Licence Appeal Tribunal File Number: 23-010581/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:
Mary-Ann Massad
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATORS:
Rebecca Hines Nathan Prince
APPEARANCES:
For the Applicant:
Gus Triantafillopolous, Counsel
For the Respondent:
Jonathan Schrieder, Counsel
Heard by Videoconference:
September 3 and 5, 2024
OVERVIEW
1Mary-Ann Massad, the applicant, was allegedly involved in an automobile accident on August 10, 2022, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was riding her bike along a two-lane road having one-lane in each direction, separated by a yellow centre line and a gravel shoulder. She was heading downhill at speed of approximately 50km/hr when her bike contacted the gravel shoulder causing her to fall and sustain significant injuries including multiple fractures, facial lacerations, and a degloving injury to her right leg. The applicant alleges that she veered off road to avoid a collision with an oncoming vehicle driving erratically.
3The respondent denies that a vehicle was involved in the incident and submits that, even if the applicant’s version of events is believed, the incident does not meet the definition of an accident.
PRELIMINARY ISSUES
4The preliminary issue we have been asked to decide is:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ISSUES
5The substantive issues to be decided in the hearing are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree no funds have been paid as of the case conference.
ii. Is the applicant entitled to $3,486.79 for occupational therapy services, proposed by Innovative Case Management Inc., in a treatment plan (“OCF-18”) submitted on October 5, 2022?
iii. Is the applicant entitled to $1,995.51 for physiotherapy services, proposed by IScope Concussion and Pain Centres, in an OCF-18 submitted on October 11, 2022?
iv. Is the applicant entitled to $2,900.00 for a psychological assessment, proposed by Dr. Jeremy Frank, in an OCF-18 submitted on February 6, 2023?
v. Is the applicant entitled to $146.00 for the completion of an OCF-3 Disability Certificate, submitted on September 23, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the applicant entitled to costs?
6The respondent has agreed that if the Tribunal determines that the applicant was involved in an accident, her impairments fall outside of the MIG. Further, it agreed to fund the benefits in dispute pursuant to the amounts payable under the Schedule and the Financial Services Commission of Ontario (“FSCO”) Superintendent Guideline No.03/14 (“Guideline”); however, the parties dispute whether the expenses in the treatment plans fall within the Guideline.
RESULT
7The applicant was involved in an accident pursuant to s. 3(1) of the Schedule.
8The applicant’s impairments fall outside of the MIG.
9The applicant is entitled to the following:
i. 3,486.79 for occupational therapy services, proposed by Innovative Case Management Inc., in an OCF-18 submitted on October 5, 2022;
ii. $1,995.51 for physiotherapy services, proposed by IScope Concussion and Pain Centres, in an OCF-18 submitted on October 11, 2022;
iii. $2,200.00 for a psychological assessment, proposed by Dr. Jeremy Frank, in an OCF-18 submitted on February 6, 2023;
iv. $146.00 for the completion of an OCF-3 Disability Certificate, submitted on September 23, 2022;
v. The applicant is not entitled to an award; and
vi. The applicant is entitled to costs in the amount of $500.
PROCEDURAL ISSUES
Award Issue
10The respondent brought a motion seeking to strike the applicant’s claim for an award as an issue in dispute. The respondent submits that the applicant did not provide any particulars of her claim for an award. Consequently, the respondent is not aware of the case it must meet, and it would be procedurally unfair to allow the applicant to proceed on this issue.
11The applicant submits that the Tribunal’s case conference report and order (“order”) did not order her to provide the respondent with the particulars of the award claim. In addition, the respondent has not provided several productions it agreed to produce which are outlined in the order. As a result of the respondent’s non-compliance with the order, the applicant was prevented from providing full particulars of the award claim.
