Citation: Singh v. Certas Direct Insurance Company, 2024 ONLAT 22-008392/AABS

Licence Appeal Tribunal File Number: 22-008392/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:

Kanwalprit Singh

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Kanwalprit Singh, Applicant

For the Respondent: Brett Kodak, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Kanwalprit Singh, (the “applicant”) was involved in an automobile accident on May 20, 2021, 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 Certas Direct Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUE

2The issue in dispute is:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 20, 2021 to June 17, 2022?

RESULT

3I find that the applicant is not entitled to a payment of IRB. The application is dismissed.

PROCEDURAL ISSUES

The applicant’s evidence will not be excluded

4In its submissions, the respondent argues that all the following evidence should be excluded from the hearing because it was produced after the deadline of May 23, 2023:

i. Clinical notes and records (“CNRs”) of the applicant’s family physician from one year pre-accident to the date of the case conference;

ii. CNRs of all post-accident treatment providers;

iii. CNRs of all specialists seen post-accident;

iv. Copies of income statements and general ledger printouts of 2GoPrinters Inc., and 9271252 Canada Inc., from May 21, 2021 to the date of case conference; and

v. Details and supporting documentation of the wages paid to individuals replacing or assisting the applicant at 2GoPrinters Inc., and 9271252 Canada Inc., including copies, front and back of cancelled cheques made payable to those individuals and the dates and hours worked from May 21, 2021 to the date of the case conference.

5Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal. At the same time, under Rule 3.1 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”) the Tribunal will interpret the Rules liberally to facilitate a fair, open, and accessible process and to allow effective participation by all parties.

6The Case Conference Report and Order (“CCRO”) was clear that these productions were to be served on the respondent by May 23, 2023.

7The applicant in his reply submits that he provided the documentation on January 31, 2024, and that he is not great with technology, and requires his daughter’s help to send emails with the required documents.

8The respondent has not provided me with particulars of which exact documentation they are seeking to exclude with the exception of the financial documentation. For instance, the respondent argues that the CNRs of the family physician, specialist, and post-accident treatment providers should be all excluded from the hearing, but it does not elaborate on who these doctors are, and which exact records. Without this information from the respondent, it is unclear whether it is seeking to exclude all of the applicant’s evidence from this hearing or particular documentation. Further, the respondent had possession of the MRI of the right shoulder, dated May 30, 2022, and the Physician Note of Dr. F. Hamideh, physician dated July 23, 2022, sometime after completion because it was referenced in the s. 44 report of Dr. Louis Weisleder, orthopaedic specialist, dated October 19, 2022. Yet, it is unclear from the respondent’s submissions whether it is seeking an exclusion of these records despite them being in its possession since 2022.

9Even if the applicant is in breach of the CCRO, I find that the evidence will be admitted for the following reasons.

10I find that the evidence is relevant to the issue of the applicant’s entitlement and quantum of IRB. Pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S. 22, documents relevant to the issues in dispute are admissible as evidence.

11The respondent did not provide particulars of the prejudice it would suffer as a result of this evidence being admitted. In any event, even if the respondent suffered prejudice, the evidence’s probative value outweighs it. It would also not serve the consumer protection mandate of the Schedule where a self-represented applicant’s evidence will be excluded despite the respondent not specifying which exact documentation it was seeking an exclusion for and not establishing any prejudice as a result.

12Finally, the respondent refers me to two previous decisions from the Tribunal, which are: 18-002569 v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT) and J.A. v. Aviva General Insurance Company, 2019 CanLII 110100 (ON LAT). The respondent argues that these decisions support that the evidence should be excluded from the hearing because the applicant has not provided a reasonable explanation for failing to comply with the production order deadline.

13I am not bound by either of these authorities, and I find them distinguishable from the factual scenario before me. The applicants in both cases were represented by counsel, meanwhile the applicant before me is a self-represented individual who has difficulty understanding the process and does not speak English as a first language. In fact, it was noted in the Tribunal’s adjournment order, released January 9, 2024, that the applicant has difficulty understanding the process because he is self-represented and does not speak English as a first language. Again, it would not serve the consumer protection nature of the Schedule where a self-represented applicant’s evidence should be excluded where he has difficulty understanding the process and does not speak English as a first language.

