Citation: Selvarajah v. Unifund Assurance Company, 2024 ONLAT 21-004318/AABS

Licence Appeal Tribunal File Number: 21-004318/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:

Harold Selvarajah

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Raj Bhangal, Student-at-Law

For the Respondent:

Geoffrey Keating, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Harold Selvarajah (the “applicant”) was involved in an automobile accident on June 10, 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 Unifund Assurance Company (the “respondent”) and applied to the Licence Appeal Tribunal Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to the following medical and rehabilitative benefits proposed by Downsview Health:

a. Chiropractic treatment in the amount of $2,076.71, in a treatment plan (“OCF-18”) denied on September 21, 2020;

b. Shockwave therapy in the amount of $900.00 in an OCF-18 denied on December 3, 2020;

c. A chronic pain program in the amount of $12,918.49, in an OCF-18 denied on December 8, 2020;

d. Psychological treatment in the amount of $3,335.98, in an OCF-18 denied on March 4, 2021;

e. A chronic pain assessment in the amount of $2,000.00, in an OCF-18 denied on October 5, 2020; and

f. A psychological assessment in the amount of $2,000.00, in an OCF-18 denied on October 14, 2020?

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

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

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18s or interest. No award or costs are payable. The application is dismissed.

PROCEDURAL ISSUE

4The respondent requests that the Tribunal dismiss the proceedings without a hearing pursuant to Rule 3.4 of the Licence Appeal Tribunal Rules.(“Rules”). I decline to do so.

5Rule 3.4 says the Tribunal may dismiss an appeal without a hearing on several grounds, and the respondent points to two of these, including: 3.4(a) the appeal is frivolous, vexatious, or commenced in bad faith, and 3.4(d) the applicant is found to have abandoned the hearing.

6For context, the applicant filed a motion on December 29, 2022, that requested the Tribunal convert the three-day videoconference hearing (scheduled to start on January 3, 2023) to a written format. The motion order issued to the parties on December 29, 2022, granted the applicant’s request to change the format to a written hearing. The Tribunal ordered that written submissions and evidence were due from the applicant 30 calendar days before the hearing date, and 14 calendar days before the hearing date for the respondent. The notice of written hearing issued by the Tribunal to the parties on February 23, 2023, indicated the written hearing would proceed on October 13, 2023. Both the applicant and the respondent filed their respective submissions on September 29, 2023.

7The respondent asserts that the applicant failed to file or serve his submissions and evidence in accordance with the due date ordered by the Tribunal. The respondent explains that at the time it filed its submissions in accordance with the Tribunal’s order, the respondent had still not received the applicant’s written submissions and evidence. The respondent reasons that the applicant has therefore abandoned the proceedings. The respondent alternately submits the proceedings have become frivolous and/or vexatious because the applicant provided no submissions or evidence to support his MIG or award claim, or that establish the disputed medical benefits are reasonable and necessary.

8The applicant concedes he did not file his submissions or evidence as ordered by the Tribunal. The applicant says this was an inadvertent error owing to mis-diarizing the due date for written submissions and asserts it would be highly prejudicial for the Tribunal to dismiss his appeal without a hearing due to inadvertence and extenuating circumstances. The applicant says the motion he filed in December 2022 to change the hearing format along with the fact he did file submissions prior to the start of the hearing should stand as evidence that he did not intend to abandon the proceeding.

9I agree with the applicant. While his submissions were late, they were nevertheless received prior to the start of the hearing, and I accept this does not constitute abandonment. I also accept the applicant’s explanation for filing his submissions late, and agree that inadvertence, in and of itself, does not constitute a frivolous or vexatious appeal.

ANALYSIS

The applicant fails to demonstrate he should be removed from the MIG, or his entitlement to the disputed OCF-18s.

10I find the applicant has failed to meet his onus to show removal from the MIG is warranted, or his entitlement to the OCF-18s at issue.

Contextual background

11For context, the applicant requehe applicant asked the Tribunal to extend the written submission deadlines so the respondent would have an opportunity to file submissions on the merits, and for the applicant to make a reply. The applicant submitted that the adjsted a 17-day adjournment of proceedings on October 3, 2023. Tournment was required to permit an adequate hearing to be held; to facilitate a fair, open, and accessible process; to allow for effective participation; and to ensure the appeal is resolved on the merits. The applicant asserted that Rule 3.1 and section 21 of the Statutory Powers Procedure Act (“SPPA”) supported his requests. The applicant relied on Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”) to show the Tribunal should interpret and apply both the Rules and enabling legislation from the perspective of consumer protection.

12The respondent’s position was unknown at the time the Tribunal considered the applicant’s adjournment request.

13The Tribunal issued an adjournment order on October 10, 2023. The Tribunal rejected the applicant’s submissions and ordered the hearing to proceed as scheduled. The Tribunal reasoned that it had provided the parties with a fair process that is consistent with the SPPA, the Rules, and its duty of procedural fairness. The Tribunal indicated it had ordered the change in hearing format requested by the applicant and provided the parties with more than seven months notice of the written hearing date, which was ample time to prepare their submissions. The Tribunal found that the applicant’s delay in filing his submissions was not the result of a defect in this process, but rather his failure to comply with it.

What does the applicant need to prove to be removed from the MIG and receive medical benefits?