12We declined to exclude the award claim because the Tribunal’s order did not direct the applicant to provide full particulars of the award claim. To ensure procedural fairness to the respondent, the applicant was ordered to provide full particulars of her award claim by the end of the first day of the hearing. The second hearing day was vacated to allow the respondent the opportunity to review the award issue with its client and to confirm whether it would be calling Christina Vittorio, the claims specialist as a witness.
Service of Summons to Witness on Adjusters
13Prior to the hearing the applicant attempted to serve Ms. Vittorio and Rohit Rangwani, adjusters, with a summons to witness. The summonses were left with the receptionist at the office building of the respondent and were also served on both witnesses electronically on August 13, 2024. We asked the applicant for submissions on why it is necessary for the Tribunal to hear from two adjusters. The applicant submits that it is necessary to hear from both adjusters because they had carriage of the claim at different points in time. As a result, the applicant should be permitted to cross-examine both on the decision-making process in adjusting the claim.
14The respondent submits that the applicant did not properly serve the summons on either witness because section 12 of the Statutory Powers and Procedures Act (“SPPA”) requires that the summons be served on a witness personally along with attendance money. The respondent decided to call Ms. Vittorio as a witness but advised it would not be calling Mr. Rangwani.
15The respondent decided to call Ms. Vittorio as a witness so the issue of improper service of the summons is moot. With respect to Mr. Rangwani, section 12 of the SPPA requires that a summons to witness be served in person. As a result, the Tribunal does not have authority to compel Mr. Rangwani to testify. Further, s. 15(1) of the SPPA allows the Tribunal to exclude the testimony of any witness that is unduly repetitious. We find the testimony of two adjusters is unnecessary and would be unduly repetitious.
Order Excluding Witness
16The applicant requested an order excluding Ms. Vittorio from the hearing room during the applicant’s testimony to ensure the independence of her testimony. The respondent opposed the request on the basis that Ms. Vittorio is a party to the proceeding and has a right to participate in the entire proceedings.
17We agree with the respondent and declined the applicant’s request for an exclusion order because Ms. Vittorio is a party to the proceeding and has a right to participate in entire proceeding to instruct counsel. For these reasons, the applicant’s request was denied.
Family Doctors CNRs
18On the last day of the hearing during its cross-examination of the applicant’s family doctor, the respondent brought a motion for the production of the family doctor’s clinical notes and records. The respondent argues that these records are clearly relevant to the issues in dispute.
19The applicant opposed the production of the family doctor’s clinical notes and records on the basis that it is not appropriate for the respondent to make this request on the last day of the hearing. It did not request these records at the case conference, nor did it request these records between the date of the case conference and the hearing.
20We declined the respondent’s motion because we were not provided with a reasonable explanation for the respondent’s delay in requesting these records. In our view, it is inappropriate for the respondent to make this request on the last day of the hearing, during the cross-examination of the witness. Further, we find that the probative value of the records are not worth delaying the proceeding because the family doctor acknowledged during his testimony that there is little information about the accident in his records.
Consent Order
21The applicant brought a motion seeking an order from the Tribunal enforcing a consent order. On August 19, 2024, counsel for the respondent sent counsel for the applicant an email advising that if the Tribunal determined that the applicant was involved in an accident it would remove the applicant from the MIG and fund the substantive issues in dispute. On the same date, counsel for the applicant sent counsel for the respondent an email asking whether it was prepared to enter a consent order with the Tribunal noting that it would fully fund the issues in dispute plus interest and remove the applicant from the MIG.
22Counsel for the respondent did not respond until August 29, 2024, when it informed the applicant that it did not agree to the specific language proposed by the applicant. On September 2, 2024, the respondent advised that it would fund the medical benefits and cost of examination expenses in accordance with the limits provided in the Schedule and the Guideline.
23The applicant submits that the respondent’s delay in providing its position on the consent order left her with insufficient time to prepare to address these issues at the hearing. We declined the applicant’s request to enforce the consent order because it was not being entered on consent. Although the respondent’s delay in responding to the applicant on their position was unreasonable, the parties did not agree on the terms and conditions. The Tribunal directed the parties to address the partial approval of the treatment plans and make their legal arguments in their closing submissions.
