Licence Appeal Tribunal File Number: 22-010075/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:
Paula Longboat
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Mikolaj Grodzki, Counsel
For the Respondent:
Danielle Lecours, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Paula Longboat (the “applicant”) was involved in an automobile accident on September 4, 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 Gore Mutual Insurance Company (the “respondent”) 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 benefit (“IRB”) in the amount of $400.00 per week from April 5, 2019, to date and ongoing?
ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3The applicant is not entitled to an IRB and the respondent is not liable to pay an award. Interest does not apply.
PROCEDURAL ISSUES
Should certain aspects of the applicant’s reply be struck from the proceeding?
4The applicant may not rely on the November 2020 Ontario Disability Support Program (“ODSP”) letter at Tab 2 or the February 2024 financial brief at Tab 3.
5For context, the respondent’s motion of June 7, 2024, seeks an order to strike paragraphs 10, 11, and 12 of the applicant’s reply, as well as the corresponding evidence tabs. The applicant’s response, filed on June 12 2024, seeks an order to dismiss the respondent’s motion and award costs in the amount of $5,000.00. After the respondent’s reply was filed, the applicant filed a sur reply, which I decline to review. LAT Rule 15.3 of the Licence Appeal Tribunal Rules (“LAT Rules”) says the Tribunal may provide an opportunity for responding and reply submissions, but does not contemplate a sur reply. Further, the Tribunal’s motion order, issued June 10, 2024, invites the applicant to file her submissions by June 17, 2024, and the respondent to reply by June 24, 2024. No allowance for a sur reply is indicated in the motion order, and the applicant did not seek relief from the Tribunal’s order to file her sur reply.
6The respondent submits that the applicant introduced new evidence with her reply submissions (i.e., Tabs 2 and 3) and effectively split her case by failing to advance all her arguments and evidence in her initial submissions. The respondent explains that Tab 2 was not previously disclosed as part of the productions ordered by the case conference report and order (”CCRO”) or otherwise, and that Tab 3 was not relied upon at the time the applicant filed her initial submissions (i.e., it was not included with, or referenced in, those submissions). The respondent relies on Black v. Aviva General Insurance, 2024 CanLII 15893 ON LAT (“Black”); E.M. v Aviva Insurance Company, 2020, 12741 ON LAT (“E.M.”); and Nadarajah v. Aviva General Insurance Company, 2021 CanLII 111143 ON LAT (“Nadarajah”) to show that the right of reply is limited to a response to the other party’s submissions that could not have been reasonably raised in the initial submissions, and further, that a reply is not an opportunity to introduce new evidence that should have been included in the initial submissions.
7The applicant argues that the respondent’s motion breaches: (1) the CCRO for this matter; (2) Rule 15.2 of the 2017 Common Rules of Practice & Procedure for the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Common Rules”); and (3) procedural fairness. The applicant says the respondent is “disregarding the rules,” “bullying the applicant,” and acting in “bad faith” by deliberately filing its motion a week after the scheduled hearing date despite being served the applicant’s reply roughly eight days prior to the hearing. The applicant relies on Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804 to show the respondent must live with the consequences of filing its motion past the hearing date without seeking consent or leave to do so.
8I find the disputed tabs that form part of the applicant’s reply are prejudicial to the respondent and should not be considered during the hearing. The applicant did not file the evidence at Tabs 2 and 3 with her initial written submissions. The applicant cannot rely on her position that she earlier disclosed Tab 3 to the respondent because the CCRO requires the parties to exchange and file with their written submissions the evidence they will refer to in the hearing. The CCRO is clear that documents previously filed must be resubmitted for the hearing. As such, it was incumbent upon the applicant to ensure that Tabs 2 and 3 of her reply were included with her initial written submission if she wanted to rely on this evidence during the hearing. In my view, introducing “new” evidence to the hearing after the respondent had filed its submissions is prejudicial to the respondent because it affords no opportunity of rebuttal, and it would therefore be procedurally unfair to consider the evidence. This is consistent with Black, where the Tribunal notes that parties “are expected to make the entirety of their case in their main submissions and new evidence as part of a reply is generally not permitted because the respondent does not have the opportunity to respond to new evidence tendered as part of a reply.” While Black does not bind me, I am persuaded by its reasoning and choose to apply it here.
