Laframboise v. Co-operators General Insurance Company, 2024 CanLII 106244

Citation: Laframboise v. Co-operators General Insurance Company, 2024 CanLII 106244

Licence Appeal Tribunal File Number: 23-007266/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:

William Laframboise Applicant

and

Co-operators General Insurance Company Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: William Laframboise, Self-represented

For the Respondent: Tim Gillibrand, Counsel

HEARD: by Videoconference: July 3 and 4, 2024

OVERVIEW

1William Laframboise, the applicant, was involved in an automobile accident on March 22, 2023, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?

SUBSTANTIVE ISSUES

3The issues to be decided in the hearing are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from March 22, 2023, to ongoing? ii. Is the applicant entitled to $45.00 for ambulatory services, submitted on a claim form (OCF-6) dated March 23, 2023? iii. Is the applicant entitled to interest on any overdue payment of benefits? iv. Is the respondent entitled to costs? This issue was not identified as a substantive issue at the case conference and was added verbally by the respondent in closing submissions.

RESULT

4For the reasons that follow, I find:

v. that the respondent was not involved in an accident as defined by s. 3(1) of the Schedule. vi. The applicant is not entitled to any of the benefits in dispute. vii. The applicant does not owe costs to the respondents. viii. The application is dismissed.

PROCEDURAL ISSUES

5At the beginning of the hearing, the respondent raised an objection to the calling of six witnesses by the applicant.

i. The applicant had not submitted any witness names at the case conference held January 29, 2024. The applicant submitted six names on or about June 3, 2024. ii. The applicant stated that the proposed witnesses did have material information important to his case and he would still like to arrange for three of the six to attend and provide testimony. The applicant submitted that he would like to call Daniel Tye (intervening, post accident witness), Devin King (licensed mechanic with prior knowledge of an involved vehicle) and Don Miller (licensed mechanic). iii. The respondent maintained their objection to the calling of these witnesses submitting that the mechanics were non-credentialed experts in disguise and that Mr. Tye had no material knowledge of the accident. iv. While the list of witnesses was not identified at the case conference, the submission of the list a month prior to the hearing provided ample opportunity for the respondent to be prepared. The applicant’s submissions are limited. The calling of these witnesses does not prejudice the respondent. v. I find that the applicant may call the three witnesses with the understanding that the mechanics will not be viewed as experts as they have not been submitted properly as experts and have not filed any reports with the Tribunal.

6At the beginning of the second day of the hearing, after the applicant had rested their case, the applicant questioned the timing of submissions by the respondent, suggesting that they were late and did not provide him sufficient time to prepare. In particular, the applicant questioned the timing of the respondent’s production of the examination under oath.

i. The examination under oath was taken April 11, 2024, and was served on the applicant May 23, 2024, and filed with the Tribunal June 25, 2024. Exploring the details around submission of the full brief I find that the respondent made three submissions, the first on April 29, 2024, the second on May 23, 2024, and then finally, an amalgamation of the prior submissions into a single document on June 25, 2024. As per rule 9.2 of the Common Rules of Practice and Procedure, the final submission was made two days late, which was reported as an inadvertent error. ii. The applicant raised this issue at an inopportune time as the evidence had already been viewed and utilized during the first day of the hearing. At the beginning of the hearing the parties were asked if there were any issues with the submissions and none were raised. iii. I find that this examination under oath is of the applicant and therefore he is aware of his remarks during the examination. iv. I find that the applicant was served the examination under oath with sufficient time to be prepared. While the final submission was made two days late, I find that the tardy submission was an inadvertent error, and that the materials were by this time an amalgamation of materials that had previously been served and filed.

ANALYSIS

Was the applicant involved in an accident?

7For the reasons that follow I find that the applicant was not involved in an accident as defined by s. 3(1) of the Schedule.

8Was the applicant involved in an "accident", as defined in s.3(1) of the Schedule? The prevailing decision in ‘is it an accident’ cases such as this is Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) which sets out the “purpose test” and the “causation test”; in the circumstances of this case the purpose test will be the focus as causation is not in dispute. The purpose test asks whether the accident in question resulted from the ordinary and well-known activities to which automobiles are put; coverage by automobile insurance does not extend to any and every use to which a car may be put, it has to be determined whether the vehicle was being used in a manner that would be covered by the insurance at all.

9The applicant claims that he was involved in a motor vehicle accident on March 22, 2023, and denies that the collision was staged. The applicant relies on his testimony and the testimony of Daniel Tye, Devin King, and Dan Miller. The applicant bears the onus to prove that he was involved in an accident and that he is entitled to accident benefits.

10The respondent submits that the applicant made material misrepresentations regarding a staged accident on March 22, 2023, and that the applicant was not involved in an accident as defined in s. 3(1) of the Schedule. The respondent relies on the applicant’s examination under oath and the testimony of the respondent’s investigator Jeffery Booth as well as the expert report and testimony of Dylan Rochon from ROAR Engineering.

11The applicant has not submitted any persuasive or substantive evidence that this was an accident according to the Schedule. The applicant claimed during his testimony that he doesn’t really recall the accident.

12A collision did occur on March 22, 2023; the applicant was injured in that incident, there is no dispute regarding these facts. The heart of the matter in this situation is whether the applicant was utilizing his truck for an ordinary and well-known use too which automobiles are put.

