Nguyen v. TD Home and Auto Insurance Company, 2018 ONSC 7166

CITATION: Nguyen v. TD Home and Auto Insurance Company, 2018 ONSC 7166

DIVISIONAL COURT FILE NO.: 312/17 DATE: 20181127

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

PLATANA, SACHS, and C. HORKINS JJ.

BETWEEN:

QUOC NGUYEN

Peter Cozzi, for the Applicant

Applicant

– and –

TD HOME AND AUTO INSURANCE COMPANY and THE FINANCIAL SERVICES COMMISSION OF ONTARIO

Deborah McPhail and Michael Scott, for the Respondent, The Financial Services Commission of Ontario

Amit Kwatra and Rachel Pano for the Respondent, TD Home and Auto Insurance Company

Respondents

HEARD at Toronto: November 27, 2018

C. HORKINS, J. (Orally)

1The Applicant, Quoc Nguyen seeks judicial review of Director’s Delegate David Evans’ decision (“Director’s Delegate”) in which he confirmed Arbitrator Alan Mervin’s (“Arbitrator”) decision that Mr. Nguyen was not catastrophically impaired and was not entitled to any of the benefits claimed. The Respondent Financial Services Commission of Ontario (“FSCO”) takes no position on the merits of the application, and focuses their submissions on the standard of review.

Background

2Mr. Nguyen was involved in a motor vehicle accident on January 14, 2003. He applied to the Insurer, TD Home and Auto Insurance Company (“Insurer”) to receive statutory accident benefits pursuant to the Statutory Accident Benefits Schedule – Accident on or after November 1, 1996, Ont. Reg. 403/96 (the “Schedule” or “SABS”), as amended on June 27, 2008. Mr. Nguyen was paid a weekly Income Replacement Benefit of $97.85 that was terminated on February 3, 2004. The parties were unable to resolve their disputes through mediation, and Mr. Nguyen applied for arbitration. At issue was whether Mr. Nguyen (a) suffered a catastrophic impairment as a result of the motor vehicle accident of January 14, 2003; and (b) as a result, was entitled to various benefits under the SABS.

The Arbitrator’s Decision

3The arbitration occurred over 23 days between August 12, 2013 and April 4, 2014. A large portion of the hearing was spent dealing with the surveillance evidence that the Insurer obtained between 2004 and 2008, and in 2011. There were seven surveillance video discs and corresponding reports entered into evidence. Mr. Nguyen was made aware of the surveillance in November 2008 and copies of the video and accompanying materials were given to him in December 2008.

4The Arbitrator rejected Mr. Nguyen’s motion after eight days of hearing to exclude the surveillance because some of the investigators’ handwritten notes were not produced. The Arbitrator found that this omission was unintentional, that the notes added nothing substantial to the evidence, and prejudice was non-existent because Mr. Nguyen was able to cross-examine some of the investigators.

5On December 24, 2015, the Arbitrator released his Decision, determining that Mr. Nguyen had not suffered a catastrophic impairment and was therefore not entitled to the benefits sought in arbitration. Mr. Nguyen’s family had testified that he cannot speak, mostly stays in his room watching TV, and requires assistance with eating and toileting. However, the Arbitrator noted that the Insurer’s surveillance from 2004-2008 (before Mr. Nguyen was informed of the surveillance) showed a markedly different demeanour. The Arbitrator stated: “it is interesting to note that … Mr. Nguyen’s decline in the last three years preceding [Dr. Eisen’s] assessment takes place after the existence of the surveillance was made known to the family.”

6The Arbitrator found no way to reconcile the evidence, noted that the Insured’s own witnesses were surprised by Mr. Nguyen’s level of functioning in the videos and testified that a person suffering a category 4 impairment could not perform as he did. The Arbitrator found that the family’s evidence was suspect, unreliable, and reflected a possible false presentation. When there was a conflict, the Arbitrator preferred the Insurer’s evidence.

The Director’s Delegate Decision

7Mr. Nguyen appealed the Arbitrator’s decision. Under s. 283(1) of the Insurance Act, Mr. Nguyen has a right to appeal to the Director’s Delegate on a question of law only.

8On the appeal, Mr. Nguyen argued that his near catatonic state at the arbitration was evidence supporting his impairment and that the Arbitrator erred in accepting the evidence that suggested otherwise.

9The Director’s Delegate dismissed the appeal and confirmed the decision of the Arbitrator.

10In his Reasons for Decision dated February 9, 2017, the Director’s Delegate stated that “the case turns on the fact that the Arbitrator found Mr. Nguyen gave no useful evidence” that the testimony of Mr. Nguyen’s wife and daughter was not credible and his experts relied on an “undependable history to form their opinions”. The Arbitrator reasonably found that Mr. Nguyen’s evidence was “untrustworthy, of little assistance and provided no basis for finding in favour of Mr. Nguyen”.

11The Director’s Delegate considered each ground of appeal and could find no errors of law. The grounds of appeal related to how the Arbitrator weighed the evidence. As the Director’s Delegate stated “[t]hat is the Arbitrator’s role and not mine. As long as there was evidence to support the Arbitrator’s conclusions, there can be no error of law and I have no basis to intervene. Most of the submissions made by Mr. Nguyen relate to how the Arbitrator weighed the evidence.”

