Landa v. The Dominion of Canada General Insurance Company, 2023 CanLII 4440

Citation: Landa v. The Dominion of Canada General Insurance Company, 2023 ONLAT 19-011699/AABS

Licence Appeal Tribunal File Number: 19-011699/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:

Marina Landa

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Marina Landa, applicant, self-represented

For the Respondent: Christopher McCormack, Paralegal Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on November 6, 2007, and sought benefits pursuant to the Statutory Accident Benefits Schedule Accidents on or after November 1, 1996¹ (“1996 Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are before the Tribunal:

i. Is the applicant entitled to an income replacement benefit (“IRB”) at the rate of $400.00 per week from November 13, 2007, to August 10, 2008?

ii. Is the applicant entitled to $29,419.00 for various expenses submitted on January 3, 2008, and denied on March 11, 2020?

iii. Is the applicant entitled to $1,624.00 for physiotherapy recommended by PhysioFlow in a treatment plan (“OCF-18”) submitted on October 7, 2017, and denied on October 24, 2017?

iv. Is the applicant entitled to $8,714.67 for vocational or academic training at the Adult Day School (“School of Management”) submitted on in an Expenses Claim Form (“OCF-6”) on November 21, 2018, and denied on March 11, 2020?

v. Is the applicant entitled to $2,847.50 for physiotherapy recommended by PhysioActive sent to the respondent 2017 in a treatment plan (OCF-18) dated January 27, 2017, on February 15, 2017?

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

Agreed facts

3The parties agreed to the following facts:

i. The applicant was involved in her accident and retained legal representation in approximately March of 2008.

ii. The applicant was self-employed at the time of her accident.

iii. The applicant was no longer represented in approximately May of 2017 and is now self-represented.

iv. The applicant filed an Application with the Tribunal in October 2019, which was amended in April 2020.

v. A preliminary hearing was held in 2020, which limited the issues in dispute.

vi. The applicant filed a Request for Reconsideration of the preliminary issue, which found that the Tribunal made an error of law by not extending the timelines for the applicant to apply for benefits, but the error did not change the Tribunal’s results, and the reconsideration was denied, with the remaining substantive issues now to be decided.

Entitlement to an IRB from November 13, 2007, to August 10, 2008, in the amount of $400.00 per week

Positions, evidence and arguments

4Section 2(5) of the 1996 Schedule states that for the purposes of the Schedule, a person is employed if, for salary/wages/other remuneration/profit, the person is engaged in employment, including self-employment, or holds an office and “employment” has a corresponding meaning.

5Section 6(1) of the 1996 Schedule states that the amount of income replacement benefit (“IRB”) shall be, for the first 104 weeks of disability, 80 percent of the insured person’s weekly, net income from employment, pursuant to section 61 and for each week after the first 104 weeks of disability, the greater amount of the 80 percent and $185.00.

6Section 33(1)1 of the 1996 Schedule states that a person applying for benefits under the Schedule, shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer to determine the person’s entitlement to a benefit.

7Section 33(2) of the 1996 Schedule states that the insurer is not liable to pay a benefit for any period when the insured person did not comply with section 33(1).

8Section 33(4) of the 1996 Schedule states that if the insured person does not comply with section 33(1) but then subsequently complies, the insurer shall resume paying the benefit if a benefit was being paid and shall pay all amounts withheld during the period of non-compliance if the insured person provides a reasonable explanation for the delay in compliance.

9Section 61(1) of the 1996 Schedule states that for the purposes of the Schedule, a person’s net weekly income from employment is determined using the following formula: A = (B – C – D – E)/52.

In this formula, A represents the person’s net weekly income from employment, and B represents the person’s gross annual income from employment. C represents the annual premium payable by the person under the Employment Insurance Act (Canada)² on the gross, annual income from employment. D represents the annual contribution payable by the person under the Canada Pension Plan³ on the gross annual income from employment, and E represents the income tax payable by the person under the Income Tax Act (Canada)⁴ and the Income Tax Act (Ontario)⁵ on the gross annual income from employment.

10Section 62(1) of the 1996 Schedule states that for the purpose of the Schedule, a person’s income from self-employment is determined in the same way as a person’s profit from a business. This means using the Income Tax Act (Canada) and the Income Tax Act (Ontario). It does not take into account: expenses eligible for capital cost allowance or an allowance on the eligible capital property; capital gains or losses; or losses deductible under section 11 of the Income Tax Act (Canada).

