Pereira v. Aviva, 2022 ONSC 688

Pereira v. Aviva, 2022 ONSC 688

CITATION: Pereira v. Aviva, 2022 ONSC 688

DIVISIONAL COURT FILE NO.: 470/21

DATE: 20220131

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Stewart and Mew JJ.

BETWEEN:

Silverio Pereira

Appellant

– and –

Aviva General Insurance Company

Respondent

Self-Represented

Jessica Rogers, for the Respondent

-and-

Licence Appeal Tribunal

Intervenor

Douglas Lee, for the Intervenor

HEARD at Toronto by videoconference: January 25, 2022

REASONS FOR DECISION

Stewart J.

Nature of the Appeal

1The Appellant Silverio Pereira (“Pereira”) appeals from two Decisions of the Licence Appeal Tribunal (the “Tribunal”). In its Decision of November 3, 2020 the Tribunal declined his motion to add issues for consideration by it at the hearing, and also found that he was not entitled to reimbursement by his insurer, the Respondent Aviva General Insurance Company (“Aviva”), of the cost incurred by him of chiropractic treatments. Pereira also appeals from the denial by the Tribunal on May 17, 2021 of his request for reconsideration of this Decision.

2Pereira is self-represented on this appeal. On his behalf Pereira’s wife Ninette Ibanez sought permission to assist and speak for him at the hearing of his appeal. No objection to this request was raised by either of the other parties. In the circumstances, we allowed Ms. Ibanez to make submissions on Pereira’s behalf to supplement the written materials that had been provided by him to the Court.

Background

3On May 30, 2015 Pereira was injured in a motor vehicle accident. He applied for certain benefits from Aviva pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. Aviva denied his application which, among other things, included a request for payment for chiropractic treatments.

4On September 6, 2019 Pereira submitted an application for dispute resolution to the Tribunal. Pursuant to s. 290 (1) of the Insurance Act, R.S.O. 1990, c. I.8 the Tribunal has exclusive jurisdiction to adjudicate disputes related to an insured person’s entitlement to statutory accident benefits.

5The issues raised in Pereira’s application initially included whether his claim was subject to the minor injury guideline, whether he was entitled to payment for chiropractic treatments, and whether he was owed interest on overdue payments of benefits. His application stated that the claim did not involve any request for an award under s. 10 of Automobile Insurance, R.R.O. 1990, O. Reg. 664.

6On February 27, 2020 at a case conference, Pereira withdrew the issue of the minor injury guideline. The Tribunal ordered that the remaining issues be heard at a hearing in writing on July 13, 2020, specifically: (a) whether Pereira is entitled to benefits of $12,823.61 and $3,960 for chiropractic treatment and (b) whether he is entitled to any interest on overdue payments. The parties agreed to deadlines for production and written submissions.

7On March 13, 2020 Pereira’s counsel notified the Tribunal that his firm no longer represented him.

8In June 2020 Pereira and Aviva filed submissions. In his submissions, Pereira raised additional issues that were not raised either in his initial application or at the case conference. These new issues included claims for entitlement to non-earner benefits and to a lump sum under s. 10 of Automobile Insurance. In its responding submissions Aviva submitted that these issues were not properly before the Tribunal and that to address them at the hearing would be procedurally unfair.

9Aviva also took the position that if Pereira wished to pursue those additional claims he could do so by way of a second application.

10In July 2020 Pereira filed a Notice of Motion asking that these new issues be heard at the written hearing. He submitted that allowing them to be heard at the hearing would be “in the interest of fairness and efficiency” and would not prejudice Aviva. Aviva maintained its objection to their inclusion in the issues for determination pending before the Tribunal. The Tribunal ordered that Pereira’s motion be dealt with at the written hearing.

Decisions Under Appeal

11In a Decision dated November 3, 2020 the Tribunal’s Adjudicator denied Pereira’s motion to add any extra issues for consideration at the hearing. It was acknowledged that although Pereira became self-represented after the case conference, he had been represented by counsel when the issues in dispute were reviewed and agreed on at the case conference. Pereira had not met his burden of proving on a balance of probabilities why his claims should be added at this late stage. The Adjudicator also found that adding these new issues so late in the process would preclude Aviva from preparing and mounting a proper defence, undermine the Tribunal’s dispute resolution process, and effectively circumvent the Tribunal’s mandate of ensuring the fair and efficient resolution of disputes. These issues could be addressed through the making of a fresh application by Pereira if he chose to do so.

12The Adjudicator also found that Pereira was not entitled to payment for the chiropractic treatments in dispute because Pereira had undertaken and paid for the treatments prior to submitting the necessary treatment plans to Aviva in advance for approval. Pursuant to s. 38(2) of the Statutory Accident Benefits Schedule, Aviva is not liable to pay for treatments for which a treatment plan had not been submitted and approved in advance. None of the exceptions as contained in s. 38 (2) applied to Pereira’s claim. The Adjudicator further found that, as no amounts were owing to Pereira by Aviva, no interest was payable. Addressing Pereira’s additional submissions, the Adjudicator found that there were no problems or defects in Aviva’s denial notices, with how Aviva adjusted Pereira’s claims, or Aviva’s reliance on its right to conduct medical examinations.