14In short, I will not exclude any of the applicant’s evidence from the record.

Late filing/service of the respondent’s submissions

15The respondent served its initial submissions and evidence on the applicant and Tribunal on February 26, 2024, which was three days after the deadline.

16The Tribunal’s adjournment order, released on January 9, 2024, was clear that the respondent’s submissions were due on February 23, 2024.

17The applicant in reply argues that the respondent’s submissions are not valid because it was sent past the tribunal’s deadline. I infer from these submissions that the applicant is seeking relief to exclude the respondent’s submissions and evidence from the record because it was filed past the deadline.

18In accordance with Rule 3.1 of the Rules, I will allow for a liberal interpretation of the Tribunal Rules. Further, the applicant has not directed me to evidence of prejudice that was caused by this slight delay. Moreover, I find that the applicant was able to respond to the respondent’s submissions and evidence in his reply submissions. I find that the respondent would suffer significant prejudice if its submissions/evidence were excluded for the purposes of this hearing, as it would not be able to defend the issue of IRB, and this would be disproportionate to its error. Thus, the respondent’s submissions and evidence will be considered by me.

ANALYSIS

Is the applicant entitled to IRB from May 20, 2021 to June 17, 2022?

19The applicant is not entitled to payment of an IRB from May 20, 2021 to June 17, 2022.

20To receive payment for pre-104 IRB under s. 5(2) of the Schedule, the applicant must be self-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 self-employment. The applicant bears the burden of proving, on a balance of probabilities that he is entitled to pre-104 IRB.

21Here, the applicant requests that IRBs be granted from May 20, 2021 to June 17, 2022, and relies upon the MRI of the right shoulder, dated May 30, 2022, Physician Note of Dr. Hamideh, dated July 23, 2022, and CNRs of Dr. Ambily Davison, physiotherapist, dated September 9, 2022, and May 23, 2023. I infer from these submissions that the applicant’s basis for establishing that he suffers a substantial inability to perform the essential tasks of his self-employment are contained in these records.

22The respondent counters that the applicant has not met his onus because he has not made meaningful submissions on why he is entitled to IRB. It further argues that it is not the role of the adjudicator to connect the dots and make his case. Nevertheless, it argues that the only medical evidence proffered by the applicant is a Disability Certificate (“OCF-3”), completed by Dr. Gauravdeep Randhawa, physiotherapist, dated June 2, 2021.

23It also relies upon the s. 44 report of Dr. Weisleder, orthopaedic specialist that the applicant’s partial tear in the right shoulder did not result in a substantial inability to perform the essential tasks of his employment. I also note that the respondent referred to an s. 44 report completed by Dr. Salerno, psychologist, however it did not tender a copy of this report, and instead tendered a copy of a s. 44 functional abilities evaluation of Ms. Michelle Becker, kinesiologist, dated October 17, 2022. This report by Ms. Becker outlines the applicant’s essential job tasks in his pizza restaurant, and will be discussed below.

24The respondent also identified in its submissions that the applicant was self-employed and ran a pizza restaurant and an employment agency prior to the accident.

25I find that the evidence establishes that the applicant’s low grade partial thickness tear in the right shoulder (as shown in the MRI, dated May 30, 2022) resulted in a substantial inability to perform the essential tasks at his pizza restaurant because he is unable to perform at a medium to heavy job strength rating, which is essential to the job. I am alive to the respondent’s position that the applicant did not make meaningful submissions, and it is not my role to connect the dots. While I agree, I find that the applicant referred me to the CNRs of Dr. Davison and Dr. Hamideh which establishes that he has difficulties with: lifting, pushing, pulling, and to avoid heavy use of his right shoulder. With the consumer-protection nature of the Schedule in mind, I find that the applicant has established entitlement to pre-104 IRB.

