Licence Appeal Tribunal File Number: 23-014319/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:
Fozia Jama
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATORS:
Ludmilla Jarda Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Fozia Jama, Self-Represented
For the Respondent:
Noella Thompson, Counsel
Court Reporter:
Caitlin Westerhout
HEARD: by Videoconference:
October 8, 2024
OVERVIEW
1Fozia Jama (the "applicant") was involved in an automobile accident on December 4, 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 Aviva General Insurance (the "respondent") and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2This matter was scheduled for a 2-day videoconference hearing, set to begin at 9:30 am on October 8, 2024. Despite having notice of the hearing, when the hearing started, the applicant was not in attendance. Pursuant to Rule 3.7 of the Licence Appeal Tribunal Rules, 2023 ("Rules"), the applicant's presence is mandatory.
3In accordance with Rule 3.7.1, the hearing was paused for the requisite 30 minutes. During the break, the Tribunal attempted to contact the applicant by telephone and by email. Although the telephone number on file was out of service, the applicant responded to the Tribunal's email, and she attended the hearing before the 30 minutes had elapsed.
4At the request of the applicant, the Tribunal had arranged for Mohamed Hussein, a Somali language interpreter, to attend the hearing and to provide interpretation services to the applicant. However, Mr. Hussein was dismissed after the applicant advised that no interpretation services were required.
ISSUES
5The issues in dispute are:
Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from December 4, 2021 to date and ongoing?
Is the applicant entitled to interest on any overdue payment of benefits?
6At the onset of the hearing, the respondent introduced a claim for costs against the applicant.
RESULT
7For the reasons that follow, we find that:
The applicant is not entitled to an NEB.
The applicant is not entitled to interest.
The respondent is entitled to costs in the amount of $100.00.
PROCEDURAL ISSUES
Adjournment Request
8At the start of the hearing, the applicant made an oral request to adjourn the hearing pursuant to Rule 16.2. The applicant, who has been self-represented since July 16, 2024, stated that it was her preference to be represented and that she needed more time to retain new legal representation. She indicated that her former legal representative had possession of all her documents, and she alleged that he had been unresponsive to her communications. She also advised that she had not taken any steps since July 16, 2024 to secure new legal representation, and she attributed this delay to technological issues with her phone.
9The respondent opposed the applicant's request. It argued that the grounds to seek an adjournment, as outlined at Rule 16.3, have not been met in the present case, and that the applicant's request for an adjournment should be denied. The respondent stated that the applicant had been unresponsive during this proceeding and that she failed to take the necessary steps leading up to the hearing, including seeking an adjournment in a timely fashion. It noted that the applicant had notice of the hearing since May 24, 2024, and that the parties' availability for the hearing had been canvased.
10The respondent also stated that the applicant had not delivered any evidence in support of the issues in dispute in advance of the hearing. Further, she did not tender any evidence in support of her alleged challenges in contacting her former legal representative, in obtaining a copy of her file, and in securing new legal representation. The respondent advised that it had communicated with the applicant in early September 2024 by telephone and by email and that it had informed the applicant of her obligations in preparation for the hearing. The respondent substantiated this assertion by directing the Tribunal to various email correspondence.
11In response, the applicant stated that her limited access to a telephone in the months following the case conference, coupled with her fear of travelling in a vehicle since the accident, prevented her from taking steps to retain new legal representation and to obtain a copy of her file from her former legal representative.
12For the reasons that follow, we denied the applicant's oral request to adjourn the hearing.
13The applicant did not file an adjournment request form with the Tribunal, as required by Rule 16.1; rather, the applicant made an oral adjournment request under Rule 16.2. As a result, the respondent and the Tribunal did not have notice of the applicant's intent to seek an adjournment.
14Rule 16.2 provides that oral adjournment requests will only be allowed in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment prior to the event.
15In the present case, the applicant has been aware of the circumstances giving rise to her oral adjournment request since July 16, 2024, the date on which she became self-represented. While the parties have a right to representation, that right is not absolute, and it does not include the right to insist on an adjournment where such an adjournment would unreasonably delay the proceeding. The applicant was self-represented for nearly three months prior to the hearing, and she has not tendered any evidence to support that reasonable efforts were made during that time to secure new legal representation.
Motion to Dismiss the Application as Abandoned
16On September 19, 2024, the respondent served and filed a motion to dismiss the application as abandoned pursuant to Rule 3.4(d). The respondent's motion was scheduled to be heard at the start of the hearing.
