Citation: Basset v. Aviva Insurance Company, 2024 ONLAT 22-010644/AABS

Licence Appeal Tribunal File Number: 22-010644/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:

Bassam Basset

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

John Chui, Paralegal

For the Respondent:

Andrea L. Bandow, Counsel

Heard:

By way of written submissions

OVERVIEW

1Bassam Basset, the applicant, was involved in an automobile accident on September 20, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 20, 2020 to date and ongoing?

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

RESULT

4I find that the applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from October 20, 2020 to date and ongoing. Therefore, no interest is payable.

ANALYSIS

The applicant is not entitled to non-earner benefits (“NEBs”)

5The test for entitlement to NEBs is set out in section 12(1) of the Schedule. An insured person is entitled to an NEB in the amount of $185.00 per week if they sustain an accident-related impairment that causes “a complete inability to carry on a normal life” within 104 weeks of 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”. Insured persons have the onus of establishing entitlement to an NEB on a balance of probabilities.

6The 2009 decision from the Court of Appeal in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”) at paragraph 50, outlined a set of guiding principles to be considered when determining an insured person’s entitlement to NEBs, which, generally focuses on a comparison of the applicant’s pre- and post- accident activities. Pursuant to Heath, the following factors are to be considered when analyzing whether an insured is entitled to NEBs:

i. A comparison between the insured’s activities and life circumstances before and after the accident;

ii. Assessing the insured’s activities and life circumstances requires more than a snapshot in time but involves assessing over a reasonable period prior to the accident, the duration of which will depend on the facts of the case;

iii. Proving “substantially all” requires looking at all the insured’s pre-accident activities and life circumstances but greater emphasis can be placed on the activities that matter the most to the insured;

iv. “Continuously prevents” means that the impairment is of a nature, extent or degree that is and remains uninterrupted;

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it is not “engaging in;” and

vi. If pain is a primary factor that prevents the insured from engaging in their pre-accident activities, the question is not whether the insured can physically do the acts, but is the insured practically prevented from engaging in those activities?

7In order for an insured to prove that he sustained injuries that continuously prevent him from engaging in substantially all of his pre-accident activities, he must present a thorough analysis and comparison of activities that he could do before and after the accident. The insured must first identify the activities in which he used to engage, along with their frequency and importance. In R.S. and Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) (“R.S. and Aviva”), the Tribunal held that it is impossible to properly assess whether an applicant is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged without sufficient information about the time commitments of the applicant’s pre-accident activities. It can not be determined what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on these activities prior to the accident” (para. 17).

8The applicant submits that he suffers a complete inability to carry on a normal life as a result of the accident and that he has sustained an impairment that prevents him from engaging in most of his pre-accident activities. He relies on the Disability Certificate (OCF-3) prepared by Nileshkumar Patel, physiotherapist, at We Care Rehab Clinic, dated August 23, 2021, which indicates that he suffered a complete inability to carry on a normal life. The disability on the OCF-3 is indicated for more than 12 weeks. The applicant submits that this record supports that his home activities/tasks and activities of daily living are all impaired due to the nature, number and severity of his physical and non-physical injuries.

9The applicant further relies upon the Insurer’s Examination Physiatry Assessment Report by Dr. Shariff Dessouki, Physiatrist, dated August 25, 2022 which notes that the applicant has difficulty completing housekeeping and home maintenance tasks. The report notes that the applicant has returned to light household chores but continues to require his daughter’s assistance with the majority of these tasks. Dr. Dessouki also notes that the applicant no longer enjoys socializing with friends and family and that he has given up walking and swimming.

10The respondent submits that the applicant has not met his burden of proof that he suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. It further submits that the applicant has not presented a thorough analysis and comparison of his pre- and post-accident activities, including evidence establishing time commitments of all activities. The respondent argues that the evidence is clear: that the applicant has participated in and maintains the functional ability to perform daily activities post-accident at a reduced frequency or with pain/discomfort, which does not constitute a complete inability. It relies on the Multidisciplinary Assessment Report, prepared by Dr. S. Dessouki, Physiatrist, Dr. K. Lawson, Psychologist, and D. Adam, Occupational Therapist, at Altum Health, dated August 25, 2022, which confirms that the applicant does not suffer a complete inability to carry on a normal life.

11I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life for the following reasons.

12The applicant has not provided any evidence identifying the actual pre-accident activities in which he used to engage or details of the time commitments of the pre-accident activities. Therefore, and similar to the Tribunal’s decision in R.S. and Aviva, I cannot determine what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on his activities prior to the accident.

13Further, while the applicant raised the Heath factors in his submissions, he did not make submissions on the particulars of his pre- and post-accident activities, as required by Heath. Without details regarding the activities he valued, or evidence of the frequency and time commitments of his pre-accident activities, I cannot compare his pre- and post-accident ability to engage in activities he ordinarily engaged in or valued.

14I prefer the medical evidence of the respondent set out in the Multidisciplinary Assessment Report, which provides a thorough analysis of the applicant’s injuries and directly references the complete inability test. In addition, while the applicant relies on the report of Dr. Dessouki, which may document some of his activities, Dr. Dessouki ultimately concluded that the applicant did not meet the test.

15I find that the applicant has not provided sufficient evidence to allow me to assess any potential changes to his pre- and post-accident activity levels. Therefore, despite the applicant’s submission that he continues to suffer from impairments which interfere with his activities of daily living, I find that the applicant has not provided sufficient evidence to support this claim for NEBs on a balance of probabilities.

16For the reasons stated above, applicant is not entitled to NEBs

Time Period for NEB Claim

17The respondent has made submissions about the time period in which the applicant is entitled to NEBs. As I have found that the applicant is not entitled to an NEB, I do not need to make a determination on this issue.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no overdue payment of benefits is owing to the applicant, no interest is owed.

ORDER

19For the reasons outlined above, I find:

i. The applicant is not entitled to NEBs;

ii. The applicant is not entitled to interest; and

iii. The application is dismissed.