9In my view, the thrust of the applicant’s argument (i.e., that the respondent’s motion should be dismissed because it was filed in bad faith after the scheduled hearing date) does not diminish the merit of the respondent’s position for several reasons.
10Firstly, the respondent’s motion was filed on June 7, 2024. This means the correct rules to apply are the LAT Rules because all motions filed with the Tribunal on or after August 21, 2023, are adjudicated per the LAT Rules [see LAT Rule 15.2: Application of Rule 15] and not the Common Rules as argued by the applicant. In any event, the Tribunal ordered the motion to be heard at the hearing and established response and reply submission deadlines for the parties. Further, the applicant did not point to a LAT Rule that establishes a requirement for parties to seek leave before filing a motion after the start of a hearing.
11Secondly, the applicant’s response does not explain how the respondent’s motion breached CCRO timelines, or which CCRO timelines she means.
12Thirdly, I reject the applicant’s position on power imbalance (i.e., that unlike her, the respondent has the financial resources to file motions without concern for the cost of doing so and did so here to bully the applicant by increasing her litigation costs). If I were to accept this rationale on principle, it would essentially mean the applicant could procedurally act with impunity because the respondent would never be able to avail itself of LAT Rule 15 on the basis that motions incur an undue financial burden on the applicant. In my view, this is an untenable position.
13I find Van Galder does not assist here because it speaks to the legislated implications of an insurer’s choice to disregard the avenues set out in the Schedule to obtain information about an insured’s condition. This is distinguishable from this matter, where the Schedule has no bearing on the timeliness of the respondent’s motion, and where the respondent is not seeking to obtain more information on the applicant’s condition.
14Taken together, I am persuaded by the respondent’s arguments. While I disagree that admitting paragraphs 10, 11, and 12 to the hearing raises procedural fairness issues in and of itself, I find the evidence the applicant relies on to support the positions taken in those paragraphs is prejudicial (i.e., it could unfairly influence the outcome of the case because the respondent was not afforded an opportunity for rebuttal). Therefore, the evidence should be struck. In my view, the respondent acted reasonably in filing its motion and, in doing so, did not breach the LAT Rules or the CCRO. As such, the applicant’s costs claim is dismissed because she failed to set out reasons and particulars of the respondent’s conduct that persuade me it acted unreasonably, frivolously, vexatiously, or in bad faith as required at LAT Rule 19.4.
PROCEDURAL CONTEXT
15There are several procedural discrepancies in this case that merit consideration prior to addressing the issues on merit.
16Firstly, the applicant’s submissions argue only the merits of her entitlement to an IRB after the first 104 weeks that followed the accident. However, the entitlement period disputed by the parties starts on April 5, 2019, which is within the first 104 weeks of the accident. As such, I have considered her IRB entitlement under the tests set out in the Schedule for both periods.
17Secondly, the applicant’s submissions and reply indicate that she seeks a decision from the Tribunal that entitles her to an IRB onwards from September 13, 2018. This is a departure from the IRB issue as ordered in the CCRO, which confirms the parties are disputing the applicant’s entitlement to an IRB onwards from April 5, 2019. The applicant provided no submissions to explain this discrepancy and she did not file a motion to change the disputed eligibility period since the case conference. As such, I have considered her IRB entitlement as of April 5, 2019, and not September 13, 2018.