11The respondent submitted that it is not liable to pay the IRB for the period where the applicant did not comply with its requests for information based on section 33(2) of the 1996 Schedule.

12The respondent argued that the applicant is not entitled to the disputed IRB and provided the following timeline:

a. The applicant, via her legal representative, filed her disability certificate (“OCF-3”) with the respondent on March 24, 2008.

b. The applicant then filed her Application for Accident Benefits (“OCF-1”) and reported her self-employment on April 12, 2008.

c. On April 30, 2008, the respondent provided the applicant, via her representative, with a letter and Explanation of Benefits (“OCF-9”) requesting the applicant’s financial information to determine her entitlement to an IRB. The communication requested the information be provided within 14 days.

d. The respondent provided the applicant with another letter and OCF-9, dated July 21, 2008, stating that the applicant’s IRB was terminated based on its Insurer’s Examinations (“IE”) assessments. The letter stated the respondent was unable to determine the applicant’s IRB quantum because the applicant had failed to provide the financial information requested.

e. The applicant submitted an Employer’s Confirmation Form (“OCF-2”) dated December 22, 2008, where she reported that she had not worked since her accident. The applicant failed to provide information to support her pre-accident income claims.

f. The respondent wrote to the applicant on January 8, 2008, confirming receipt of the OCF-2, and reminded the applicant that the respondent required her outstanding financial information. The respondent also notified the applicant that if this information was not provided before February 8, 2009, the respondent would presume the applicant no longer wished to pursue the IRB.

g. The applicant’s representative faxed the respondent limited financial information related to November 2006 to December 2007 on February 9, 2009. The respondent hired Williams and Partners Forensic Accountants (“Williams and Partners”) to calculate the applicant’s quantum of IRB.

h. In February 2009, Williams and Partners requested more financial information from the applicant from January 2006 until August 2008 to calculate the applicant’s quantum of IRB. Williams and Partners continued to request financial documentation from the applicant because they did not have enough information to calculate her quantum of IRB.

i. The respondent notified the applicant that she had not provided the required financial information and if this was not done by May 15, 2009, the respondent would close the applicant’s file.

j. Williams and Partners suspended the applicant’s IRB calculation file due to the applicant failing to provide the requested documents.

k. In October 2015, the applicant’s counsel provided her Notices of Assessment (“NOA”s) from the Canada Revenue Agency for 2007 and 2008.

l. The applicant called Williams and Partners in May of 2007 and asked why she needed to provide her tax returns for her IRB calculation and was told her NOAs alone did not provide her revenues and expenses reported and that only her reported income would be considered for her IRB.

m. The applicant provided the respondent with a summary of her financial information, without supporting documents.

n. Williams and Partners informed the respondent it required the following financial documents from the applicant:

i. 2006, 2007 and 2008 personal income tax returns, with schedules and attachments and the corresponding NOA for 2006.

ii. The applicant’s business bank statements from January 1, 2006, until August 10, 2008.

o. In April 2021, the applicant provided the respondent with an IRB accounting report. This report was based on the documents the applicant had failed to produce and requested. The report provided the respondent with the applicant’s outstanding documents.

p. In May 2021, Williams Meaden and Moore, formerly Williams and Partners, provided a preliminary calculation of the applicant’s quantum of IRB.

13The respondent also noted that the applicant did not provide all of the required income information and documentation until 13 years after the respondent’s initial section 33 request. The respondent argued that since the applicant had not provided a reasonable explanation for this long delay in providing the required information, she should not be able to proceed with her application.

14The respondent also submitted it is not liable to pay the applicant an IRB from April 30, 2008, or the day of the initial request for financial productions, until August 10, 2008, which was the last day of the entitlement period.

15The applicant argued she is entitled to the disputed IRB at a quantum of $400.00 per week. The applicant submitted she reported her accident in accordance with the 1996 Schedule and filed her OCF-3 and Application for Accident Benefits (“OCF-1”) and was paid an IRB. The applicant submitted that at the time of her accident, she was a self-employed, registered nurse.

16The applicant argued that she provided all required financial documents to the respondent in a timely manner. She made submissions that she was not copied on communications between her representatives and the respondent. She disputed that the respondent notified her of missing or incomplete documents and relied on the letter and Explanation of Benefits (“EOB”) dated April 30, 2008. The applicant argued that this document instead found she was entitled to an IRB

17As for the alleged missing financial information requested by the respondent, the applicant submitted she provided the respondent with her daily records of revenue and expenses, bank statements for the 52-week pre-accident, her employer’s confirmation form (“OCF-2”) via fax on February 4, 2009, which was forwarded to the respondent’s accountants, Williams and Partners.

