CITATION: Thiruchelvam v. RBC General Insurance Company, 2022 ONSC 554

DIVISIONAL COURT FILE NO.: Court File No. 736/19

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

(Lederer, Favreau and Gomery JJ.)

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, J.1

AND IN THE MATTER OF an appeal from a decision of the Director’s Delegate before the Financial Services Commission of Ontario

BETWEEN:

STALIN THIRUCHELVAM

Applicant

– and –

RBC GENERAL INSURANCE COMPANY and FINANCIAL SERVICES COMMISSION OF ONTARIO

Respondents

David S. Wilson, for the Applicant

Paul Omeziri, for the Respondent, RBC Kari Chan, for the Respondent FSCO

HEARD: October 13, 2021

REASONS FOR JUDGMENT

LEDERER, J

Introduction

[1] The Statutory Accident Benefit Schedule (colloquially “SABS”) represents what by now has to be recognized as a long-standing effort to respond expeditiously to those injured in accidents involving motor vehicles. It is part of a continuing effort by the government of Ontario to balance the value of statutory benefits (no fault benefits) and the right to sue in tort while accounting for the ability of the insurance industry to supply the required or appropriate policies at an acceptable cost. The scheme recognizes that there will be circumstances where individuals are so seriously injured that more than the regularly recognized benefits should be made available. People who find themselves in this unfortunate position are identified as being “catastrophically impaired”. The SABS demonstrates the basis upon which an injured party may be recognized as being catastrophically impaired and qualifying for any additional benefits that are or may be available.

[2] This is a judicial review. It arises from an arbitration that found that, as a result of a motor vehicle accident that occurred on September 4, 2013, the applicant Stalin Thiruchelvam qualified as being “catastrophically impaired”.[^1]

[3] Stalin Thiruchelvam is said to have suffered impairment due to mental or behavioural disorder. In the 2010 version of the SABS the qualification for this sort of impairment to be recognized as “catastrophic” was described as:

3 (2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

(f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.[^2]

[Emphasis by underlining added]

[4] As this was applied, at the time, a marked impairment of any one of the four relevant domains: (1) Activities of Daily Living; (2) Concentration, Persistence, and Pace; (3) Social Functioning and (4) Adaption to Work or Work-Like Stressors could qualify a person as suffering a catastrophic impairment.[^3] The central concern in this case derives from the understanding that a “catastrophic impairment” is to be “caused by an accident”. In this case the accident of September 4, 2013 was not the first motor vehicle accident in which Stalin Thiruchelvam was involved and which may have contributed to or been the reason for his having suffered a catastrophic impairment. He told the Arbitrator, who was asked to consider the level of his impairment, that he had been involved in five such accidents.[^4] In particular, the case was concerned with the impact of two earlier accidents, the first on March 16, 2002 and the second, a week later on March 23, 2002.

[5] The principal issue is concerned with the basis on which an application that a person be recognized as “catastrophically impaired” is to be assessed where there is more than one accident involved.

Background

[6] Stalin Thiruchelvam alleges that as a result of the accident of September 4, 2013, he sustained injuries. He made a claim for benefits and for recognition that he had been “catastrophically impaired”. Disputes arose as to his entitlement to those benefits. Stalin Thiruchelvam applied for arbitration at the Financial Services Commission of Ontario (“FSCO”). The Arbitration was heard over four days (December 11, 2017 to December 15, 2017). The Arbitrator released her decision on April 26, 2018.

[7] Each of the three Factums filed state that the Arbitrator found that, as a result of the accident, Stalin Thiruchelvam had sustained a catastrophic impairment.[^5] This may be true but it fails to report the nuance which is the concern that gives rise to this judicial review. As a result of the two accidents that had taken place during March 2002, Stalin Thiruchelvam was already suffering.

[8] The insurer, RBC General Insurance Company appealed. The appeal was heard by the Director’s Delegate. His decision is dated April 12, 2019. The determination that Stalin Thiruchelvam had been catastrophically impaired as a result of the accident of September 4, 2013 was set aside. It is the decision of the Director’s Delegate which is the subject of this judicial review.

[9] Stalin Thiruchelvam raises three concerns:

• the first was with the finding that any catastrophic impairment he may have suffered was not attributable to the accident of September 4, 2013.

• the second concern was the finding that the Arbitrator had breached procedural fairness by refusing an adjournment request made at the outset of the hearing, and

• the third was that the order for expenses (legal costs) as made by the Director’s Delegate should be reversed and expenses awarded to Stalin Thiruchelvam, as the Arbitrator had done, subject to an error she had made which would result in a reduction in the amount.

[10] In summary, Stalin Thiruchelvam seeks the quashing of the order of the Director’s Delegate and the reinstatement of the order of the Arbitrator.

Standard of Review

[11] The standards of review for each of the noted concerns are as follows:

• for the first issue, causation, the presumptive standard of review identified in Minister of Citizenship and Immigration v. Vavilov being reasonableness (was the decision of the Director’s Delegate reasonable?) applies.[^6]

• for the second issue, the alleged breach of procedural fairness, there is no standard of review, either a procedure is fair or it is not,[^7] and

• for the third issue, as a general rule, the awarding of the costs of carrying out litigation is left to the discretion of the person conducting the hearing. However, in this situation these costs are to be evaluated as expenses awarded pursuant to the SABS, that is as the cost of a service received. This should be treated as any other service provided under the SABS. Vavilov applies and the standard of review is reasonableness.

[12] While not, strictly speaking, an issue of the applicable standard of review there is a further limitation on the review this court can undertake. The appeal taken from the Arbitrator to the Director’s Delegate was restricted to only issues of law.[^8] This being so, in circumstances where the facts, as found or relied on by the Director’s Delegate, are contrary to factual findings made by the Arbitrator, they must be set aside and those of the Arbitrator accepted, unless the Arbitrator’s findings were unreasonable.

The Evidence: Experts called by Stalin Thiruchelvam

[13] For the most part the evidence before the Arbitrator was in the form of reports provided by medical and other health care professionals. This approach was consistent with the general policy of FSCO to restrict the oral evidence by experts and to encourage reliance on their written reports. The applicant, Stalin Thiruchelvam, appeared and was cross-examined as was Dr. Maselle Virey a “Consultant Psychiatrist” who began seeing Stalin Thiruchelvam on May 1, 2003, and continued to see him through the succeeding years up to and since the accident of September 4, 2013. Dr. Virey appeared for the purpose of being cross-examined. The respondent, the insurer RBC General Insurance Company, relied on reports, including that of Dr. Karen Wiseman, a neuropsychologist who attended the hearing to be cross-examined. The Arbitrator made clear that she had read the medical reports from both sides and considered their contents in reaching her decision.[^9] In her reasons she referred to experts relied on by Stalin Thiruchelvam:

• Dr. Tory Hoff is a registered psychologist. Beginning in June 2008, he provided Stalin Thiruchelvam with on-going psychological treatment.[^10] He commented on the role played by the accident of September 4, 2013. It aggravated the chronic physical and psychological conditions affecting Stalin Thiruchelvam:

…That is it augmented, for instance, his already existing pain experience, despair, demoralization, irritability, anxiety about his health and future, trauma symptoms including the loss of basic trust, and psychotic-like ideation. It gave him more reason to assume he leads a doomed existence as understood in terms of his Sri Lankan Catholic beliefs.

Dr. Tory Hoff observed:

In the larger perspective of his life from one year to the next, this more recent accident likely caused his condition to become more deeply entrenched.

But went on:

Within a few months his already limited activities of daily living and level of psychological dysfunction were back to what typified him during the months before this accident.

And concluded:

In terms of the larger perspective of years, therefore, this recent accident did not have a significant impact on his activities of daily living. However, it likely reduced further his already weak ability to recover and to improve his life in the future. It might have made his prognosis even more bleak.[^11]

Evidently, there was a concern that the opinion provided by Dr. Hoff was considered by someone to be inconsistent. He was asked to comment further:

In other words, in the above quotations I wrote that 1) the negative impact of his accident in 2013 on his daily activities was resolved in about three months, yet also stated that 2) the accident caused his recovery from his chronic psychological condition to become less likely, and gave him more reason to assume that he leads a doomed existence.

Regarding these two statements, there is no contradiction intended, as I hold that both are true. I meant to communicate that within about three months he was behaviorally and functionally back to where he was before his third accident occurred, but I also meant to indicate that a more subtle, long-term effect was set in process as a result of his accident in September 2013.[^12]

As reported by the Arbitrator, Dr. Hoff summarized the history, as follows:

… within about three months he was behaviorally and functionally back to where he was before his third accident occurred, but… A more subtle, long-term effect was set in process as a result of the MVA. … As a result of [the MVA] Mr. Thiruchelvam became less hopeful and more forlorn about his future. The [MVA] reinforces negative thinking and caused him to become more convinced that he is destined to suffer for the rest of his life. Likewise, his learned helplessness intensified and he felt more trapped within a dysfunctional existence, with no way out. His depressive episodes persisted and increased. Since writing my previous report, three more years of feeling useless and worthless have passed by for Mr. Thiruchelvam. Interpersonal discord with other family members has increased during these past three years. … [His wife and children] are frustrated that he is not making a contribution to the functioning of the household and is not earning a living so as to support them. Mr. Thiruchelvam recently explained to me, they are tired “of babysitting me.”… He has lost the respect of his family members. This deterioration of his status and respect within the family is likely not primarily attributable to his [MVA], but I consider it to be a significant factor.

He updated in his opinion:

His accident in September 2013 continues to have long-term consequences, and among other things continues to significantly contribute to the symptoms and impairment resulting in the above diagnoses.

