Evgeni Dudoukh v. Aviva General Insurance, 2024 CanLII 43460

Citation: Dudoukh v. Aviva General Insurance, 2024 ONLAT 23-009674/AABS-PI

Licence Appeal Tribunal File Number: 23-009674/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:

Evgeni Dudoukh

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Ilya Kirtsman, Counsel

Emel Yildiz, Student-at-Law

For the Respondent:

Bhavpreet Saini, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Evgeni Dudoukh (the “applicant”) was involved in an incident on August 11, 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 (“Aviva”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

RESULT

3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.

Procedural Issue One

The description of the incident in the hospital records will not be excluded from this hearing

4The applicant submits that all the descriptions of the incident in the “hospital records” that the respondent is relying upon in its submissions are non-admissible evidence as they contain second-hand or third-hand double hearsay. To support his position, he cites the authorities of: Kwong v. Ostrom, 2013 ONSC 2811 and R.S. v. Optimum Insurance Company, 2022 CanLII 65541 (ON LAT).

5Aviva argues that under s. 15 of the Statutory Powers Procedure Act (“SPPA”), RSO 1990 c. 22, the Tribunal may admit documents as evidence whether or not they were proven under oath or admissible as evidence in court.

6It is unclear from the applicant’s submissions which hospital records he is referring to, as there are records from two different hospitals (St. Vincent’s Hospital and UMass Memorial Health Care). In any event, I find the description of the incident in both records to be admissible for this hearing, despite being hearsay evidence. Section 15(1) of the SPPA permits the Tribunal to admit into evidence any oral testimony and document or other thing relevant to the subject matter of the proceeding and may act on such evidence. These hospital records are not included in the two exceptions provided by section 15(2) of the SPPA: they are not documents that would be inadmissible in a court by reason of any privilege under the law of evidence, nor are they inadmissible by the Insurance Act, Schedule, or other statute.

7I acknowledge the danger of admitting hearsay evidence due to its inherent unreliability, however any issues relating to the inability to test the evidence will go to weight.

8I further note that in the authorities cited by the applicant, neither the court nor the Tribunal excluded the hearsay evidence. Rather, both the judge and the adjudicator placed less weight on the hearsay evidence and provided reasons for doing so.

9As such, the description of the incident in the hospital records will not be excluded for the purposes of this hearing, but the weight I assign to it will reflect the inability to cross-examine the authors of these statements. Regardless, the description of the incident in these records had virtually no influence on my deliberations.

Procedural Issue Two

The applicant’s initial submissions, at paragraphs 3 to 5, 19 and Tab B will not be struck from the record

10The respondent raised an objection to paragraphs 3 to 5, 19, and Tab B of the applicant’s initial submissions and document brief. Aviva argues that these submissions and evidence should be struck from the record as the applicant failed to comply with the production deadline for this hearing.

11The applicant argues that prior to Aviva taking over carriage from Intact Insurance Company (“Intact”) in June 2022, he had offered to provide the UMass Memorial Health Care records to Intact. However, on November 10, 2021, he was advised by an adjuster from Intact that it already had the records from UMass Memorial Health Care. He also argues that Intact advised him that on June 28, 2022, Aviva was sent a full copy of its file, and receipt of same was confirmed. Overall, the applicant argues that he thought Aviva had the UMass Memorial Health Care records already in its possession, which was further supported by the fact that these records were not requested at the Case Conference. To this end, he enclosed two emails, dated November 10, 2021, and March 27, 2024.

12I decline to exclude the CNR entry from UMass Memorial Health Care, dated August 11, 2021, as the applicant was compliant with the Case Conference Report and Order (“CCRO”), dated February 29, 2024.

13The CCRO, dated February 29, 2024, ordered that the parties exchange all documents that have not been previously exchanged no later than 14 calendar days following the case conference.

14I agree with the applicant that he believed the respondent already had possession of the records from UMass Memorial Health Care. This position is supported by the emails, dated November 10, 2021, and March 27, 2024, in which Intact confirmed that it did not require the applicant to send the records from UMass Memorial Health as it already had it in its possession. The subsequent email also advised the applicant that Intact had sent a full copy of its file to Aviva, who had confirmed receipt of same. Finally, the respondent did not make a production request for these CNRs at the Case Conference, as the CCRO, clearly reflects this. In my view, the applicant believed that the respondent already had possession of these records, and as such, as per the CCRO, these records did not need to be exchanged.

