Citation: Biniaz-Sarabi v. Gore Mutual Insurance Company, 2024 ONLAT 22-009319/AABS

Licence Appeal Tribunal File Number: 22-009319/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:

Aynoush Biniaz-Sarabi

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Aynoush Biniaz-Sarabi, Applicant, Self-represented

For the Respondent:

Peter Durant, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Aynoush Biniaz-Sarabi, the applicant, was involved in an automobile accident on October 24, 2017, 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, Gore Mutual Insurance Company, 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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 31, 2017, to date and ongoing?

ii. Is the applicant entitled to caregiving benefits in the amount of $250.00 per week from November 1, 2017, to date and ongoing?

iii. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $25,000.00?

iv. Is the applicant entitled to case manager services in the amount of $25,000.00?

v. Is the respondent liable to pay an award in the amount of $1 million under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

vii. Is the respondent entitled to costs from the applicant, pursuant to Rule 19.1 of the Common Rules of Practice & Procedure?

RESULT

3The applicant is not entitled to any of the benefits in dispute, interest, or an award. The respondent is not entitled to costs. This application is dismissed.

PROCEDURAL ISSUES

Applicant’s submission length and delay

4The respondent submits that the applicant’s submissions are not compliant with the Tribunal’s Case Conference Report and Order of May 4, 2023 (“CCRO”) and submits that they are not admissible. It submits that the CCRO limited the applicant’s submissions to 12 pages, and they were due 30 days prior to February 9, 2024. However, the applicant’s submissions were 18 pages in length and submitted 12 days late, on January 22, 2024. It submits that this led to significant prejudice as it had to greatly condense the time it took to prepare responding materials (7 days instead of 16).

5The respondent has not explained how its ability to participate in this proceeding has been prejudiced by the applicant exceeding the page limits. While I appreciate that the respondent had less time, it appears it was able to prepare fulsome submissions with respect to all of the issues in dispute in that truncated period of time. It is important that parties follow Tribunal orders. However, when considering the prejudice to both parties, I find that excluding the entirety of the applicant’s submissions would be unduly prejudicial and contrary to procedural fairness, as it would effectively bar the applicant from participating in these proceedings. I therefore decline the respondent’s request to strike the applicant’s submissions.

Applicant’s request for the respondent to provide a copy of Divisional Court case

6In the applicant’s reply submissions, she requests that the Tribunal make an order for the respondent to produce a decision of the Divisional Court which was referred to by the respondent but, she submits, not included in its brief. She submits that neither the respondent nor the registrar at the Oshawa courthouse provided her with a copy of the decision.

7The respondent included a copy of this decision at Tab 4 of its submissions. I therefore do not need to order the respondent to produce a copy to the applicant.

Respondent’s request for costs

8The respondent has requested costs against the applicant. Pursuant to Rule 19.2 of the Common Rules of Practice & Procedure, a request for costs may be made to the Tribunal at a hearing at any time before the decision or order is released. I have accordingly added costs as an issue above.

Applicant’s request for an order compelling the respondent to determine her impairments

9The applicant requests an order that the respondent determine the applicant’s impairments and her “Whole Person Impairment” in accordance with s. 3.1 of the Schedule. She argues that the respondent has failed to request that a qualified physician examine her to determine her impairments and disability.

10It is settled law that the applicant bears the burden of proving entitlement to accident benefits on a balance of probabilities. An insurer does not have an obligation to examine an insured person. The respondent is under no obligation to prove that the applicant is or is not entitled to a claimed benefit, nor does it have an obligation to prove that the applicant is or is not catastrophically impaired. As such, the Tribunal does not have the authority to order that the respondent arrange to examine the applicant or make a determination regarding whether the applicant is catastrophically impaired. I accordingly decline to add this as an issue for the hearing.

ANALYSIS

Income Replacement Benefit

11I find that the applicant is not entitled to an income replacement benefit.