When I wrote my report in September 2014, the predictions that I made regarding the long-term effects of his accident the year before had not really manifested themselves as much as they have three years later. It took time for his increased negative thinking, morbidity and learned helplessness to manifest themselves in a deterioration of his daily activities including within the family system.[^13]

• Dr. Brian Levitt had produced reports concerning the condition of Stalin Thiruchelvam on March 20, 2007 and on August 27, 2014. On October 30, 2017 he delivered a third report. The second report observed:

His depression worsened and he developed psychotic features that include the belief the accidents were part of an effort from the insurance company to kill him. His symptoms have remained quite serious, for years, as documented by his treatment psychiatrists and others. A further MVA in 2013 initially aggravated all of his symptoms though he knows that depression and pain are likely similar to what they would have been before that accident. However, anxiety during auto travel is worse since his third MVA, and the 2013 MVA also reinforces his paranoid belief that the insurance company is trying to kill him. As such, all three accidents materially contributed to his current symptom picture and impairments from a psychological perspective (original emphasis)-they function in concert with respect to causation of his current psychological disorders.[^14]

Dr. Levitt went on to answer the two questions put to him by counsel for Stalin Thiruchelvam. He stated that the September 4, 2013 accident had led to a more complex and severe symptom picture, particularly with respect to anxiety and paranoia. He opined that had the third accident not occurred, the outcome would have had the potential to be different. He could not reliably predict that, had the accident of September 4, 2013 not occurred, Stalin Thiruchelvam’s status would be the same.[^15]

• Dr. Maselle G. Virey, was referred to by the Arbitrator. His notes recorded that from August 5, 2013 to August 24, 2013 (just before the accident of September 4, 2013) Stalin Thiruchelvam was doing much better:

He was in Germany at that time for a wedding. … Still suffering from depression but his general mood was a lot better. At the time he had shown no signs of any psychotic symptoms. He was less angry, irritable, less procrastination. He did not feel the need to cry nor did he cry. … He also worried less and had no auditory or visual hallucinations or any thoughts of conspiracy against him.[^16]

Following the September 4, 2013 accident, his symptoms of depression worsened:

…[H]e developed some psychotic symptoms. He felt that the insurance company was plotting against him and that they were bugging his phone and his room. He felt like they started the accident and were trying to delay the ongoing litigation. Furthermore, he was in much greater pain than he was a month prior; a lot more depressed, sad, lonely, angry, irritable, guilty and he felt like he was procrastinating a lot more. His feelings of hopelessness, helplessness and worthlessness also increased.^17

Dr. Virey summarized by observing:

Clearly his MVA of September 4, 2013 impacted his psychiatric status and caused recrudescent symptoms of post-traumatic stress disorder.

Mr. Thiruchelvam has remained massively symptomatic, the magnitude of his symptoms skewed towards severe intensity.^18

Dr. Virey was asked questions. In particular, did he continue to believe that the accident of September 4, 2013 had caused a further deterioration in the psychiatric status of Stalin Thiruchelvam and whether that deterioration continued “to be evident up until today”? His gave his response in a letter dated June 26, 2017:

I echo the statement of Brian E. Levitt, PsyD., C.Psych, Clinical & Rehabilitation Psychologist, in his report dated August 27, 2014, page 27 of 48, and I quote, “as such, all three accidents materially contribute to his current symptom picture and impairment from a psychological perspective and their impact cannot be artificially teased apart from a clinical or scientific perspective – they function in concert with respect to causation of his current psychological disorders."[^19]

[Emphasis added]

• Dr. Dory Becker Ph.D, C.Psych. prepared a Catastrophic Impairment Psychological Examination Rebuttal Report.[^20] She worked with and took account of the work done by Ms. Stacy Baboulas, an occupational therapist. After what the Arbitrator referred to as, “a thorough comparison of the pre-MVA description and assessments with the observations and assessments she and Ms. Baboulas had made, Dr. Becker concluded":[^21]

After reviewing all of the information available today, including the very valuable information gathered from Ms. Baboulas, I believe that Mr. Thiruchelvam is currently evidencing a Class 4 Marked impairment under the Activities of Daily Living parameter at the present time. While I recognize that he was indeed impaired as a result of psychological factors prior to the subject accident, I do not believe that there is convincing evidence of a Class 4 Marked impairment in this domain just prior to the subject accident and the evidence gathered as part of today’s multidisciplinary evaluation suggests that Mr. Thiruchelvam has experienced a deterioration in functioning under this domain since his involvement in the 2013 motor vehicle accident.

…[t]he issue of causality appears complex regarding the impact of the September 2013 motor vehicle accident. Mr. Thiruchelvampresented as a poor historian at times and he often had difficulty differentiating from his pre-2013 MVA and post-2013 MVA symptoms. He also had difficulty identifying whether his functioning changed as a result of the 2013 accident. While he was able to articulate his pain increase, he noted that he was unable to offer an opinion regarding how much his pain increased and how notable this difference was. He did note, however, that his mood deteriorated post-accident which he attributed to increased pain and greater impairments and functioning.[^22]

She went on to observe:

While the reader is left to wonder upon which opinion(s) to rely, a more detailed review suggests that Ms. Baboulas’ expertise in assessing functioning as well as mental and behavioral impairments and Drs. Hoff and Virey’s expertise in the assessment of psychological/psychiatric symptoms has likely resulted in the differences of opinion. In addition, Ms. Baboulas had the benefit of communicating with Mr. Thiruchelvam’s wife and I believe that her evaluation is the most current of the three.

As such, I am in agreement with my colleagues Drs. Kaplan, Levitt, Virey and Hofff, that the subject September 4, 2013 accident has materially contributed to Mr. Thiruchelvam’s current psychological symptoms and associated impairments in functioning.[^23]

[Emphasis added]

• Dr. Scott Garner signed the application for designation of Stalin Thiruchelvam as catastrophically impaired (OCF-19).[^24] In it there is an attribution of the cause of the impairments of Stalin Thiruchelvam to all three accidents.[^25] Under the heading “Summary of Findings in Conclusion” it is stated:

Mr. Thiruchelvam was involved in MVAs on March 16, 2002, March 23, 2002, and in September 4, 2013. As a result of his MVAs he has developed Pain Disorder associated with both a general medical condition and psychological factors (DSM-IV-TR); alternatively: Somatic Symptom Disorder with predominant pain (DSM-5) and Psychological Factors affecting Pain (DSM-5); Major Depressive Disorder, chronic, severe, with psychotic symptoms; and Anxiety Disorder with symptoms of posttraumatic stress disorder.

His prognosis for recovery from a psychological perspective is poor, and I find that he has sustained serious and permanent impairment of important mental and psychological functioning. I also find that he is not employable in any capacity, and likely will remain so. I find that Mr. Thiruchelvam has an overall marked impairment due to mental and behavioral disorders, and offer a WPI for impairments due to mental and behavioral disorders of at least 40%. Mr. Thiruchelvam has sustained a catastrophic impairment as a result of the March 16, 2002, March 23, 2002, and September 4, 2013 MVAs.[^26]

As referred to by the Arbitrator, Dr, Garner, in a Medical Legal Assessment dated, August 28, 2014, under the heading “Impact of Most Recent Motor Vehicle Accident” wrote:

His most recent motor vehicle accident of September 4, 2013 appears to have subjectively caused an aggravation of his pre-existing symptoms but he is not totally certain of this. He notes no change in his tolerance for activity as a result of this most recent accident (no increased disability). Thus the functional limitations in relation to this most recent accident are not significant although from his subjective perspective, he feels that there was an aggravation of his symptoms as a result of the accident. He reports that there is increased psychiatric consequences (sic) from the impact of this accident but I will defer any additional comment about this matter to the psychological review.[^27]

The Evidence: the Experts Called by the RBC General Insurance Company

[14] The Arbitrator turned her attention to the evidence presented by RBC General Insurance Company. It was essentially one report, albeit a multidisciplinary report prepared under the guidance of Dr Alborz Oshidari, a physiatrist (who specializes in physical medicine and rehabilitation) with Dr. Karen Wiseman, a psychologist and Laura Youm, an occupational therapist. It is dated July 7, 2016. This report expressed the opinion that Stalin Thiruchelvam did not sustain catastrophic impairment as a result of the motor vehicle accident of September 4, 2013. Based on the physical injuries suffered by Stalin Thiruchelvam in relation to the accident of September 4, 2013, Dr Oshidari concluded that he sustained 0% impairment of the whole person (whole person (WPI) of 0%).[^28] The Arbitrator was puzzled by the approach taken by Dr. Oshidari:

Dr. Oshidari, after noting a number of physical weaknesses, stated that “there were numerous findings which cannot be explained by specific neuromusculoskeletal abnormality. Therefore, in relation to the 2013 motor vehicle accident there is no impairment.” This statement is puzzling, as Dr. Oshidari seems to suggest that only neuromusculoskeletal abnormalities can cause impairment. Dr. Oshidari had previously said “there is no diagnosis of pain disorder associated with both psychological factors and the general medical condition… Any abnormality or limitation of function is due to long-standing pre-existing condition.” This comment is contradicted by the Omega report, which was delivered some weeks after his report and did find psychological impairment.[^29]

For her part, having considered “all the relevant information” Dr. Wiseman provided what the report refers to as, “maximum levels of impairment in the mental and behavioural sphere in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition. They were all mild (Concentration, Persistence and Pace; and Social Functioning) or moderate (Activities of Daily Living; and Adaptation) representing a total WPI of 13-16%.[^30] As such none was “marked” or “extreme” and, accordingly, not demonstrative of a catastrophic impairment.

Laura Youm identified that the purpose of her assessment was to examine Stalin Thiruchelvam’s functional level in relation to the catastrophic impairment criteria.[^31] She found that he demonstrated physical, emotional and cognitive barriers that impacted areas of his daily functioning. She provided a summary of his “primary observed functional barriers and their related limitations.[^32] However, she expressed limitations as to what she could do:

It is beyond the scope of this therapist’s practice to provide diagnostic impression, causality, or material contribution and/or determine the underlying cause of the examinee’s current functional presentation difficulties. It is not within the scope of this therapist’s practice to determine whether the examinee’s symptoms and demonstrated level of occupational performance are directly related to the subject MVA, if his pre-MVA medical condition was exacerbated by the subject MVA, and if his current presentation was compromised by his pre-MVA medical condition.^33

• Dr. Sherri MacKay of Centrum Medical Assessments assessed Stalin Thiruchelvam on October 31, 2014: “He continues to feel sad, cries intermittently. His motivation is low and his concentration limited.” Dr. MacKay identified these as symptoms that pre-existed the September 4, 2013 accident. Similarly, his back and neck pain and the limited motion in his neck were all pre-existing pain complaints.

Dr. Mackay noted that there may have been a minor exacerbation of pre-existing symptoms. But, there was no indication of any significant persistent increase in the severity of his mental health symptoms as a result of the September 4, 2013 accident.

