Court File and Parties

Citation: Fagundes v. Intact Insurance, 2024 ONSC 2575 Divisional Court File No.: 560/23 Date: 2024-05-06

Superior Court of Justice – Ontario Divisional Court

Re: Tracey Fagundes, Appellant And: Intact Insurance, Respondent

Before: Lococo, Matheson and Mew JJ.

Counsel: Peter Cimino, for the Appellant Eric K. Grossman and Kevin So, for the Respondent

Heard: May 2, 2024 in Toronto

Endorsement

[1] This is an appeal from the reconsideration decision of Adjudicator Forbes of the Licence Appeal Tribunal (LAT) dated September 11, 2023 (reported at 2023 ONLAT 84406) and the related decision of April 5, 2023 (reported at 2023 ONLAT 26941), denying the appellant post-104-week income replacement benefits (or IRBs) under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (SABS).

[2] The appellant was involved in an automobile accident on April 6, 2019. At the time, she was employed as a housekeeper. The appellant sought accident benefits from her insurer. The respondent insurer paid IRBs until May 2021 and then stopped following an Insurer’s Examination. The insurer concluded that the appellant did not meet the requirements of s. 6 of the SABS.

[3] Subsection 6(2)(b) of the SABS provides that the insurer is not required to pay an income replacement benefit, “after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

[4] The appellant applied to the LAT for resolution of her claim. The Adjudicator received substantial evidence in writing and some of the witnesses also gave oral evidence. The Adjudicator correctly noted both the above SABS subsection, and the onus, which was on the appellant. The Adjudicator discussed the evidence at some length, including the appellant’s education and employment history and the medical and other expert evidence from each party. He weighed the evidence, preferring some experts over others, and noted the absence of evidence from the appellant that spoke to the specific question of whether she met the test for post-104-week IRBs.

[5] The Adjudicator concluded that “from the totality of the medical and documentary evidence provided and the testimony of the [appellant]”, the appellant had not demonstrated entitlement to the claimed IRBs.

[6] The appellant sought reconsideration, raising essentially the same issues now raised on this appeal. The request for reconsideration was unsuccessful.

[7] This appeal proceeds under s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. There is a right of appeal on questions of law, which include issues of procedural fairness. The standard of review is correctness.

[8] Despite the limited right of appeal, the appellant’s arguments are heavily focused on the facts. The appellant submits that the Adjudicator erred in relying on the evidence of certain medical experts and suggests that the Adjudicator deferred to certain experts rather than conducting an analysis of the entitlement under s. 6 of the SABS. The appellant critiques the Adjudicator’s reasons for decision and, in particular, the lack of any express reference to a Functional Capacity Evaluation (or FCE) that formed part of the evidence. That FCE contained a finding that the appellant had a “below sedentary” strength rating.

[9] The appellant accepts that reasons for decision do not have to respond to every argument, nor do they have to refer to every piece of evidence. However, the appellant submits that the above FCE was a major point in the appellant’s favour that goes to the core of the appellant’s case. The appellant therefore submits that its absence from the reasons amounts to an error of law, shows that the reasons are inadequate, and shows that the Adjudicator was biased.

[10] We disagree. The reasons speak in detail about considerable evidence and the absence of reference to this particular fact does not amount to an error in law. The Adjudicator reviewed the evidence put forward by the appellant, including a detailed consideration of the medical evidence from her family doctor and a catastrophic impairment report, and reports from the insurer’s orthopedic surgeon, clinical psychologist and vocational assessor, as well as considerable other evidence.

[11] The Adjudicator weighed all of the evidence and preferred the evidence of five professionals listed in his conclusions. We do not find that preferring certain evidence, or the absence of an express reference to the above FCE, amounts to an error of law or a deficiency in the reasons giving rise to an appealable error.

[12] The appellant further submits that the Adjudicator erred in ignoring subjective evidence from the appellant. The appellant relies on a sentence in the reasons for decision, at para. 10, where the Adjudicator says that: “There must be objective evidence that supports a complete inability to work …”. That sentence must be read in context. In the same paragraph, the Adjudicator is discussing the applicant’s evidence, including the lack of any post-employment attempts. He also observed that he had not been directed to any medical records or opinions that would support the appellant’s position that she had a complete inability to work. His considerations did not exclude the appellant’s subjective evidence or say that only objective evidence was relevant. He did not err in law.

[13] Nor is there a foundation for a finding of bias. The Adjudicator addressed the bias allegation in the reconsideration. The allegation was that he was biased against claimants having subjective pain complaints, diagnoses and impairments. The Adjudicator applied the correct test and found that the appellant had not overcome the strong presumption of adjudicative impartially. We find no error. The LAT Adjudicator weighed the evidence differently than the appellant would prefer, did not refer to every piece of evidence in his reasons, and came to a conclusion with which the appellant disagrees. This did not give rise to a reasonable apprehension of bias.

[14] The applicant also submits that the Adjudicator erred in law in his interpretation and application of the post-104-week test by failing to consider and address the factors set out in previous LAT cases relating to suitable alternative employment, as summarized in Burtch v. Aviva Insurance Co. of Canada, 2009 ONCA 479, 97 O.R. (3d) 550, at para. 15:

In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and the length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how.

[15] The applicant also argues that the Adjudicator failed to appreciate that the post-104-week test required the appellant “to show that she had a complete inability to engage in employment in a competitive real-world setting, rather than an abstract ideal setting” in which an employer would accommodate the appellant’s disabilities as a matter of course: see Wawanesa Mutual Insurance Co. v. Renwick, 2020 ONSC 2226, 150 O.R. (3d) 65 (Div. Ct.), at para. 56.

[16] In Traders General Insurance Co. v. Rumball, 2022 ONSC 7215 (Div. Ct), at para. 60, leave to appeal granted, COA-23-OM-0005 (July 5, 2023), this court concluded that “the only test to be applied in establishing an entitlement to post-104 IRBS is the one set forth in [s. 6(2)(b) of] the Schedule and it does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages.”

[17] In considering the current appeal, it is not necessary to determine whether factors beyond those set out in the wording of s. 6(2)(b) of SABS are required to be considered in determining entitlement to post-104-week IRBs. It is clear from the Adjudicator’s decisions that after considering the evidence, he preferred the insurer’s evidence in reaching the conclusion that the appellant did not suffer from a complete inability to engage in any employment or self-employment for which she was reasonably suited. We are satisfied that the result would have been the same, whether or not the Adjudicator considered the additional factors that the appellant identified.

[18] The appeal is therefore dismissed with costs to the respondent in the agreed upon amount of $5,000, all inclusive.

Lococo J.

Matheson J.

Mew J.

Date: May 6, 2024