is unable to return to her pre-accident activities of daily living and should still be receiving NEB.
27The respondent submits section 44 assessments where examinations conclude the applicant is capable of returning to her pre-accident activities of daily living and that no attendant care is required. They maintain their position that treatment plans in dispute are not complete enough to make an assessment as to whether or not they were reasonably or necessary. They note, that when treatment plans were complete enough to assess, some in fact were paid. They note partial payments in dispute represent travel costs that are not payable. The respondent submits the applicant has failed to meet the onus that the applicant is entitled to benefits in dispute given they have failed to provide appropriate expert reports. They reference an opinion by a neurologist in regard to attendant care and that this is not a recognized specialty to give opinion of such needs. Further, the fact that the applicant failed to provide an expert testimony or testimony from the applicant renders all submissions by the applicant counsel to be hearsay and little weight should be given to any of the applicant submissions.
28The applicant did not file a document brief for the hearing as ordered by the Tribunal. I was left with only hearsay evidence from the applicant. The respondent did provide a hearing brief with documentary evidence to support their position. The Tribunal can accept hearsay evidence but without documented support or export/witness testimony I put lesser weight on the applicants’ submissions. I find the applicant failed to meet her onus to prove she is entitled to any accident benefits in dispute. In this case the applicant’s claim (the entirety of the Tribunal application) must fail for lack of evidence.
Costs requested by the respondent
29Rule 19.2 of the Tribunal’s Common Rules of Practice & Procedure allows a request for costs to be made in writing or orally at a case conference or hearing at any time before the decision or order is released. Rule 19.1 states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs. Rule 19.6 restricts the amount of costs to a maximum of $1,000.00 for each full day of attendance.
30Rule 19.5 requires the Tribunal, in deciding whether costs should be awarded and the amount of costs to be awarded, to consider all relevant factors including: the seriousness of the misconduct; whether the conduct was a breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair and efficient and effective process; prejudice to other parties and the potential impact an order for costs would have on the individuals accessing the Tribunal system.
31The respondent is seeking $1,000.00 for attending today at the hearing.
32The respondent’s position is that it was prepared to proceed with a three-day hearing. The respondent further submits that it incurred significant costs, including court reporter fees and invested counsel time in preparing for and attending the hearing. The respondent claims applicant failed to comply with Tribunal orders for preparation of the hearing and showed bad faith in knowing the applicant was not going to attend the hearing.
33The applicant did not comply with the order of the Tribunal to produce a hearing brief. This did not prevent the respondent from complying to the same order. I also find that the applicant, in failing to prepare for the hearing because of assumptions that adjournment requests and/or a change of venue would automatically be granted might suggest a lack of regard for the Tribunal process but, the hearing did proceed. The fact that a hearing scheduled for multiple days concludes earlier than anticipated is not grounds for costs by definition in the Rules.
34The respondent was able to present its case during the one day of the hearing. They were able to cancel the court reporter for the subsequent days s/he was scheduled. I find the respondent is not entitled to costs.
CONCLUSION AND ORDER
35The applicant’s claims for a non-earner benefit, attendant care benefits, the assessment and treatment plans in dispute are dismissed.
36As there are no benefits payable there is no interest owing.
37The respondent is not entitled to costs.
Released: May 5, 2023
__________________________
Sandra Driesel
Adjudicator