14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

15Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule further explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

Submissions of the parties

16The respondent asserts that, at the time it filed its submissions, the applicant had not led submissions or evidence to support his claim, and relies on Scarlett v Belair Insurance, 2015 ONSC 3635 (Scarlett) to show that the burden of proof for accident benefit claims rests with the applicant. The respondent goes on to say that allowing the applicant to rely on any submissions or evidence it may provide subsequent to the respondent’s filing would amount to significant prejudice and a breach of procedural fairness. The respondent says that the Tribunal’s December 2022 motion order does not permit the respondent an opportunity to address any evidence or arguments the applicant may later file. The respondent therefore maintains it has been denied the opportunity to respond to the position taken against it, and relies on Certas Direct Insurance Co. v. Gonsalves, 2011 ONSC 3986 (“Gonsalves”) to show that procedural fairness requires that a party have an opportunity to be heard and be able to respond to the position taken against it.

17The applicant argues that the respondent’s submissions are incorrect. The applicant says he addressed the applicability of the MIG and explains that his submissions indicate he suffers accident-related chronic pain with functional impairment as well as psychological injuries. The applicant contends this is substantiated with medical evidence that includes a chronic pain diagnosis offered by Dr. Dimitri Louvish (physician) and diagnoses of an adjustment disorder and a driving-related phobia by Dr. Jacqueline Brunshaw (psychologist). The applicant also submits he provided copies of all the disputed OCF-18s in his evidence brief, and that his submissions point to medical evidence that show the treatment proposed in these OCF-18s is reasonable and necessary.

Application of Gonsalves and Scarlett

18In my view, the applicant’s submissions on the respondent’s position are flawed. He takes the implicit approach that the respondent’s submissions were informed by his own submissions and evidence when, in fact, they were not. I accept the respondent had not received the applicant’s submissions or evidence prior to filing its submissions, and that this impeded the respondent’s ability to know the case against it at the time it made its submissions. The respondent was not afforded an opportunity via the Tribunal’s December 2022 motion order or its October 2023 adjournment order to make any further submissions in this proceeding. The Tribunal is bound by Gonsalves and I find it applies here—procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.

19While the Tribunal would normally invite the respondent to file a sur reply to cure the prejudice it faced due to the late filing, in this case, I find no reason to do so because the applicant has fallen short of the burden that Scarlett confirms is his to bear. The applicant’s submissions do not pinpoint the evidence he relies on to prove his case as required by the July 2022 case conference report and order (“CCRO”) for this matter. The CCRO directs the parties to index and consecutively page-number their document briefs. The applicant did not do this. The CCRO also stipulates that submissions shall make specific reference to the evidence by tab and page number. The applicant failed to do this as well. For example, the applicant’s submissions on the MIG broadly reference Dr. Louvish’s 18-page report to show he developed chronic pain syndrome and had not resumed pre-accident housekeeping and home maintenance tasks due to ongoing post-accident pain symptomology. Similarly, the applicant relies on Dr. Brunshaw’s diagnoses of an adjustment disorder and driving phobia to show he experienced accident-related psychological impairment without pinpointing where this evidence is located in Dr. Brunshaw’s 16-page report. Submissions are not evidence, and the Tribunal cannot reasonably be expected to comb through reports to find the evidence the parties rely on to support their arguments.

20Further, the three entries (i.e., December 12, 2015; November 30, 2016; and December 26, 2022) in the clinical records of Dr. Vadivelu Santhakumar (family physician) that were highlighted in the applicant’s submissions offer little assistance in proving the applicant’s claim because they speak to medical issues unrelated to psychological difficulties contemporaneous to the accident, pain pertaining to accident-related injuries, or functional limitations owing to pain. The applicant’s submissions that pertain to his 31-page Ontario Health Insurance Program (“OHIP”) report carried little weight because the applicant does not point me to specific entries he relies on to show he sustained chronic pain with functional impairment owing to the accident. Again, the applicant bears the onus to prove his case and cannot expect the Tribunal to conduct its own analysis of the evidence to determine whether his position has merit.

21Given the applicant’s procedural missteps and the failure of his untimely submissions to specifically direct the Tribunal to the evidence he relies on to support his claim, I find the applicant has failed to demonstrate he should be removed from the MIG. It therefore follows that it is not necessary to determine whether the disputed OCF-18s are reasonable and necessary.

Interest

22Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue benefits in this case, and therefore no interest is payable.

Award

23The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As there is no evidence of an unreasonably withheld or delayed benefit in this case, the respondent is not liable to pay an award.

Costs

The respondent fails to show that the applicant’s conduct merits costs.

24I decline to award costs to the respondent.

25Rule 19.1 provides that a party may make a request for costs where it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 establishes that when considering a cost request, 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's ability to carry out a fair, efficient, and effective process;

iv. Prejudice to other parties; and

v. The potential impact an order for costs would have on individuals accessing the Tribunal system.

26The respondent submits the applicant acted unreasonably, frivolously, and/or in bad faith by failing and/or refusing to comply with his submission deadline as ordered by the Tribunal in December 2022. The respondent says it should be entitled to costs of $1,000.00 for its attendance at the case conference and written hearing.

27The applicant submits his inadvertence does not reach the level of conduct contemplated by Rule 19. He asserts he did not act unreasonably, frivolously, vexatiously, or in bad faith, and describes the lateness of his submissions as a “very unfortunate but inadvertent mistake” caused by mis-diarizing his due date.

28While I agree the applicant breached the Tribunal’s order, I am not convinced the respondent has shown that the seriousness of this misconduct reaches the level of awarding costs, nor that the applicant’s conduct interfered with the Tribunal’s processes to such a degree that costs would be a reasonable remedy. The outcome of the applicant’s appeal poses no prejudice to the respondent. I accept that the applicant’s failure to serve and file his submissions and evidence in compliance with the Tribunal’s orders was an inadvertent mistake that is distinguished from the higher bar of deliberate misconduct, which would merit an award for costs. I therefore decline to grant the respondent’s request for costs.

ORDER

29The applicant remains in the MIG and is not entitled to the disputed OCF-18s or interest. No award or costs are payable. The application is dismissed.