Citation: Gutierrez v. Security National Insurance Company, 2025 ONLAT 23-003494/AABS

Licence Appeal Tribunal File Number: 23-003494/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:

Ryan Gutierrez

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Ryan Gutierrez, Applicant, Self-represented

For the Respondent:

Michael Kennedy, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ryan Gutierrez, the applicant, was involved in an automobile accident on October 13, 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 the respondent, Security National Insurance Company, 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 an income replacement indemnity pursuant to the Automobile Insurance Act, CQLR, c. A-25 (“AIA”) in the amount of $1,570.86 per week from October 13, 2021, to April 12, 2022?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to an income replacement indemnity or interest. The respondent is not liable to pay an award. This application is dismissed.

PROCEDURAL ISSUES

Settlement Privilege

4The respondent initially objected to the applicant’s submissions as filed, as it contained information that was settlement privileged. The applicant subsequently revised his submissions and the respondent did not make further objections. However, included in the applicant’s revised brief at “Exhibit I” and “Exhibit K” is an email that contains a settlement offer made by the respondent’s representative. This was one of the documents that the respondent initially objected to and requested that the portion of the email referring to settlement be redacted.

5Section 15(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, expressly prohibits the Tribunal from admitting any evidence that is privileged. The Court of Appeal in Re Hollinger Inc., 2011 ONCA 579 (“Hollinger”), which I am bound by, outlined the test for whether communications are settlement privileged. There must be a litigious dispute, the communications must have been made with the express or implied intent that they not be disclosed, and the purpose of the communication must have been an attempt to effect a settlement.

6I find that the penultimate paragraph of the email contains settlement privileged information and meets the requirements set out in Hollinger, and I have accordingly excluded that paragraph of the email at “Exhibit I” and “Exhibit K” from the hearing.

7I note that the bodies of the applicant’s submissions and reply submissions refer to a settlement offer made in the email, but no details are otherwise provided. As I can discern no pertinent details of the offer from these references, I find that they do not attract settlement privilege and I need not exclude any other part of the applicant’s initial or reply submissions from this hearing.

Applicant’s Request to Add Claim for Pain and Suffering Indemnity

8The applicant indicated in his submissions that he is seeking a pain and suffering indemnity in addition to the issues set out in the Case Conference Report and Order of November 28, 2023 (“CCRO”). The respondent opposes this request.

9The applicant was involved in an accident in Quebec and elected to receive benefits available under the law of Quebec pursuant to s. 59(2) of the Schedule. Quebec’s no-fault automobile insurance regime is governed by the AIA, under which every person who suffers bodily injury in an accident is called a “victim”.

10The applicant relies on s. 75 of the AIA, which states that a victim is entitled to a lump sum indemnity not exceeding $175,000 for non-pecuniary damages for loss of enjoyment of life, pain, mental suffering and other consequences of the temporary and permanent injuries or functional or cosmetic sequelae that he may suffer following an accident. He also relies on the associated Regulation r. 10 (Regulation respecting lump-sum compensation for non-pecuniary damage). Not all injuries or impairment levels under the Regulation qualify for compensation, and different calculations are used depending on the permanency of the impairment. In order to establish the entitlement to and the amount of compensation, evidence is required.

11The applicant has not adduced medical evidence in order to establish his entitlement to the pain and suffering indemnity. He instead requests a deferral of the valuation of the benefit pending a full medical assessment and submission of documents. He is effectively requesting to add an issue to this hearing, and then have the Tribunal adjourn the hearing of that issue and allow him to provide further submissions and evidence.

12I decline the applicant’s request. He has not provided a compelling explanation as to why he did not provide the evidence required to establish his entitlement to the benefit along with his submissions for this hearing. The applicant already brought a motion to adjourn this hearing on April 30, 2024, which was denied. Although he refers in his submissions to extenuating circumstances which were previously indicated at the motion, an explanation of those circumstances is not before me. I am not prepared to effectively grant an adjournment without a compelling explanation as to why the adjournment is required.

13Further, the applicant did not cogently explain what kind of evidence he requires, why he has not been able to obtain it to date, or how long it will take to do so.

14In addition, I have not been provided with an explanation as to why the applicant is unable to submit a fresh application to the Tribunal for a resolution of the dispute pertaining to the issue he is attempting to add, as opposed to adding it to this hearing at this late stage which would unduly delay the adjudication of the issues currently before me.

15For those reasons, I decline the applicant’s request to add the issue of his entitlement to a pain and suffering indemnity to this hearing.

ANALYSIS

Income Replacement Indemnity

16Under the AIA, certain victims are entitled to an income replacement indemnity. The applicant submits that the relevant sections of the AIA in his case are in relation to part-time employment and unemployment, and that he is entitled to the higher of self-employment, part-time, or potential employment that existed at the time of the accident. He relies on sections 24, 25, 31(3), 49, and 50.

