Tsalikis v. Wawanesa Mutual Insurance Company, 2018 ONSC 1581

CITATION: Tsalikis v. Wawanesa Mutual Insurance Company, 2018 ONSC 1581

DIVISIONAL COURT FILE NO.: 231/17 DATE: 2018 03 06

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MARROCCO A.C.J.S.C., THORBURN and MULLIGAN JJ.

BETWEEN:

DIMITRA TSALIKIS

Natalie Shykula-Clarke, for the Appellant

Appellant

– and –

WAWANESA MUTUAL INSURANCE COMPANY

Tessie Kalogeras, for the Respondent

Respondent

HEARD at Toronto: March 6, 2018

THORBURN J. (Orally)

[1]

Introduction and Issues

Pursuant to s. 11(6) of the Licence Appeal Tribunal Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law alone.

2This is an appeal of the Licence Appeal Tribunal’s decision of April 24, 2017 on questions of law alone. The issues raised by the Appellant are as follows:

(1) Was there a breach of procedural fairness in holding the hearing by telephone instead of in person?

(2) Did the addition of minor injury guidelines (MIGs) to the hearing without prior notice result in a breach of procedural fairness?

(3) Did the adjudicator breach the principles of procedural fairness and natural justice by not fairly evaluating the medical records submitted by the Appellant? and

(4) Did the adjudicator breach the principles of natural justice and procedural fairness by not following the principles in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.)?

[3]

Standard of Review

The standard of review to be applied on questions of law such as the above, is reasonableness. (Melo v. Northbridge Personal Insurance Corporation, 2017 ONSC 5885 paras. 6 and 7.)

[4]

Analysis

At the hearing, the Appellant sought income replacement benefits (IRBs) in the amount of $70 per week to age 65. She also proposed a treatment plan valued at $12,903.

[5]

Issue 1: Telephone Hearing

The mandate of the Safety, Licensing and Standards Tribunals Ontario provides that the Licence Appeal Tribunal will, among other things, “Maintain efficient and flexible appeal processes that are clear and accessible to the public.”

6The hearing was a two day hybrid proceeding and proceeded in writing and by telephone conference over two days among nine persons on six telephone lines. The Appellant used a Greek interpreter. The Appellant was at all times represented by counsel.

7In prehearing, the Appellant sought a hearing in person. This was denied. Executive Chair L. Lamoureux however, stated that,

Any potential difficulty in being able to adequately hear the proceedings at the hearing can be remedied by having an interpreter attend at the location of Ms. Tsalikis and her counsel. An interpreter will be provided by the tribunal…

8The Appellant sought reconsideration of her request for a hearing in person. Reconsideration was denied.

9The Appellant renewed her request at the outset of the hearing and that request was again denied.

10Knowing that this was a significant issue for the Appellant, she could and should have sought an audio recording of the proceeding. The rules require that she make the request for an audio transcript within 14 days of the hearing. She did not do so until the second day of the hearing at which time the request was refused for logistical reasons and the fact that the first day of the two day hearing had been completed without such a request.

11We therefore have no recording of what exactly occurred at the hearing and the two parties could not agree as to what transpired and how, if at all, the proceedings were impeded.

12We recognize that in any case involving interpretation, there may be challenges. However, without evidence as to what transpired at the hearing, we are not satisfied on the evidence before us that in this case, the fact that the proceeding took place by telephone rather than an oral hearing, amounted to procedural unfairness.

13We note that the Appellant did seek to introduce the affidavit the Appellant and her son prepared but the affidavits were not sought to be filed until long after the time limits for filing.

14According to counsel for the Appellant, the material contained in the affidavits related to what transpired at the hearing which evidence could have been properly served and filed within the time limits.

15The Registrar refused to accept the filing of those materials because they were out of time. As a result, the respondent did not cross-examine on the affiants. We see no reason to interfere with the decision of the Registrar.

16For these reasons, the appeal on the first ground of procedural fairness fails.

[17]

Issue 2: Minor Injury Guidelines

The Appellant also suggests that the addition of minor injury guidelines (MIGs) to the hearing without prior notice resulted in a breach of procedural fairness. We do not agree.

18The material shows that the respondent had refused her payment above the MIG guidelines and she therefore should have been aware that this was an issue. We therefore see no procedural unfairness in the adjudicator’s decision to address and resolve this issue.

[19]

Issue 3: Evaluation of Medical Records

The third ground of appeal is that the adjudicator breached the principles of procedural fairness and natural justice by not fairly evaluating the medical records submitted by the Appellant. We do not accept this submission. A review of the adjudicator’s decision shows that the contents of the 140 page medical records were before her and the Appellant’s counsel referred the adjudicator to the relevant sections in her written submissions.

20The issue was whether the pre-existing condition impeded recovery and a review of the evidence demonstrates that the respondent adduced medical evidence to suggest that the Appellant’s pre-existing condition did not prevent recovery. The Appellant adduced evidence to the contrary. It is clear that the adjudicator was aware of the existence of this evidence by her comments. Moreover, the adjudicator was entitled and did rely on the evidence of the Respondent’s experts rather than the Appellant’s. Assuming this is a question of law alone, the adjudicator’s decision was reasonable.

[21]

Issue 4: Browne v. Dunn

Finally, the Appellant suggests that the adjudicator breached the principles of natural justice and procedural fairness by not following the principles in Browne v Dunn. The Appellant alleges that the adjudicator impugned the credibility of Dr. Mikhail despite the fact that Dr. Mikhail was not present at the hearing. Dr. Mikhail was afforded no opportunity to respond to the adjudicator’s view that there was a difference in the doctor’s report describing a possible tear to the rotator cuff in the MRI report and the doctor’s reference to a “tear” in his affidavit. Even if the rule in Browne and Dunn applied to the adjudicator, this discrepancy was apparent in the documents filed and could have been addressed by the parties in their written submissions.

[22]

Conclusion

For these reasons the Appeal is dismissed.

MARROCCO A.C.J.S.C.

[23]

Costs

I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed for oral reasons released today. Costs to the Respondent in the amount of $20,000.00 all in, which is the amount agreed upon by the parties.”

___________________________ THORBURN J.

I agree

___________________________

MARROCCO A.C.J.S.C.

I agree

___________________________