The Arbitrator made a specific finding. As a result of the failure of Dr. MacKay to review important pre-MVA medical documents, her failure to question Stalin Thiruchelvam and her failure to consider the impact of his language limitations Dr. MacKay was not in a position to make a comparison between his functions before and after the accident. The Arbitrator preferred the evidence of Dr. Becker to that of Dr. MacKay.[^34]

The Evidence of Stalin Thiruchelvam

[15] Stalin Thiruchelvam testified on his own behalf. As seen by the Arbitrator his demeanor “seemed lethargic, almost sullen at times; he had obvious difficulties remembering details and often answered basically or simply that he didn’t know or he didn’t remember. He became frustrated and irritated when challenged to remember dates and details, telling cross-examining counsel that certain dates and events he remembers very well, whereas he had great difficulty remembering the doctors he had visited and what his complaints were at specific times".[^35] Whereas one would have hoped that the evidence of Stalin Thiruchelvam would serve to elucidate and illustrate in practical terms the extent and effects of the impairment indicated by the doctors’ assessments he was not of much help. He was a poor witness and his testimony was often not particularly helpful.[^36]

[16] Nonetheless, the Arbitrator accepted his evidence that he did experience improvement in his condition after the 2002 accidents, notably in 2013:

He recalled that he had begun to assist with housecleaning, ironing, snow removal and driving the children to school. He began helping out with banking, laundry, dishes and small jobs around the house such as cleaning windows. He began helping his wife at her request; previously, pain and depression stopped him from taking any active part in household chores. He testified that the programs recommended by the doctors seem to be having some effect. …He began to manage his own medications, which previously his wife had picked up for him, and to make his own doctors’ appointments. He stated that as late as 2008 – 09 his wife had had to arrange his clothing for him; otherwise he would either not change at all, or would put the same set of clothes on day by day. By 2013 he was dressing himself independently and shaving regularly. He also testified that he felt motivated to attend his cousin’s wedding and traveled by car, train or bus to several cities in Germany with his son for this event.[^37]

The Findings Relied on by the Arbitrator

[17] The Arbitrator made several important findings of fact. She noted, relying on the oral evidence of Stalin Thiruchelvam which she found to be “subjective, disjoined and a rather sketchy” but “corroborated by several medical practitioners”, that his condition had worsened following the September 4, 2013 accident:

There is agreement among his treating and assessing professionals [some of whom observed him over a long period of time both pre- and post-MVA] that despite serious pre-existing psychiatric symptoms, he is now in worse condition than immediately before the MVA.[^38]

[18] She accepted that he experienced improvement in his condition after the two accidents in 2002, particularly, in 2013, in the months before the accident of September 4, 2013. He travelled to Germany and became more active in undertaking household chores and being more responsible for himself in dress and with respect to his medications. This was corroborated by the notes kept by Dr. Maselle Virey. Put differently there was no finding, by the Arbitrator that Stalin Thiruchelvam was declared or otherwise had been accepted as catastrophically impaired in the time before the accident of September 4, 2013.

[19] In undertaking her analysis of the evidence, the Arbitrator referred to and relied on the report of Dr. Maselle Virey and his oral reiteration of his opinion that the various psychiatric disorders of Stalin Thiruchelvam had originated from the 2002 accidents, but that all three accidents had contributed materially to the impairments he suffered from. The Arbitrator quotes Dr. Virey:

You can’t tease [the effects] apart from a clinical or scientific perspective. They function in concert to cause the current psychological disorders.[^39]

[20] This understanding is furthered by the evidence of Dr. Brian Levitt, Dr. Dory Becker and Dr. Scott Garner already referred to in these reasons. The Arbitrator noted that:

There was no clinical measurement to allow doctors to state with certainty what proportion of the impairment stemmed from the MVA, nor the precise extent of his impairment.[^40]

[21] The Arbitrator found that:

… I am persuaded on the balance of probabilities that Mr. Thiruchelvam, at the time of the Hearing, was markedly impeded in useful functioning, at least in the sphere of Adaptation, and consequently meets the Schedule criteria for catastrophic impairment in his activities of daily living.[^41]

The Findings Relied on by the Director’s Delegate

[22] A finding that an individual has been catastrophically impaired is not a medical determination. It is a legal standing defined by legislation. As described by both the Arbitrator and the Director’s Delegate, it is a threshold of suffering identified through the application of the definitions found in a regulation (the SABS). It is not determined by doctors and other health professionals. It is the result of a process structured through legislation. An individual may be qualified to be catastrophically impaired but is only identified as such through the process the legislation mandates. At the time Stalin Thiruchelvam applied, the insurer accepted or rejected the request. If rejected, an arbitrator could be required to decide. If one of the parties (the insured or the insurer) was dissatisfied, they were able to appeal and have the matter considered by a Director’s Delegate. In the hands of an arbitrator the determination that a person was catastrophically impaired was a question of mixed fact and law. The Arbitrator took the facts and professional opinions, weighed and balanced the substance of what they said and applied her or his understanding to the definitions found in the SABS to decide if the party applying qualified for the enhanced benefits. This Arbitrator wisely noted that it was not surprising that professionals have different opinions; there is no necessarily right or wrong answer. Their contribution was information which was part of the input to be evaluated, weighed and considered by the Arbitrator; which gives truth to the Arbitrator’s observation that there was a significant measure of subjectivity to what she was asked to do.[^42] This is underscored by the fact that not only health professionals provided information to the Arbitrator. In this case the applicant, Stalin Thiruchelvam, testified; in other cases, family members, coworkers or other people who may assist the Arbitrator could be asked to give evidence. As already noted, the Director’s Delegate had a different and more limited role. Any appeal to a Director’s Delegate was limited to a question of law.[^43] It was not for a Director’s Delegate to re-evaluate the information presented to the Arbitrator, redo the balancing, come to an independent conclusion and then apply the result (the facts as she or he may find them) to the standards set in the SABS. Why go through this here? In this case the Director’s Delegate has expressed the view that the Arbitrator, in applying the facts as she found them, to the standard set in the SABS used the wrong test. She considered whether there was a material change to the circumstances of Stalin Thiruchelvam that arose as a result of the accident of September 4, 2013 rather than applying what the Director’s Delegate sees as the applicable test: the “but for test”. That concern raises a question of law; one that, on its own was the proper subject of an appeal. If that was the limit of the inquiry undertaken by the Director’s Delegate, the question left for this Court would be straight forward: was his decision as to the proper test reasonable? But the Director’s Delegate went further. He made a critical finding not made by, and inconsistent with those that were made by, the Arbitrator. He found that, at the time of the accident, Stalin Thiruchelvam was already catastrophically impaired:

Once you cross the threshold, greater benefits are possibly available, regardless of the number of marked domains. So while the Arbitrator found that Mr. Thiruchelvam’s impairment had worsened, he could not be more catastrophically impaired because he was already catastrophically impaired for a mental or behavioural disorder. I would allow the appeal regarding catastrophic impairment on that ground alone.[^44]

[23] The Arbitrator made no such finding:

Mr. Thiruchelvam may possibly have already been catastrophically impaired prior to the MVA....[^45]

[Emphasis added]

[24] This statement recognizes the possibility that Stalin Thiruchelvam might have qualified to be catastrophically impaired but acknowledges that no such determination had been made.

[25] The OCF-19 (the application “for catastrophic determination”) refers to Stalin Thiruchelvam having been seen for the purpose of preparing the application on August 11, 2014 and August 19, 2014 but begins by relying on a “Psychological Legal Report” dated March 20, 2007 prepared by Dr. Brian Levitt and Dr. Ron Kaplan. In three of the domains of concern (Activities of Daily Living; Social Functioning; and Concentration, Persistence and Pace) Stalin Thiruchelvam is said to be “moderate to markedly impaired”. For the fourth domain (Adaptation to Work and Work-like Settings) his impairment is “estimated” to be marked "at this time".[^46] As noted by the Arbitrator “moderate to marked" is a range.[^47] On the low end of the range, the three domains do not contribute to a finding that Stalin Thiruchelvam was catastrophically impaired. For the fourth domain there were two limitations: one qualitative (it’s an “estimation”) and the second temporal (“at this time”). The authors of the report recognized, at least the first of the two problems:

We note that we have labelled three domains as moderate to marked. The AMA Guides, does not provide for ratings that covered two degrees of severity, but we feel this label between the two degrees of severity captures the impact of his mental and behavioral disorder. These could also be thought of as a low within the marked range.

One domain, work adaptation, the core domain of interest in the AMA Guides, designed for workers compensation disability type determination, is marked.

There is a custom within the CAT DAC community for requiring that two domains be deemed marked; however, Arbitrators have noted (McMichael Arbitration and Appeal) that one domain of marked is sufficient for determining a person has an overall marked impairment due to mental and behavioral disorder.

Overall psychological impairment is deemed marked.

[26] Even this is tempered:

He satisfies the requirement of having a DSM diagnosis and based on our assessment is currently markedly impaired.[^48]

[Emphasis added]

[27] The report being referenced was prepared in 2007 or seven years before the accident of September 4, 2013 and a similar time before the application was made. In circumstances where subjectivity plays a role, where it is acknowledged opinions may differ and where the authors’ conclusion is based, at least in part, not on what is accepted by professionals who undertake this work but on the expressed view of arbitrators who play a very different role, there is a measure of qualification (weakness) if not uncertainty in this finding.

[28] The reference in this 2007 report to “low marked range” was referred to by the Director’s Delegate when he determined that at the time of the accident of September 4, 2013 Stalin Thiruchelvam was already catastrophically impaired:

As the Arbitrator noted, in the domain of Adaption, at most his impairment had moved from a low marked range to a higher marked range, simply getting him closer to Extreme. But it cannot be said that this made him more catastrophically impaired, which is in effect what the Arbitrator found.[^49]

[Emphasis added]

[29] This conclusion takes no note of what happened in the intervening years. It takes no account of the multidisciplinary report prepared by Dr. Oshidari, Dr. Wiseman and Laura Youm which found that Stalin Thiruchelvam has never been catastrophically impaired. It makes no reference to the improvement referred to by Stalin Thiruchelvam in his testimony and the notes of Dr. Maselle Virey. It ignores the finding of various experts that the catastrophic impairment of Stalin Thiruchelvam was the result of all three of the accidents: March 16, 2002, March 23, 2002, and September 4, 2013. I point out that among those who came to this conclusion are the two authors of the 2007 Psychological Legal Report (Drs. Levitt and Kaplan). For the application for the recognition of Stalin Thiruchelvam as catastrophically impaired made in 2014 (OCF-19) they updated their report and included that finding.[^50] There was evidence that just prior to the accident of September 4, 2013 his condition had improved.

[30] There has never been a finding identifying that Stalin Thiruchelvam was catastrophically impaired at any time prior to the accident of September 4, 2013. Nor does the evidence suggest that he necessarily would have qualified to be so identified. The limitation of the appeal to issues of law means that it was not proper for the Director’s Delegate to conclude that he was. The Arbitrator did not make that finding. Her decision recognized that the process had not been engaged and no determination that Stalin Thiruchelvam was catastrophically impaired had been made. She approached the matter differently. She was concerned with any change caused by the accident of September 4, 2013. The operative issue is whether in approaching the matter in this way she used the right test. The difficulty is that, not content to examine the test she used, the Director’s Delegate went further and applied the test he believed to be the correct one. The finding that Stalin Thiruchelvam was already catastrophically impaired is critical to his application of that test. If, just prior to the accident of September 4, 2013 he was already catastrophically impaired the application of the “but for test” (but for the accident he would not have been catastrophically impaired) would have demonstrated that the September 4, 2013 accident was not the cause of his catastrophic impairment. But if he was not catastrophically impaired or if it is not possible to determine if he qualified to be so found, the use of the “but for” test cannot lead to a definitive answer. It would be possible to determine that he was catastrophically impaired but not to decide when Stalin Thiruchelvam crossed that threshold, particularly whether he had crossed it prior to September 4, 2013 and given the improvement he showed in the weeks leading up to that date whether he remained on the side of the threshold that qualified him to be so found.