12To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must have been employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

13To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

14The respondent submits that the doctrine of res judicata applies to the disputed IRB, and therefore the applicant is not entitled to the benefit. The applicant made reply submissions, but did not address the issue of res judicata.

15The doctrine of res judicata prevents a party from relitigating an issue that has already been decided: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. As summarized in Amalathasan v. Certas Home and Auto Insurance, 2023 CanLII 17707 (“Amalathasan”), four preconditions must be established before the Tribunal can exercise its discretion to apply res judicata:

i. The parties must be the same in both actions;

ii. The prior claim must be within the jurisdiction of the Court/Tribunal;

iii. The prior adjudication must have been on the merits; and

iv. The prior decision must have been a final judgment.

16The applicant previously applied to the Tribunal and a decision was rendered on January 23, 2023, after a four-day oral hearing (Sarabi v. Gore Mutual Insurance Company, 2023 CanLII 4459). The applicant requested a reconsideration of that decision, but this was denied (Biniaz-Sarabi v. Gore Mutual Insurance Company, 2023 CanLII 55985). The applicant also appealed to the Divisional Court, which upheld the Tribunal’s initial decision (Biniaz-Sarabi v. Gore Mutual Insurance Company, 2023 ONSC 5379).

17An issue in dispute in those proceedings was whether the applicant was entitled to an income replacement benefit in the amount of $375.00 per week from May 26, 2019, to date and ongoing. The Tribunal found that the applicant was not entitled to IRBs.

18The applicant’s entitlement to IRBs is in dispute at this hearing as well. The applicant received an income replacement benefit in the amount of $375.00 per week from October 21, 2017, to May 22, 2019. The CCRO states that the parties dispute the quantum of the benefits that should have been paid during that period, however neither party made any argument in this hearing regarding the quantum of this benefit, so that issue does not actually appear to be in dispute. Thus, I find that the issue before me, namely whether the applicant is entitled to IRBs after they were stopped by the respondent, is the same issue that was decided by the Tribunal previously.

19I find that the four preconditions as set out in Amalathasan have been met in this case and the doctrine of res judicata applies. The parties are the same. The prior claim is within the Tribunal’s jurisdiction. The 2023 decision was on the merits. It was a final judgment and was upheld on reconsideration and by the Divisional Court.

20Pursuant to the decision in Toronto (City) v. CUPE Local 79, 2003 SCC 63, res judicata can be waived in the following situations:

i. The first proceeding is tainted by fraud or dishonesty;

ii. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

iii. When fairness dictates that the original result should not be binding in the new context.

21There is no evidence before me that the first proceeding was tainted by fraud or dishonesty. There are no updated or new documents before me that would conclusively impeach the original results; in fact, there are no medical records or reports past 2020 before me. No submissions were made regarding whether it would be unfair for the original result to be binding. I accordingly find that there is no reason to waive res judicata. The applicant remains bound by the previous determination of the Tribunal that she is not entitled to an income replacement benefit.

22For the sake of completeness, the respondent also argues that the applicant filed her application more than two years after the denial of this benefit, and she is therefore barred pursuant to s. 56 of the Schedule from proceeding with this application. The applicant did not make any submissions in response to this argument.

23The IRB was denied via letter dated May 22, 2019. The herein application was filed on August 24, 2022, which is more than three years after the denial. No explanation has been provided for this delay that would cause me to exercise my discretion and extend the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. I accordingly find that the applicant is also barred from claiming this benefit by virtue of s. 56 of the Schedule.

Housekeeping and Home Maintenance, Caregiving, and Case Management

24I find that the applicant is not entitled to housekeeping and home maintenance benefits, caregiving benefits, or case management benefits as she has not been deemed catastrophically impaired and she did not purchase any optional benefits.

25Section 13(1) of the Schedule states that an insurer shall pay a caregiver benefit to an insured person who sustains a catastrophic impairment if, within 104 weeks after the accident, they suffer a substantial inability to engage in the caregiving activities in which he or she was engaged at the time of the accident. They must also have been residing with a person in need of care, and be the primary caregiver for that person and did not receive any renumeration for caregiving activities. After 104 weeks, the caregiver benefit is available to a person who is suffering a complete inability to carry on a normal life.