ANALYSIS
The applicant was involved in an “accident” as defined by Section 3(1) of the Schedule
Legal Test
24Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”.
25In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), the Ontario Court of Appeal (“Court”) set out a two-part test for determining whether an incident qualifies as an “accident” under the Schedule, known as the “purpose test” and the “causation test.” The tests were further refined by the Court in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) such that, in order to qualify as an “accident” under the Schedule, the insured must satisfy both branches of the modified test:
a) The Purpose Test: did the incident and injuries arise out of the ordinary and well-known activities for which automobiles are used? and,
b) The Causation Test:
i. Did such use and operation of the automobile directly cause the impairment?
ii. Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?
26The second prong of the causation test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh and several cases since, the Court has also addressed the “but for,” “intervening act,” and “dominant feature” considerations to analyze the modified causation test.
The Purpose Test
27The first question asks us to consider whether the incident arises out of the ordinary and well-known activities to which automobiles are put? To answer this question, we must first decide whether an automobile was involved in the incident.
28The respondent maintains that the applicant was not involved in an accident pursuant to s.3 (1) of the Schedule because a vehicle was not involved in the incident in any way. It submits that the applicant was involved in a cycling accident when she was travelling at high speed down a hill and lost control of her bike, hitting the gravel road and sustaining injuries.
29The respondent submits that the contemporaneous records of Hamilton Health Sciences (“HHS”) tell the true story. Upon the applicant's arrival at HHS, it was noted that “as per other cyclists, [the applicant] lost control, went into a gravel area, and struck the ground”. Further, none of the other hospital records note that a vehicle was involved. In addition, the applicant did not report the vehicle’s involvement in the incident to her family doctor until July 2023, which was almost one-year post-accident. Finally, there was no police report or independent witness statements to verify the applicant’s testimony that she veered off the road to avoid contact with an unidentified vehicle that had crossed the centre line. As a result, the respondent maintains that the applicant has not met her onus in proving that she was involved in an accident.
30The applicant argues that a vehicle was involved in the accident because she veered off the road to avoid being hit by an unidentified vehicle who was driving erratically. She submits that there are no independent witnesses because nobody witnessed the accident, and the driver did not remain at the scene. Moreover, post-accident she lost consciousness, had temporary amnesia, was given fentanyl by paramedics and was admitted to the trauma unit of the hospital where she underwent two surgeries in the days following the accident. She also sustained a concussion, numerous fractures, a degloving injury to her right leg, and lacerations to her face and arm which required stitches. She was more concerned about receiving treatment for her injuries than reporting how the incident occurred. Further, she submits that it was her husband who reported the cycling accident to the hospital staff because she was not in any condition to do so herself. At that time, her husband was not aware that a vehicle was involved because nobody witnessed the incident, and she was found unconscious at the side of the road.
31The respondent relies on this Tribunal’s decision in Soch v. Unifund Assurance Company, 2023 CanLII 67889 (ON LAT) (“Soch”) which it submits has facts similar to those in the present case. In Soch, the adjudicator determined that the purpose test was not met because she was not satisfied that a vehicle was involved in the accident because there was no mention of the vehicle in the medical records or statement of claim issued by the insured. The adjudicator also determined that it was inconsistent with the insured’s testimony in the examination under oath.
32We find the facts in Soch are distinguishable to the present case because we found the applicant to be credible. We also found that although the medical records do not mention the vehicle, the applicant consistently reported how the accident occurred in her application for accident benefits, initial discussions with the adjuster and her examination under oath. Further, in this case the applicant was rendered unconscious and sustained serious physical injuries which we accept interfered with her ability to accurately report the accident to hospital staff. We also note that we are not bound by this Tribunal’s decisions.
