DIVISIONAL COURT FILE NO.: 239/08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, SWINTON and J. MACKINNON JJ.
BETWEEN:
D.F.
Applicant
– and –
WAWANESA MUTUAL INSURANCE COMPANY AND FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
Self-represented
Ian Kirby, for the Respondent, Wawanesa Mutual Insurance Company
Stephen Scharbach, for the Respondent, Financial Services Commission of Ontario
HEARD: November 18, 2011, at Toronto
REASONS FOR DECISION
1The applicant seeks judicial review of a decision by the Director’s Delegate, David Evans, of the Financial Services Commission of Ontario (“FSCO”), which upheld the decision of the Arbitrator, Robert A. Kominar, dismissing the applicant’s claims under the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96 (“SABS” or “the Schedule”).
2The applicant requests an order overturning the decision of the Director’s Delegate and awarding her the SABS benefits denied to her; or in the alternative, an order remitting the matter back to FSCO for a new hearing.
BACKGROUND
3The applicant was injured when her automobile was struck from the rear on October 13, 2002. She subsequently sought benefits pursuant to the SABS and received various statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”). However, her claims for income replacement benefits (IRBs) and certain medical/rehabilitation benefits were denied.
4As a result, and at the applicant’s request, a mediation session was held at FSCO on November 2, 2004. As the issues in dispute were not resolved, the mediator issued a report on December 21, 2004, and the matters proceeded to a hearing
5At a pre-hearing discussion held at FSCO before Arbitrator Edward Lee on July 21, 2005, the disputed issues were identified and agreed to as follows:
Is Ms. F. entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
What is the amount of weekly income replacement benefit that Ms. F. is entitled to receive pursuant to section 6 of the Schedule?
Is Ms. F. entitled to receive a rehabilitation benefit for a mattress set and a lap top computer with accessories claimed pursuant to section 15 of the Schedule?
Is Ms. F. entitled to payments for the cost of examinations for a neurological assessment, pursuant to section 24 of the Schedule?
Is Ms. F. liable to repay Wawanesa $3,700.00, pursuant to section 47 of the Schedule?
Is Wawanesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8 because it unreasonably withheld or delayed payments to Ms. F.?
Is Wawanesa liable to pay Ms. F.’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. F. liable to pay Wawanesa’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. F. entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
6In correspondence sent to the parties on or about July 27, 2005, the pre-hearing arbitrator outlined the above disputed issues and set out in a comprehensive manner the applicable procedures and regulations regarding the documents to be exchanged, surveillance, witnesses, legal representation, evidence, recovery of legal expenses, hearing dates and procedures, and settlement.
7The arbitration hearing extended over a period of seven days commencing January 16, 2006. In a 29-page written decision rendered August 23, 2006, Arbitrator Kominar analyzed the evidence presented under each of the issues raised and dismissed all of the applicant’s claims in their entirety, specifically, her claims for income replacement benefits, a Tempur mattress, a lightweight laptop computer and accessories, a neurological re-assessment, a special award and interest. At page 26 of his reasons for decision, the arbitrator concluded:
The Schedule makes it clear that Wawanesa is required to pay only for reasonable and necessary medical treatments and rehabilitation efforts. In this arbitration [Ms. F.] has not established, on a balance of probabilities, that the medical or rehabilitation treatments and devices which she has requested are either reasonable or necessary. Therefore I find that Wawanesa is not required to pay for them.
8He also dismissed Wawanesa’s claim for repayment of an advance to obtain banking records and for a repayment of income replacement benefits paid to the applicant (without prejudice). After an expense hearing, he awarded the respondent costs in the sum of $15,344.05.
9The applicant appealed the arbitrator’s order to the Director’s Delegate, challenging the dismissal of her claims under the SABS for income replacement benefits, medical/rehabilitation benefits and a special award as well as the expense award. She also made extensive submissions to the Director’s Delegate as to the arbitrator’s alleged unfairness, failure to respect principles of natural justice, errors in fact-finding and insufficient reasons.
10In written Reasons for Decision dated April 15, 2008, the Director’s Delegate dismissed the appeal, and in a separate decision awarded the respondent appeal expenses of $2,165.36. In brief, he was not persuaded the process was unfair nor that the arbitrator erred in law in either his findings of fact or his conclusions. It is that decision that forms the subject of this review application.
THE COURT’S JURISDICTION
11The application is brought pursuant to ss. 2(1) and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, and there is no issue of jurisdiction.
STANDARD OF REVIEW
12On matters of procedural fairness, the formal “standard of review” analysis does not apply. Rather, the questions to be answered are (i) what is the content of the duty of fairness that applies, and (ii) whether this duty was met. See Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805, at para. 37; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
13The standard that applies to issues of fact or mixed fact and law is reasonableness. Moreover, deference is accorded to a decision where, as here, the tribunal is interpreting its own statute, there is a privative clause and a discrete and special administrative regime in which the decision-maker has special expertise. See Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 62-64.