[31] The substance of the decision of the Director’s Delegate was to set aside the determination of the Arbitrator that Stalin Thiruchelvam was, as a result of the accident of September 4, 2013, catastrophically impaired. The question this raises, is whether a decision that relies on facts that have not been established as the process requires, can still be reasonable. It cannot be. The idea implies the Director’s Delegate can disregard the facts found by an Arbitrator and find other facts. This would be contrary to the limitation that restricts appeal to the Director’ Delegate to questions of law. It is not possible to know and improper to speculate how a decision maker (in this case the Director’s Delegate) would respond to a different understanding of the facts. This is enough to require that the decision of the Director’s Delegate to be set aside. Further review confirms this to be so.

The Test

[32] The Arbitrator began her consideration of “Causation” by recognizing the general application of the “but for test:

In a simple case, the decision-maker would look at the applicant’s normal pre-

accident activities and compare these with the impaired activities following the accident.[^51]

[33] As the Arbitrator saw it, this was not a “simple case”. At the time of the accident of September 4, 2013, Stalin Thiruchelvam was “already in a considerably impaired state”. To understand the impact of that accident it was necessary to compare his condition, after the accident, to what it had been immediately before. As she put it, was his “existing psychiatric impairment…exacerbated by the MVA” and, if so “can that exacerbation be deemed a “material contribution.” As seen by the Director’s Delegate this was an improper application of the wrong test. It was the imposition of a “material contribution test”. I pause to observe this could be understood as a more directed or limited application of the “but for” test. It asks, was there any part of the impairment of Stalin Thiruchelvam that he would not have suffered but for the accident of September 4, 2013? Based on the analysis she undertook, the Arbitrator found that:

… on a balance of probabilities; the MVA did have a material effect on the applicant’s psychiatric condition, leaving him with impairments more severe than those he was already suffering before September 4, 2013, and which are catastrophic within the meaning of the Schedule.[^52]

[34] The analysis and conclusions of the Director’s Delegate flows from his reliance on his conclusion that Stalin Thiruchelvam was, at the time of the accident on September 4, 2013, already catastrophically impaired. As he sees it, once a person has crossed over that threshold the extended benefits accrue. It follows that any further impairment that occurred as a result of a further accident does not matter because the person was already catastrophically impaired.

[35] I repeat the question already asked: what if he was not catastrophically impaired at the time of the accident of September 4, 2013? In such a circumstance applying the “but for test” says nothing other than, compared to a point in time prior to the two accidents in 2002, when, presumably, Stalin Thiruchelvam was not impaired, he is now catastrophically impaired. This has real, practical implications for how the SABS is applied. Suppose that sometime between 2002 and 2013 Stalin Thiruchelvam changed insurers: which one pays the benefits? Does that insurer pay all the enhanced benefits regardless of the nature of the accident and the injury its policy covered? I return to a point made at the outset of these reasons. The policy proposition behind the SABS is not directed just to providing immediate relief to those injured in motor vehicle accidents, it also looks to the impact on insurers and their ability to provide insurance at a reasonable cost. The issue to be determined is: Are those who make determinations as to whether a person has been catastrophically impaired, required in all circumstances to use and rely on the “but for” test?

[36] It is plain that generally the “but for” test is preferred and should be applied. However, the caselaw demonstrates that there are circumstances where it will not provide a satisfactory answer and a consideration of “material contribution” is appropriate.

[37] In Clements v. Clements[^53] a husband and wife were riding together on a motorcycle. It was overloaded. They were unaware that a nail had punctured the rear tire. They were in an area where the speed was limited to 100 km/h. The husband accelerated to “at least 120 km/h” in order to pass a car. The nail fell out, the tire deflated, the husband lost control and the motorcycle crashed. The wife was seriously injured. She sued her husband. The trial judge found that, due to the limitations of the scientific reconstruction evidence, the wife was unable to prove that but for the accident she would not have been injured. Instead, he applied a material contribution test and, on that basis, found the husband negligent. The Court of Appeal set aside the judgment and dismissed the action. “But for” causation had not been proved and the material contribution test did not apply. For the Supreme Court of Canada, the issue was whether the usual “but for” test for causation in a negligence action applied or whether a material contribution test dealt with the issue. The Supreme Court of Canada recognized the two tests were different:

“But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. As set out by Smith J.A. in MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68, at para. 17:

. . . “material contribution” does not signify a test of causation at all; rather it is a policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation. In such cases, plaintiffs are permitted to “jump the evidentiary gap”: see “Lords a’leaping evidentiary gaps” (2002), Torts Law Journal 276, and “Cause-in-Fact and the Scope of Liability for Consequences” (2003), 119 L.Q.R. 388, both by Professor Jane Stapleton. That is because to deny liability “would offend basic notions of fairness and justice”: Hanke v. Resurfice Corp., para. 25.[^54]

[38] The Court found that the “but for” test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.[^55] Recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort.[^56] This would happen in circumstances where there were two or more tortfeasors and the plaintiff is unable to show that anyone of them was the necessary or “but for” cause of the injury.[^57] The special conditions that permit resort to a material contribution approach were not present in the case. This was a simple single-defendant case: the only issue was whether “but for” the defendant’s negligent conduct, the injury would have been sustained.[^58]

[39] What is apparent from this decision is that, while the “but for” test is the default test, there are exceptional circumstances where resort may be had to a “material contribution” approach. There are other cases that make that point.

[40] In Athey v. Leonati[^59] the plaintiff had been in two car accidents. He was recovering. He undertook some mild stretching and herniated a disc. He had a pre-existing back condition. The issue was not as between the two accidents, the parties proceeded as if there was only one accident and only one defendant. Rather the question was whether there should be a distribution of fault between the accidents on one hand and the history of back problems on the other, that is to say between tortious and non-tortious causes. The trial judge held that although, due to the pre-existing condition, the two accidents were not the sole cause, they did play “some causative role”. She found them to be a “minor contributing factor” which she quantified as 25% of the cause of the disc herniation.[^60] The Court of Appeal dismissed the appeal, not because it necessarily agreed but because the meaning of the phrase “material contribution” as a theory of liability for the disc herniation had not been advanced before the trial judge.[^61] The Supreme Court of Canada granted the further appeal. The Appellant was a “thin skulled man”. There was no evidence that the herniation would have occurred without the two accidents.[^62] The defendants in the accident claims were bound to take him as he was. The apportionment was set aside and the defendants liable for 100% of the damages the plaintiff had suffered.

[41] The circumstances in this case are different. The evidence suggests that the each of three accidents contributed to the difficulties confronting Stalin Thiruchelvam. The issue is between three tortious acts not between a tortious act and a non-tortious cause. Even so, I point out that the Court in Athey v. Leonati reviewed the general principles surrounding causation including:

The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, 1971 24 (SCC), [1972] S.C.R. 441.

The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education; 1981 27 (SCC), [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra.[^63]

[42] This puts the possibility of exception to reliance on the “but for” test more broadly.

[43] In Hanke v. Resurfice Corp.[^64] the operator of an ice surfacing machine put water where gasoline was supposed to go. Hot water overflowed, releasing vaporized gasoline which ignited, causing an explosion and fire. The operator was badly burned. He sued both the manufacturer and distributor of the machine. He alleged poor design. The gasoline and water tanks were similar in appearance and placed close together making it easy to confuse the two. The trial judge dismissed the action. He found that the plaintiff had not established that the accident was caused by the negligence of the manufacturer or distributor. There was evidence supporting the finding that the plaintiff was not confused by the two tanks. The plaintiff’s own carelessness was responsible for his injuries. The Court of Appeal concluded that the trial judge erred in both his foreseeability and causation analysis. It granted the appeal and ordered a new trial. Among other things, it held that the trial judge had erred by failing to consider the “comparative blameworthiness” of the plaintiff and the defendants and in applying a “but for” test instead of a material contribution test.[^65] The Supreme Court of Canada reversed the Court of Appeal and restored the decision of the Trial Judge.

[44] In doing so the Court was clear that the “but for” test remains the primary tool for the determining causation in negligence cases. The presence of more than one potential cause of an injury did not, as the Court of Appeal had suggested, mean that material contribution test had to be used. The Court observed:

To accept this conclusion is to do away with the "but for" test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal's reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with this Court's judgments in Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311 (S.C.C.), Athey v. Leonati, at para. 14, Walker Estate v. York-Finch General Hospital, 2001 SCC 23 (S.C.C.), at paras. 87-88, and Blackwater v. Plint, 2005 SCC 58 (S.C.C.), at para. 78.[^66]

[45] Still, the Court recognized there are exceptions:

However, in special circumstances, the law has recognized exceptions to the basic "but for" test, and applied a "material contribution" test.[^67]

[46] The Court went on to observe that:

Broadly speaking, the cases in which the "material contribution" test is properly applied involve two requirements.

[47] And to describe the two requirements:

First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control…

…Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach.^68

[48] The Court of Appeal sees the greater detail offered in Hanke v. Resurfice as clarifying the exceptions to the “but for” test and the circumstances in which the material contribution test may be applied.[^69]

[49] I note that the cases reviewed to this point reflect on the use of these tests in the context of determining whether a party was legally responsible for the injury that was under review: was the defendant negligent? This case is different. Here the test is being used to determine if a particular party is entitled to an elevated level of benefits: did the injury result from the accident, not who caused the accident. Fault for the accident is not an issue. The SABS is a no-fault program. The concern that is the second of the conditions Hanke lists as a requirement before an exception to the “but for” test can be applied (clear that the defendant has breached a duty of care) directs that the constituents of a finding of fault are necessary. This would take the application for benefits outside the fundamental policy that informs the SABS.

