Licence Appeal Tribunal File Number: 23-009276/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:
Tony Ghattas
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Carlos A Ortiz, Paralegal
For the Respondent: James Brown, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Tony Ghattas, the applicant, was involved in an automobile accident on December 18, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute is:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $185.21 per week from August 15, 2022 to March 4, 2023?
RESULT
3I find that the applicant is not entitled to an IRB in the amount of $185.21 per week for the period from August 15, 2022 to March 4, 2023.
PROCEDURAL ISSUES
The respondent’s motion dated October 1, 2024
4On October 1, 2024, the respondent filed a Notice of Motion, requesting that the Tribunal:
i. exclude the applicant’s future care costs report, dated December 18, 2023;
ii. strike pages 5 and 10 of the applicant’s submissions; and,
iii. extend the respondent’s submissions page limit to 11 pages.
a) The future care costs report is admitted into evidence
5In its motion submissions, the respondent requests that the future care costs report dated December 18, 2023, not be considered as it was provided to the respondent after the final production deadline of May 22, 2024.
6The applicant’s future care costs report is admitted into evidence, but its late disclosure will be considered when determining the weight it will be given.
7The CCRO ordered that, by no later than 90 calendar days after the case conference (i.e., February 22, 2024), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.
8The future care costs report is dated December 18, 2023, and the document was not produced until September 17, 2024. The fact that the applicant only produced the report to the respondent with their submissions prejudiced the respondent who only had 14 days to respond to the report and abide by their deadline for submissions of October 1, 2024. If the applicant had intended to use a new document after the production deadlines, they should have introduced it at the earliest opportunity which I find they did not do.
9The applicant did not make any submissions regarding the timing of serving this document, or why it should be considered given the missed production deadlines. However, I am exercising my discretion and admitting the future care costs report into the hearing. I am allowing the document to be admitted because the report is relevant to the issue in dispute. The report provides details regarding the applicant’s ability to perform part-time work, and his physical, cognitive and psychological limitations from returning to full-time work. The report also suggest that the applicant wants to return to school to pursue a career in computer science. The respondent has not made submissions on prejudice that would result if the applicant’s document was included in the hearing record.
b) The respondent’s request to strike pages 5 and 10 of the applicant’s submissions is denied
10In its motion submissions, the respondent also requests that pages 5 and 10 of the applicant’s submissions not be considered since it refers to the future care costs report.
11Although the applicant did not make any submissions to explain the reason the future care costs report was filed late, nor did he address any prejudice to the respondent, I am exercising my discretion and including the applicant’s submissions in the hearing. I am allowing the applicant’s submissions to be considered because the respondent has made no submissions on how it will suffer any prejudice if the submissions are considered. Despite the lateness of the report and the applicant’s submissions referring to the report, I am not satisfied it resulted in a breach of procedural fairness or significant prejudice to the respondent.
c) Respondent’s page limit request is accepted
12I find that the respondent’s 11-page submissions are admissible in the written hearing.
13The respondent filed submissions of 11-pages in length. The respondent argues in its motion submissions that the additional page was necessary to address an adverse inference created by the applicant’s failure to produce records regarding his post-accident income and updated medical documentation.
14The applicant did not respond to the respondent’s motion, nor did he file a reply.
15The CCRO specified that the hearing adjudicator may not consider submissions which exceed page limits. However, in this case, I will admit the non-compliant submissions, because the applicant did not object to the extra page of submissions by reply.
ANALYSIS
The applicant is not entitled to an IRB
16I find that the applicant is claiming entitlement to an IRB within 104 weeks after the accident for the period from August 15, 2022 to March 4, 2023. The applicant makes no submissions to explain his pre-accident duties of his self-employment and which tasks he was unable to perform as a result of the accident. Therefore, I find that the applicant has failed to demonstrate his entitlement to an IRB under s.5 of the Schedule because he has not established how his accident-related injuries have prevented him from returning to the essential tasks of his pre-accident employment.
17The eligibility criteria for an IRB are laid out in s. 5 of the Schedule.
18To receive payment for an IRB under s. 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. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
19The applicant submits that he was self-employed as a full-time Uber driver on the date of the accident, and he returned to part-time work (as a pet sitter) after the accident on March 4, 2023. The applicant makes no submissions regarding the duties of his pre-accident self-employment as an Uber driver, other than food delivery and driving people to their intended destinations, or whether he suffered a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident.
20The applicant relies on the clinical notes and records (“CNRs”) of Dr. Omar Alsaffar, family physician; the CNRs of Pro Physio; a physiatry report dated October 4, 2023, by Dr. Zeeshan Waseem; a psychiatry report dated December 8, 2023, by Dr. Emily Gavett-Liu; and the future care costs report discussed above (dated December 18, 2023, by Nancy Olmsted, physiotherapist). In her report, Dr. Gavett-Liu diagnoses the applicant with pre-existing anxiety disorder, major depressive disorder, in remission, and vehicular phobia, in partial remission. Dr. Gavett-Liu opines in her report that the applicant is predisposed to stress and trauma as a result of his pre-existing anxiety disorder. Dr. Gavett-Liu based her opinion on the applicant’s self-reports of his two attempts to return to work as an Uber driver, because he has anxiety and gets overwhelmed.
