Citation: Zvimba v. Aviva General Insurance, 2025 ONLAT 23-010184/AABS

Licence Appeal Tribunal File Number: 23-010184/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:

Emely Zvimba

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Adrian Lomaga, Counsel

For the Respondent: Aimee Draper, Counsel

HEARD: By way of written submissions

OVERVIEW

1Emely Zvimba, the applicant, was involved in an automobile accident on January 25, 2020, 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, 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 costs in the amount of $5,000.00 plus HST?

3In her submissions, the applicant withdrew issues 5(ii), 6, and 7 in the Case Conference Report and Order dated April 5, 2024 (“CCRO”). The applicant also withdrew issue 5(i) except for the request for a chronic pain assessment in the amount of $2,200.00.

4In its submissions, the respondent refers to an Explanation of Benefits (“EOB”) dated September 10, 2024 that was provided to the applicant indicating that she met the definition for designation of catastrophic impairment (“CAT”) under Criteria 8. As such, issue #1 in the CCRO is no longer in dispute.

5The respondent also refers to an EOB dated October 1, 2024 that was provided to the applicant indicating that she was entitled to non-earner benefits (“NEBs”) for 104 weeks. As such, issue #2 in the CCRO is no longer in dispute.

6The respondent also refers to an EOB dated October 1, 2024 that was provided to the applicant indicating that it agreed to pay for all benefits listed in issues #3 and 4 in the CCRO, as well as the chronic pain assessment in dispute. As such, these issues are no longer in dispute.

7The respondent advised in its submissions that it agreed to pay interest on the NEBs, and it agreed to pay interest on any of the plans in dispute that were incurred. As such, issue #8 is no longer in dispute.

8In reply, the applicant requested costs. As such, this is added as an issue in dispute, above.

RESULT

9The applicant is not entitled to costs.

10The application is dismissed.

ANALYSIS

The applicant is not entitled to costs

11I find that the applicant is not entitled to costs.

12Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

13Rule 19.5 of the Rules outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded, which include the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system. Rule 19.6 allows for a maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.

14The applicant submits that she was put to significant unnecessary legal expense preparing extensive submissions because of a delay of fifty-three days between the date of the respondent’s s. 44 CAT psychiatric addendum and serving the report. The applicant further submits that this delay was unreasonable given the known Tribunal submission deadline. The applicant argues that costs in the amount of $5000.00 plus $650.00 HST are requested because the respondent’s conduct constitutes bad faith and was unreasonable.

15The applicant submits that the timeline is as follows:

i. July 8, 2024: CAT IE addenda reports were requested based on a recent Form 1 involuntary hospitalization.

ii. July 19, 2024: date of CAT IE psychiatric addendum.

iii. August 15 and 22, 2024: the applicant sent emails to the respondent requesting the status of the CAT IE addenda reports.

iv. September 10, 2024: CAT IE addenda reports were served by the respondent.

v. September 10, 2024: applicant’s submissions were served.

vi. September 13, 2024: applicant’s submissions deadline.

The applicant submits that she spent 31.2 hours drafting submissions, reviewing the respondent’s submissions and drafting the reply. The applicant further submits that, when averaging six hours for each hearing day, her time warrants five days at $1,000.00 each day plus HST.

16The respondent directs the Tribunal to the following timeline:

i. Initial s. 44 CAT reports were released on March 2, 2023, and sent to the applicant on March 8, 2023.

ii. On April 20, 2023, the applicant submitted additional medical documentation which was sent to the s. 44 CAT assessment facility for comment. Addenda reports were released on July 18, 2023, and sent to the applicant on July 20, 2023.

iii. In April, May, and June 2024, the applicant submitted voluminous additional medical documentation including clinical notes and records (“CNRs”) of four doctors, records from seven different hospitals, records from Casey House, CNRs from four different clinics, a decoded OHIP summary, ODSP file, and a prescription summary. On receipt, these documents were sent forthwith to the assessment facility. Addenda reports were released on June 28, 2024, and sent to the applicant on July 2, 2024.

iv. The applicant submitted additional documents in July 2024 which were forthwith sent to the assessment facility.

v. The respondent sent follow-up emails to the assessment facility on August 9, 15, 23, 26, and 28, 2024, requesting a status update regarding the addenda reports. The respondent was advised on August 21 and 26, 2024, that the doctor completing one of the reports was still on vacation.

vi. On August 29, 2024, the respondent was advised that the reports were complete, but they were not sent to the respondent until September 3, 2024.

vii. The adjuster on the file was on vacation the week of September 2 to 6, 2024 and returned to the office on September 9, 2024. Within twenty-four hours, the adjuster sent the reports to the applicant and her counsel.

17The respondent refers to s. 45(5) of the Schedule, which states that the insurer has ten business days after receipt of the CAT reports to send them to the applicant. The respondent submits that since the addenda reports were received on September 3, 2024, the insurer had until September 17, 2024 to send them to the applicant. The adjuster sent the reports to the applicant as soon has she returned from vacation, seven days ahead of the deadline. The respondent further submits that it was aware of the hearing submissions deadline and wanted to ensure that the applicant had the reports in hand as soon as possible and well in advance of the September 13, 2024 deadline for service of her submissions.

18The respondent takes the position that it has acted in the utmost good faith and provided reports well in advance of the timelines set out in the Schedule.

19I have considered the relevant factors which should be considered by the Tribunal when determining whether to order costs, as set out in Rule 19.5. I find that there has been no misconduct on the part of the respondent in this case. I find that the respondent exercised diligence in making repeated inquiries of the assessment facility to follow up on the requested addenda reports. Further, once it received the reports, they were sent to the applicant well within the timeline set out in s. 45(5) of the Schedule, and three business days prior to the due date of the applicant’s submissions. In the circumstances, I find that the respondent has not acted unreasonably, frivolously, vexatiously, or in bad faith.

20For these reasons, I find that the applicant has not provided sufficient evidence to satisfy Rule 19.1 and her claim for costs is dismissed.

ORDER

21For the above reasons, I find:

i. The application is dismissed.

ii. The applicant is not entitled to costs.