D.O. v. TD Insurance Meloche Monnex, 2018 ONSC 3269
CITATION: D.O. v. TD Insurance Meloche Monnex, 2018 ONSC 3269
DIVISIONAL COURT FILE NO.: 143/17
DATE: 20180524
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: D.O. (By her Litigation Guardian S.A.), Appellant
-and-
TD Insurance Meloche Monnex, Respondent
BEFORE: Harvison Young, Ferguson, and Myers JJ.
COUNSEL: Margaret (Rita) Gratsias, lawyer for the Appellant
Michelle Hatzikonstadinou and Jennifer Imrie, lawyers for TD Insurance Meloche Monnex, Respondent
Kathryn Chung, lawyer for the Licence Appeal Tribunal
HEARD at Toronto: May 24, 2018
ENDORSEMENT
Myers J. (Orally):
Background
[1] D.O., a baby, by her litigation guardian and mother S.A., appeals the decision of the Licence Appeal Tribunal dated February 23, 2017, reported at 2017 12597 (ON LAT). In the decision, Arbitrator Leslie found that D.O. is not entitled to attendant care benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010.
[2] D.O. sought attendant care benefits based on a claim that she suffered gastroesophageal reflux disease. The disease, she claims, was caused by her premature birth. Two months before D.O was born, her mother was involved in a minor car accident. D.O. claims that the car accident caused her premature birth that then caused her to suffer reflux disease.
[3] The benefits claimed on behalf of D.O. were discussed by the Adjudicator, who found that “[t]he type of assistance sought by D.O. as indicated in the Form 1 is well beyond the capabilities of a one-year old infant before or after the accident in question. The activities noted include, dressing, undressing and feeding.”
[4] The Adjudicator found that D.O. did not establish causation on either a “but for” test or a “material contribution” test. The Adjudicator found that D.O. had not proved either that the car accident caused her premature birth or that the premature birth caused her to suffer reflux disease.
[5] In all, the Adjudicator found that there was no indication that the reflux suffered by D.O. was caused by the accident. Rather, D.O. was developing normally. Reflux disease is suffered by a large proportion of infants in the population and D.O. outgrew it normally.
[6] In any event, and regardless of all of the foregoing, at para. 67 of the decision, the Adjudicator found:
[67] Further, there is no evidence of medical practitioners or otherwise suggesting or requesting special attention, constant supervision or specialized care for the applicant beyond what was normally expected of the mother of an infant/new born with [reflux] conditions. The evidence provided indicates that sometime after the [reflux] diagnosis, the insurer provided a monitoring device; which in my view was adequate under the circumstances.
- I find no evidence to support the applicant’s claim for attendant care benefits as contemplated by the Schedule
Jurisdiction
[7] Under s. 11 (6) of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G, an appeal lies to this court from a decision of the tribunal in proceedings under the Insurance Act, RSO 1990, c I.8 on a question of law alone.
Standard of Review
[8] The standard of review in appeals of this type is reasonableness. See Melo v. Northbridge Personal Insurance Corporation, 2017 ONSC 5885 citing: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 34; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 37-38; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47-49, 54-56; and 2193145 Ontario Inc. o/a Boston Pizza v. Registrar, Alcohol and Gaming, 2016 ONSC 3553 at para. 27.
[9] In Agyapong v. Jevco Insurance Company et al., 2018 ONSC 878, Justice Wilton-Siegel described a reasonableness standard of review as follows:
In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.
Analysis
[10] The appellant argues that the Adjudicator erred in failing to apply the “material contribution to risk test” in lieu of “but for” causation. The former test can apply where multiple tortious acts mask proof of causation of an applicant’s injury. In this case, there is no evidence of any other negligent acts that could be said to have materially contributed to D.O.’s reflux disease.
[11] While the appellant tries to raise issues of law concerning the burden of proof, the legal test for causation, and the sufficiency of notice, it is not necessary to resolve any of those issues in this case. Regardless of the legal outcome, the appellant cannot surmount the finding of fact that she did not prove that she required attendant care for her reflux. That is, even if the car accident caused D.O. to be born prematurely and even if the premature birth caused D.O. to suffer reflux, D.O. did not require fulltime attendant assistance dressing, undressing, and feeding as claimed. Those activities fall within the normal scope of unexceptional parental care duties for babies generally and those who suffer reflux disease in particular.[^1]
[12] Appeals under this statutory regime are limited to questions of law. Given the finding of fact that D.O. did not prove any need for attendant care, none of the issues of law raised on D.O.’s behalf can alter the result reached by the Adjudicator. I do not agree with Ms. Gratsias’s submission that the Adjudicator made an error of law in determining the question of fact with no evidence whatsoever. The contemporaneous medical records and the reports before the Adjudicator provided an ample evidentiary basis on which the Adjudicator was entitled to make the finding of fact that she made.
[13] The appeal is therefore dismissed.
Harvison Young J.
[14] I have endorsed the Appeal Book and Compendium as follows: “For reasons delivered orally by Myers J., the appeal is dismissed. Costs payable by the appellant to the respondent TD in the amount of $9,000 inclusive of HST and disbursements.”
Myers J.
I agree _______________________________
Harvison Young J.
I agree _______________________________
Ferguson J.
Date of Endorsement: May 24, 2018
Date Released: May 25, 2018
[^1]: S.A. made claims for personal care including assistance in performing child care duties in separate proceedings.