Citation: Lavigne v. Aviva General Insurance, 2024 ONLAT 21-000099/AABS

Licence Appeal Tribunal File Number: 21-000099/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:

Jonathan Lavigne

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Julia Fogarty

APPEARANCES:

For the Applicant:

Jonathan Lavigne, Applicant

For the Respondent:

Dulcinea Griffith, Claims Representative

Alexander Hartwig, Counsel

Interpreter:

Henry Jean Leger - (French)

Court Reporter:

Sandrine Marineau-Lupien

Heard by Videoconference:

December 18, 2023

OVERVIEW

1Jonathan Lavigne, the applicant, was involved in an automobile accident on August 8, 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 the respondent, Aviva General Insurance, 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 a non-earner benefit (“NEB”) of $185.00 per week from December 21, 2018 to date and ongoing?

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

RESULT

3The applicant has not met the burden of proof to establish entitlement to non-earner benefits. As there are no benefits payable there is no interest to consider.

4The applicant’s application is dismissed.

ANALYSIS

Adjournment Request

5During the hearing the parties made two requests to adjourn:

i. At the outset of the hearing the parties requested an adjournment orally, on consent, because the parties needed further time to get prepared for the hearing due to document not being exchanged in advance of the hearing. I indicated that these were not proper grounds on which to request an adjournment.

ii. After the break, the applicant relayed that during the break he received a legal consult with a lawyer who stated they could discuss potentially being retained to represent him in January 2024. I indicated to the applicant that his reason was too speculative to warrant adjourning the process, I had already decided the issue of adjournment prior to the break and we would be proceeding with the hearing as scheduled.

6The reasons the adjournment was denied are as follows:

i. The applicant filed the application with the Tribunal on January 5, 2021. This matter is now quite old and there is no reasonable reason to justify not being prepared to proceed so many years after filing.

ii. This matter has already been adjourned at the case conference level multiple times.

iii. Not having exchanged documentary evidence in advance of the hearing is not a reason to adjourn.

iv. The adjournment request was made orally at the hearing with no sufficient justification as to why this adjournment request was not made in writing within the appropriate timelines set out in the Licence Appeal Tribunal Rules, 2023 or why the parties could not have requested the adjournment within the appropriate timelines. The parties did not provide sufficient reasons as to why their request should be considered on its merits.

v. The applicant having the potential to maybe retain counsel is too speculative. While the applicant does have a right to counsel that right is not absolute. The applicant was advised of the hearing on August 17, 2023, approximately 6 months in advance of the scheduled hearing. No justification was provided as to why the applicant waited until during the hearing to seek counsel.

Non-Earner Benefits (NEB)

7The applicant did not provide sufficient evidence to meet the burden of proof to establish an entitlement to an NEB.

Legal Test

8Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result 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. Section 3(7)(a) 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

Applicant’s Submissions

9The applicant did not provide an evidentiary brief for the hearing or corroborating evidence for any of his oral testimony. He did provide a thoughtfully typed letter detailing the following list of pre and post accident activities impacted by his condition:

Pre Accident

Post Accident

1. Eyes were in perfect condition

2. Eye muscle gets stuck, needed special exercise from Dr. Prieur to regain normal movement and had a prescription glasses made with a special tint and foyer

3. No problem with light sensitivity

4. Needed polarised clip-on’s for darkening even more my glasses. Need to stay away from the sun, couldn’t watch my ipad or any screen with brightness at all. Dr. Prieur suggested putting my phone setting on amber/night brightness, it helped me to be able to look at the screen.

5. No problem’s with sounds

6. Cant be around my kids, im always telling them to whisper, which they can’t stop living right, so I retreat to my room.

7. No pressure in my head

8. Pressure in my head resulting in headaches and nausea. Car rides over 40 km/h brings me motion sickness

9. Good memory / good concentration

10. Poor memory, poor concentration. I have to make a list for everything or else I forget. example: Im thirsty, I walk through my home to go to the sink, I get there and I don’t know why im there. And trying to remember what I was doing before that I cant remember. It is very frustrating.

11. Good mood

12. the pressure in my head makes me super irritable and sometimes this lead’s to uncontrollable fits of rage.

