Guo v. Aviva General Insurance Company, 2023 CanLII 62896

Licence Appeal Tribunal

Citation: Guo v. Aviva General Insurance Company, 2023 ONLAT 20-008905/AABS

Licence Appeal Tribunal File Number: 20-008905/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:

Jing Guo

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Julia Fogarty

APPEARANCES:

For the Applicant: Did not attend

For the Respondent: Bland McPherson, Claims Representative Jessica Bacopulos, Counsel

Court Reporter: Alyssa Scott Interpreters (Cantonese): Winnie Lai (May 29, 2023), Grace Chan (May 30, 2023)

HEARD by Videoconference: May 29-30, 2023

OVERVIEW

1Jing Guo, the applicant, was involved in an automobile accident on May 30, 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 benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2On May 29, 2023, the hearing was scheduled to commence at 9:30 A.M. via Zoom. I waited on the line while the Tribunal attempted to contact the applicant until 1:30 P.M. when we ended for the day. The following morning, May 30, 2023, we again waited from 9:30 A.M. until 10:00 A.M before proceeding with the hearing without the applicant.

ISSUES

3The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
2. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 1, 2020 to August 30, 2022?
3. Is the applicant entitled to an income replacement benefit in the amount of $343.00 per week from August 31, 2022 to date and ongoing?
4. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from October 29, 2019 to date and ongoing?
5. Is the applicant entitled to $1,477.12 for an apple watch, UV germicidal lamp and disposable facemasks proposed by Kim Jiwon in a treatment plan dated July 14, 2020?
6. Is the applicant entitled to the following assessments: (i) $3,051.00 for a chronic pain assessment proposed by Optimal Assessment Health Centre in a treatment plan dated March 11, 2020? (ii) $2,274.48 for a functional capacity assessment proposed by Optimal Assessment Health Centre in a treatment plan dated August 1, 2019?
7. Is the applicant entitled to $2,350.40 for physical rehabilitation proposed by Optimal Assessment Centre in a treatment plan dated June 8, 2019?
8. Is the applicant entitled to $2,632.32 for chiropractic treatment proposed by Viva Wellness and Rehab Centre in a treatment plan dated June 2, 2018?
9. Is the respondent entitled to a repayment of $8,232.00 relating to its payment of a Income Replacement Benefits the period of March 8, 2022 to August 29, 2022?
10. Is respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
11. Is either party entitled to interest on any overdue payment of benefits?

RESULT

4The applicant did not attend and presented no evidence; she has therefore not met her burden of proof to establish her claims for issues 1-8 and 10-11 listed above. As such, the applicant's claims for income replacement benefits, attendant care, medical devices, a chronic pain assessment, a functional capacity assessment, physical modality treatment plans, an award under s.10 of O. Reg. 664 and a catastrophic impairment determination are dismissed.

5The respondent's claim for repayment of income replacement benefits in the amount of $8,232.00 is granted. Interest is to be paid based on the Bank of Canada rate on September 15, 2022, compounded monthly and prorated by day, until the full balance is repaid to the insurer.

ANALYSIS

Proceeding in Absentia

6It is well-settled that the Tribunal is entitled to control its own procedure¹ and is entitled to deference on matters requiring the exercise of discretion.² On May 30, 2023, I proceeded with the hearing of this matter in absentia when the applicant did not attend two consecutive days of a 5-day hearing.

Facts

7On May 29, 2023 the respondent, respondent's lawyer, a Cantonese interpreter and a court reporter attended before me at 9:30 AM to commence the 5-day hearing between Jing Guo and Aviva General Insurance Company. Due to technical issues the Tribunal was unable to start contacting the applicant until approximately 11:40 AM to further remind her to attend the Zoom hearing. I provided the applicant with a 2-hour grace period in which to attend on May 29, 2023 following the Tribunal's efforts to contact the applicant on top of the approximately three hours the parties waited in the morning.

8On May 30, 2023, again, the respondent, the respondent's lawyer, a Cantonese interpreter and a court reporter all attended before me at 9:30 AM for the second scheduled day of the hearing. When the applicant did not appear by 10:00 AM, after a 30-minute grace period, we proceeded with the hearing in absentia on the issues listed in the case conference orders in this matter pursuant to s.7 of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, s.7.

9The parties remained on the line for approximately five and a half hours over the course of two days to allow the applicant or her representative time to appear prior to proceeding in her absence.

10To proceed in absentia the parties shall be given reasonable notice of the hearing by the Tribunal.³ Notice shall include the time, place and purpose of the hearing as well as a statement that if the party does not attend the hearing the Tribunal may proceed in the party's absence and the party won't be entitled to any further notice in the proceeding.⁴ The applicant and her counsel were provided with proper notice of the hearing, as follows:

1. The Zoom link to attend was provided on May 25, 2023 at 4:12 PM in an email sent to guojing1975@gmail.com enclosing a Videoconference User Guide;
2. A notice of videoconference hearing was also sent to the applicant on November 18, 2022 which detailed that a hearing was booked for May 29 to 31, 2023 and June 1 and 2, 2023. The start time indicated was 9:30 AM EST;
3. On the day of the hearing the Tribunal additionally contacted the applicant to further remind her that her presence was needed at or around 11:45 AM. The applicant was given another 2-hour grace period to allow her time to attend.
4. The following day, May 30, 2023, the parties again allowed for a 30-minute grace period for the applicant to attend. The applicant did not appear either on May 29 or 30, 2023 nor did she respond or answer any contact from the Tribunal. Following the expiry of this second grace period the Tribunal proceeded to hear this matter in absentia.

