TTC Insurance Company Limited v. Kolapully, 2020 ONSC 1105

CITATION: TTC Insurance Company Limited v. Kolapully, 2020 ONSC 1105

COURT FILE NO.: 104/19

DATE: 20200214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Boswell, and O’Brien JJ.

B E T W E E N:

TTC Insurance Company Limited

C. Townsend and T. Broder, for the Applicant

Applicant

• and -

Shoba Kolapully

M. Dahab, for the Respondent, Ms. Kolapully

Respondent

• and -

FINANCIAL SERVICES COMMISSION OF ONTARIO

K. Chan, for the Respondent, Financial Services Commission of Ontario

Respondent

Heard at Toronto: January 28, 2020

O’Brien J.

REASONS FOR DECISION

1TTC Insurance Company Limited seeks judicial review of an appeal decision of a Director’s Delegate of the Financial Services Commission of Ontario (“FSCO”) dated February 8, 2019. The Director’s Delegate’s decision upheld a March 9, 2018 arbitration decision awarding non-earner benefits to the Respondent, Shoba Kolapully, pursuant to the Statutory Accident Benefits Schedule, O.Reg. 34/10 (the “SABS”). We dismissed the application after oral argument, with these reasons to follow.

2On March 6, 2012, Ms. Kolapully was struck by a TTC bus while crossing a pedestrian crossway. Ms. Kolapully suffered significant injuries, including breaking both her legs and suffering a traumatic brain injury. The aspect of her claims at issue on this application is her entitlement to a “non-earner benefit” under the SABS.

3Pursuant to s. 12(1) of the SABS, to qualify for a non-earner benefit, the person involved in the accident must show that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. “Complete inability to carry on a normal life” is defined in s. 3(7)(a) of the SABS as where “the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

4The Applicant relies on Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (2009), 95 O.R. (3d) 785 to emphasize that the claimant must establish that she has been “continuously prevented” from engaging in substantially all of her pre-accident activities. Pursuant to Heath, at para. 50, the phrase “continuously prevents” means that the claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.” The Applicant submits that the Arbitrator failed to apply the “continuously prevents” aspect of the test for a non-earner benefit and that the Director’s Delegate erred when she concluded otherwise. For the reasons that follow, while we do agree that Heath is the controlling authority, we conclude that the Arbitrator did cite and apply Heath, and the Director’s Delegate’s decision to this effect is reasonable.

5All parties agree, correctly, that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

6Counsel for the Applicant focused his submissions on the findings and reasoning of the Arbitrator. To be clear, our review is of the decision of the Director’s Delegate: the question before us is whether that decision, upholding the Arbitrator, was reasonable.

7The Director’s Delegate found on two occasions that the Arbitrator addressed the “continuously prevents” aspect of the test: (a) at para. 16, the Director’s Delegate quoted the Arbitrator’s finding that there was “ample evidence” that Ms. Kolapully suffered from depression, which exacerbated her other symptoms; and (b) at para. 18, the Director’s Delegate quoted the Arbitrator’s finding that Ms. Kolapully had discharged the burden of proving she was unable to carry on a normal life as a result of impairments flowing from the accident and was entitled to non-earner benefits dating back to November 19, 2012.

8While in these passages the Arbitrator did not directly state that the impairment “continuously prevented” Ms. Kolapully from engaging in substantially all the activities she engaged in before the accident, pursuant to Vavilov, at para. 94, a reviewing court must “read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered.” This may include considering the evidence before the decision-maker and the submissions of the parties. Considering this context “may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.”

9In this case, I do not accept that the Applicant pressed the “continuously prevents” aspect of the test to the Arbitrator. Rather, the thrust of the Applicant’s submissions to the Arbitrator was that Ms. Kolapully should not be believed with respect to her impairment at all, and that, in any event, the impairment reported by Ms. Kolapully was not sufficiently profound to meet the statutory test. It was not that her impairment was not “continuous” but that she had never been in a state of a “complete inability to carry on a normal life.” Although the Applicant in its written submissions to the Arbitrator excerpted sections of the statute and legal test referencing the “continuously prevents” portion of the test, it did not otherwise make submissions on this issue. In the circumstances, it is not surprising that the decision of the Arbitrator similarly did not address this aspect of the test directly: it did not appear to be one of the contested issues.

10That said, I am satisfied that there is a basis in the Arbitrator’s decision for the Director’s Delegate’s conclusion that she did address this aspect of the test. As the Director’s Delegate stated, the Arbitrator found that there was “ample evidence” that Ms. Kolapully suffered from depression. In her decision, the Arbitrator noted that as early as March 2013, the neuropsychologist, Dr. Gilman found Ms. Kolapully suffered from reduced stress tolerance which would “augment her accident-related pain complaints and related levels of anxiety and depression.” The Arbitrator also relied specifically on the evidence of Dr. Becker, who found Ms. Kolapully to suffer from depression, anxiety and a pain disorder after tracing Ms. Kolapully’s medical history for anxiety and depressive symptomatology back to 2012. The Arbitrator concluded that as a result of the 2012 accident, Ms. Kolapully “found herself in a miserable life as a social recluse without hope of anything better.” Finally, as stated by the Director’s Delegate, the Arbitrator specifically concluded that Ms. Kolapully had met the requirements of the SABS dating back to November 19, 2012. In a context in which the Applicant did not emphasize the continuity aspect of the test before the Arbitrator, the Director’s Delegate’s decision that the Arbitrator sufficiently addressed this aspect of the test was reasonable. Put another way, the experienced Arbitrator, who cited the applicable statutory test and the controlling authority in her decision, framed her reasons to address the issues argued before her by the parties. She was entitled to decide the case on the basis on which it was presented and argued before her.

11The Applicant raised additional arguments in its factum which were not emphasized in oral argument because of the focus placed on its primary argument. In short, the Applicant argued that (a) the Arbitrator made a palpable and overriding error in her credibility assessment of Ms. Kolapully, given her obvious unreliability; and (b) the Arbitrator’s finding that the degree of impairment met the test for a non-earner benefit was not supported by the record. There is little merit to these submissions. As found by the Director’s Delegate, the Arbitrator made her credibility findings after considering all the points raised by the Applicant, and she was entitled to come to the finding that she did. The Director’s Delegate concluded that the Arbitrator did compare the claimant’s life before and after the injuries, as she was required to do by Heath, and that her conclusions were grounded in the factual record before her. These findings – which concern questions of fact and findings of credibility – were open to the Director’s Delegate and are reasonable.

12The application is dismissed, with costs from the Applicant to Ms. Kolapully of $25,000, inclusive, as agreed between the parties. There shall be no costs for or against FSCO.

_______________________________ O’Brien J.

I agree _______________________________

D.L. Corbett J.

I agree _______________________________

Boswell J.

Date:

CITATION: TTC Insurance Company Limited v. Kolapully, 2020 ONSC 1105