17The applicant indicated on an OCF-1 dated November 11, 2021, that he was self-employed, working 9 hours per week managing his personal portfolio. It stated that he earned $23,400 in gross income in the 52 weeks prior to the accident. The OCF-1 also indicates that he was not attending school on a full-time basis at the time of the accident. In his submissions, he argues that his previous full-time gross annual income was $81,685 until 2017, before he pursued a Masters of Business Administration (“MBA”). He also provided a copy of his curriculum vitae, which indicates that his MBA program was part-time.

18Section 24, which is under subdivision 3 of the AIA, is applicable to victims over 16 years of age who are not attending a post-secondary educational institution on a full-time basis. Section 24(1) states that a victim who, at the time of the accident, is unemployed but able to work is entitled to an income replacement indemnity for the first 180 days following the accident if, by reason of the accident, he is unable to hold employment that he would have held had the accident not occurred. He would be entitled to the indemnity for such time as employment would have been available and for such time as he is unable to hold it by reason of the accident. The applicant has not proffered evidence that s. 24(2) is applicable in this case, so I will not reproduce it here. Under s. 25, the indemnity under s. 24 is calculated on the basis of the gross income the victim would have derived from the employment he would have held had the accident not occurred. After 180 days, the Société de l’assurance automobile du Québec (“Société”) determines an employment for the victim in accordance with s. 45, and he is entitled to the indemnity if, by reason of the accident, he is unable to hold that employment.

19The applicant does not rely on the section of the AIA specific to victims who were engaged in part-time employment. However, s. 19 states that a victim who at the time of the accident holds a regular employment on a temporary or part-time basis is entitled to an income replacement indemnity for the first 180 days following the accident if, by reason of the accident, he is unable to hold his employment. Section 20 explains how to calculate the indemnity if the victim is self-employed. Section 21 states that, after 180 days, the victim remains entitled to the indemnity if, by reason of the accident, he is unable to hold the employment determined by the Société pursuant to s. 45.

20I note that s. 31 falls under subdivision 4, which pertains to victims 16 years of age or older in full-time attendance at an educational institution. Based on the evidence before me, there is no indication that the applicant was attending school full-time at the time of the accident, and it therefore appears that this section, including s. 31(3) which he relies upon, is not applicable.

21The applicant has the burden of proving, on a balance of probabilities, that he is entitled to the income replacement indemnity (Scarlett v. Belair Insurance, 2015 ONSC 3635). No matter the applicant’s employment or educational status prior to the accident, according to the requirements of the AIA, he must prove that the accident caused him to be unable to hold employment.

22The only documents that mention the applicant’s medical condition are a two-page form dated October 18, 2021, which is largely illegible and so I am not able to glean from it any information about his functional status, and the OCF-1 where he self-reported a whiplash injury and does not explain why he was unable to work. There is accordingly no compelling evidence before me that the applicant was unable to hold employment as a result of the accident, and I find that he has not proven, on a balance of probabilities, that he is entitled to an income replacement indemnity.

23I also note that s. 49 of the AIA pertains to situations where a victim ceases to be entitled to an income replacement indemnity, and s. 50 provides an exception where a victim lost their employment by reason of the accident. I mention these sections because the applicant relied on them, however in my view they are not applicable because the applicant has not proven that he is entitled to the indemnity in the first place, and he has also failed to provide any evidence that he lost his employment because of the accident.

24The applicant states in his submissions that his claims are “pending the full medical documentation that will be provided and specified as per the applicable legislation”. The CCRO specifically states that the issue of whether the applicant is entitled to an income replacement benefit is to be decided at the hearing. The Tribunal also provided the parties with a Notice of Written Hearing on November 30, 2023, which states that parties are required to disclose their evidence at least 10 days before the hearing, and that documents filed after the deadlines ordered by the Tribunal may not be considered by the adjudicator hearing the matter. Further, the applicant’s previous request for an adjournment was denied. In my view it was clearly communicated by the Tribunal to the applicant that this hearing would take place as scheduled, would determine his entitlement to the indemnity, and that he would be required to provide evidence of his entitlement prior to the hearing. There is no explanation before me as to why he believed he would be provided with an additional opportunity to submit evidence after the hearing concluded. That would effectively result in an adjournment, which as I have previously indicated I am not prepared to grant.

25As the applicant has not established entitlement to the indemnity, I need not determine its quantum.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, I find that interest is not payable.

Award

27The applicant sought an award under 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. As I have determined that no benefits are payable, I find that the respondent is not liable to pay an award.

ORDER

28The applicant is not entitled to an income replacement indemnity or interest. The respondent is not liable to pay an award. This application is dismissed.