THE ISSUES
14The applicant claims that the adjudicators at FSCO erred in the following respects:
not finding that Wawanesa failed to comply with s. 38 of the SABS in respect of a treatment plan prepared by Dr. James Rennie on January 21, 2005;
improperly calculating her income before and after the accident for the purpose of IRBs;
failing to find certain issues were not mediated prior to the arbitration, as required;
misapplying the tests for onus of proof and causation; and
precluding her from producing transcripts of the arbitration hearing in order to determine whether the applicant was treated with procedural fairness.
15The applicant also argued procedural unfairness and lack of fundamental justice at the hearing before the arbitrator and in the proceedings generally. She alleges, for example, that the arbitrator restricted witnesses from giving evidence and/or failed to require witnesses to give relevant evidence.
ANALYSIS
16The first issue the applicant raises is the alleged failure of Wawanesa to respond to a treatment plan prepared by Dr. James Rennie on January 21, 2005, and the failure of the arbitrator and the Director’s Delegate to address this issue. Thus, she alleges, Wawanesa is required to pay for the goods and services identified therein pursuant to s. 38 of the Schedule.
17According to the applicant, she raised this issue at the hearing. It is noted, however, that the focus of the applicant’s arguments was on the benefits she was claiming, and this does not appear as an issue in dispute among the list of issues “identified and agreed to” at the pre-hearing stage or before the arbitrator. Whether this issue was raised or not at the hearing, it was not properly placed before the tribunal.
18Nonetheless, the arbitrator did refer to Dr. Rennie’s treatment plan in regard to some of the benefits claimed by the applicant, and he did not accept “the plan” as persuasive. On pages 16-17 of the decision, he states,
[Ms. F.] submitted in support of her claim to entitlement to the mattress a “prescription” dated October 8, 2004, written out by Dr. I. Mohamed, her family physician, as well as the treatment plan prepared by Dr. Rennie, her psychotherapist, dated January 21, 2005, which endorsed Dr. Mohamed’s recommendation.
19Arbitrator Kominar also noted that the recommendation for the mattress was “actually written onto the treatment plan form by [Ms. F.] herself, although Dr. Rennie did acknowledge signing off on the treatment plan.” He was not persuaded that there was any cogent evidence that a Tempur mattress was “either reasonable or necessary” in the circumstances. He then stated at page 18 of the Reasons:
I believe that Dr. Rennie is well meaning, but my view of his evidence was that he had no reasonable basis upon which to make the recommendation he did in his treatment plan. Blindly endorsing Dr. Mohamed’s recommendation in a treatment plan filled out by Ms. F. is unpersuasive on the issue. I find that Dr. Rennie was acting more in the capacity of a concerned advocate for Ms. F. than as an objective health care practitioner in signing the treatment plan. [Emphasis added].
20Similarly, in respect of the claimed computer, the adjudicator held at page 21 of his Reasons that the evidence of Dr. Rennie was to the effect that “he believed a resolution of Ms. F.’s conflicts with Wawanesa, on whatever basis, would likely help her psychologically.” Dr. Rennie had no idea about her computer situation or how the one she requested differed from the technology she already had.
21On the appeal, Ms. F. submitted that the arbitrator did not discuss whether Wawanesa had “appropriately responded to a treatment plan for the neuropsychological assessment.” However, the Director’s Delegate at page 4 noted that Dr. Konstantine K. Zakzanis, a psychologist, had conducted a Med Rehab DAC paper review in October 2005 and found there was no reasonable basis for recommending a neuropsychological reassessment of Ms. F.
22Given the fact that this issue was not properly placed before the arbitrator, that Dr. Rennie’s treatment plan was held to be unpersuasive, that he was found to have “blindly” endorsed Dr. Mohamed’s recommendations, that there is no allegation of a non-response to Dr. Mohamed’s alleged treatment plan and that a Med Rehab DAC assessment was undertaken in October 2005, this ground of review must fail.
23Regarding the issue of the applicant’s income calculation, the arbitrator found no evidence that the applicant was disabled from her pre-accident employment of acting, dancing and engaging in a mobile massage business. In light of this, he was not obliged to perform any calculations related to her income. He also found as a fact that her income from employment, as recorded in her income tax returns, remained relatively constant before and after the accident. This was confirmed by her evidence and that of her accountant. Upon reviewing the evidence relating to this issue and the findings of the arbitrator, the Director’s Delegate states:
As set out above, the arbitrator made findings of fact about the level of Ms. F.’s pre- and post-accident activity, and I have no grounds on which to overturn them. An important aspect of these findings is that they were made before the arbitrator turned to the evidence about Ms. F.’s income. He went on to use the income evidence to bolster his finding, and Ms. F. submits that he made significant errors in doing so, However, he had the tax returns before him and thus had evidence upon which to reach his conclusions. [Emphasis added.]
24We agree with the conclusion of the Director’s Delegate that the arbitrator had ample evidence to dismiss the applicant’s claim for income replacement benefits. We see no error in his reasoning or conclusion on this issue.