26For example, in the CNRs of Dr. Davison, he opined that because of the applicant’s low grade partial thickness tear in the right supraspinatus and infraspinatus tendon, that he has difficulties with lifting, pushing, and pulling, and is to avoid these activities and overhead activities. Likewise, Dr. Hamideh on July 23, 2022, recommended that the applicant should avoid heavy use and painful activities of his right shoulder. It is also undisputed that the applicant sustained the low grade partial thickness tear in his right shoulder because even Dr. Weisleder concluded that the applicant sustained these impairments as a direct result of the accident.

27In summary, while the applicant did not identify what his essential tasks of employment were and how he was substantially unable to perform the essential tasks of his employment, the evidence of Drs. Davison and Hamideh demonstrate that his right shoulder partial thickness tear has resulted in impairments with his ability to lift, push, pull and with overhead activities. This, coupled with the evidence of Ms. Becker, establishes that the applicant has met his onus to establish entitlement to pre-104 IRB because she acknowledged that the applicant’s essential job tasks in the pizza restaurant was reported to be medium to heavy job strength rating, and he was unable to perform at this level.

28Indeed, in her report, Ms. Becker noted that the applicant reported that he was required to lift drums of dough with water up to 60 pounds. Significantly, Ms. Becker in her report opined that the applicant was able to lift at an overall light job strength rating, being 30 pounds from floor to waist level and 10 pounds from waist to shoulder level. However, Ms. Becker deferred the question of whether the applicant suffered a substantial inability to perform the essential tasks of his employment to the other doctors’ part of the multidisciplinary assessment, presumably, Drs. Weisleder and Salerno.

29I place little weight on Dr. Weisleder’s opinion that the applicant does not meet the pre-104 IRB test because it is not supported by the bulk of the evidence before me (the evidence from Drs. Davison, and Hamideh and Ms. Becker) or by the other conclusions in his own report. Notably, in his report, Dr. Weisleder opined that the applicant sustained the partial thickness tear in the right shoulder as a direct result of this accident, which resulted in impairments to his range of motion, and was of a severity to require a platelet-rich plasma injection. Despite these conclusions, Dr. Weisleder concluded that the applicant does not suffer from a substantial inability to perform the essential tasks of his employment but provided no compelling reasoning on why this was the case. While Dr. Weisleder indicated in his report that he had reviewed Ms. Becker’s report, he provided no justifications on why he disagreed with her opinion that the applicant is unable to perform the medium to heavy job strength rating required for his self-employment.

30It is difficult to reconcile how the applicant does not suffer from a substantial inability to perform the essential tasks of his self-employment when Dr. Weisleder has opined that the right shoulder impairment is from the accident, results in impairment to his right shoulder and requires an injection. This combined with the evidence of Dr. Davison, Dr. Hamideh and Ms. Becker, as discussed above, support a finding that the applicant is substantially unable to perform the essential job tasks of his self-employment, because he is not able to perform the job at a medium to heavy job strength level.

31The respondent further argues that the only piece of medical evidence supporting entitlement to pre-104 IRB is the OCF-3, dated June 2, 2021. I disagree. With respect, as noted above, the applicant referred me to the evidence of Drs. Davison and Hamideh who have both identified that the applicant has difficulties with his work tasks because of his right shoulder impairment, which is also supported by Ms. Becker’s conclusion that the applicant is unable to perform his job at a medium to heavy rating, which is what is required to perform the job. Therefore, contrary to the respondent’s argument, I have evidence from two doctors and a kinesiologist that support the applicant’s entitlement to pre-104 IRB.

32The respondent further submits that the evidence shows that the applicant continued to work in excess of 40 to 50 hours per week at his businesses since the accident but did not refer me to evidence to support this proposition. It is well-settled that submissions are not evidence. Nevertheless, I note that the applicant reported to Ms. Becker that he was working full time at his pizza restaurant but not performing his regular duties. Regardless of whether the applicant is working full time or not, the test for pre-104 IRB is not based on how many hours the applicant can work but rather if he suffers a substantial inability to perform the essential tasks of his self-employment. As noted above, I have determined based on the medical evidence of Dr. Davison, Dr. Hamideh and Ms. Becker, that the applicant suffers a substantial inability to perform the essential tasks of his self-employment.