33We find that a vehicle was involved in the accident for the following reasons:
i. Overall, we find the applicant to be a credible witness and believe her version of events that she veered off road to avoid being hit by an unidentified vehicle who was driving erratically. Although we acknowledge that the hospital records do not mention the vehicle’s involvement, we do not find this to be a surprise because the applicant lost consciousness, had temporary amnesia and she sustained significant physical injuries which required strong pain medication, emergency surgery, and a period of recovery. The applicant testified, and we believe her based on the severity of her injuries, that she did not notify HHS about the existence of a vehicle because she was fighting for her life and was focused on recovering from her injuries.
ii. The applicant’s husband testified that he was the one who reported to hospital staff how the accident happened which explains why the vehicle was not noted in the hospital records. Since he was not there to witness the incident, he reported to hospital staff that it was a cycling accident. The applicant’s husband also testified that he had cycled ahead and had observed a dark coloured vehicle driving erratically; however, he was unaware as to whether this same vehicle had caused his wife to veer off the road. We also find the applicant’s husband’s testimony about what transpired on the date in question credible and were not given any reason to believe that he was not being honest and forthright in his testimony.
iii. Evidence corroborating the applicant’s version of events is not required. The respondent submits that the applicant is required to proffer corroborative evidence to substantiate her version of events. The respondent points us to Pepe v State Farm Mutual Automobile Insurance, 2011 ONCA 341 (“Pepe”) wherein the Ontario Court of Appeal held that “There is a long history of requiring corroboration either at common law or by statute where the evidence of one witness is regarded as insufficient to justify the finding in issue.” While this may be so, it is not applicable to the case before us. As previously noted, we find that the applicant’s testimony is sufficient to support that a vehicle was involved. In any event, Pepe is easily distinguishable from the matter before us. Pepe involved a tort matter and the rules of evidence applicable to Pepe do not apply to this Tribunal. Furthermore, Pepe involved an explicit provision found in the governing legislation which required corroboration. No such provision exists in the Schedule. As such, we find that corroborative evidence is not a necessary condition which must be met before we can accept the applicant’s version of events.
iv. Finally, we find that the applicant consistently reported the vehicle’s involvement in the accident within a week after the accident because it was noted in the application for accident benefits filed on August 17, 2024. Further, she was consistent in her reports about how the accident occurred in the statements made to the initial adjuster on file which is reflected in the log notes and in her testimony at the examination under oath. Based on the consistency of the applicant’s testimony at the hearing, her description of the accident on the application for accident benefits, her initial statements made to the adjuster, and testimony at the examination under oath, we accept the applicant’s version of events that there was a vehicle involved.
34Given that we have found that an automobile was present, and it was being used for an ordinary and well-known activity to which automobiles are put (i.e. It was being operated on a roadway); it follows that the purpose test has been met.
The Causation Test
35The first stage of the causation inquiry involves an analysis of whether the use and operation of an automobile directly caused the applicant’s impairments. The second stage involves considering whether there was an intervening act that cannot be said to be part of the ordinary course of things. We are guided by the analysis in Greenhalgh wherein the Court held:
12What will amount to direct causation will depend on the circumstances. However, some of the following considerations may provide useful guidance in ascertaining whether or not it has been established in a given case:
(a) The “but for” test can act as a useful screen;
(b) In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
(c) In other cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”. (Greenhalgh paras. 11 and 12)
36We find that the causation test has been met.
37“But for” the oncoming vehicle swerving into the applicant’s path, she would not have had to veer off road to avoid being hit. Having found that a vehicle was present, it follows that the “but for” test is easily met. However, the “but for” test is not determinative of legal causation. As Laskin J.A. noted in Chisholm the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] the but for test does not conclusively establish legal causation.” As such, we much also consider whether there were any intervening acts which cannot be said to be part of the “ordinary course of things”.