25Regarding the third issue as to whether Wawanesa “failed to mediate” all issues before they were brought to arbitration, there is no listing as to which issues the applicant alleges were not subject to mediation, though she herself attended at the mediation session. The arbitrator dealt with all the issues raised in the applicant’s notice of application, as required by the provisions of the Insurance Act, R.S.O. 1990, c. I.8 and, in particular, sections 282(3) and (4).
26Moreover, the disputed issues were clearly enumerated by the arbitrator who held the pre-hearing session and they were agreed to by the parties. Indeed, Ms. F. acknowledges in her factum that the issues were mediated, resulting in a mediator’s report rendered on December 21, 2004. There is no merit to this ground of review.
27In her factum, the applicant questions the tribunal’s interpretation of the onus of proof; however, she does not point out any alleged error in this regard. Instead, she cites a case, Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689, dealing with materiality and causation.
28Not only is that case distinguishable on its facts but the applicant fails to relate the legal principles therein to the claims she has made under the SABS in this case.
29There is no merit to this claim.
30The next issue raised by the applicant is the refusal of the Director’s Delegate to permit her to produce the transcripts she had taken at the arbitration hearing, some of which she had certified by a court reporter.
31The Director’s Delegate dealt comprehensively with this issue in letters dated October 3, 2006, and May 2, 2007 and in his reasons for decision.
32In summary, the Director’s Delegate was not persuaded that the transcripts were needed (as the arbitrator wrote extensive reasons) or that the insurer should be required to pay for them. In reaching this conclusion, he noted the Dispute Resolution Practice Code, Rule 74.1, which provides that a hearing may be recorded only “by a court reporter who has taken an oath or affirmation to report the evidence and proceedings faithfully”. Ms. F.’s recordings for the arbitration hearing and the expenses hearing were neither made nor transcribed by a court reporter though Ms. F. took the step of having some of her tapes certified by a court reporter after the hearing. She did not have those transcripts available for the hearing of the appeal.
33The cases cited by Ms. F. can be distinguished, since in those cases, the Divisional Court ordered a new hearing because it was impossible for the applicant to produce a transcript as the recording technology had malfunctioned or the recording was not intelligible. In the instant case, Ms. F. alleged she could not afford to pay for the transcripts, and the Director’s Delegate was not convinced he should, in the circumstances, order the insurer to provide the transcripts.
34We see no reason to interfere with the discretion exercised by the Director’s Delegate in respect of this matter.
35Finally, as to the applicant’s claim of procedural unfairness, this matter was also raised before the Director’s Delegate, who dealt with it prior to turning to the substantive issues.
36In responding to her complaints, the Director’s Delegate noted that the arbitration hearing lasted considerably longer than the norm and found it “difficult to conceive that the arbitrator placed so many roadblocks in her way that Ms. F. suffered a breach of natural justice.” He concluded,
[i]n summary, Ms. F. made many submissions about the events leading up to and during the proceeding. However, Ms. F. was afforded a number of days for what should have been a relatively straightforward hearing on a few distinct issues. I am not convinced that Ms. F. suffered a breach of natural justice or that procedural error so vitiated the decision that a re-hearing is required.
37In reviewing the file and the applicant’s submissions, we are of the same view. We can find no unfairness and no breach of natural justice in the proceedings.
CONCLUSION
38The applicant submitted a very comprehensive factum and application record to the Court, containing numerous documents and submissions. It is clear from reading the materials that she is attempting to re-argue the case before us.
39In some instances, she appears to have researched what she believes are similar cases and to have extracted principles that she believes may apply to her case. What she fails to appreciate,
however, is that while the principles are sound, each case turns on its particular factual matrix; and the facts in this case do not support the conclusions she asks this Court to draw.
40We can find no error in fact or law in the reasoning or conclusions reached by the Director’s Delegate in this matter. There was no procedural unfairness in the proceedings. The conclusions in each instance were reasonable and well-supported by the facts and the relevant legal principles. We see no reason to interfere with them.
41The application is, therefore, dismissed. Wawanesa claims costs on a partial indemnity basis in the all-inclusive sum of $9,113.27. Taking into account the factors in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, reg. 194, and the reasonable contemplation of the parties, costs are awarded to Wawanesa in the sum of $9,113.27, including disbursements and H.S.T.
42FSCO does not claim costs and we do not award any.
CHAPNIK J.
SWINTON J.
J. MACKINNON J.
Released:
CITATION: D.F. v. Wawanesa Mutual Insurance Company, 2012 ONSC 194
DIVISIONAL COURT FILE NO.: 239/08
DATE: 20120113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, SWINTON AND J. MACKINNON JJ.
BETWEEN:
D.F.
Applicant
– and –
WAWANESA MUTUAL INSURANCE COMPANY AND FINANCIAL SERVICES COMMISSION OF ONTARIO,
Respondents
REASONS FOR DECISION
Released: 20120113