17The respondent submitted that the application should be dismissed on the basis that the applicant has abandoned her application. The respondent submitted that the applicant failed to comply with her disclosure and production obligations as set out in the Case Conference Report and Order ("CCRO") released on May 8, 2024. The applicant did not attend an Examination Under Oath ("EUO") on July 13, 2024 as agreed by the parties and scheduled in accordance with the Schedule. The applicant did not comply with the hearing requirements as she did not deliver any documentary evidence in support of her claim, nor did she deliver a final list of witnesses at least 21 days prior to the start of the hearing. The respondent also noted that it made several attempts to contact the applicant in advance of the hearing and to inform her of her obligations by telephone and by email.
18The respondent argued that the applicant failed to comply with the Rules and the Tribunal's hearing requirements. Given her lack of engagement in the proceeding, the respondent argued that the applicant had abandoned her application, and it relied on Edwards v. Economical Insurance Company, 2023 CanLII 32798 (ON LAT), Bader v. Echelon Insurance, 2021 CanLII 111051 (ON LAT), and Smith v. Aviva General Insurance, 2021 CanLII 111201 (ON LAT). In these decisions, the Tribunal found that each of the applicants failed to meet their obligations under the Rules by failing to comply with the CCRO, by failing to attend the videoconference hearing, despite having proper notice, and by failing to provide evidence to support their application.
19In response, the applicant denied that she had abandoned her application and maintained that she wanted to pursue her claim for entitlement to a NEB. She explained that when she was represented, she experienced challenges in obtaining her medical records, and now that she is self-represented, she does not have a firm understanding of the Tribunal's process. She understood that it was her responsibility to take steps to secure legal representation, and she acknowledged that she had not done so. She also acknowledged that she did not have access to legal assistance for the purpose of the hearing, and she advised that she was prepared to proceed without legal representation.
20For the reasons that follow, we denied the respondent's request to dismiss the application as abandoned.
21Rule 3.4(d) provides that the Tribunal may dismiss an application without a hearing if the applicant is found to have abandoned the proceeding. Rule 3.5 provides that before dismissing the application under this Rule, the Tribunal shall (a) give the parties notice of its intention to dismiss, (b) provide the reasons for its intention to dismiss, (c) inform the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice, which shall be at least 5 days, and (d) consider any written submissions provided. In this case, the Tribunal did not provide the applicant with notice of its intent to dismiss the matter as abandoned.
22In the present case, we find that there is insufficient evidence to support a finding that the applicant has abandoned her application. Although the applicant did not comply with her disclosure and production obligations in preparation for this hearing, given her attendance at the hearing and her submissions that she wished to continue to pursue her claim for entitlement to a NEB, she has not abandoned her claim.
ANALYSIS
Non-Earner Benefit
23Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment because of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
24Section 3(7)(a) of the Schedule defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 ("Heath"), which generally focuses on a comparison of the applicant's pre-accident and post-accident activities.
25Section 12(3) of the Schedule provides that an insurer is not required to pay a NEB, (a) for the first four weeks after the onset of the complete inability to carry on a normal life, (b) before the insured person is 18 years old, (c) for more than 104 weeks after the accident, or (d) if the insured person is eligible to receive and has elected under s. 35 to either receive an income replacement benefit or a caregiver benefit.
26At the time of the accident, the applicant was 32 years old, she was unemployed, and she was receiving Ontario Works benefits due to an unrelated medical condition.
27The applicant submits that she is entitled to a NEB because her accident-related physical and psychological impairments prevent her from having a normal life. Although the applicant asserts that there are medical records that support her claim, she did not tender any documentary evidence in support of her claim. Rather, she primarily relies on her oral testimony.
28The respondent submits that the applicant has not satisfied her burden of proof that she suffers from a complete inability to carry on a normal life as a result of and within 104 weeks from the accident. The respondent relies on multidisciplinary reports, including an orthopaedic examination report completed by Dr. Ramunas Saplys, orthopaedic surgeon, a psychology examination report completed by Dr. Kelly McCutcheon, psychologist, and an occupational therapy assessment report completed by Rasul Kassam, occupational therapist, all dated June 10, 2022.
The applicant is not entitled to a NEB for the period of December 4, 2021 to date and ongoing
29We find that the applicant is not entitled to a NEB of $185.00 per week for the period of December 4, 2021 to date and ongoing as she has not demonstrated, on a balance of probabilities, that she suffers from a complete inability to carry on a normal life as a result of the accident.
30The applicant testified that she sustained physical and psychological impairments as a result of the accident, and that her psychological impairments continued to impact her life. She stated that she continues to have difficulty travelling in cars, which limits her ability to visit her family in Hamilton. She also claimed that since the accident, she does everything online, like order groceries. Correspondingly, according to an OCF-3 dated December 14, 2021 completed by Dr. Ushma Patel, chiropractor, the applicant suffers from a complete inability to carry on a normal life as her ability to perform her activities of daily living, housekeeping, personal care, and caregiving tasks are effected by her accident-related injuries. However, the applicant has not directed us to evidence that Dr. Patel conducted a meaningful analysis of her pre-accident and post-accident activities, as required by Heath, nor did the applicant provide a meaningful analysis of her own. As such, we find that the applicant has not met her burden of proving her entitlement to a NEB.