18Thirdly and lastly, the applicant’s submissions refer to a “stoppage” and indicate she disputed this stoppage with the respondent through emails and her application dated September 22, 2022. The applicant did not direct me to evidence of IRB payments made by the respondent. She does not point to emails, and the application (which was not included in the applicant’s evidence brief) makes no mention of a benefit stoppage. At issue no. 2 of the application, IRB quantum and initial entitlement are identified as issues, and further notes her claim was denied because Insurer’s Examinations (“IEs”) conducted in 2019 concluded she did not meet the IRB test. This is substantiated in a letter produced by the respondent, dated May 31, 2019, which says there is no initial entitlement to an IRB and makes no mention of earlier making or stopping IRB payments. As such, I am proceeding on the basis that the applicant was never paid an IRB by the respondent and that no stoppage of IRB payments occurred.
ANALYSIS
The applicant’s entitlement to an IRB
Within 104 weeks after the accident (up to September 4, 2020)
19I find the applicant has not established initial entitlement to an IRB.
20To receive payment for an IRB under section 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. This is to be read in concert with section 5(2), which sets out the same requirements in the context of self-employment. In both scenarios, the applicant must identify the essential tasks of her work (i.e., employment or self-employment), which tasks she is unable to perform and to what extent she is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that she meets this test.
21The applicant maintains the respondent failed to re-evaluate her eligibility for an IRB after undergoing a section 44 psychological IE and providing 1,000 pages of new medical information that included a section 25 IRB report by Dr. Bobbie Ross (psychiatrist). The applicant contends that after the accident, she could no longer work as a cleaner and was unable to do the cooking and catering responsibilities (i.e., lifting heavy pots in the kitchen and lifting or serving food to diners) of the weekend job she started about a month before the accident happened. Similarly, the applicant submits her post-accident inability to lift pots of food rendered her unable to continue making meals for a youth group, which had earned her honorariums in a volunteer capacity since the summer of 2018. The applicant adds that her right shoulder injury prevents her from making corn-husk doll products associated with her Indigenous heritage because she is unable to cut leather with scissors.
22The applicant relies on the “uncontested” December 2023 post-104 IRB assessment completed by Dr. Ross, as well as the following two authorities to show the Tribunal cannot “overrule the diagnosis and advice of a regulated health professional in the absence of any opinion to the contrary,” namely: (1) Burke v Economical Mutual Insurance Company, 2022 CanLII 81528 ON LAT (“Burke”); and (2) L.D. v Certas Home and Auto Insurance Company, 2020 CanLII 43088 ON LAT (“L.D.”). The applicant also cites Roy v. Primmum Insurance, 2020 ONSC 3886, but fails to say why she relies on this authority or point to the aspects relevant to her claim.
23The respondent argues the applicant was unemployed at the time of the accident and failed to produce evidence of her essential work tasks as well as identify which tasks she is unable to perform. The respondent therefore reasons that the applicant has not proven the extent to which she cannot perform her essential work tasks. The respondent adds that post-accident e-transfer payments in June 2019 and March 2020 suggest the applicant was working in “some” capacity within 104 weeks of the accident. The respondent relies on the section 44 functional abilities evaluation completed by Luigi Grimaldi (kinesiologist), the section 44 report of Dr. Scott Wiebe (physiatrist), and the section 44 report of Dr. Tilak Mendis (neurologist).
24The applicant has failed to prove she meets either aspect of the IRB test set out at sections 5(1) and (2) of the Schedule. The thrust of the applicant’s argument is that she is entitled to an IRB because the respondent failed to re-evaluate her eligibility upon receipt of new medical evidence. However, the Schedule requires the applicant to show (1) that she was employed or self-employed at the time of the accident; and (2) that she suffered a substantial inability to perform the essential tasks of that employment or self-employment because of the accident.