[50] Monk v. ING Insurance Co. of Canada^70 concerned an application for benefits. Over time the applicant was involved in three separate motor vehicle accidents. The first was inconsequential and, it was agreed, of little relevance to the issues in the case. The second was more serious. After the third accident the injuries did not appear to be extensive. As time passed, the applicant’s symptoms intensified. She experienced increasing pain in her neck, discomfort in her arms, limited neck and head mobility, and constant headaches. She underwent spinal decompression surgery in 1999 and again in 2001. Eventually she became an "incomplete quadriplegic".[^71]

[51] ING Insurance did not dispute that the applicant was catastrophically impaired but blamed the damages on the first and second accidents, when it was not the applicant’s insurer, rather than the third accident, when it was. The trial judge held that causation was established because the third accident materially contributed to the Applicant’s condition and to the deterioration of her symptoms, “despite the role of prior accidents and alleged pre-existing conditions".[^72] At trial counsel for the applicant argued that all that was needed to demonstrate causation was that it be shown, on a balance of probabilities, that the third accident contributed to her injuries. The trial judge agreed and found that the material contribution test for causation was satisfied. On the appeal, Counsel for ING submitted that the trial judge erred in his causation analysis by applying the material contribution test to determine causation.[^73] The Court of Appeal found this problematic in that it represented a complete change of position.[^74] At trial ING had urged adoption of a material contribution test. The Court of Appeal continued:

Moreover, the trial judge's application of the material contribution test conforms with a long line of arbitral decisions in which this test has been utilized to resolve causation issues in accident benefits disputes, including in cases where the benefits claimant suffered from a pre-existing condition prior to the accident in question. [See Note 5 below] Before this court, ING offers no authority to support its assertion that the material contribution test does not apply to statutory accident benefits cases.[^75]

[52] The Court went on to observe that, in the particular case, it didn’t matter because both tests arrived at the same result. It concluded:

Accordingly, where -- as here -- a benefits claimant's impairment is shown on the "but for" or material contribution causation tests to have resulted from an accident in respect of which the claimant is insured, the insurer's liability for accident benefits is engaged in accordance with the provisions of the SABS.[^76]

[53] In Monk, when examining causation in respect to a claim for benefits the Court exhibited a more flexible approach to the use of the material contribution test. This is not to say that the default reliance on the “but for” test or the requirements for reliance on a material contribution test can be set to the side; only that when it is the application for no fault benefits rather than a determination of negligence (fault) the circumstances are different and that this may be recognized in the application of the two tests.

[54] There is one further case to which I wish to refer. Sabadash v. State Farm[^77] was a judicial review. Like this one, it considered an appeal from an arbitrator to a director’s delegate. The applicant had been injured in a motor vehicle accident. Seven months later his employment was terminated because of his inability to complete the tasks that were expected of him. He applied for benefits pursuant to the SABS. In particular, for the income replacement benefits it provides. Based on medical assessments it had arranged for, the insurer took the position that the applicant did not, as a result of the accident, suffer a substantial inability to complete the tasks his job required. It refused the benefits. The matter went to arbitration. Causation was the central issue. The Arbitrator granted the request. He held:

I cannot accept State Farm’s submission that the “but for” test endorsed by the Courts in accident negligence cases is to be applied to a determination of causation in the statutory accident benefit context.

[55] The Arbitrator concluded that accident benefits were warranted because:

…the preponderance of the evidence leads to the conclusion that the subject accident was a material significant factor well beyond the de minimis range in the causation of Mr. Sabadash’s inability to work...[^78]

[56] The insurer appealed to the Director’s Delegate. The Arbitrator had applied the wrong test. He applied the material contribution test, rather than the “but for” test which should have been used. The Director’s Delegate allowed the appeal. At the judicial review, the parties were seeking an articulation of the causation analysis to be applied in an accident benefit claim.[^79] The Court made reference to the jurisprudence: Clements v. Clements, Athey v. Leonati, Resurfice Corp. v. Hanke. It referred to Monks v. ING Insurance as finding that the same analysis applies in the accident benefit context as in determining causation in a personal injury case. The Court reviewed the analysis, confirming that where accident benefits are being claimed the default test is the “but for” test, but that there can be exceptions:

b. The test for establishing causation is the “but for” test

e. In exceptional circumstances, where (i) the plaintiff establishes that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each of whom could be responsible for the loss; but (ii) the plaintiff is unable through no fault of her own, to show that one tortfeasor is the “but for” cause of her injuries because each tortfeasor can point to the other as the possible “but for” cause of the injury, a plaintiff may establish liability against one defendant if that defendant’s conduct materially contributed to the plaintiff's risk of injury.[^80]

[57] This paragraph explains the circumstances in which the material contribution test is to be applied.

[58] The Director’s Delegate was aware of the cases to which I have made reference. He refers to Athey v. Leonati as “probably the most relevant Supreme Court case dealing with pre-existing conditions and a subsequent accident-that is a situation where there is more than one potential cause of an injury."[^81] This perspective fails to account for the understanding that in Athey one of the prospective causes was non-tortious (the pre-existing condition), a circumstance to which the thin skull rule is applicable. This common law maxim holds that a tortfeasor (an individual who commits a wrongful act that injures another) is liable for the victim's injuries even if the injuries are unexpectedly severe because of a pre-existing condition or other vulnerability.

[59] The Director’s Delegate sees the Court of Appeal’s decision in Hanke v. Resurfice Corp. as “an example of the misapplication of the material contribution test".[^82] The Court of Appeal “relied on Athey to state that, where there is more than one potential cause, the ‘material contribution’ test should be used".[^83] This was said in the context where the other potential cause was the actions of the plaintiff, not a pre-existing condition and not a second tortfeasor. The Director’s Delegate observed that the Supreme Court of Canada did not accept the idea that where there was more than one potential cause of an injury the material contribution test must be used.[^84] It was this approach that caused that Court to propose that such an understanding would lead to the demise of the “but for” test. What the Director’s Delegate did not acknowledge was that Courts continue to recognize that there are circumstances where the material contribution test could apply.

[60] Clements v. Clements, like Athey and Hanke, does not deal with a circumstance where there were two potential tortfeasors. There was only one tortfeasor, the husband who was operating the motorcycle. That is the basis for the Supreme Court of Canada’s determination that the “but for” test applied. Nonetheless, as the Director’s Delegate recognized, the Court “…stated that material contribution to risk may apply where the plaintiff has established that her loss would not have occurred ‘but for’ the negligence of two or more tortfeasors."[^85] Despite this the Director’s Delegate made no attempt to consider the application of this understanding to the circumstances of Stalin Thiruchelvam.

[61] As for Sabadash v. State Farm the Director’s Delegate sees it as confirming that “…pursuant to the Supreme Court decision in Clements v. Clements the appropriate test is ‘but for’ and not material contribution".[^86] He goes on to note the recognition in Sabadash that there are exceptional circumstances where two or more tortfeasors, each of whom could be responsible, but the plaintiff is unable to show that one of them is the “but for” cause of her or his injuries and where resort can be had to the material contribution test.[^87] Rather than accept and consider the impact of this possibility in the case of Stalin Thiruchelvam the Director’s Delegate indicates he is unable to understand what he sees as an inconsistency in the Court’s reasoning:

I simply cannot square the Court’s statement at para. 40 that “but for” need not be proven in a “material contribution to risk” case with its statement at para. 31 that in a “material contribution to risk” case the plaintiff must establish “that her loss would not have occurred ‘but for’ the negligence of two or more tortfeasors".[^88]

[62] I do not share the Director’s Delegate’s consternation. It seems entirely plausible that where an individual has been involved in more than one accident a “but for” analysis would demonstrate that “but for” his or her involvement in those accidents the person involved would not have been injured yet it would not be possible to distinguish between them as to their specific contribution to those injuries. This could prove to be all the more problematic by the precision required where the contribution sought was the identification of the moment when the threshold was passed and the injured party recognized as becoming catastrophically impaired.

[63] Why is it that the Director’s Delegate was unwilling to consider that the three accidents demonstrated a potential for more than one tortfeasor having contributed to the injuries of Stalin Thiruchelvam and that, as a result, the material contribution test could apply. The answer is simple. He did not need to. Why? Because he was acting on the false factual foundation that Stalin Thiruchelvam was already catastrophically impaired:

However, I note that, even on a “material contribution” basis, the Arbitrator erred in her decision regarding catastrophic impairment – because Mr. Thiruchelvam was already catastrophically impaired for a mental or behavioural disorder before the MVA.[^89]

[64] If it is accepted, as the Director’s Delegate did, that Stalin Thiruchelvam was already catastrophically impaired any application of the “but for” test to the accident of September 4, 2013 would demonstrate that it was not the cause of Stalin Thiruchelvam crossing the threshold. That would already have happened. The circumstances would be such that there was no need and no reason to rely on the material contribution test. The default test (the “but for” test), could provide the required result. However, in this situation, that was not the case. There was never a determination made, through the process the legislative scheme provided, that Stalin Thiruchelvam was catastrophically impaired. Nor does the evidence suggest that he necessarily qualified for that designation. The evidence from that period is not clear, the only suggestion that the requirements were considered and met was the 2007 report of Drs. Levitt and Kaplan and it was weak, qualified and addressed only a moment in time, seven years before the accident of September 4, 2013 and before the application for the enhanced benefits was made. Since that accident every health professional asked has found either that Stalin Thiruchelvam was not catastrophically impaired (Drs. Oshidari and Wiseman) or that his catastrophic impairment was caused by contributions made by all three accidents, in concert.

[65] To my mind, it was reasonable for the Arbitrator to find that it was not possible to disaggregate the events and effects of three accidents, two from 2002 and one from 2013, such that it could be established (on a balance of probabilities) which one, if in fact any one of them, on its own, caused Stalin Thiruchelvam to cross the threshold and become catastrophically impaired. This is underscored by the inability of Stalin Thiruchelvam to contribute meaningfully to any understanding of the development of his mental disorder, a difficulty the Arbitrator found was caused by his disability. This is also underscored by the Arbitrator’s observation that such determinations are inherently subjective and, accordingly, imprecise:

The assessment of impairments is an art as well as a science. Measurements are taken, symptoms recorded and categorized. But the art lies in assessing the effect of impairments on any given individual, in the unique circumstances of that individual’s life. Given the degree of subjectivity involved in arriving at these classifications, it is perhaps not surprising that there were different conclusions by various professionals at different times over 15 years.[^90]

[66] In my view, it was unreasonable for the Director’s Delegate to conclude that the Arbitrator committed a legal error in failing to apply the “but for test”. Stalin Thiruchelvam’s application to be identified as catastrophically impaired falls within the circumstances set by Sabadash v. State Farm, where an exception arises requiring resort to the material contribution test. There is more than one tortfeasor and the plaintiff, through no fault of his own, is unable to show that one of them is the “but for” cause of his injuries.