31We further find that the evidence does not support a finding that the applicant suffers from a complete inability to carry on a normal life as a result of the accident. Although the applicant claims that there was a change between her pre-accident and post-accident activities, we find that there is insufficient evidence to support a finding that there has been a meaningful change in these activities as a result of the accident.
32Moreover, the applicant was assessed by Dr. Saplys, Dr. McCutcheon, and Mr. Kassam. Both Dr. Saplys and Dr. McCutcheon opined that the applicant did not suffer from a complete inability to carry on a normal life as a result of her accident-related injuries.
33From an orthopaedic perspective, Dr. Saplys concluded that the applicant sustained uncomplicated soft tissue injuries as a result of the accident, and that at the time of her assessment, she did not have an impairment as a result of these soft tissue injuries. Dr. Saplys noted that although the applicant continues to be symptomatic, the severity of her injury does not appear to be consistent with the mechanism of her injury, and there is no evidence that she sustained anything other than soft tissue injuries.
34From a psychological perspective, Dr. McCutcheon concluded that the applicant suffers from an adjustment disorder with mixed anxiety and depressed mood as a result of the accident. Although the applicant was dealing with some anxiety and depression at the time of the assessment, Dr. McCutcheon did not feel that this impairment was to an incapacitating degree.
35From a functional perspective, Mr. Kassam assessed the applicant's functional limitations. On examination, he noted that the applicant demonstrated active range of motion in her cervical and lumbar spine and her upper and lower extremities, and that she demonstrated normal strength in her upper and lower extremities. Although the applicant reported experiencing pain during testing, based on the results of the functional testing and his review of the applicant's medical documentation, Mr. Kassam concluded that the applicant could participate in her pre-accident day-to-day activities of daily living independently, using activity modification, pacing, and energy conservation strategies.
36Accordingly, we find that the applicant has not demonstrated that she suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, she is not entitled to a NEB.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.
Costs
38Pursuant to Rule 19.1, costs may be ordered where a party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 stipulates that we consider all relevant factors when determining whether costs should be awarded, including: the seriousness of the misconduct, whether it was a breach of a Tribunal order, whether the behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process, the prejudice to the other parties, and the potential impact an award for costs would have on individuals accessing the Tribunal. Rule 19.5 also gives us the authority to deny or grant the request for costs or award a different amount.
39The respondent seeks costs against the applicant and argues that the applicant's conduct during this proceeding was unreasonable, frivolous, vexatious, and in bad faith given her disregard for the Tribunal's orders and for squandering the Tribunal's resources. It argues that the applicant did not comply with her disclosure and production obligations, despite having been ordered by the Tribunal, she did not file any medical evidence in support of her application, she did not file any responding submissions in response to the respondent's motion to dismiss the application as abandoned, and she did not attend an EUO, despite having agreed to attend, and being required to attend under the Schedule. The applicant's behaviour demonstrates a complete lack of regard for the Tribunal's process.
40In response, the applicant acknowledges that it was her responsibility to take steps to secure legal representation and to comply with the Tribunal's orders, and she argues that she should not have to pay $500.00 to the respondent when she was the one who was injured in the accident.
41Based on the evidence and facts before us, we find that the applicant acted unreasonably during these proceedings. She demonstrated a complete lack of participation in the process, and she disregarded the Tribunal's orders and its process. She did not comply with her disclosure and production obligations, despite having been ordered by the Tribunal. Further, she attended the hearing 27 minutes late, arriving at 9:57 am when the hearing was scheduled to commence at 9:30 am, and on arrival, she was unprepared to participate in the hearing, and she made an untimely oral request for an adjournment. The Tribunal's Rules and orders are to ensure a fair and efficient resolution of disputes, and they must be respected and followed promptly and responsively.
42The respondent seeks costs in the amount of $500.00; however, we find this amount is not proportional to the specific behaviour. While the award should be set high enough to discourage the conduct from occurring again, we must also be mindful of the potential impact an award for costs would have on individuals accessing the Tribunal. Accordingly, we order the applicant to immediately pay costs in the amount of $100.00 to the respondent.
ORDER
43For the reasons outlined above, we find that:
The applicant is not entitled to a NEB.
The applicant is not entitled to interest.
The respondent is entitled to costs in the amount of $100.00.
44The application is dismissed.
Released: November 29, 2024
Ludmilla Jarda
Adjudicator
Bonnie Oakes Charron
Adjudicator