18The applicant submitted that her 2007 and 2008 tax information would not be available and instead provided the respondent with her records of revenue and expenses, tax returns, NOAs, bank statements, sales receipts and income statements from 2006 to 2008. These documents were provided via fax or email on January 13, 2011, September 9, 2013, February 8 and 10, 2016 and September 27, 2018.

19The applicant also argued that the Schedule does not provide that all documents requested by an accountant are required to calculate her IRB quantum. Moreover, the applicant argued that many of the documents requested do not exist, and therefore, the respondent’s requests were unreasonable.

20The applicant argued that the respondent failed to notify her if any of her documents were not received. She submitted she was only advised of this in 2017 and that she would only be paid the base amount of IRB, without interest. This was because she had not provided the documents requested by the respondent’s accountant, and an additional request would be made. The applicant submitted the respondent only made its request for additional documents and hired an accountant after the applicant applied to the Tribunal.

21The applicant submitted that because the respondent failed to request her outstanding financial information, pay her the IRB, or hire an accountant for her, she was forced to hire S and T Accounting to complete a report, which was provided to the respondent. The applicant submitted the S and T report was based on the financial disclosure she had previously provided.

22The applicant argued that the fact that her financial documents were not included in the respondent’s disclosure does not show that she had not provided them, but rather, her counsel or the respondent may have misplaced or lost them. The applicant conceded she was not aware of which documents the respondent had in its possession and which documents were missing, as the respondent failed to communicate this to the applicant based on section 32(1)(b) of the 1996 Schedule.

23With respect to section 33 of the 1996 Schedule, the applicant submitted that this section refers to general information regarding a benefit and is not applicable to the calculation of an IRB quantum as the legislation does not clearly state that. Moreover, the applicant argued that she was not required to provide the requested information to the respondent “as a document”, meaning the information could be given orally.

24The applicant also submitted that the respondent did not comply with section 33, as it failed to communicate to her what documents it required, provide an explanation for the request, and follow up with the applicant.

25The applicant relied on the matter of QSZ v TD General Insurance Company⁶, where the Tribunal found that respondents have an obligation to notify insured people regarding missing information, provide a clear denial and reference section 33(1) of the 2010 Schedule.

26The applicant submitted that her IRB could be calculated based on the information she provided the respondent, and only if there’s a concern, it should recalculate the quantum based on the additional information it received. The applicant also submitted that she could not produce documents that did not exist.

27Based on the matter of 16-000344 v Optimum Insurance Company⁷, where the Tribunal found that the respondent could have calculated the applicant’s IRB quantum with the information it was provided with, the applicant submitted she has provided the respondent with sufficient information.

28The applicant also submitted that based on Nancy Beltrame v. Dominion of Canada General Insurance Company⁸, the respondent has a responsibility to help the applicant when claiming benefits under the Schedule.

29The applicant submitted her tax returns should be relied on as they are more appropriate based on section 61 of the Schedule. The applicant submitted that the respondent failed to request the documents from her since 2009 and therefore, its requests are unreasonable as the benefit in dispute is payable.

30The applicant also submitted she attended two Insurers’ Examinations (“IE”s), that were not rescheduled properly by the respondent, leaving her treatment in limbo. The applicant also argued that due to an issue between the respondent and the assessment centre, the applicant was transported to the wrong location for an IE, causing the applicant undue hardship. The applicant did not provide evidence or details regarding these submissions.

31The applicant submitted that the respondent’s financing of the IEs but denial of her treatment was unreasonable. The applicant also made submissions regarding her requirement to attend six IEs, which she described as “intrusive, humiliating, and hurtful” and submitted some of the assessors accidentally physically hurt her.

32As a result of the respondent’s denials, the applicant submitted she was forced to incur her treatment without funding. The applicant submitted that she filed Expense Claim Forms (“OCF-6”s) that should have been paid promptly and were not and that the respondent denied some benefits that were previously approved.

Analysis

33I find that the applicant is not entitled to an IRB as she failed to provide the requested information to the respondent based on section 33 of the Schedule.

34I agreed that the applicant was asked to provide her 2006, 2007 and 2008 personal income tax returns, with schedules and attachments and the corresponding NOA for 2006. These requests were made several times and were not addressed until October 2015, when the applicant’s counsel provided her NOAs for 2007 and 2006.