13. Normal daily task’s time

14. unattainable housekeeping goals, cleaning, meal preparation

15. Appetite normal

16. Lost appetite because I have nausea all day long

17. PTSD maneagable

18. PTSD flare up, heavy paranoia, Night tremors are back, dark ideas, anti-social

19. Normal sleep is ~6hours of sleep/night

20. Sleeping 3-4 hours a night, wake up from nightmares of crashing my car all the time

21. Energy level ok

22. No energy at all

23. No problems with right hip

24. I feel like my right leg is going to pop out of my hip, exemple: when I get up from a chair a Jam and it really hurts

25. I go to family and friends gathering

26. I avoid family gathering’s as there is to much stimulus, my energy gets drained to nothing

27. Play with the kids all the time

28. i have trouble being around my own kids, too much stimulus, noise, I can see they don’t understand and are being distant

29. Drove my kids to school every day

30. Couldnt drive my kids to school, had to ask my father to bring them until the end of school in June 2019

31. Good relationship with spouse

32. Deminished relationship, she is overwhelmed with work plus doing all the household chores and meals.

33. No problem’s in sexual intercourse

34. Problems with my right hip locking up during sexual intercourse, it sends pain in my right leg and I loode my erection and can’t finish with partner.

10The applicant additionally advised, though not included in his list, that he also can no longer play the drums, use a punching bag or engage in martial arts. I note that both the applicant’s list above and his oral submissions about his limitations have not been corroborated by evidence in support of his submissions and as such little weight has been placed on his submissions.

Respondent’s Submissions

11The respondent proceeded to highlight, referring to the evidence in their submitted brief, the contradictions to the applicant’s oral evidence. Specifically:

i. At tab 12, page 4, of the respondent’s document brief, further to an examination on December 19, 2018, under part 6 of the disability certificate signed by Mr. Moore, it is indicated that the applicant does not suffer from a complete inability to carry on a normal life. It also indicates that the applicant does not suffer, as a primary caregiver, from a substantial inability to engage in the caregiving activities in which he engaged at the time of the accident. Additionally, it highlights that the applicant, as a result of the accident, is not unable to continue in an educational program that he would have been capable of prior to the accident.

ii. On December 27, 2018 the insurer denied the applicant’s claim for non-earner benefits on the basis of assessments and medical evidence.

iii. On December 17, 2018 the applicant was assessed by Thomas Buckley, an occupational therapist. Page 4 of Dr. Buckley’s report indicates that the applicant self-reported that he was independent in personal care activities, meal preparation activities, lacking in safety concerns with regards to his current psychological state, independent relating to his homemaking tasks and that he has reduced function in leisure activities. Dr. Buckley ties many of the applicant’s issues to a pre-existing PTSD diagnosis that was not associated with the accident at issue.

iv. The respondent’s counsel then drew our attention to the activity questionnaire dated December 18, 2018 from the applicant. The applicant claimed to have little to no recollection of completing this form and attributed it to a form completed by his mother. On page 2 of this document the applicant relays that he is able to walk his dog, do laundry, shop for groceries, do breakfast and lunches with his children, as well as drive them to school on a partial basis. These activities are associated with pain, an increase in concentration or taking longer as well as being more draining. Despite this increased toll on the applicant, he does not suffer a complete inability to carry on a normal life.

12In the opinion of the respondent any issues suffered by the applicant can be attributable to unrelated medical issues stemming from 5 prior car accidents, schizophrenia and a workplace injury.

Tribunal’s Findings

13I place little weight on the applicant’s testimony since it was both uncorroborated and directly refuted by the documentary evidence in this matter. There is evidence of some impairments and pain as well as other complications but there is no objective evidence corroborating a total inability to carry on a normal life.

14Since the applicant presented no other objective evidence on which to base his claim, the applicant has not provided sufficient proof to establish that he has a total inability to carry on a normal life.

15As such, I find that the applicant is not entitled to non-earner benefits on the basis of the evidence before me.

Interest

16Since the applicant was not successful in his claim for non-earner benefits there is no treatment plan on which to accord interest that may be considered. As such, I find that no interest is payable.

ORDER

17I order that:

i. The applicant is not entitled to a non-earner benefit or interest.

ii. The applicant’s application is dismissed.