26Section 23 states that the insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if they have sustained a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that they normally performed before the accident.

27Section 17 states that an insurer shall pay for all reasonable and necessary expenses for services provided by a qualified case manager in accordance with a treatment plan under s. 38 if the insured person has sustained a catastrophic impairment, or if certain optional benefits under s. 28(1) are available to the insured person.

28Pursuant to s. 28(1), caregiver benefits and housekeeping and home maintenance benefits are also optional benefits that can be purchased.

29I have reviewed the applicant’s certificate of automobile insurance and find that she did not purchase optional benefits. She is accordingly not entitled to these benefits through that route.

30The applicant has not been deemed catastrophically impaired, and that issue is not in dispute at this hearing. Although that should be determinative of this issue, for the sake of completeness, I will address the applicant’s submissions with respect to the catastrophic impairment designation.

31The applicant submits that the respondent failed to provide her with reports from any catastrophic impairment examination, and/or did not calculate her “whole person impairment”, which she argues are required to support the respondent’s claim that she is not catastrophically impaired.

32I note that the applicant appears to have made similar arguments in her previous Tribunal hearing mentioned above. In upholding the decision, the Divisional Court found that the Tribunal had made exceptional efforts to guide the applicant through the application process for catastrophic impairment. It stated that an insurer is not responsible for funding assessments and responding where an applicant has not even initiated a claim or provided some evidentiary basis in support of that claim that would warrant further inquiry. The Court stated the following: “unless she properly engages the SABS process for seeking a catastrophic impairment designation, entitlement will be assessed on the basis that she is not catastrophically impaired.” Not only do I agree with the reasoning of this decision, I am also bound by it.

33The applicant has not provided me with any evidence that she has properly sought catastrophic impairment designation. No OCF-19 has been filed, and there is no evidence before me that a catastrophic impairment assessment has been conducted by a physician or neuropsychologist pursuant to s. 45(1) or (2). Further, there is no requirement in the Schedule for an insurer to conduct a medical examination where an application for entitlement to a benefit has not been made. I therefore do not accept the applicant’s argument and maintain that she is not entitled to these benefits as she has not been deemed catastrophically impaired.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to any of the benefits in dispute, no interest is payable.

Award

35The applicant sought an award under s. 10 of Reg. 664. Under s. 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 no benefits are payable, the applicant is not entitled to an award.

Costs

36I find that the respondent is not entitled to costs.

37Rule 19 of the Tribunal’s Common Rules of Practice & Procedure states that where a party believes the other party has acted unreasonably, frivolously, vexatiously or in bad faith, the party may make a request to the Tribunal for costs.

38The respondent submits that the applicant has filed repeat applications and motions for the same relief, brought repeated applications for benefits not available to her, refused to accept or respect the decisions of the Tribunal and the Court, has brought related lawsuits for an improper purpose, has sent emails to the respondent and its counsel threatening criminal proceedings, and has disrespected orders of this Tribunal.

39I am not convinced that the applicant’s actions in the course of this proceeding were unreasonable, frivolous, vexatious, or done in bad faith. Only the applicant’s actions in her relation to her application with the Tribunal are relevant to my determination of costs. Rule 19.5 sets out the factors to consider when deciding whether to order costs: the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system. I find it more likely that the applicant acted in the manner that she did because she is self-represented and does not appear to completely understand the Tribunal’s process. I find that awarding costs in these circumstances could have a chilling effect on similar self-represented individuals accessing the Tribunal system.

40I also note that, pursuant to Rule 19.3, a party’s submissions on costs “shall set out the amount being requested.” The respondent did not specify the amount it is seeking for costs, which it is required to do.

41For those reasons, I decline to exercise my discretion to award costs against the applicant.

ORDER

42The applicant is not entitled to any of the benefits in dispute, interest, or an award. The respondent is not entitled to costs. This application is dismissed.