[67] The Director’s Delegate sees this understanding as a failure to appreciate the difference between “difficult to prove” and “the impossibility of the proof of causation”:

I note certain echoes with the difficulty of proof in this case, where the Arbitrator noted that Mr. Thiruchelvam himself was unable to tell us to what extent there was any serious deterioration after the MVA and there was no clinical measurement to allow doctors to state with certainty what proportion of the impairment stemmed from the MVA, nor the precise extent of his impairment.[^91]

[68] In saying this the Director’s Delegate failed to consider that the reason Stalin Thiruchelvam was unable to assist was because of his mental disorder, the injury he suffered as a result of these three accidents. It is not that it was difficult for him to explain, it is that he could not. For him, it was impossible. Similarly, the absence of clinical measurement, either because there is no available metric by which to make the measurement or because, in the circumstances, no one made the requisite measurement does not only make the proof difficult. It means that as a result of either no applicable science or no timely analysis, it was not possible, following the third accident, 15 years after the first and second accidents, to compare and understand the varying contributions of each accident to the condition of Stalin Thiruchelvam.

[69] Canada (Minister of Citizenship and Immigration) v. Vavilov[^92] instructs that a reasonableness review begins with the reasons, in this case, of the Director’s Delegate:

A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion.[^93]

[70] And provides the basis on which reasons are to be examined:

[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.[^94]

[Emphasis added]

[71] The decision of the Director’s Delegate is not justified because it relies on the supposed fact that Stalin Thiruchelvam was catastrophically impaired prior to the accident of September 4, 2013 and ignores the law that provides that the appeal to the Director’s Delegate can only be on a question of law. The Arbitrator made no finding that Stalin Thiruchelvam was so impaired at that time. Any decision that relied on this fact was outside the facts and law that constrained the Director’s Delegate as the decision maker.

[72] Moreover, the acceptance that Stalin Thiruchelvam was, on September 4, 2013, already catastrophically impaired was not justified or explained. It is simply stated as a fact. This was done:

• in the face of evidence that in the years between 2002 and 2014 no finding by the responsible authorities was made that Stalin Thiruchelvam was ever catastrophically impaired and qualified for the additional benefits such a finding would provide,

• where the available evidence suggested that such a finding would not be the necessary or inevitable result of any such analysis, and

• even if at some point in time it was demonstrated that Stalin Thiruchelvam had been catastrophically impaired there was evidence that he had improved in the period just prior to September 4, 2013, the implication being that if he had been catastrophically impaired that may no longer have been the case.

[73] In the absence of a review of any evidence, in support or against the understanding that Stalin Thiruchelvam was “already catastrophically impaired” the reasons of the Director’s Delegate lack both rationality and coherence.

[74] The substance of the Director’s Delegate’s decision was that the Arbitrator used the material contribution test when she was obliged to rely on the “but for” test. In considering the caselaw that applied, the Director’s Delegate continued to address the issues, understanding that Stalin Thiruchelvam had been catastrophically impaired before September 4, 2013. This coloured the analysis because it predetermined that the application of “but for” test would show that the accident of September 4, 2013 would not have been the cause of any determination that Stalin Thiruchelvam was catastrophically impaired. With this understanding, there was never any reason for the Director’s Delegate to consider the distinction between:

• dealing with the fault (potential negligence) of a single tortfeasor (as in Clements, Athey and Hanke), as opposed to,

• material contribution that could cause an insurer to pay additional benefits where there were two or more tortfeasors and it was not possible to determine which of the two was the cause of the injury involved (as describe in Sabadash).

[75] This being so, the Director’s Delegate never accounted for or considered the potential for an application of the material contribution test to the circumstances that could arise if it could not be shown that Stalin Thiruchelvam was catastrophically impaired before September 4, 2013. His reasons lack rationality and coherence for their failure to fully consider the issues at hand.

[76] I find for the reasons reviewed that the decision of the Director’s Delegate was unreasonable.

The Adjournment Request

[77] The decision of the Director’s Delegate will be set aside but he made another finding that would cause the decision of the Arbitrator to be struck down and a new hearing ordered.

[78] At the outset of the hearing before the Arbitrator, counsel for the insurer requested an adjournment. It had received a ninety page report (the Omega Report) from Stalin Thiruchelvam responding to the Viewpoint Report (the report prepared by Drs. Oshidari and Wiseman, with the assistance of Laura Youm). The report arrived 31 days before the hearing was scheduled to commence. Counsel submitted that he needed time to properly prepare and respond. The adjournment was denied. At the hearing of the appeal by the Director’s Delegate the insurer took the position that the Arbitrator, by denying the adjournment, had breached procedural fairness and, on that basis alone the decision of the Arbitrator should be set aside. The Director’s Delegate agreed.

[79] In his reasons the Director’s Delegate referred to and quoted an exchange between counsel for the insurer and the Arbitrator. In discussing the prospect of an adjournment, the Arbitrator made reference to the fact that the means by which concerns for the application of the SABS were reviewed was about to change. She advised that she was to “lose jurisdiction” three weeks later, on December 31, 2017:

We have been told again and again we are not allowed to adjourn anything now. Everything is going forward. [^95]

[80] Her decision refusing the adjournment begins:

Thank you. Mr. March all counsel doing FSCO work have been aware, for the past year, that this was the end of the line for FSCO, so if I were to adjourn it there would be a significant risk that this could not continue. In that case there would be a denial of justice to the applicant, so I cannot give you any other decision, except that I cannot adjourn this case.[^96]

[81] The Director’s Delegate saw this as an improper fettering of the Arbitrator’s discretion and as a further, albeit separate and independent, reason to grant the appeal and set aside the decision of the Arbitrator:

However, I find that the Arbitrator’s failure to consider an adjournment for principled reasons is sufficient to allow the appeal for reasons of fundamental justice.^97

[82] I note there is a practical reality to the observations made by the Arbitrator. The interests of the Applicant, in this case Stalin Thiruchelvam, bear consideration. Counsel had been made aware that the process was changing in order that problems such as the one raised could be avoided. Be that as it may, there was more to this request for an adjournment than the decision of the Director’s Decision reviews. The reasons of the Arbitrator went on:

And you were told that by Ms. Parish at the time you made this application the first time, in the first place, and it’s simply not going to change. I appreciate your comments.^98

[83] This reference to an earlier application is quoted in the reasons of the Director’s Delegate and recognized in a footnote that indicates that a motion to adjourn had already been made before Arbitrator Parish, who had denied it.

[84] The Director’s Delegate referred to Certas Direct Insurance Company v. Gonsalves.[^99] In that case the Applicant for benefits under the SABS produced new reports describing her conditions a month before the scheduled commencement of the hearing before an Arbitrator. The insurer asked for and was granted an adjournment and an order requiring the Applicant to attend for a further medical examination. The Applicant refused and appealed to the Director’s Delegate who set aside the order, both the adjournment and the medical examination. That order was the subject of a judicial review. The Divisional Court noted how rare it was for it to involve itself in interlocutory and procedural matters. Generally, such matters are dealt with on the understanding that it is premature for them to be heard until after the process has been completed; nonetheless, in the circumstances the Divisional Court chose to do so. It found:

The determination of the Director’s Delegate that the arbitrator made an error in law in granting a stay to allow for an independent medical examination, essentially an adjournment request, is unreasonable and cannot stand.[^100]

[85] In making this determination the Court observed:

In understanding our concern, it is helpful to consider what is likely to happen in the absence of the adjournment. The arbitration will proceed. The most recent orthopedic reports will be presented. The insurer will have nothing current with which to respond.[^101]

[86] The Director’s Delegate believes the circumstances here are the same as they were there. They are not. A review of the decision on the earlier motion for an adjournment made before Arbitrator Parish reveals this to be the case. Far from being a decision limited to the practical problems associated with the late arrival of reports and the coming change to the process, this decision is a comprehensive review of why there was no need for an adjournment.

[87] The motion for the adjournment was dealt with in writing. It was commenced by a letter written, by counsel for the insurer, to ADR Chambers which was responsible for the organization of these appeals. It was dated November 13, 2017. The hearing was scheduled to begin on December 11, 2017. The motion relied on the late delivery of the Omega report and raised the possibility that the insurer would require Stalin Thiruchelvam to attend a further assessment.

[88] On November 14, 2017, the Arbitrator sent an email to counsel requesting further information:

The letter does not address which issues in dispute for this Arbitration are impacted by the “last-minute service” filing of the expert report. Further, there has been no detail provided within the letter of November 13, 2017 as to why the Insurer now requires a further section 44 assessment.[^102]

[89] The submissions of counsel were completed by November 22, 2017 and the Arbitrator’s decision rendered on November 28, 2017.

[90] It is not a short piece dealing with concerns for the availability of the Arbitrator. The rationale for the refusal of the adjournment deals with the requirements of the hearing on the merits and the failure of the insurer, despite the email of November 14, 2017, to demonstrate that it would be prejudiced if the hearing proceeded. The Arbitrator’s decision notes:

I do not find that the Insurer has provided any evidence which supports that Applicant’s expert Catastrophic Multidisciplinary Examination Rebuttal Report [the Omega Report] served upon the Insurer on November 10, 2017 provided new evidence which supports a new diagnosis, or a change in the Applicant's condition.^103

The Insurer has submitted that the Applicant’s catastrophic impairment assessors had “a more complete medical record” at the time they conducted their assessment. However, the Insurer has not specifically noted what information contained within the more recent/complete medical records has placed the Insurer at a disadvantage by not being able to properly respond to the Applicants expert Catastrophic Multidisciplinary Examinations Rebuttal Report.^104

I do not find the circumstances in this case are “trial by ambush” as referenced in Gonsalves. I find that to grant an adjournment to allow the Insurer to obtain a further response to the Applicant’s expert Catastrophic Multidisciplinary Examinations Rebuttal Report, to further obtain medical information, and to seek another section 44 IE of the Applicant would not be warranted based upon the information which the Insurer has provided. The Applicant’s catastrophic impairment report served upon the Insurer were a response to the Insurer’s catastrophic impairment reports received by the Applicant in July 2016. A further response may be beneficial to the Insurer as the Insurer would have additional information which may serve to bolster their position for this Arbitration, but I do not find it necessitates granting an adjournment in this case. The Insurer has not provided enough information to demonstrate why they would be prejudiced by not being able to obtain a further response and a further section 44 IE of the Applicant.^105

[91] The application for an adjournment, made at the hearing, cannot be considered as if the earlier application had not occurred. Evidently, the Insurer was not satisfied and tried again. The Arbitrator provided more detail on one of the issues that had been raised before Arbitrator Parish. (The fact that the process would change.) This cannot be taken to detract from the substance of the reasons she provided. The Director’s Delegate’s finding that there was a breach of procedural fairness is unreasonable because he failed to account for the reasons of Arbitrator Parish. His finding that the failure of the Arbitrator to grant the adjournment was a failure of procedural fairness is set aside.

Restoring the Decision of the Arbitrator

[92] The decision of the Director’s Delegate cannot stand but because of the nature of the error (the reliance on an unestablished fact) the merits of the issue raised on this appeal have not been properly considered: Did the Arbitrator use the right test?