33In terms of the quantum of IRBs, the CCRO identified the amount of IRBs in dispute as being $400.00 per week. As the applicant is self-employed, the respondent retained BDO Canada to prepare an accounting report on a possible IRB quantum. BDO Canada requested documentation from the applicant on July 13, 2021, July 22, 2021, November 17, 2021, December 23, 2021, and May 13, 2022, and some documentation still remains outstanding.

34The onus rests with the applicant to prove that he sustained income loss as a result of the accident. Here, the applicant has produced various financial documentation such as: general index of financial information for 2021 and 2022, bank receipts from 2021 to 2022, various cheques for his business 2GoPrinters, bank payments from January 1, 2021 to December 31, 2021, bank receipts for January 1, 2022 to December 31, 2022, bank payments from January 1, 2022 to December 31, 2022, and employee paystubs.

35However, I am unable to determine whether the applicant sustained an accident-related income loss because I am unable to determine whether the expenses are reasonable and necessary to prevent a loss of revenue, whether the salaries paid to replace the applicant’s active participation in the business are reasonable and whether expenses are reasonable in the circumstances to prevent any losses resulting from the accident.

36As stated in section 4(4) of the Schedule what is calculated as losses from the business in which the person was self-employed pursuant to the Income Tax Act RSC 1985, c 1 is the same as how losses from self-employment after an accident are to be calculated for the purposes of the Schedule.

37Further, section 4(4) (a) – (c) states that an expense that is not reasonable and necessary to prevent a loss of revenue is not considered a deductible expense; any salary expenses to replace the applicant’s active participation in the business are not considered an expense unless they are reasonable in the circumstances and any non-salary expenses that are different in nature or greater than the non-salary expenses incurred before the accident are not considered in calculating the loss to the business unless those non-salary expenses are reasonable in the circumstances and necessary to reduce the losses resulting from the accident.

38Without any submissions from the applicant on this point or an accountant’s report, I am unable to determine the applicant’s income loss following the accident or whether it is from the accident. Moreover, as noted above, the applicant was working during this time period.

39Finally, I take note of the applicant’s arguments that his accountant advised these documents are not required to calculate his IRB, and that he requested a new accountant be assigned in an email dated, July 28, 2021. The applicant has not tendered evidence from his accountant to support his submissions, and it is well-settled that submissions are not evidence. Further, the applicant has provided no explanation as to why his own accountant did not prepare an accounting report to determine his quantum of IRB or income loss from the accident.

40I also acknowledge in the email, dated July 28, 2021, that the applicant asked that the current accountant be changed because of lack of communication. However, the onus is on the applicant to prove quantum of IRB, not on the respondent. Here, the respondent retained an accounting firm to complete an accounting report, but the applicant could have retained his own accountant to prepare a report, but he did not do so. While I am sympathetic to the applicant’s struggles with BDO Canada, the onus is on him to establish the quantum of IRB, and he has not done so. Similarly, I acknowledge the applicant’s submissions that he had ongoing difficulties in communication with the respondent, however he has not provided evidence to support this, and submissions are not evidence.

41For all these reasons, the applicant is not entitled to payment of an IRB from May 20, 2021, to June 17, 2022, because I am unable to determine whether he sustained an income loss as a result of the accident.

Remaining arguments

42The respondent also argued that it requested an updated OCF-3 on February 23, 2022, and May 11, 2022, under s. 37(2) and IRB was suspended under s. 37(3) effective June 17, 2022 because the applicant did not provide an updated OCF-3. I find the issue of whether ss. 37(2) and (3) are applicable is immaterial because I have determined that the applicant is not entitled to a payment of IRB.

ORDER

43For the reasons outlined above, I find that the applicant is not entitled to a payment of IRB. The application is dismissed.