38In some cases, the presence of intervening causes may serve to break the link of causation. An intervening act may absolve an insurer of liability if it is outside the risk created by the use or operation of an automobile, that is, if it is not part of the ordinary course of things. We find that no such intervening act exists here. The presence of an erratic vehicle which caused the applicant to swerve set in motion a chain of events which ultimately led to the applicant sustaining severe injuries.
39The applicant relies on two recent decisions of the Divisional Court in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”), and Madore v. Intact, 2023 ONSC 11 (“Madore”), in support of her position that there need not be a direct physical connection with an automobile to satisfy the causation test. Although we acknowledge that the facts of how the accidents occurred in these cases are different from the present case, the court highlights that the Schedule is consumer protection legislation which requires a flexible approach to determine whether the use of an automobile was a direct cause of impairments in accident benefit cases. In Madore, the court states that that there need not be a direct physical connection between the cause of injury and the automobile and cited numerous court and Tribunal decisions which agreed with this interpretation.
40The respondent relies on the Tribunal’s decision in Hung v Motor Vehicle Accident Claims Fund, 2023 CanLII 119807 (ON LAT) (“Hung”) in which a cyclist fell off her bike as a result of her tire getting stuck in a streetcar track as she was navigating around a parked car. The adjudicator found that the streetcar tracks were an intervening factor that broke the chain of causation. The respondent submits that the gravel shoulder in the present case is akin to the streetcar track in Hung. We do not agree as Hung is distinguishable from the facts of this case. In Hung, the vehicle was parked and did not cause the cyclist to suddenly swerve. Instead, the cyclist saw the parked vehicle ahead of her and deliberately navigated her bike to avoid the parked car. The adjudicator in Hung ultimately found that “the vehicle, although nearby, was a secondary factor in this incident.” The same cannot be said here. In the present case, the vehicle was in motion and headed towards the applicant and was the primary and sole reason the applicant had to take immediate evasive action, causing her to veer off the road. She did not have the opportunity to analyse the situation and make a conscious decision as was the case in Hung. As a result, we find that there was no intervening act which resulted in the applicant’s injuries as there is a clear chain of events which necessarily flow from the involvement of the vehicle.
41Finally, it is useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”. Again, we accept the applicant’s version of events that she was forced off the road by an oncoming vehicle. Given this finding, it cannot be said that the use or operation of a vehicle was too remote nor was it merely ancillary to the injuries sustained by the applicant. The presence of a vehicle was the sole reason that the applicant swerved, causing significant injuries moments later. There may be more than one dominant feature, and while slipping on the gravel shoulder may have also contributed to the applicant falling, the involvement of a vehicle was the catalyst which ultimately led to the applicant’s injuries. The injuries sustained by the applicant were contemporaneous and directly flow from the use or operation of a vehicle and therefore we find that the operation of an automobile was a dominant feature of the incident.
42For these reasons, we find that the causation test has been meet, as the evidence supports that the applicant’s injuries were directly caused by the use or operation of a vehicle and there were no intervening acts that could reasonably be considered to be outside of the normal course of things that would sever the chain of causation. Accordingly, we find that the applicant has demonstrated, on a balance of probabilities, that the injuries she sustained were the result of an “accident” as defined by s. 3(1) of the Schedule.
43As noted above, the respondent agreed that if the Tribunal determined that the applicant was involved in an accident that her impairments do not fall within the MIG. It also agreed to pay for the OCF-3 in the full amount of $146.00. Therefore, it is unnecessary to address these issues further. However, there is still a disagreement as to quantum of the remaining benefits in dispute which will be discussed now.
The applicant is entitled to the remaining benefits in dispute, in part.
Medical Benefits
44The respondent agreed that if the Tribunal determined that the applicant was involved in an accident that it would fund the remaining medical benefits in dispute in accordance with the fees provided in the Guideline. The Guideline sets out the maximum hourly rates service providers can charge. Further, the Guideline states that hourly rates for professional services include the following:
all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.