13In a Reconsideration Decision dated May 17, 2021, the Adjudicator dismissed Pereira’s request for reconsideration. On the issue of payment for chiropractic treatment, no errors of fact or law could be identified that would have affected the outcome. The Adjudicator also did not accept Pereira’s argument that he had been denied procedural fairness. The Decision refusing to allow Pereira from advancing new issues at the hearing did not finally dispose of the issues as he was not precluded from pursuing them in a second application.

Jurisdiction

14This Court has appellate jurisdiction pursuant to s. 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “Act”) from decisions of the Tribunal as to disputes concerning accident benefits under the statute.

Standard of Review

15Although this Court has jurisdiction pursuant to ss. 11 (1) and (6) of the Act, it is on a question of law only. Accordingly, the standard of review for any questions of law arising in this appeal is correctness (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997). Should an error of law be found, the Court may replace the Tribunal’s opinion with its own (see: Housen v. Nikolaisen, 2002 SCC 33).

16With respect to any argument that procedural fairness has been denied, should this Court identify any such issue there is no standard of review. Rather, the Court will determine if the requirements of procedural fairness have been observed.

Did the Adjudicator err in denying Pereira’s motion to add new issues for hearing?

17Pereira argues that the decision of the Tribunal’s Adjudicator to deny his motion to add and have his additional claims heard and decided was not in accordance with the policy objectives of the governing legislation and that the Adjudicator failed to exercise a liberal interpretation and application of the Tribunal’s procedural rules, and therefore raises a question of law.

18Aviva submits that Pereira has not identified or raised any question of law with respect to the decision of the Adjudicator to dismiss his motion. Further, there is no indication in the reasons of the Adjudicator that Pereira’s submissions were disregarded or that he was denied procedural fairness.

19In my view, no issue of law has been raised as a result of the Adjudicator’s refusal to permit new issues to be added and argued at the hearing. As a general observation the Tribunal may govern its own procedure and its procedural determination in these circumstances does not raise any issue of law that would allow this court to interfere.

20Further, the Adjudicator’s determination not to allow the adding of extra issues not raised earlier by Pereira does not amount to any denial of procedural fairness that might invite review. Pereira’s claims that were properly before the Adjudicator were proceeded with and decided. Pereira retains the entitlement to pursue his additional claims in a further application should he so choose. Procedural fairness was observed by the Tribunal throughout.

Did the Adjudicator err in deciding that Pereira was not entitled to payment for the chiropractor fees in dispute?

21Section 38 (2) of the Statutory Accident Benefits Schedule provides as follows:

(2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates;

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(i) drugs prescribed by a regulated health professional, or

(ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost of $250 or less per item; or

(d) the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in clause 15 (1) (h) or 16 (3) (l) with a cost of $250 or less per item or service, as the case may be.

22It is not disputed that Pereira did not submit treatment plans in accordance with s. 38 (2) for the chiropractic treatments for which claims for payment are being made, and that he does not fall within any of the enumerated statutory exceptions. He simply did not comply with the clear provisions of the statutory pre-requisites for payment.

23Any concern that might have been asserted with regard to Aviva’s allegedly inadequate Notices to Pereira or information either provided or not provided to him is extinguished by Pereira’s demonstrated submission of previous treatment plans to Aviva for prior approval.

24The question raised therefore is one of fact or, at its highest, one of mixed fact and law. As such, this Court does not have jurisdiction to interfere with the Adjudicator’s findings in that regard.

Did the Adjudicator err in any aspect of the Reconsideration Decision?

25The Adjudicator’s Reconsideration Decision of May 17, 2021 reflects a thorough review of the proceedings and a detailed reconsideration of all relevant findings made at the hearing.

26I find no error in this Reconsideration Decision that would warrant interference with the conclusion that the request for reconsideration be denied.

Is Pereira entitled to any of the other relief he has requested?

27Pereira has submitted to this Court several requests for relief including those that were not entertained by the Adjudicator at the hearing.

28Among these additional requests is that this Court determine Pereira’s claim to entitlement of non-earner benefits. This issue involves a determination of Pereira’s entitlement to accident benefits in the first instance which is within the exclusive jurisdiction of the Tribunal.

29Pereira also asks this Court to determine whether Aviva breached various provisions of the Schedule and unreasonably withheld payments, thus entitling him to a prescribed remedy by way of a s. 10 award or costs.

30Again, this request as well as the other heads of relief sought by Pereira are beyond the jurisdiction of this Court as they invite a determination of Pereira’s entitlement to accident benefits in the first instance. These issues are within the exclusive jurisdiction of the Tribunal, and in any event do not raise a question of law that might warrant interference by this Court.

Conclusion

31For these reasons, I would dismiss the appeal.

Costs

32The parties were unable to agree on disposition as to costs to the successful party. As a result, we entertained oral submissions on that subject.

33I am of the opinion that Aviva, being the successful Respondent to these appeals, is entitled to an award of costs. In all of the circumstances, costs in the all-inclusive amount of $2500 to be paid by Pereira to Aviva is a fair and reasonable disposition and I would so order.

34The Intervenor Licence Appeal Tribunal does not seek its costs, nor are costs being sought against it.

Stewart J.

I agree _______________________________

Sachs J.

I agree _______________________________

Mew J.

Released: January 31, 2022

CITATION: Pereira v. Aviva, 2022 ONSC 688

DIVISIONAL COURT FILE NO.: 470/21