Analysis

12The standard of review of the Director’s Delegate’s decision is reasonableness: Agyapong v. Insurance Company et al, 2018 ONSC 878 (Div. Ct.).

13Mr. Nguyen states that the Director’s Delegate’s decision is unreasonable and relies on three reasons.

(1) The Director’s Delegate unreasonably failed to find that the Arbitrator’s consideration of Mr. Nguyen’s presentation at the hearing constituted an error of law.

14This submission was made before the Director’s Delegate and the essence of the submission is summarized at page 8 of the Director’s Delegate decision as follows:

Mr. Nguyen submits that the Arbitrator erred in relying only on his oral testimony, which was of little use, because his whole presentation at the hearing was the evidence supporting his impairment. In the absence of finding him a malingerer, the Arbitrator should have found him psychologically impaired and not relied on the reporting of his wife and child, and submits that the most important evidence was the impression of what one saw in and what one heard from the Appellant Quoc Nguyen, and in what one believed about his presentation based on a totality of the evidence.

15The Director’s Delegate found that this submission went entirely to the Arbitrator’s findings of fact. As such, this did not raise an error of law and we agree.

(2) Mr. Nguyen states that the Director’s Delegate unreasonably found no error of law when it came to the Arbitrator’s treatment of the surveillance evidence.

16The Director’s Delegate dealt with this surveillance evidence submission at pages 8 – 9 of the Decision:

With respect to the surveillance evidence, Mr. Nguyen submits that the Arbitrator placed entirely too much weight on the “outdated” surveillance evidence from the years immediately after the accident and too little on the video surveillance from March 10, 2011. He submits that it was a “clear error of law” for the Arbitrator to conclude that the 2011 video surveillance “contained little information of significance” when it was closest in time to the hearing. He then draws out further submissions based on that submission, culminating in the submission that the proper question was whether he had suffered a catastrophic impairment as of March 28, 2012.

However, those again are submissions related to the weighing of evidence. As the Arbitrator noted, by late 2008 Mr. Nguyen was fully aware that he could be under surveillance, so the usefulness of anything taped after that would be doubtful at best. The Arbitrator was fully within his rights to give little weight to that 2011 video. Therefore, he was entitled to rely on the supposedly “outdated” surveillance evidence, as it showed just how untrustworthy the evidence of Mr. Nguyen’s wife and child was, and he was not required to draw conclusions as if the 2011 video was decisive.

17We see nothing unreasonable about the Director’s Delegate’s consideration of this issue.

(3) The consideration of Dr. Eisen’s evidence.

18Dr. Eisen is a psychiatrist who conducted a psychiatric evaluation of Mr. Nguyen on behalf of the Insurer. Dr. Eisen filed a report, testified and was cross-examined. His evaluation was one of a number of evaluations forming part of a multi-disciplinary assessment conducted at the request of the Insurer.

19The Arbitrator accepted Dr. Eisen’s evidence and used it to support his conclusion that Mr. Nguyen did not suffer a catastrophic impairment as result of the motor vehicle accident on January 14, 2003.

20During the hearing of this application, when asked to identify the error of law that flowed from the reliance on Dr. Eisen’s testimony, Mr. Nguyen’s counsel pointed to page 16 of Dr. Eisen’s report dated March 28, 2012 and in particular the answer and response to question 1 which states as follows:

1. As a result of the motor vehicle accident of January 14, 2003 has the insured person sustained a Catastrophic Impairment under any or combination of any of the criteria as described in the Statutory Accident Benefits Schedule?

No. From a psychiatric perspective, there is insufficient evidence that Mr. Nguyen has a psychiatric disorder attributable to the subject motor vehicle accident that accounts for his current impairments. No impairment ratings are applicable.

21According to Mr. Nguyen, the Arbitrator erred in law in limiting his consideration to whether there was a psychiatric disorder. He says this is an error in law because the SABS criteria for catastrophic impairment do not require a psychiatric disorder to be established.

22In considering this submission, it is important to note that Dr. Eisen was called to testify on matters within his area of expertise that was psychiatry. His evidence considered, as a whole, was clear. From Dr. Eisen’s perspective, Mr. Nguyen had not suffered a catastrophic impairment under any of the criteria described in the SABS. Further, Dr. Eisen stated in his report that he was “not able to make any firm diagnosis, or attribute any diagnosis to the motor vehicle accident.”

23It cannot be an error in law for a decision maker to accept an expert’s opinion because that opinion is confined to the expert’s area of expertise.

24Further, Dr. Eisen’s evidence was not the only expert evidence relied on by the Arbitrator in reaching his conclusion.

25We reject the argument that the Arbitrator limited his consideration to whether Mr. Nguyen had proven a psychiatric condition.

26The Director’s Delegate carefully noted that the Arbitrator reviewed all of the evidence before him, medical and non-medical evidence. He weighed the evidence and arrived at conclusions that were “amply supported in his reasons”.

27For these reasons, the application is dismissed.

SACHS J.

28I have endorsed the Application Record as follows: “This application is dismissed for reasons given orally by Horkins J. As agreed, the Applicant shall pay the Respondent, TD Home and Auto Insurance Company, its costs fixed in the amount of $10,000, all inclusive. FSCO seeks no costs.”

___________________________ C. HORKINS J.

I agree