15Also, I acknowledge the respondent’s concerns with respect to prejudice it will suffer. It argues that the applicant has only provided a singular entry from UMass Memorial Health Care, and that this record provides a description of the incident. I find that these concerns have been mitigated as the applicant subsequently produced a full copy of the CNRs from UMass Memorial Health Care in his sur-reply. Moreover, as determined above, in both hospital records, any description of the incident will go to weight.

16To summarize, I decline to strike paragraphs 3 to 5 and Tab B of the applicant’s initial submissions and documentary brief.

17I now turn to the respondent’s request to strike paragraph 19 of the applicant’s initial submissions from the record. I agree with the respondent that the applicant did not produce a copy of the records as evidence from Dr. V. Prigozheiskh, which are referenced at paragraph 19. Instead of striking this paragraph, I find that it has no bearing to my decision. It is well-settled that submissions are not evidence. Rather, the applicant must provide evidence in support of such submissions, which was not done here.

18In conclusion, I decline to strike paragraphs 3 to 5, 19, and Tab B from the record.

ANALYSIS

Background and Parties’ positions

19On August 11, 2021, the applicant was transporting a load of goods to Worcester, Massachusetts, USA, as he is a long-distance truck driver. The applicant arrived at his destination and parked his vehicle. The parties disagree over what happened to the applicant after he parked his truck, and whether it meets the definition of an “accident” under s. 3(1) of the Schedule.

20Starting with the applicant, he argues that as he was exiting the tractor cab, he fell, his head and body struck the ground, and he suffered a stroke. Primarily, the applicant argues that the entire incident (the fall and stroke) constitute an “accident” under s. 3(1). Alternatively, the applicant submits that the incident of August 11, 2021, should be separated into two phases, one being the fall and the other the stroke. He argues that even if the stroke is not an “accident”, then the fall should still be found to be an “accident”.

21In response, Aviva submits that the August 11, 2021 incident does not constitute an “accident” as defined by s. 3(1) of the Schedule. It argues that the hospital records from St. Vincent’s Hospital demonstrate that the applicant had stroke symptoms prior to exiting the vehicle. Aviva further argues that the fall occurred due to the applicant’s stroke, which occurred while he was still in the vehicle. It takes the position that the stroke was the dominant feature of his injuries, and was an intervening act, breaking the chain of causation.

Was the incident an “accident”?

22I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

23Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

24The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test.

25In Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule, an insured person must meet the purpose test as set out in: Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), and the causation test as set out in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA). This test was adopted and amended to meet the Schedule’s current and more narrow definition, requiring the applicant to satisfy the following tests:

i. Purpose test: did the incident arise out of the use or operation of an automobile? and

ii. Causation test: did the use or operation of an automobile directly cause the impairment?

26The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

27The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:

1. The “but for” consideration;

2. The intervening act consideration, which may serve to break the chain of causation where some other intervening events cannot be said to be part of the ordinary course of use or operation of the vehicle; and,

3. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what most directly caused the injury.

The Purpose Test

28The purpose test is not in dispute before me, as the parties have agreed that the incident meets the purpose test. As such, I now turn to the causation test.

The Causation Test: Would the injuries have occurred “but for” the use or operation of the automobile?

29I find that the applicant has not established that he would not have suffered his stroke “but for” the use or operation of his automobile. Also, I find that the applicant has not established on a balance of probabilities that he sustained impairments as a result of his fall from the truck.

30The applicant submits that “but for” the use of the vehicle, he would not have been in the truck, would not have been exiting the truck, and would not have fallen, hit his head/body against the ground and suffered a stroke. He submits he sustained these injuries as a direct result of the ordinary use and operation of the vehicle. He relies upon an OCF-18, dated September 14, 2021, completed by Dr. Bob Grossman, chiropractor, and CNR of St. Vincent Hospital, dated August 11, 2021.

31The respondent submits that the incident does not meet the causation test, as the applicant’s stroke symptoms began after he parked his tractor trailer but before he exited his vehicle. As such, it argues that the use or operation of the automobile was not the direct cause of the stroke. Instead, it submits that the applicant’s impairments were caused by a stroke, and not a fall that occurred while exiting the automobile. Aviva relies upon the CNRs of St. Vincent’s Hospital and Polyclinic, Family and Speciality Medicine, the applicant’s family physician office.