35In terms of the applicant’s arguments with respect to section 33 of the Schedule, I was not persuaded that the documents she provided were sufficient for the respondent to be able to have a full calculation of her income from self-employment for the purposes of calculating her quantum of IRB. I disagreed with the applicant’s arguments that the documents she provided are sufficient to calculate the IRB quantum. I find that the documents the applicant provided prior to her application to the Tribunal were not sufficient for these purposes. This is because the information provided did not account to calculate how much income the applicant earned from her self-employment, meaning her income after revenue and expenses and provider supporting documents.

36I also disagreed with the applicant’s position that the requested documents were not needed, as it is not disputed that the applicant was self-employed before her accident. It is well established in law that NOAs alone are not indicative of a self-employed person’s revenue and expenses and therefore, not sufficient for the purposes of calculating IRB.

37I did not find the matter of 16-000344 v Optimum Insurance Company to be persuasive. This case dealt with an applicant who was asked to provide a tax return that had not been prepared. This is distinct from the matter before me, which is that of an applicant who for over a decade refused to provide the information requested by the respondent and did not provide a reasonable explanation for this.

38I appreciated the applicant’s arguments with respect to her documents already being sent, her legal representative and her argument that she was not notified of the outstanding documents requested by the respondent. However, these arguments were not supported by any persuasive evidence that showed that the applicant provided her documents to her representatives or to the respondent. Instead, I find that the respondent contacted the applicant’s representative to request the outstanding documents several times. I echo these comments with respect to the applicant’s arguments regarding her representatives losing or misplacing her financial documents.

39I was not persuaded by QSZ v TD General Insurance Company, which dealt with an applicant whose IRB application was missing documents. The Tribunal found that the respondent had an obligation to notify the applicant. However, this matter was not similar, as in the subject matter, the respondent communicated this to the applicant several times in 2008 and 2009. Therefore, this decision is not relevant.

40I was also unable to reconcile why the applicant provided the respondent with an accounting report containing the documents she refused to produce until thirteen years after the respondent’s request. I did not find that the applicant provided a reasonable explanation for the delay in producing these documents. Therefore, the applicant cannot proceed with her application for IRBs.

41Though the applicant was found to have been entitled to an IRB, due to her failure to provide information related to her quantum of entitlement, she cannot proceed with her application for the benefit.

42I also considered the applicant’s arguments with respect to her IEs, however, as these issues do not relate to the matter of the IRB and are more appropriate for the award or costs considerations, I will not address them.

$29,419.00 for various expenses

43The parties agreed that because of the date of the applicant’s accident and the dates on which she applied for benefits, both the 1996 and 2010 Schedules applied.

44Sections 14 and 15 of the 1996 Schedule state that an insurer shall pay all reasonable and necessary medical benefits incurred by or on behalf of an injured person who sustains an impairment as a result of an accident.

45Sections 14, 15 and 16 of the 2010 Schedule state that an insurer shall pay medical and/or rehabilitation benefits to, or on behalf of an insured so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the insured as a result of the accident.

46Section 38(1.1) of the 1996 Schedule states that an insurer is not liable to pay any expense related to medical or rehabilitation benefits incurred before the insured person submits a treatment plan unless the expense is for an ambulance or other goods and services provided on an emergency basis.

47Section 38(2) of the 2010 Schedule states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit /assessment/examination that was incurred before the insured person submits a treatment and assessment plan, unless: the insurer gives the insured person a notice stating that it will pay the expense without a treatment and assessment plan; the expense is for an ambulance or other goods/services provided on an emergency basis but not more than 5 business days after the accident; the expense is reasonable and necessary as a result of the impairment sustained by the injured person for drugs prescribed by a regulated health profession, or for specific goods with a cost of $250.00 or less.

48Section 38(8) of the 2010 Schedule states that within 10 business days of an insurer receiving a treatment and assessment plan, it shall give the insured person notice that identifies the goods/services/assessment/examinations described in the treatment and assessment plan that it will pay for or refuses to pay for and provide the medical reasons and all other reasons why the goods/services/assessment/examinations or costs are not reasonable and necessary.

49Section 38(11) of the 2010 Schedule states that if an insurer fails to give a notice in accordance with section 38(8), related to a treatment and assessment plan, the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. The insurer shall pay for all goods/services/assessment/examinations described in the plan related to the period, starting on the 11th business day after the day the insurer received the plan, and ending on the day the insurer provides a notice that complies with section 38(8).