21The applicant submits that his psychological and neurological injuries prevent him from returning to full-time employment as an Uber driver. The applicant refers to the CNRs of Dr. Alsaffar as evidence of his ongoing concussion and psychological symptoms. However, I find there is no medical evidence of ongoing symptoms since the applicant only attended his doctor twice in March 2022, when he reported driving anxiety after a second accident and headaches.
22The respondent relies on the CNRs of Pro Physio & Sport Medicine Centres Merivale, including Katherine Lemay, occupational therapist, and Preeti Madaan, physiotherapist; the CNRs of Dr. Alsaffar; Insurer’s Examination (“IE”) reports dated July 15, 2022 and August 24, 2023, by Dr. Pankaj Bansal, family physician; IE reports dated September 27, 2023 and November 9, 2023, by Dr. Christopher Cooper, psychologist; and the IE report dated October 25, 2023, by Dr. Mohammed Abdul Wahab Khan, physiatrist.
23The respondent submits that it is unclear whether the applicant worked as both a driver and a dog walker before the accident, what the reason was for why he was unable to return to work as an Uber driver after the accident, and the date he returned to work as a pet sitter. The respondent further submits that the applicant has not provided his post-accident income documentation or updated CNRs of his treating medical practitioners.
24The respondent submits that the applicant has provided inconsistent information regarding his pre- and post-accident self-employment as a driver and/or dog walker. The respondent submits that in initial assessment reports dated December 22 and 29, 2021, by Preeti Madan, the applicant reported that he is employed as a driver and a dog walker. The respondent further submits that the applicant reported a second accident to Dr. Alsaffar, which was the reason he developed a driving anxiety and stopped driving for two months.
25The respondent submits that on January 5, 2022, the applicant reported to Katherine Lemay that the reason he had not returned to work as a private driver and Uber driver was because he didn’t have a car. The respondent submits the applicant also reported to Preeti Madaan on May 2, 2022, that he had returned to his main occupation as a dog walker. The respondent submits that on July 15, 2022, the applicant reported to Dr. Bansal that he did not return to work as an Uber driver until January 2022, when he borrowed a car, but he did not continue due to headache, neck pain and driving anxiety. The respondent submits that the applicant received minimal treatment after the accident, and he reported to Dr. Bansal that his driving anxiety had improved with occupational therapy.
26The respondent submits that it paid an IRB based on the applicant’s Uber earnings at a rate of $185.21 per week until August 15, 2022, without full disclosure from the applicant regarding his pre-accident employment as both an Uber driver and a dog walker. The respondent submits that it has not received any information from the applicant regarding his inability to return to work as an Uber driver after the accident because he did not own a car. The respondent further submits that it has not received post accident income documentation from the applicant regarding his attempts to work as an Uber driver, or his return to work as a part-time pet sitter.
27I find that the applicant has provided contradictory evidence to treatment providers and assessors regarding his driving anxiety. The applicant reported to Dr. Alsaffar on March 14, 2022, that he was involved in a second accident one week after the subject accident and since then, he has received treatment from a psychologist for driving anxiety. However, the applicant later reported to Nancy Olmsted that he has not received any psychological counselling, and he has returned to part-time work as a pet sitter. The applicant has not produced any records from a treating psychologist.
28The applicant did not make submissions regarding the test for IRBs. This is significant to the applicant’s case, since I find he has not discharged his onus. The applicant’s submissions largely relate to his entitlement to an IRB based on his inability to return to his pre-accident job as a full-time Uber driver from the date his IRB was terminated until the date he returned to part-time work as a pet sitter. I find these arguments unpersuasive. I find it is unclear whether the applicant worked as a driver and a dog walker before the accident, and whether he returned to work as a dog walker after the accident, and he did not return to driving since he did not own a car.
29The submissions of the parties do not address either the quantum of the applicant’s IRB or the applicant’s entitlement to an IRB under s.5 of the Schedule. I find that the applicant reported to Dr. Gavett-Liu that he returned to work as a part-time pet sitter in December 2022, and Dr. Gavett-Liu opined that he would not be able to tolerate the stress of a job which requires driving. Although, Dr. Gavett-Liu indicates that the applicant has returned to driving, and he may have difficulties with stressful situations, there is no explanation of which essential tasks he is unable to perform as an Uber driver.
30I find that although the applicant submits that he is unable to return to his pre-accident duties as an Uber driver due to psychological and neurological injuries, he reported to Nancy Olmsted that he has not received any psychological counselling. I find that the applicant has not followed Dr. Cooper’s recommendation for a driver’s rehabilitation assessment, nor has he produced any post accident income documentation.
ORDER
31For the reasons set out above, I find that:
i. The applicant tis not entitled to an IRB in the amount of $185.21 per week from August 15, 2022 to March 4, 2023; and,
ii. The application is dismissed.
Released: June 25, 2025
Lisa Holland
Adjudicator