[93] These reasons note that the situation she confronted fits comfortably within the exception to the “but for” test as outlined in Sabadash v. State Farm. Even so some examination of what the Arbitrator did may be useful in confirming this conclusion.

[94] She began her analysis by recognizing that, consistent with the applicable policy the parties had relied on written reports and that the reports provided by the Insurer contradicted those of Stalin Thiruchelvam. She accepted that, given the fifteen year period over which these professional opinions were provided, it was not surprising they disagreed. She recognized the significant measure of subjectivity that was involved “in assessing the effect of impairments on any given individual, in the unique circumstances of that individual's life"[^106] and acknowledged that:

…this does make it extremely difficult to compare the assessments in order to determine whether there has been a real exacerbation of the Applicant's pre-MVA condition.[^107]

[95] The Arbitrator pointed out that due to his cognitive difficulties Stalin Thiruchelvam was not helpful in coming to the required understanding and took her to the conclusion that:

This juxtaposition of circumstances makes this a particularly challenging case.^108

[96] This demonstrates the difficulty of the task and the Arbitrator’s awareness of that difficulty.

[97] It is in this context that she mentioned the 2007 report of Drs. Kaplan and Levitt that identified Stalin Thiruchelvam as moderately to markedly impaired in three and markedly impaired in one of the four domains (spheres) associated with an assessment of the level of impairment. She noted that their updated report was relied on as part of the application of Stalin Thiruchelvam to be recognized as catastrophically impaired (OCF-19). The Arbitrator referred to the evidence of Dr. Maselle Virey that Stalin Thiruchelvam’s “various psychiatric disorders had originated from the 2002 accidents but that all three accidents had materially contributed to the impairments [he] suffers today."[^109] Although the Arbitrator did not say so, this is the same conclusion as that in the updated report of Dr. Kaplan and Levitt. She comments on this conclusion by quoting Dr. Maselle Virey, as already referred to but repeated here:

You can’t tease [the effects] apart from a clinical or scientific perspective. They function in concert to cause the current psychological disorders.^110

[98] What this demonstrates is that it was reasonable for the Arbitrator to treat the idea of finding the relative contributions of each of the three accidents to the impairments suffered by Stalin Thiruchelvam as an impossible task.

[99] It was with this understanding in hand, that she considered that while the “but for” test was appropriate for a “simple case” where the circumstances of the injured person after an accident are compared to those before it occurred; it was not appropriate in this case. It was not “simple”. Stalin Thiruchelvam was already impaired as a result of the two accidents that took place in 2002. In other words, there were other potential tortfeasors who could have contributed to the impairment of Stalin Thiruchelvam.

[100] On this understanding the two preconditions necessary to implement the exception as identified in Sabadash v. State Farm were satisfied. The Arbitrator concluded:

Thus, it would be futile to ask the Applicant whether “but for” the MVA he would not be suffering his current impairment.^111

[101] From there it is a two-step journey to the taking up of the material contribution test. First was he catastrophically impaired following the motor vehicle accident of September 4, 2013. Obviously, if he was not so impaired there would be no point in proceeding further. The Arbitrator found that Stalin Thiruchelvam was:

Accepting the Omega report as evidence of Class 4 Marked impairment in the sphere of Adaptation, and having personally observed his difficulties during the Hearing, I am persuaded on the balance of probabilities that Mr. Thiruchelvam, at the time of the Hearing, was markedly impeded in useful functioning, at least in the sphere of Adaptation, and consequently meets the Schedule criteria for catastrophic impairment in his activities of daily living.^112

[102] This left the Arbitrator to deal with the second step on the way to implementing the material contribution test:

The question before me is, if the Applicant can prove, on a balance of probabilities, that his pre-existing psychiatric impairment was exacerbated by the MVA, can that exacerbation be deemed a "material contribution"?[^113]

[103] If the answer to this question is “yes”, then, as directed by Sabadash v. State Farm the applicant, Stalin Thiruchelvam will have established liability against one defendant whose conduct materially contributed to the plaintiff's risk of injury.[^114]

[104] After reviewing the evidence, the Arbitrator concluded:

I find that, on the balance of probabilities, the MVA did have a material effect on the Applicant’s psychiatric condition, leaving him with impairments more severe than those he was already suffering before September 4, 2013, and which are catastrophic within the meaning of the Schedule.[^115]

[105] I find that the use of, and reliance on, the material contribution test was appropriate and the implementation of that test proper. There would be no reason to, and no purpose in, returning this matter to the Arbitrator. Her decision is restored.

Expenses

[106] In this case the expenses being referred to are those incurred in pursuing the claim. The Arbitrator, having determined that Stalin Thiruchelvam was catastrophically impaired, given the success of his claim, found that Stalin Thirucelvam was entitled to have his costs paid by the insurer. Stalin Thiruchelvam asked for $20,238.20 for lawyers’ fees, $27,059.43 for disbursements totalling $47,297.63. The Arbitrator noted that the Bill of Costs presented by the insurer was for $43,796.00 which she referred to as “roughly similar”. She saw the similarity as an indication that the claims by both parties were reasonable. She awarded Stalin Thiruchelvam $47,297.63 in costs.

[107] The Director’s Delegate concluded that the determination of costs that had been awarded to Stalin Thiruchelvam, as the successful party, and the costs claimed by both parties having been found to be reasonable, reversed the order that had been made and awarded costs to be paid to the RBC General Insurance Company in the amount it had claimed being $43,796.00

[108] In the normal course, given that the judicial review is being granted it would be anticipated that the order as to these costs would be returned to that made by the Arbitrator in favour of Stalin Thiruchelvam. However, his counsel advised that an error had been made in the award made by the Arbitrator and that it had been continued in the award made by the Director’s Delegate. Disbursements were awarded at a value of $27,059.63. The actual value for disbursements was $6,047.90. Thus, the costs awarded for the expenses of the arbitration would be ($20,238.20 + $6,047.90) $26,286.10. The amount sought is $29,093.43. I am unable to explain the difference. Costs of the Arbitration to be paid by RBC General Insurance Company to Stalin Thiruchelvam in the amount of $26,286.10

Final Note

[109] This decision rests largely on the understanding that an appeal to the Director’s Delegate was to be made only on a question of law and that, in this case, the Director’s Delegate failed to adhere to this limitation when he relied on the assertion that Stalin Thiruchelvam had already suffered a catastrophic impairment before the accident of September 4, 2013. For clarity, I should note that in Sabadash v. State Farm the Court proceeded on the understanding that an appeal to the Director’s Delegate was in respect of "all questions of fact or law".[^116] It did this relying on section 20(2) of the Insurance Act as it read at the time:

20. (1) This section applies with respect to proceedings under this Act before the Tribunal, the Superintendent and the Director and before an arbitrator., c. 28, s. 77.

(2) A person referred to in subsection (1) has exclusive jurisdiction to exercise the powers conferred upon him or her under this Act and to determine all questions of fact or law that arise in any proceeding before him or her and, unless an appeal

is provided under this Act, his or her decision thereon is final and conclusive for all purposes.

[Emphasis added]

[110] The same legislation, at the same time, at section 282(1) and 283(1) stated:

282. (1) An insured person seeking arbitration under this section shall file an application for the appointment of an arbitrator with the Commission.

283. (1) A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law.

[111] On its face this seems inconsistent. So far as I can see there was no reference made to s. 283(1) before the Court in Sabadash and there was no reference to section 20(2) before this Court. Without any submission having been made, I note that it is an old, even trite, principle of statutory interpretation that the general should not be permitted to overrule or derogate from the specific (in Latin: generalia specialibus non derogant ).

[112] To my mind the provision in section 20(2) is a general statement concerning the authority of the decision makers that are part of the processes outlined, referenced and authorized under the Insurance Act. Section 283(1) is specific to appeals from Arbitrators to the Director, who can delegate that authority (see: s. 6(3) of the Insurance Act as it was at the time). Moreover, while the phrase “unless an appeal is provided under this Act”, as it appears in s. 20(2) primarily limits the finality of the decision taken, it, nonetheless, separates appeals from matters of first impression. As it is, appeals to the Director from an arbitrator were limited to issues of law meaning the decisions of arbitrators as to the facts remain final and conclusive. This was confirmed in Certas Direct Insurance Company v. Gonsalves:

An appeal to the Director’s Delegate can only be made on a question of law (see Insurance Act, s.283).[^117]

Conclusion

[113] The application is granted. The order of the Director’s Delegate is quashed. The order of the Arbitrator is restored save and except that the award for costs of the arbitration are reduced to $26,238.20.

Costs

[114] Costs of the appeal to the Director’s Delegate were awarded by him to be paid by Stalin Thiruchelvam to the RBC General Insurance Company in the amount of $1,500.00.[^118] In the circumstances this is set aside and instead costs of the appeal to the Director’s Delegate are to be paid by RBC General Insurance Company to Stalin Thiruchelvam in the amount of $1,500.

[115] Costs of this judicial review are sought by Stalin Thiruchelvam in the amount of $11,863,13. A Bill of Costs was filed by RBC General Insurance Company in the amount of $6,184.93. Stalin Thiruchelvam was successful on this application and should be paid his costs. This is the third time this matter has been heard, first by the Arbitrator, then the Director’s Delegate and now this Court. The parties would have been well familiar with the circumstances, the facts and the applicable law. Costs to be paid by RBC General Insurance Company to Stalin Thiruchelvam in the amount of $7,500.

Lederer, J.

I agree _______________________________

Favreau J.

I agree _______________________________

Gomery J.

Released: January 28, 2022

CITATION: Thiruchelvam v. RBC General Insurance Company, 2022 ONSC 554

DIVISIONAL COURT FILE NO.: Court File No. 736/19

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, J.1

AND IN THE MATTER OF an appeal from a decision of the Director’s Delegate before the Financial Services Commission of Ontario

Lederer, Favreau and Gomery JJ.

BETWEEN:

STALIN THIRUCHELVAM

Applicant

– and –

RBC GENERAL INSURANCE COMPANY and FINANCIAL SERVICES COMMISSION OF ONTARIO

Respondents

REASONS FOR JUDGMENT

Lederer, J.

Released: January 28, 2022

[^1]: I note that amendments to the Insurance Act effective as of April 1, 2016, provide that all disputes regarding entitlement to SABS are now directed to the Licence Appeal Tribunal. This matter is a holdover from the prior process.

[^2]: The decision of the Director’s Delegate refers to this as the version of the SABS that applied at the material time (O. Reg. 34/10 for the period June 1, 2013 to December 16, 2013). The Arbitrator’s decision relies, instead on the s. 3 (1.2)(g) of 1996 version. They are different. Where the 2010 version refers to “an impairment”, the 1996 version refers to “an impairment or combination of impairments”. The distinction does not bear on the decision in this case.