50The Financial Services Commission of Ontario Health Claims for Auto Insurance Guideline - Superintendent’s Guideline No. 07/07(“FSCO Guidelines”) requires that treatment plans must be sent to the Central Processing Agency (“CPA”) via the Health Claims for Auto Insurance (“HCAI”) system and not directly to the insurer or its representative. It also provides that if a treatment plan that not sent through HCAI it is deemed not to have been received and does not require a response from the insurer.

51Section 68(1) of the 1996 Schedule provides that an injured applicant or their representative must apply for benefits in writing. Section 68(3.2) of the 1996 Schedules provides that despite the methods of delivery of section 68(2), documents of section 68 must be delivered in a manner specified in the FSCO Guideline. Section 69 6. of the 1996 Schedule states that a treatment plan shall be in the form approved by the Superintendent.

52Section 66 of the 2010 Schedule provides that a treatment and assessment plan shall be on a form approved by the Chief Executive officer. Section 64(7)1 of the 2010 Schedules states that documents listed in section 66 shall be delivered to an insurer only in a way specified in the FSCO Guidelines.

53The various expenses in dispute are comprised of:

a. $370.00 for chiropractic treatment;

b. $23,648.71 for prescription and complementary medicine;

c. $462.00 for naturopathic & homeopathic consultations;

d. $1,785.91 for massage;

e. $651.75 for osteopathic treatment;

f. $148.25 for restorative exercise;

g. $670 for acupuncture, and

h. $1,988.74 for orthopedic devices and orthotics.

54The applicant submitted that the disputed expenses are reasonable and necessary as a result of her accident-related injuries. She argued that she suffers from fibromyalgia and chronic pain as a result of her accident and relied on her OCF-3s of Dr. Oleg Livshin, her former family doctor and Dr. George Goritsas, chiropractor.

55The applicant also relied on the clinical notes and records (“CNR”s) of her former family doctors, Dr. Livshin, and Dr. Jessica Bortnick, and the CNRs of her current family doctor, Dr. Nancy Keesal, which capture that she suffers from fibromyalgia as a result of her accident.

56The applicant also relied on her electromyography (“EMG”) report from 2011, her computerized tomography (“CT”) scan of 2011, and her magnetic resonance imaging (“MRI”) of 2017 which she submitted to confirm her diagnosis of carpal tunnel syndrome and demonstrate her ongoing pain due to disc bulges, compressions of her nerve roots and spinal stenosis. The applicant also relied on the 2009 report by Dr. Joseph Kwok, orthopedic surgeon, who found that further therapy was reasonable and necessary.

57The applicant also submitted that all of the disputed treatments were prescribed or recommended and are reasonable and necessary and that the denials are deficient.

58The respondent submitted that the disputed treatments and expenses requested by the applicant were incurred before she submitted a treatment plan (“OCF-18”) and instead submitted her requests on OCF-6s, which it did not respond to. The respondent submitted that in 2008, the disputed treatments required an OCF-18 to be submitted to HCAI, with failure to do so resulting in a respondent not having to pay for the benefit. The respondent also submitted that based on the FSCO Guidelines, OCF-18s not sent through HCAI are not considered received and do not require a response from it.

59The respondent submitted that the applicant had not transmitted copies of the OCF-18s it has requested many times, in compliance with the Schedules, be it the 1996 or 2010 versions.

60The applicant argued that the disputed benefits could be claimed via either an OCF-18 or OCF-6, unless the insurer requests otherwise. The applicant said that she provided a claim breakdown and copies of the OCF-6s as part of the production exchange ordered at the April 2020 Case Conference and submitted that since all of the treatment plans have been incurred, she is entitled to payment for such.

61The applicant also argued that the FSCO Guideline and requirement for treatment plans to be sent via HCAI did not apply to her, and only applied between a treatment provider and an insurer. She submitted her receipts from her treatment were submitted by her with no restrictions or timelines with respect to reimbursement.

62I find that the applicant is not entitled to any of the disputed treatment plans since she has not met her evidentiary burden to show that she complied with the Schedules. I noted that the respondent communicated on several occasions that treatment plans in excess of $250.00 required an OCF-18. Therefore, the applicant’s submissions with respect to the OCF-6 being the correct form are unpersuasive.

63I also agreed that these OCF-6s did not provide the respondent with the required information it required to determine if the disputed treatments were reasonable and necessary. Unlike an OCF-6, an OCF-18 provides the applicant’s injuries, prior conditions, ongoing treatment, limitations, patient goals, barriers to recovery, and frequency of treatment and is the first step in assessing treatment for an applicant.