32First, I am not persuaded by the applicant’s position that he sustained impairments from the fall. I acknowledge that he relies upon the CNR from St. Vincent’s Hospital dated August 11, 2021 to support his position that his symptoms may have been from a head injury. I place little weight on this one entry, as at that time it was unclear what was causing the applicant’s symptoms as he was unable to communicate. Furthermore, in this entry, multiple potential causes were noted for the applicant’s symptoms, including: acute cerebrovascular accident (“CVA”), alcohol, head injury, suspected infection, and medication that the applicant was taking.

33Notably, there are numerous subsequent entries from St. Vincent’s Hospital that revealed that the applicant had a “cerebral infraction due to unspecified occlusion or stenosis of left middle cerebral artery.” Subsequently, the applicant was transferred to UMass Memorial Health Care, for a thrombectomy, and his diagnoses were: acute ischemic left middle cerebral artery stroke, CVA, and stroke of unknown etiology. In my interpretation, while a head injury was considered a possible indication for the applicant’s symptoms initially, this appears to have been ruled out by the various medical practitioners as there is no further reference of whether the applicant sustained a head injury. Instead, as noted above, the records speak to the applicant’s stroke.

34I also note that the records from UMass Memorial Health Care reference that a remote left orbital floor fracture was discovered. However, the applicant made no submissions that he sustained this fracture as a result of his fall. In any event, the applicant has not referred me to an entry that establishes a connection between this fracture and the fall, like a medical opinion of what caused this fracture. Upon review of the records, I could not locate a medical opinion that links the remote fracture to the fall from the truck. Nor could I locate a medical opinion on the cause of the fracture or its origin. As such, based on the evidence before me, I find that the applicant has not met his onus to establish he suffered this fracture from the fall.

35Likewise, in both the St. Vincent’s Hospital and UMass Memorial Health Care records, there is no reference to the applicant sustaining impairments from the fall. Aside from the one entry as noted above, the applicant does not refer me to any other entries that support his position that he sustained injuries to his head and body as a result of the fall from the truck.

36Next, I place little weight on the applicant’s statutory declaration. I agree with the applicant that the hospital records contain conflicting hearsay evidence about the description of the incident. However, I prefer the medical evidence from the hospital records over the applicant’s statutory declaration. First, the medical practitioners in the hospital are qualified to determine whether the applicant sustained injuries from his fall. In other words, even if the description of the incident is not reliable, the remaining entries with respect to the applicant’s impairments are reliable. Second, the applicant has only referred to one entry from the hospital to support his position that he sustained any impairments from the fall. As noted above, I find this one entry has little evidentiary value.

37Finally, the applicant’s description of his alleged injuries from the fall are vague, and I place more weight on the detailed hospital records. For example, in his statutory declaration, the applicant stated that he hit his head and body from the fall, but he provides no particulars of which body parts. In my view, if the applicant had sustained impairments from his fall, these would have been noted in the hundreds and hundreds of medical records, but I have only been referred to entries that pertain to a stroke.

38In a similar vein, the records of Polyclinic, Family and Speciality Medicine, the applicant’s family physician office, also do not document any alleged impairments from the fall. Indeed, on October 15, 2021, February 1, 2022, February 10, 2022, April 7, 2022, and April 19, 2022, there is no reference to any injuries from a fall, and these entries only pertain to the stroke, and the subsequent issues following this.

39I place little probative value on the OCF-18 completed by Dr. Grossman. First, it is unclear from the OCF-18 whether Dr. Grossman is concluding the alleged injuries are from the stroke or the fall. In any event, Dr. Grossman’s opinion is not supported by the other contemporaneous medical evidence (like the hospital records from St. Vincent, UMass, and the applicant’s family physician office). Third, it is unclear whether Dr. Grossman reviewed any medical evidence before arriving at his diagnoses nor did he provide an explanation of how he arrived at his diagnoses.

40I also find that the factual matrix in the authorities cited by the applicant are distinguishable from the matter before me. I am bound by Jiang v. The Co-Operators General Insurance Company, 2024 ONSC 1225 (“Jiang”), Madore v. Intact, 2023 ONSC 11 (“Madore”), and Downer v. The Personal Insurance Company, 2012 ONCA 302(“Downer”).

