16-003141 v Aviva Insurance Canada, 2017 CanLII 46352

Jul 17, 2017

Adjudicator: Chris Sewrattan

The Applicant was injured in a motor vehicle accident on December 13, 2014.

Procedural Issues

  1. The Applicant objected to Aviva’s submission of surveillance evidence. Moreover, the surveillance footage showed, at its highest, that the Applicant could perform movements “that are consistent with the pain he described to his treatment providers.” The surveillance footage showed the level movement that the Applicant had described in his affidavit.
    Result: Although there had been non-compliance, the surveillance footage  is admitted into evidence.
  2. The Applicant objected to Aviva’s submission of expert reports as they were not filed in compliance with the Tribunal’s Rules and the Order setting out deadlines for the hearing. While the Adjudicator accepted this to be the case, prejudice had not been demonstrated as a result of the Respondent’s non-compliance. To disallow Aviva’s expert reports would be to focus on technical non-compliance at the expense of other practical considerations, namely having relevant evidence at this hearing.
    Result: Aviva’s expert reports are admitted into evidence.
  3. Both parties failed to adhere to the page limits outlined in the Tribunal’s Order which provided that submissions were not to exceed 15 double-spaced pages. The Applicant submitted 9 single-spaced pages; the Respondent 14 single-spaced pages.

Result: It is expected in the future that counsel, who are both able and experienced, will comply with the Tribunal’s Order.

Issue 1: Is the Applicant entitled to receive non-earner benefits?

The Applicant submitted that, prior to the accident, his activities of daily living included personal care, sports, home keeping and maintenance, volunteering, attending college, and others. The Applicant did not provide information about how much time each of these activities occupied during a typical day, week, or month prior to the accident. While some of the time commitment can be inferred (e.g. College attendance from the submitted transcript) to an extent, they do not provide the full picture.

The Applicant sustained injuries to the spine, neck and right knee, and some psychological impairment including adjustment disorder, and somatic symptom disorder.

It must be determined whether the impairments sustained as a result of the accident continuously prevent the Applicant from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The Adjudicator was not able to make such a determination since there was not sufficient evidence outlining the time commitments associated with the Applicant’s pre-accident activities. This precludes any possible comparison between pre- and post-accident activity. Assuming without deciding that all of the Applicant’s impairments were caused by the motor vehicle accident, the Applicant is still not entitled to a non-earner benefit because of his failure to provide the evidence necessary to prove his case. He therefore failed to meet his onus of proving that he is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged.

Result: The Applicant is not entitled to a non-earner benefit