64Even if the applicant had used the correct, OCF-18 form, the heart of the matter rests in determining if the applicant actually sent them the respondent. I disagreed with the applicant’s arguments with respect to the FSCO Guideline, and that it did not apply to her matter. This position was not supported by either Schedule or case law. Instead, I was persuaded by the respondent’s arguments that in order for a treatment plan to be considered, it must be transmitted via HCAI under both the 1996 and 2010 Schedules, and this applied to the applicant, her legal representative and service providers

65The applicant has not produced evidence that her treatments were submitted to HCAI or provided a reasonable explanation as to why she did not do so. I find the applicant failed to prove that her treatment plans were ever received by the respondent, and also incorrectly denied. However, I was persuaded by the respondent, who was able to substantiate its position with evidence.

$1,624.00 for physiotherapy dated September 11, 2017

66The applicant submitted that the OCF-18 in dispute was actually for osteopathic and massage treatment that was reasonable and necessary. She submitted that she discussed this treatment with the respondent, and it ought to have been approved. The applicant alleged the respondent failed to consider her medical evidence, schedule an IE or provide her with a valid denial.

67The respondent argued that the disputed OCF-18 is not reasonable and necessary and that the applicant has failed to produce supporting medical evidence or provide the Tribunal with a copy of the disputed OCF-18 to substantiate her argument.

68The respondent also argued that the OCF-18 was submitted via HCAI in September of 2017, nearly ten years after the applicant’s accident. It argued that the treatment is not reasonable and necessary as the applicant has not provided an explanation as to why she requires accident-related treatment so far removed from the accident.

69I find that the applicant has not shown that the OCF-18 for osteopathic and massage treatment is reasonable and necessary. Though I was able to review the applicant’s extensive medical history via the evidence of Dr. Lovishin, Dr. Goritsas, Dr. Bortnick, Dr. Keesal and Dr. Chan, none of the doctors specifically opined that the applicant’s request for further passive therapy was reasonable and necessary as a result of her accident-related injuries or provide a persuasive connection between the applicant’s accident-related injuries and the current treatment.

70With respect to Dr. Kwok’s findings, I noted that the doctor’s findings are from 2009 and do not speak to the issue of the applicant needing further therapy so far removed from the accident. Therefore, I afforded them little weight. Dr. Kwok’s findings do not contemplate future treatment, never mind treatment so far removed from the applicant’s accident. Dr. Kwok’s report is not contemporaneous with the date of the disputed OCF-18.

71I agreed with the respondent, and despite the applicant’s ongoing complaints of pain, she has not shown that her pain is connected to her accident and requires further passive treatment. As the applicant carries the burden of showing that the disputed treatment is reasonable and necessary, and without substantial, corroborating and contemporaneous evidence, she has not met her burden, her claim for benefits cannot proceed.

$8,714.67 for vocational or academic training

72The applicant submitted that as a result of her serious physical and psychological accident-related injuries, the disputed OCF-18 is reasonable and necessary. The applicant also submitted that she submitted her claim as soon as she was told by the respondent that the benefit would be “covered”. The applicant argued the expense has been incurred and is reasonable and necessary.

73The respondent submitted that the applicant cannot proceed with her claim for this benefit, as she failed to submit an OCF-18 as required by sections 64(7) and 66 of the 2010 Schedule and the FSCO Guidelines.

74After reviewing the evidence and submissions of the parties, I find that the applicant has not shown that she submitted an OCF-18 to the respondent pursuant to the 2010 Schedule. As she has not complied with the requirement to do so, she cannot proceed with her claim for the disputed benefit.

75As discussed in this decision, the applicant must show that she actually submitted an OCF-18 to the respondent using the HCAI system in order for her claim to be considered received. Since the applicant was unable to do so, she has not met her evidentiary burden.

$2,847.50 for physiotherapy

76The applicant submitted that her treatment provider completed an OCF-18 on January 27, 2017, and was sent to the respondent on February 15, 2017. The applicant submitted receipt of the OCF-18 was confirmed by the respondent. Since the OCF-18 is based on the recommendations of the applicant’s health provider, the applicant submitted that the OCF-18 must be found to be reasonable and necessary.

77The applicant also submitted that the respondent failed to deny the OCF-18 properly and the OCF-18 should be found to be payable under section 38(11) of the 2010 Schedule.