25I place little weight on the applicant’s employment as an apartment complex cleaner because she was not employed as such at the time of the accident. The applicant’s submissions indicate she stopped working in this role in July 2018, which is a couple of months before the accident in September 2018. Her submissions are consistent with Part 5 of the OCF-1 she signed on January 24, 2019 which identifies her status at the time of the accident as unemployed and is further corroborated in what appears to be clinical notes and records (dated September 25, 2018) prepared by therapist Sandra Romaniuk (designation not disclosed), where the applicant recounts her voluntary resignation from her cleaning role at an Indigenous housing facility in June 2018. While the applicant submits she started working in a catering role at a tourist site in Ottawa in August 2018 and therefore had just started this job at the time of the accident I find she did not point to evidence of this employment. To show employment at the time of the accident, the applicant should produce evidence like an employer confirmation form (“OCF-2”), a job contract, pay stubs, taxation records, etc. The applicant did not direct me to these sorts of documents, or otherwise, and relies solely on her submissions. Similarly, the applicant did not refer me to evidence of her volunteer activities or self-employment as an artist (i.e., doll crafter) at the time of the accident. Submissions are not evidence, and the applicant’s failure to point to evidence of employment or self-employment at the time of the accident significantly hinders her case.
26Given that the applicant has not established she was employed or self-employed at the time of the accident, I also considered the alternate provision at section 5(1) of the Schedule, which provides that an insured person who is unemployed at the time of the accident is still eligible for an IRB if that person was: (1) employed at least 26 weeks during the 52 weeks before the accident; (2) was receiving benefits under Canada’s Employment Insurance Act at the time of the accident; and (3) suffered a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.
27The applicant’s accident was on September 4, 2019, so I considered the period starting on or about September 4, 2018. The applicant’s submissions indicate she worked as an apartment complex cleaner from July 2015 to July 2018, which would reasonably distinguish this as the job in which she spent the most time leading up to the accident. However, the applicant did not substantiate, with evidence, that she was employed as a cleaner for at least 26 of the 52 weeks before the accident. Therefore, I find no entitlement under the unemployed provision of section 5(1).
28For the same reasons (i.e., unsupported submissions), the applicant fell short of establishing the essential tasks of her employment or self-employment. The applicant submits her regular cleaning duties involved keeping common areas of the building clean and ensuring apartments were move-in ready for new tenants. She shared that her catering role required her to cook and clean on weekends for events involving up to 200 people, as well as cleaning up after events and re-stocking inventory. The applicant’s doll-making artistry reportedly requires her to cut leather with scissors, and the applicant’s submissions go on to relate that she prepared food at home for youth events. However, the applicant did not direct me to evidence (i.e., a job description, an OCF-2, a letter from her volunteer organization, doll patterns or photos that demonstrate leather bits are used, etc.) to support these duties as essential tasks of her employment and self-employment. I therefore afforded little weight here.
29In conclusion, the applicant’s case was hindered by unsupported submissions on her employment and self-employment at the time of the accident, as well as her essential employment tasks. The only evidence included with the applicant’s submissions was the February 2024 report of Dr. Bobbie Ross, which I find merits diminished weight because the applicant’s submissions do not point to contemporaneous corroborating medical evidence of the impairments summarized in Dr. Ross’ report. I find that Burke and L.D. are of little assistance in assigning more weight to Dr. Ross’ evidence because the “uncontested” opinions of the medical assessors in both authorities were corroborated by contemporaneous evidence [for example, see paras 15 and 16 of Burke and paras 12 and 25 of L.D.]. For this matter, the applicant relied solely on Dr. Ross’ report with no reference to supporting medical evidence (i.e., the clinical notes and records of the applicant’s family physician, for example.)
30Given that I have found the applicant is not entitled to an IRB, I find it unnecessary to address IRB quantum.
After the first 104 weeks that followed the accident (from September 5, 2020, and onwards)
31I find the applicant has failed to establish post-104 week entitlement to an IRB.