45Section 15(2) (b) of the Schedule provides that an insurer is not required to pay for costs that exceed the Guideline.
46The respondent has agreed to fund the OCF-18 for occupational therapy dated October 4, 2022, in the amount of $3,237.15 (of the $3,486.79 claimed). It refuses to pay for amounts claimed on the plan for “documentation to support activities and planning service” as it submits these are already included in the hourly rates.
47The respondent also agreed to fund the OCF-18 for physiotherapy dated October 6, 2022, in the amount of $1,895.75 (of the $1,995.51 claimed). It refuses to pay for amounts claimed on the plan for planning service based on the same reasons.
48We agree that the respondent is not liable to pay fees charged in excess of the Guideline. In our view, the hourly rate for professional services includes things like documentation to support activity and planning. The applicant did not make any submissions as to why the balance of these OCF-18s are payable. We conclude that the applicant has not met her onus in proving on a balance of probabilities that the balance of the OCF-18s for occupational therapy and physiotherapy are payable. The applicant is therefore entitled to the OCF-18s in the amount $3,273.15 for occupational therapy service and $1,895.75 for physiotherapy services.
Cost of Examination
49With respect to the psychological assessment by Dr. Jeremy Frank, in the amount of $2,900.00, s. 25(5) of the Schedule provides that an insurer shall not pay more than $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.
50The OCF-18 proposed by Dr. Frank, recommended a psychological assessment in the amount $2,900.00. We find s. 25(5) of the Schedule clear that the respondent is not required to pay more than $2,000.00 for any examination. Further, the applicant did not make any submissions in support of her position that the balance is payable. We conclude that the applicant has not met her onus in proving on a balance of probabilities that the balance of the OCF-18 is payable. The applicant is therefore entitled to the OCF-18 in the amount of $2,000.00 plus HST in addition to $200 plus HST for the preparation of the OCF-18.
The respondent is not liable to pay an award under s. 10 of Reg. 664
51The applicant sought an award pursuant to 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.
52The applicant submits that the respondent’s position with respect to whether the incident was an accident was unreasonable in the face of the applicant’s OCF-1 completed during her stay at HHS, her reporting of the events to the adjuster, and her sworn testimony at her examination under oath.
53We do not agree.
54There was a reasonable basis for the insurer to question whether the incident was an accident. Neither the CNRs of HHS nor the CNRs of the applicant’s family doctor mentioned a vehicle being involved in the incident. Furthermore, at an early stage of adjusting the file, the respondent requested witness statements from the applicant, and none were provided. Ms. Vittorio testified that having such statements, including a statement from the applicant’s husband, may have affected the way they adjusted the file. Based on this, it cannot be said that the insurer’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
55We find that the applicant has not demonstrated on a balance of probabilities that the benefits were unreasonably withheld or delayed and therefore no award is payable.
The respondent is liable to pay interest
56Section 51 of the Schedule states that interest is payable on any benefits that are not paid by the insurer within the time prescribed by the Schedule.
57As we have found that the applicant is entitled to payment of the OCFs in the amounts of $3,273.15 for occupational therapy service proposed by Innovative Case Management Inc., $1,895.75 for physiotherapy services proposed by IScope Concussion and Pain Centres, $2,200.00 for a psychological assessment by Dr. Jeremy Frank, and $146.00 for completion of an OCF-3 disability certificate, the applicant is entitled to interest on such in accordance with s. 51.
The respondent is liable to pay costs
58Pursuant to Rule 19 of the Licence Appeal Tribunal Rules, a party may make a request to the Tribunal for costs where they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
59In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including:
i. the seriousness of the misconduct;
ii. whether the conduct was in breach of a direction or order issued by the Tribunal;
iii. whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process;
iv. prejudice to other parties; and
v. the potential impact an order for costs would have on individuals accessing the Tribunal system.