78The respondent submitted that the applicant has not provided it with a complete OCF-18 via HCAI for the disputed benefit. The respondent submitted that the applicant’s former representative did email an incomplete, unsigned “draft” OCF-18 on January 27, 2017. However, it submitted that based on sections 64(7)4 and 66 of the 2010 Schedule and the FSCO Guidelines, the OCF-18 is not considered delivered as it was not sent via HCAI, and therefore, does not require a denial. Based on this, the respondent submitted the applicant’s claim should be dismissed.

79The applicant argued that the FSCO Guidelines are not applicable to this matter, as the legislation is only applicable to service providers and insurance companies. The applicant submitted that the respondent is obliged to reply to the OCF-18, even if it is incomplete.

80I find that the applicant is not entitled to the disputed OCF-18. Though I found the applicant’s interpretation of the FSCO Guidelines novel, it was not supported in legislation or case law. Instead, as previously discussed, I agree that in order for a respondent to be able to consider an OCF-18, it must be sent to the respondent via HCAI based on sections 64(7)4 and 66 of the 2010 Schedule and the FSCO Guidelines, similarly for the 2006 Schedule.

81In this case, I find that the applicant’s representative emailed the respondent an incomplete OCF-18. As this incomplete OCF-18t was not sent via HCAI, it is not considered “received” by the respondent. As this OCF-18 was never properly received, the respondent bears no obligation to provide the applicant with a denial based on section 38(8) of the 2010 Schedule and therefore the applicant is not entitled to payment for the benefit since she never properly sent the disputed OCF-18 to the respondent.

82I also disagree with her arguments based on section 38(11) of the 2010 Schedule. No evidence was provided that supported that the applicant, her service provider, or her former representative received approval or confirmation of receipt of the disputed OCF-18, followed up on this, or tried to address this between 2017 and October 2019, the date she filed her application with the Tribunal.

Interest and award

83Section 10 of R.R.O. 1990, Regulation 664, Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to the insured person , may award a lump sum of up to fifty percent of the amount to which the insured person was entitled to at the time of the award, with interest, on all amounts owing to the insured person.

84As I have found that no benefits are owing to the applicant, no interest or award is payable.

Costs

85The applicant also requested costs in her submissions, due to the respondent’s unreasonable, frivolous, vexatious or bad faith actions during the proceeding, pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure – October 2, 2017, as amended (”Rules”).

86Rule 19.2 provides that a request for costs can be made in writing or orally. Rules 19.4 states that a party must provide the reasons and particulars for costs. Rule 19.6 provides that the amount for costs shall not exceed $1,000.00 per full day of attendance at a motion, case conference or hearing.

87The applicant submitted that the respondent raised allegations in its Case Conference and throughout the Tribunal hearing process that were later withdrawn. The applicant also took issue with a rescheduled IE, as discussed above. The applicant requested $4,000.00 in costs related to the respondent’s conduct and costs related to medical records.

88The applicant detailed several issues she took with the respondent’s conduct during the hearing, including: service of the Case Conference Summary at least ten days before the Case Conference as required by the Rules, ; sending an email to the wrong email address; providing false and misleading information; raising “unreasonable, unsuitable and inapplicable arguments”; making objections; not offering a settlement; using adversarial tactics; making multiple, repetitive requests; a lack of respect; and not disclosing documents in a timely manner.

89The applicant submitted because she is a self-represented party, the respondent has a duty to accommodate and assist her throughout the hearing and that it failed to do so. Therefore, costs are appropriate.

90The respondent submitted that the applicant’s request for costs is unfounded, as the respondent has acted reasonably and in good faith throughout the hearing, and that her arguments are not supported by evidence.

91I find that the applicant is not entitled to costs. I highlight that Rule 19 states costs can only be requested in relation to the hearing proceeding, and not the IE process. Therefore, I did not consider the applicant’s requests for costs with respect to the IEs.

92With respect to the applicant’s issues with the respondent’s conduct during the hearing process, I noted that many of the issues raised by the applicant did not rise to the seriousness of Rule 19’s requirements of unreasonable, frivolous, vexatious or bad faith action. Though I empathize with the applicant’s frustrations with issues of service, email and disclosure, without evidence showing specific intention on the part of the respondent, I cannot conclude that these issues are more than human errors, which were addressed by the respondent in their submissions. I am not convinced that the late service of the Case Conference Summary amounts to this behaviour or using an incorrect email address on one occasion. I also noted that the applicant has not explained what prejudice or impact it had on the applicant’s participation in the hearing process.

