The decision of Adjudicator Truong in  S.G. and Unifund Assurance Company, LAT: 16-000879/AABS addresses the importance of complying with Case Conference Orders and emphasizes the applicability of the “Heath Analysis” when considering entitlement to Non-Earner Benefits.

In this case, the Applicant, who was involved in a motor vehicle accident on January 2, 2015, submitted an application to the License Appeal Tribunal seeking entitlement to Non-Earner Benefits, a Rehabilitation Benefit, Interest, Costs and a Special Award.

As outlined in the Case Conference Order, the Applicant was required to submit her evidence by October 4, 2016. The Applicant submitted her evidence on November 3, 2016 which included two new documents not previously provided to Unifund.

As a preliminary issue, Unifund requested the new documents be excluded on the basis that the Applicant breached the Case Conference Order and that to allow these documents in the record would prejudice Unifund as it did not have a chance to review or respond to these new documents. Unifund also argued that these new documents should be excluded from the record since the Applicant never sought the Tribunal’s consent to disclose these new documents beyond the timeline stipulated by the Case Conference Order.

Despite the Applicant’s claim that the new documents were served immediately upon receipt, Adjudicator Truong held that the Case Conference Order was clear with respect to the evidentiary deadlines, and that the Applicant had clearly violated Rule 9.3, which allows the Tribunal to order parties to disclose evidence either 10 days before the hearing or as ordered by the Tribunal. Adjudicator Truong ultimately refused to include these new documents in the record since to do so would go against procedural fairness and would prejudice Unifund. She also outlined that it was sharp practice for the Applicant to wait until the Reply deadline to disclose these new documents.

In support of her claim for Non-Earner Benefits, the Applicant submitted records of her family physician, including 2 OCF-3s completed by her family physician, and a Psychological report.  The records of her family physician did not actually support her claim for Non-earner benefits, and her Psychological Report did not specifically outline the Applicant’s pre and post accident activities. Instead, the Psychological report listed generalizations as to what she did prior to the accident and what she could not do after the accident.

In addressing the Applicant’s claim for Non-Earner Benefits, Adjudicator Truong relied on the well-established principles set out by the Court of Appeal in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 regarding eligibility for these benefits.  Upon review of all of the documentary evidence on record, Adjudicator Truong highlighted the conflicting reports as to what the Applicant could and could not do after the accident. Since the Applicant failed to produce clear evidence as to her activities both prior to and after the accident, and did not clearly outline which activities were important to her before and after the accident, Adjudicator Truong concluded that there was simply no evidence about the Applicant’s life circumstances to make a finding that she suffered from injuries that prevented her from engaging in substantially all of her pre-accident activities. Adjudicator Truong therefore concluded that the Applicant was not entitled to Non-Earner Benefits.

With respect to the rehabilitation benefit at issue, the Applicant sought entitlement to the balance of a treatment plan that Unifund partially approved, based on “compassionate grounds”. Adjudicator Truong made it clear that compassionate grounds was not a remedy available to the Applicant and therefore the treatment plan was not payable.

Since Adjudicator Troung held that none of the benefits in dispute were payable, she did not award interest or a special award.

As the Applicant failed to particularize unreasonable, frivolous, vexatious or bad faith conduct on Unifund’s part, Adjudicator Truong did not award costs in this matter.

This decision is important for two reasons.  Firstly, it highlights the importance of the case conference in setting out the parameters of what is do be done by each party in advance of the hearing, where the outcome of the case conference has the weight of an order.  Failing to comply with that order will have dire circumstances.  Thus, preparing one’s case before the case conference, and attending it with a proper understanding of one’s file is essential.  Secondly, where the LAT has said that it is not bound by precedent, it is noteworthy that the adjudicator applied the Court of Appeal’s approach to entitlement to non earner benefits. 

Suzanne Clarke is a partner and member of the License Appeal Tribunal (LAT) practice group. If you have a question about this blog or a LAT file, please contact Suzanne here.