11The applicant did not request an adjournment. The file before me was 1028 days old concerning an accident that took place on May 30, 2018. Additionally, it was adjourned three times leading up to this appearance; twice at the case conference level and once at the hearing level.

12It was advanced by the respondent's representative that the applicant had abandoned the application. Respondent's counsel pointed to the letter to the tribunal on May 16, 2023 from applicant's prior lawyer to advise that there had been no communication from the applicant since January 5, 2023.

13As a result of the described circumstances, and the prior history of adjournments already on this matter, the hearing proceeded on May 30, 2023 after giving the applicant a 2 hours and 30 minutes grace period to join the videoconference hearing. This period is in addition to the 3 hours the parties waited on Zoom while the Tribunal experienced technical issues. Together, the applicant was given 5 hours and 30 minutes to join the hearing prior to the Tribunal proceeding in her absence.

Applicant's Claims

14The burden of proof rests with the applicant to demonstrate entitlement. If the applicant fails to adduce any relevant evidence at the hearing to support their claim to the disputed benefits, then they have not shown on a balance of probabilities their entitlement to the claimed benefits.

15The onus was on the applicant to prove her claims. Since the applicant did not attend the hearing, called no evidence and made no submissions in support of her claims, she failed to prove her entitlement on a balance of probabilities.

16As such, the applicant's claims are denied. The only claim which proceeded is the respondent's claim for repayment of benefits and interest.

Repayment of Benefits

17As part of the application before this Tribunal the respondent is seeking the following:

1. repayment of $8,232.00 relating to its payment of a Income Replacement Benefits the period of March 8, 2022 to August 29, 2022; and
2. Interest on any overdue payment of benefits.

18The respondent adduced evidence from two private investigators, Nicholas Vicount and Jonathan Fraser, and the claims adjuster, Bland McPherson, responsible for handling the applicant's file, to establish its entitlement to repayment of benefits.

19To show that the respondent is entitled to repayment of income replacement benefits, the respondent must meet the following:

1. Under section 52(1) of the Schedule, an applicant is liable to repay any amounts to an insurer that were paid to them "as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud".
2. Under section 52(2)(a) of the Schedule, the insurer must give notice of the amount to be repaid.
3. Under section 52(3) of the Schedule, the insurer must give notice within 12 months after payment of the amount that is to be repaid or the person who receives the notice is not liable to repay the amount unless it was originally paid to the person through fraud or wilful misrepresentation.
4. Under section 52(5) of the Schedule, the insurer can charge interest starting on the 15th day after notice is provided and ending when repayment is received in full. This interest is to be calculated at the bank rate in effect on the 15th day after the notice is sent.
5. Under section 52(6) of the Schedule, the bank rate refers to the rate established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the banks listed in Schedule I to the Bank Act (Canada).

20As the applicant did not attend, called no evidence, and made no submissions, she failed to prove her entitlement to income replacement benefits on a balance of probabilities. The respondent called witnesses and led evidence to show that the applicant misrepresented that she was unable to work as well as the quantum of what she was paid during the time she received income replacement benefits. The applicant's claims to entitlement for income replacement benefits were directly contradicted by video evidence showing her attending 10 to 12 hour shifts at various spas during the period she received income replacement benefits from the respondent.

21The private investigators led evidence that the applicant was working March 8, 2022 to August 17, 2022. Video shows the applicant being driven by her partner to two different spas and, on at least one occasion, accessing a lock box to access a key to open the business early in the morning. I find, based on a review of the respondent's video evidence, that it is clear the applicant was working during the time period advanced by the respondent.

22The claims adjuster clarified that a notice of repayment was sent to the applicant within a year, and more particularly, 14 days after receiving the final surveillance, on August 31, 2022. This letter provided the applicant with a 30-day grace period prior to the accrual of interest. Interest was set to begin on September 30, 2022. The letter provided proper notice, it was admitted as an exhibit and it was received by the applicant. The respondent called the claims adjuster, Bland McPherson, to testify to the amount of repayment and the notice provided to the applicant by the respondent.

23According to the Schedule, the respondent appropriately notified the applicant of their intention to seek repayment and interest during the time period. The respondent also established, through video evidence, that the applicant misled the respondent as to her inability to work. Since she was working during this period she fraudulently claimed income replacement benefits. As such, she is ordered to repay the balance of $8,232.00 plus interest.

24Interest is to be calculated based on the bank rate on September 15, 2022, compounded monthly and prorated by day, until full payment of the outstanding balance is received. The first day on which interest is to accrue is September 30, 2022 based on the notice of the grace period provided by the respondent to the applicant in their letter dated August 31, 2022.

ORDER

25The Tribunal orders the following:

i. $8,232.00 be payable from the Applicant, Jing Guo, to the respondent, Aviva General Insurance Company;

ii. Interest is to be paid by the Applicant, Jing Guo, to the Respondent, Aviva General Insurance Company, on the balance owing of $8,232.00 at the Bank of Canada's banking rate on September 15, 2022, compounded monthly and prorated by day, until the balance is paid in full commencing September 30, 2022; and

iii. The applicant, Jing Guo's', claims for income replacement benefits, attendant care, medical devices, a chronic pain assessment, a functional capacity assessment, physical modality treatment plans, an award under s.10 of O. Reg. 664 and a catastrophic impairment determination are dismissed.

Footnotes

1. 1Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), s. 25.0.1(a)
2. 2Riddell v. Huynh, 2019 ONSC 2620 (Ont. Div. Ct.), at para. 33.
3. 3SPPA, supra, ss. 6(1), 6(5).
4. 4SPPA, supra, s. 7(3).