60The purpose of Rule 19 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. It is a high bar to meet for conduct to attract a cost award and is an exceptional remedy. For the following reasons, we find in this case the threshold has been met.
61The applicant submits that costs should be awarded because the respondent did not provide a timely response to the applicant’s proposed consent order and, furthermore, the respondent did not comply with the documentary disclosure required by the Tribunal’s order.
62The respondent did not provide a reason for their lack of a timely response regarding the consent order. As previously outlined, the respondent did not reply to the applicant’s proposed consent order until ten days after receipt wherein they advised that they did not agree to the proposed terms. Then, on the day before the hearing, the respondent clarified their position with respect to the quantum of benefits they would agree to pay, leaving the applicant minimal time to prepare their submissions. We find that this delay was unreasonable and prejudicial to the applicant.
63With respect to their failure to comply with the provisions of the order, the respondent submitted that the documentary disclosure provisions of the order were not within the “production order” section of the order and therefore not binding upon them.
64We disagree. The wording of the order is not permissive, it requires the respondent to produce the documents described therein. Specifically, the respondent agreed that they shall [emphasis added] provide the applicant with:
a. Decipher of all acronyms used in the adjuster’s log notes;
b. Remove the redaction on Page 8, or indicate the reason for same;
c. Identify who authorized the denial of the claim;
d. All recordings of phone calls between any/all employees of Desjardins General Insurance Group, or confirmation in writing that none exist;
e. A paid to date letter outlining all payments made on the applicant's Accident Benefits claim including the amount paid, who the payment was issued to and the reason for the payment, or confirmation in writing none exists.
65The respondent did not produce these documents and their disregard for adhering to the requirements set out in the order is a clear breach of an order issued by the Tribunal.
66In the alternative, the respondent also argued that the order was not an accurate reflection of what was agreed to at the case conference or that the Tribunal does not have jurisdiction to order it to produce the above records. The respondent did not make arguments about the Tribunal’s jurisdiction at the case conference. Further, we do not find this to a valid basis to disregard the provisions of the order. If the respondent disagreed with the case conference adjudicator’s production order it could have brought a motion disputing same. However, it did not. Failing to comply with the terms of the order because they simply did not agree to its contents amounts to unreasonable conduct.
67The unreasonableness of the respondent’s conduct justifies an award of costs. Pursuant to Rule 19.6, costs shall not exceed $1,000 for each full day of attendance at the hearing. As this was a two-day hearing, the applicant is seeking $2,000 in costs. We find the respondent’s conduct resulted in the need for unnecessary motions to be heard during the hearing which interfered with the Tribunal’s ability to conduct an efficient hearing. While we find the respondent’s conduct was unreasonable, the hearing was ultimately conducted in a timely manner and no extension of time was necessary. We find this to be a mitigating factor in considering the amount of costs. For this reason, we find that $500 in costs is proportional under the circumstance to deter this type of conduct in the future.
ORDER
68For the above-noted reasons, we make the following order:
i. The applicant has established that she was involved in an accident pursuant to s. 3(1) of the Schedule.
ii. The applicant has established that her impairments fall outside of the MIG.
iii. The applicant is entitled to the following OCF-18s, plus interest:
a. 3,486.79 for occupational therapy services, proposed by Innovative Case Management Inc., in an OCF-18 submitted on October 5, 2022;
b. $1,995.51 for physiotherapy services, proposed by IScope Concussion and Pain Centres, in an OCF-18 submitted on October 11, 2022;
c. $2,200.00 for a psychological assessment, proposed by Dr. Jeremy Frank, in an OCF-18 submitted on February 6, 2023; and
iv. The applicant is entitled to $146.00, plus interest, for the completion of an OCF-3 Disability Certificate, submitted on September 23, 2022.
v. The applicant is not entitled to an award.
vi. The applicant is entitled to costs in the amount of $500.
Released: October 10, 2024
Rebecca Hines
Adjudicator
Nathan Prince
Adjudicator