13It is agreed facts that approximately one week prior to the accident, the applicant negotiated the purchase of the jeep that collided with his truck on March 22, 2023; that the applicant attended the seller’s location with James Courtis, the driver of the Jeep that collided with the applicant; that the applicant towed the un-plated, uninsured vehicle from the seller’s location to the neighbourhood were the uninsured and unlicensed Mr. Courtis lives and in which the applicant was later hit.

14I agree with the respondent, on a balance of probabilities the applicant purchased the Jeep. The respondent submits that the applicant is the true purchaser of the Jeep and points to ATM withdrawals in the week prior as the source of the funds for the purchase.

15I agree with the respondent, the applicant had no reason to be in the city and neighbourhood where he was collided with. The applicant has, on different occasions, reported different reasons as to why he may have been in that neighbourhood two hours from his home, none of which have been supported with any evidence. The applicant has offered that he was there to hunt for scrap, and/or to ‘maybe’ pick-up a lamp his wife had purchased on Facebook and/or to collect remuneration for his assistance in purchasing and towing the jeep. The respondent submits that the only reason the applicant was in that neighbourhood at that time was to intentionally collide with Mr. Courtis.

16I agree with the respondent that the purpose of the calls just prior to the collision was, on a balance of probabilities, to initiate the collision. The respondent submitted phone records indicating that the applicant called Mr. Courtis briefly in the minutes prior to the collision. The applicant does not recall the phone call with Mr. Courtis and offered only the possibility that he was in the area and recalled that he was owed remuneration for his support of the Jeep purchase. The phone records indicate the applicant called Mr. Courtis at 2:23pm for three minutes, then Mr. Courtis, four minutes later, called the applicant for one minute. The collision occurred a few minutes later.

17The applicant called Daniel Tye, who testified that he did not see the incident, and offered no testimony regarding the issue in dispute.

18The applicant called Devin King and Dan Miller, both ‘red seal’ auto mechanics, their testimony focused on the energy management system of vehicles like the applicant’s truck and was not relevant to the issues in dispute.

19I agree with the respondent that the unrecorded airbag deployment suggests, on a balance of probabilities, that the airbag was tampered with and did not deploy as a result of the side-impact collision by the Jeep. The respondent called Dylan Rochon and submitted his curriculum vitae in support of his expert status in auto crash reconstruction. I accept that Mr. Rochon is an expert in auto crash reconstruction. Mr. Rochon’s report and testimony focusses on the state of the applicant’s vehicle following the collision. In summary Mr. Rochon demonstrated that while the steering wheel-based air bag had been deployed the Airbag Control Module which stores data related to any deployment did not indicate that a deployment had occurred. The conclusion by Mr. Rochon is that the collision occurred while the applicant’s vehicle was stationary and likely powered off.

20I agree with the respondent, on a balance of probabilities, the applicant had positioned himself within the intersection with the intention of being hit by Mr. Courtis and that Mr. Courtis entered the intersection with the intent to collide with the applicant. The respondent submits that the collision location, in the virtual centre of the T-intersection is implausible. The respondent also submits that Police reports as well as the report by Dylan Rochon highlight that there were no braking skid marks by the Jeep prior to the collision.

21Purposefully engaging in a collision is not the ordinary and well-known activities to which automobile is put.

Is the applicant entitled to income replacement and ambulatory services benefits?

22As the applicant was not involved in an accident, there is no need to explore the substantive issues raised by the applicant as he was not in an accident and therefore not entitled to accident benefits under the Schedule.

Is the respondent entitled to costs from the applicant?

23I find that the request for costs is unsuccessful and do not award costs to the respondent.

24In closing submissions, the respondent submitted that costs should be awarded at the maximum amount per day as the applicant was not involved in an accident and wasted the resources of the respondent and tribunal by bringing this dispute.

25The Tribunal’s authority to award costs comes from Rule 19 of the Tribunal’s Common Rules of Practice and Procedure.

26Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and amount of costs. The Tribunal shall consider all relevant factors including:

i. The seriousness of the misconduct. ii. Whether the conduct was in breach of a direction or order issued by the Tribunal. iii. Whether or not a party’s behaviour interfered with the Tribunal ability to conduct a fair, efficient, and effective process. iv. Prejudice to the other parties, and, v. The potential impact an order for costs would have on individuals accessing the Tribunal system.

27According to the respondent, the applicant proceeded with this dispute in bad faith as no accident had occurred. The respondent suggests that the applicant staged the accident, and this misconduct is very serious.

28The applicant was unable to make submissions against this late raised request for costs as the applicant had previously made their closing submissions.

29Exploring the question of whether costs should be awarded through the lens of Rule 19.5:

i. I have found that the applicant was not involved in an accident as defined by the Schedule. ii. There was no breach of a direction or order issued by the Tribunal. iii. The applicant’s behaviour did not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. iv. I do not see any prejudice to either party. v. An order for costs against a self-represented party may have a chilling affect on those seeking the Tribunal’s services in the future.

ORDER

1For the reasons above, I find:

i. that the respondent was not involved in an accident as defined by s. 3(1) of the Schedule. ii. As the applicant was not involved in an accident, he is not entitled to any of the benefits claimed in the application. iii. The applicant does not owe costs to the respondent. iv. The application is dismissed.