41For instance, in Jiang, the Divisional Court held that the Tribunal committed an error of law when it did not consider whether the applicant’s alleged injures arising from the subsequent loss of a control of the vehicle could meet the definition of an “accident”. Here, I have determined that the applicant has not established that he sustained an impairment as a result of his fall.

42In Madore, there was no dispute before the Divisional Court as to whether the applicant sustained injuries from the fall. Rather, the Divisional Court was asked to determine whether the fall met the definition of an “accident”. Again, in the matter before me, there is no such evidence of an impairment.

43Correspondingly, in Downer, the Ontario Court of Appeal noted that the issue of whether the applicant suffered from psychological injuries as a result of believing he may have run over one of the assailants was not an issue before the motion judge (see paragraph 51). It was noted that the insurer was not disputing the accuracy or veracity of the plaintiff’s existence of his alleged impairments. In the matter before me, the respondent made numerous arguments that the applicant sustained no impairments from the fall, and only sustained impairments from a stroke. Therefore, the facts are distinguishable, as the respondent has raised concerns that the applicant did not sustain impairments from the fall.

44All-in-all, I find that the applicant has not satisfied on a balance of probabilities, that he sustained an impairment as a result of his fall. As I have determined that the applicant sustained no impairment from the fall, it follows the applicant does not meet the test under s. 3(1) of the Schedule.

45Now turning to whether the stroke would have occurred “but for” the use or operation of the automobile, I find that it would have. I am not persuaded by the applicant’s position that the truck was an instrument of injury which caused him to fall and suffer a stroke for the following three reasons.

46First, the applicant has not referred me to a single medical opinion that states the stroke occurred as a result of the applicant being inside a vehicle or near a vehicle. In fact, the records from UMass Memorial Health Care support that the stroke was of an undetermined etiology and acute. Second, the applicant has not referred me to medical evidence that establishes the connection between the stroke and the fall from the truck. Third, in his own statutory declaration, while the applicant noted he had a stroke, he did not provide any information on how this was connected to the use or operation of a vehicle.

47In my interpretation, for the applicant to meet the “but for” test he has to establish the stroke would not have occurred but for the use or operation of the automobile. However, upon review of the records of St. Vincent’s Hospital and UMass Memorial Health Care, there is no indication that the stroke was a result of the use or operation of the truck, and rather it was acute and of unknown causation. If you took the truck out of the equation, the applicant would still have suffered from a stroke, therefore the “but for” test is not satisfied.

48As I have determined that the “but for” test is not met, the intervening act and dominant feature considerations are not engaged.

49To end, the applicant has not established that he sustained impairments from the fall and has not met the “but for” test with respect to his stroke.

Estoppel argument

50I find that the applicant has not met his onus to establish that estoppel should be granted by the Tribunal.

51The applicant argues that the respondent had a duty to investigate and adjust promptly, which it did not do, as there was an “incredible delay”. As a result of this delay, the applicant submits that he has been prejudiced in his ability to gather evidence. Ultimately, the applicant is seeking relief that the respondent be estopped from its denial due to this prejudicial delay.

52In reply, the respondent submits that it promptly investigated the claim and concluded that the incident did not meet the definition of an “accident”. The respondent also argues that due to the page limit for reply submissions, it is unable to fully address the applicant’s arguments with respect to estoppel.

53I am alive to the decision of Akinyimide v. Economical Mutual Insurance Company, 2023 ONSC 5272, where the Divisional Court held that the Tribunal has jurisdiction to grant statutory relief under s. 131 of the Insurance Act, RSO 1990, c I.8. However, the applicant has not met his onus to establish estoppel for the following reasons. First, the applicant has not referred me to s. 131 or any other section of the Insurance Act that authorizes the remedy he is seeking. Second, the applicant has not tendered evidence to support his estoppel position. As noted above, it is well-settled that submissions are not evidence. Third, the applicant has not established which of his obligations under a contract of insurance he is seeking to be excused from, or on what basis.

54In short, he has not referred me to s. 131 of the Insurance Act or made any submissions that would assist the Tribunal in granting a remedy under this section. Therefore, the applicant has not met his onus to establish that estoppel should be applied in this matter.

ORDER

55The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. As a result, the applicant is not entitled to accident benefits.

56The application is dismissed.