93In terms of the applicant’s issues with the respondent’s alleged false and misleading information, use of adversarial tactics, arguments and objections, though I again understand the applicant’s frustrations with the process, I find that the applicant has not shown that this occurred. I was not presented with any evidence that the respondent’s conduct amounted to anything more than the respondent using allowable defences during the Tribunal’s proceeding and the respondent making attempts to resolve the issues in dispute by requesting the outstanding, required documents related to the applicant’s claim.

94Though I am aware that the applicant is self-represented, I also note that the applicant is more sophisticated than most self-represented parties. Examples of this include her ability to navigate and participate in the Case Conference, Preliminary Hearing, Motions and Reconsideration and hearing processes without major issues. The applicant was also able to produce detailed briefs, books of authority and synthesize the Tribunal’s caselaw.

95In terms of the applicant’s issues with the respondent’s lack of a settlement offer, insurers are not obliged to make offers, and the Tribunal lacks the authority to force either party to make a settlement offer. With respect to the applicant’s request for costs for her medical records, I find no authority within Rule 19 to do so as the costs Rule is based on behaviour, therefore, this request is denied.

96Finally, I considered the applicant’s submissions with respect to the respondent making multiple requests for the same documents. It appears this is related to the respondent requesting the above-discussed OCF-18s and financial records. Within the context of this hearing, these requests are appropriate, since if the applicant had provided these, many of the issues before the Tribunal would be resolved.

97I appreciate that there appears to be a disconnect between the applicant’s understanding of an OCF-6 and OCF-18, however, given the jurisdiction of the Tribunal, I have no authority to change the legislative requirements of the Schedule with respect to treatment plans. When looking at the crux of the issues in dispute, the applicant is required to request funding for treatment from the respondent in a very specific manner, as described in the Schedule; treatment must be sent on the required form, in this case, an OCF-18, and sent to the respondent via the HCAI system. Since the applicant has not provided evidence she complied with this, she cannot proceed with her application.

98The respondent also requests costs in the amount of $1,000.00 based on the applicant’s alleged five frivolous and unreasonable motions, requesting modifications to the ordered hearing process, including requesting extended deadlines, a hearing format change and other changes. It submitted that this cost represents a small percentage of the actual costs related to dealing with the respondent’s ongoing defences of this claim.

99The applicant submitted that the numerous motions were as a result of the respondent’s errors, and it is unreasonable for it to be claiming costs related to its own behavior.

100Though I comprehend the respondent’s arguments and position with respect to costs against the applicant, I decline to award them. In considering the test for costs, as seen in Rule 19.5, I considered: the alleged misconduct, whether the conduct was in breach of any Tribunal orders, or whether the parties’ behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to the other parties, and the potential chilling effect a cost award may have on individuals accessing the Tribunal system.

101As discussed above, the applicant was able to represent herself throughout the Tribunal’s preliminary, reconsideration and substantive hearing process with well structured written submissions, caselaw, legislation and evidence. I am also aware that she is self-represented, which does create a power imbalance between the parties.

102I am also aware that there has been some misunderstanding between the parties, which has led to numerous delays and frustration on both sides. However, as the respondent did not provide direct evidence that showed that the applicant purposefully acted in a manner that consists of unreasonable, frivolous, vexatious or bad faith actions during the proceeding, I will not award costs.

order

103The applicant is not entitled to an income replacement benefit at the rate of $400.00 per week from November 13, 2007, to August 10, 2008.

104The applicant is not entitled to $29,419.00 for various expenses.

105The applicant is not entitled to $1,624.00 for physiotherapy.

106The applicant is not entitled to $8,714.67 for vocational or academic training at the Adult Day School (“School of Management”).

107The applicant is not entitled to $2,847.50 for physiotherapy.

108The applicant is not entitled to interest on any overdue payment of benefits.

109The applicant is not entitled to an award.

110The applicant is not entitled to costs.

111The respondent is not entitled to costs.

112The applicant is dismissed.

Footnotes

1. 1O. Reg. 403/96 as amended.
2. 2Employment Insurance Act (S.C. 1996, c. 23).
3. 3Canada Pension Plan (R.S.C., 1985, c. C-8).
4. 4Income Tax Act (R.S.C., 1985, c. 1).
5. 5Income Tax Act, R.S.O. 1990, c. I.2.
6. 6QSZ v TD General Insurance Company, 2020 CanLII 30394 (ON LAT) at paras. 18, 19, 25, 26, 27 and 28.
7. 72016 CanLII 96165 (ON LAT) at paras. 24, 27 to 29.
8. 82014 ONFSCDRS 98 at paras. 29 to 30, 40 and 42.