[^3]: In making this point the Arbitrator referred to Pastore v. Aviva 2012 ONCA 642 which accepted that the use of the word “a” in the phrase “a class 4 impairment” in the clause explaining the test for identifying a catastrophic impairment due to mental or behavioural disorder (see: the quotation of clause 3(2)(f) of O. Reg. 34/10 quoted above, referred to at fn. 2)

[^4]: See for example: Stalin Thiruchelvam Cross examination: December 11, 2017 p. 75 (Caselines B2705), p.192 (Caselines p. B3184), December 14, 2017: p. 6 (Caselines B3244) and see: Centric Health, Medical Assessments, January 9, 2015 (Psychological Assessment, Dr. Sherri MacKay) at p. 8 of 18 (Caselines B1012)

[^5]: Factum of the Applicant at par. 11, Factum of the Respondent (Stalin Thiruchelvam) at para. 3 and Factum of the Respondent (Financial Services Commission of Ontario) at para. 1

[^6]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 59 Admin LR (6th) 1, 441 DLR (4th) 1, 312 ACWS (3d) 460 at paras. 10 and 16

[^7]: See for example: Intercounty Tennis v. Human Rights Tribunal od Ontario 2020 ONSC 1632 at para. 46, Swingler and Yoga v. Shapiro, 2021 ONSC 738, 2021 ONSC 738 at para. 7 and Madhani v. Wawanesa Mutual Inusrance Company, 2018 ONSC 4282 at para. 19

[^8]: Insurance Act R.S.O. 1990, c I-8, as it appeared on March 31, 2016 at s. 283(1): “A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law.”

[^9]: (Second) Amended Decision of the Arbitrator at p. 22 (Caselines A188)

[^10]: Dr. Tory Hof Registered Psychologist, September 11, 2014 at p. 1 (Caselines B211).

[^11]: Ibid at p. 9 (Caselines B219)

[^12]: Dr. Tory Hof Registered Psychologist, September 18, 2017 at p. 2 (Caselines B250)

[^13]: Ibid at p. 3 (Caselines B250-B251) The quote beginning “Within about three months…” also at (Second) Amended Decision of the Arbitrator at p. 13 (Caselines A179).

[^14]: Kaplan Psychologists, August 27, 2014 (Brian E. Levitt) at p. 27 of 48 (Caselines B134) referred to at the (Second) Amended Decision of the Arbitrator at p. 15 (Caselines A181)

[^15]: Kaplan Psychologists October 30, 2017 (Brian E. Levitt) at p. 3 of 10 (Caselines A706 and B256)

[^16]: (Second) Amended Decision of the Arbitrator at p. 14 (Caselines A180)

[^19]: Dr. Michell G. Virey, Consultant Psychiatrist, June 26, 2017 at p. 3 (Caselines B227) and (Second) Amended Decision of the Arbitrator at p. 24 (Caselines A190)

[^20]: Report of Dory Becker, Practice in Clinical and Rehabilitation Psychology, included in Report from Omegamedical Associates, Catastrophic Multidisciplinary Examinations-Criterion 8, November 10, 2017 at p. 6 of 90 (Caselines A723)

[^21]: (Second) Amended Decision of the Arbitrator at p. 17 (Caselines A123)

[^22]: Report of Dory Becker, Practice in Clinical and Rehabilitation Psychology, included in Report from Omegamedical Associates, Catastrophic Multidisciplinary Examinations-Criterion 8, November 10, 2017 at p. 29 of 90 (Caselines A746) and (Second) Amended Decision of the Arbitrator p.18 (Caselines A184)

[^23]: Ibid at pp. 29 and 30 of 90 (Caselines A746-A747)

[^24]: OCF-19 dated December 16, 2014 Exhibit 5 before the Arbitrator (Caselines A469-A473)

[^25]: (Second) Amended Decision of the Arbitrator at p. 18 (Caselines A184)

[^26]: OCF-19 dated December 16, 2014 Exhibit 5 before the Arbitrator at p. 5 of 5 (Caselines A473)

[^27]: Report of Dr. Scott Garner, dated August 28, 2014 at pp. 13 and 14 of 14 (Caselines A551-A552) quoted at (Second) Amended Decision of the Arbitrator at p.19 (Caselines A185). This is the review of Drs. Levitt and Kaplan which is quoted in and was updated for the OCF-19 (see fn. 46-50 below)

[^28]: (Second) Amended Decision of the Arbitrator at p. 16 (Caselines A182) and see: Viewpoint: Catastrophic Impairment Assessment Report, July 7, 2016 at p. 5-6 of 117 (Caselines A590-A591)

[^29]: Ibid ((Second) Amended Decision of the Arbitrator) at p. 22 (Caselines A188)

[^30]: Ibid at p. 17 (Caselines A183) and (Viewpoint) at p. 5 of 117 (Caselines A590)

[^31]: Viewpoint (ADL FUNCTIONAL ASSESSMENT) at p.70 of 117 (Caselines A655)

[^32]: Ibid at 71 of 117 (Caselines A656)

[^34]: (Second) Amended Decision of the Arbitrator at p. 21 (Caselines A187)

[^35]: Ibid at p. 11 (Caselines A177)

[^36]: Ibid at p. 23 (Caselines A189)

[^37]: Ibid at p. 8 (Caselines A174)

[^38]: Ibid at p. 26 (Caselines A192)

[^39]: Ibid at p. 24 (Caselines A190)

[^40]: Ibid at p. 25 (Caseline A191)

[^41]: Ibid at p. 24 (Caselines A190)

[^42]: (Second) Amended Decision of the Arbitrator at pp. 22 -23 (Caselines A188-A189)

[^43]: Insurance Act R.S.O. 1990, c. I.8 (as it was at the material time) s. 283(1):

A party to an arbitration under s. 282 may appeal the order of the arbitrator to the Director on a question of law.

[^44]: Decision of the Director’s Delegate p. 8 (Caselines A76)

[^45]: (Second) Amended Decision of the Arbitrator at p. 27 (Caselines A193) quoted in the Decision of the Director’s Delegate p. 6 (Caselines A74)

[^46]: OCF-19 dated December 16, 2014 Exhibit 5 before the Arbitrator at p. 3 of 5 (Caselines A471)

[^47]: (Second Amended Decision of the Arbitrator at p. 27 (Caselines A193) quoted in the Decision of the Director’s Delegate p. 6 (Caselines A74)

[^48]: OCF-19 dated December 16, 2014 Exhibit 5 before the Arbitrator at p. 4 of 5 (Caselines A472)

[^49]: Decision of the Director’s Delegate at p. 8 (Caselines A76) The reference to the Arbitrator in the quotation refers to the following quotation:

The characterisations cited in OCF-19 of "moderate to marked" would indicate a range between high moderate and low marked. Even if Mr. Thiruchelvam had already been in a low marked range prior to the MDA, nothing prevents the MDA's impact from worsening his impairment to a higher level within the Marked range…

(Decision of the Arbitrator at p. 27 (Caselines A125) quoted in the Decision of the Director’s Delegate p. 6 (Caselines A74)

This is not an acceptance of the level of impairment found in the 2007 report but an indication of the impact of the accident of September 4, 2013 and if it caused a "worsening" of Stalin Thiruchelvam's condition.

[^50]: This is quoted at fn. 29 herein

[^51]: (Second) Amended Decision of the Arbitrator at p. 24 (Caselines A190)

[^52]: Ibid at p. 27 (Caselines A193)

[^53]: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 at para. 5

[^54]: Ibid at para. 14

[^55]: Ibid at para. 9 referring to Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090, per Lord Bridge and Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311.

[^56]: Ibid at para. 16

[^57]: Ibid at paras. 46(2) and 50

[^58]: Ibid at para. 50

[^59]: 1996 183 (SCC), [1996] 3 SCR 458

[^60]: Ibid at para. 8

[^61]: Ibid at para. 10

[^62]: Ibid at paras. 34, 35 and 49

[^63]: Ibid at paras. 14 and 15

[^64]: 2007 SCC 7, 2007 S.C.C. 7

[^65]: Ibid para. 4

[^66]: Ibid at para. 19

[^67]: Ibid at para. 24

[^69]: Monks v. Ing Insurance Co. of Canada 2008 ONCA 269, 90 OR (3d) 689, 235 OAC 1, 165 ACWS (3d) 918 at para. 86

[^71]: Ibid at paras. 8, 9 and 13-15

[^72]: Ibid at para. 28 and see para. 22

[^73]: Ibid at para. 87

[^74]: Ibid at para. 90

[^75]: Ibid at para. 91

[^76]: Ibid at para. 96

[^77]: 2019 ONSC 1121, [2019] OJ No 788 (QL)

[^78]: Ibid at para. 11

[^79]: Ibid at para. 17

[^80]: Ibid at para. 31

[^81]: Decision of the Director’s Delegate at p. 9

[^82]: Ibid at p. 10 (Caselines A78)

[^83]: Ibid referring to Resurfice Corp. v. Hanke 2005 ABCA 383 at para. 14

[^84]: Ibid at p. 10 (Caselines A78)

[^85]: Ibid at p.10 (Caselines A78)

[^86]: Ibid at p. 8 (Caselines A76)

[^87]: Ibid at p.11 Caselines A79

[^88]: Ibid at p. 12 (Caselines A80)

[^89]: Ibid at p. 8 (Caselines A76)

[^90]: Decision of the Arbitrator at p. 22-23 (Caselines A188-A189)

[^91]: Decision of the Director’s Delegate at p. 11 (Caselines A79)

[^92]: 2019 SCC 65

[^93]: Ibid at para. 84

[^94]: Ibid at para. 85

[^95]: Decision of the Director’s Delegate at p. 21 (Caselines A89)

[^96]: Ibid at p. 22

[^99]: 2011 ONSC 3986

[^100]: Ibid at para. 19

[^101]: Ibid at para. 11

[^102]: Decision of Arbitrator Parish (Adjournment) Application Record Tab 9 (Caselines A213)

[^106]: (Second) Amendment Decision of the Arbitrator at p. 22-23 (Caselines A188-A189)

[^107]: Ibid at p. 23 (Caselines A189)

[^109]: Ibid at p.24 (Caselines A190)

[^113]: Ibid at p. 25 (Caselines A191)

[^114]: Sabadash v. State Farm, supra (fn. 77) at para. 31(e) (for the full quotation see fn. 80) referring to Clements v. Clements, supra (fn. 57) at para. 46

[^115]: (Second) Amended Decision of the Arbitrator at p. 27 (Caselines A193)

[^116]: Supra (fn.79) at para. 23

[^117]: Supra (fn. 101) at para. 18

[^118]: Application Record Vol 1, Tab3 pp. 34-35: (Appeal Expenses Order, Reasons For Decision) (Caselines A94-A95)