32To receive payment for a post-104-week IRB under section 6(2)(b) of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
33The applicant’s submissions on her initial IRB entitlement (i.e., within the first 104 weeks after the accident) are not distinguished from her submissions on entitlement after the first 104 weeks that followed the accident. The applicant directly addresses the test at section 6 of the Schedule by citing McLean v Primmum Insurance Company, 2023 CanLII 84386 ON LAT (“McLean”) to show that her post-accident income and job status must be comparable to her pre-accident income in order to conclude that she did not sustain a complete inability to work because she retained a reduced capacity to work after the accident.
34The respondent argues that the applicant’s education and employment history, as reported to Dr. Ross, is not corroborated. The respondent also argues that Dr. Ross’ opinion on the applicant’s ability to work should be discounted because it is mainly based on physical impairments she did not assess, and which fall outside the scope of expertise for a psychiatrist. The respondent says Dr. Ross relied exclusively on the applicant’s self-reported reasons for not working and cites 17-004072 vs. The Commonwell Mutual Insurance Group, 2019 CanLII 18337 ON LAT (“Commonwell”) to show this is insufficient to meet the applicant’s onus.
35Like her arguments on her initial entitlement, the applicant’s case falters because she fails to support her submissions with evidence. To prove entitlement under section 6 of the Schedule, the applicant must show what employment or self-employment she is reasonably suited to do based on her education, training, and experience. However, she fails to do this. The applicant’s submissions do not direct me to transcripts or course records to substantiate her involvement in adult education programs or the level of education she completed. The applicant does not indicate whether she has undergone any skills-related training. She does not point to an assessment relied upon by Dr. Ross or otherwise that evaluates what employment or self-employment opportunities would reasonably be feasible, and whether the impairments documented in Dr. Ross’ report would render her completely unable to perform these jobs.
36In fact, Dr. Ross’ report indicates the applicant is not sure what she could do in terms of work, and without identifying employment and self-employment she is reasonably suited for, the applicant cannot meet her onus under section 6 of the Schedule.
37As well, I gave less weight to Dr. Ross’ report because the applicant’s submissions do not point to medical records or functional testing that Dr. Ross may have relied on to validate the applicant’s impairments. Dr. Ross documents head and right shoulder pain; limitations in stretching, reaching, bending, and lifting; and difficulties sleeping on her right side, using scissors to cut in circular motions, reading and writing with her head cast downwards, opening heavy doors with her right arm, shoveling snow, playing tennis, swimming, dusting with her right arm, washing her hair, and mopping floors. I did not assign full weight to these impairments because I am not directed to corroborating medical evidence or contemporaneous complaints of these limitations in any medical records that comprise the roughly five years that span the September 2018 accident and the applicant’s assessment with Dr. Ross in December 2023. This lack of corroboration and particularly from September 5, 2020, onwards when more than 104 days had passed since the accident severely hampers the applicant’s claim.
38I have difficulty understanding the relevance of McLean to this matter. In my view, McLean does not assist here because the thrust of the arguments put before me by the parties do not involve an analysis of the applicant’s post-accident capacity to work her pre-accident hours, or to determine whether her income and status resulting from any reduced hours is comparable to her pre-accident income.
39Taken together, I find this evidence does not support the applicant’s entitlement to an IRB under section 6(2)(b) of the Schedule. It follows then, that an analysis of the IRB quantum for this period is unnecessary.
Interest
40Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is not entitled to interest because there are no overdue payments of benefits owing.
Award
41The respondent is not liable to pay an award.
42The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
43The applicant submits an award is warranted in light of the respondent’s conduct.
44The respondent argues that the applicant has not provided any evidence that the respondent's conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate in order to justify her claim for an award.
45I agree with the respondent. The applicant’s submissions provide little insight into what aspects of the respondent’s conduct merit an award and therefore fail to meet her onus.
ORDER
46The applicant is not entitled to an IRB and the respondent is not liable to pay an award. Interest does not apply.
47The application is dismissed.
Released: January 27, 2025
Michael Beauchesne
Adjudicator