Dooman v. TD Insurance Co., 2025 ONSC 184

CITATION: Dooman v. TD Insurance Co., 2025 ONSC 184

DIVISIONAL COURT FILE NO.: 281/24 and 283/24

DATE: 20250113

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, R.A. Lococo and R. Gordon JJ.

BETWEEN:

sharukin dooman Applicant/Appellant

– and –

TD INSURANCE COMPANY Respondent

– and –

LICENCE APPEAL TRIBUNAL Respondent/Intervenor

Vladimira M. Ivanov, for the Applicant/Appellant

Eric K. Grossman and Thulasi Kandiah, for the Respondent

Douglas Lee, for the Licence Appeal Tribunal

HEARD at Toronto: October 22, 2024

REASONS FOR JUDGMENT

R. A. LOCOCO J.

I. Introduction

[1] Sharukin Dooman appeals and seeks judicial review of the decision of the respondent Licence Appeal Tribunal dated November 9, 2023 (the “Decision”), reported at 2023 103790, and the reconsideration decision dated April 8, 2024 (the “Reconsideration Decision”), reported at 2024 30709.

[2] At issue before the Tribunal was Mr. Dooman’s entitlement to no-fault accident benefits from the respondent TD Insurance Company following a motor vehicle accident. The Tribunal upheld TD’s denial of medical and rehabilitation benefits beyond the $3,500 funding limit for minor injuries.

[3] Mr. Dooman submits that the Tribunal made significant errors of jurisdiction, law and fact and breached procedural fairness in reaching the conclusion that his accident-related injuries were minor injuries that were subject to the $3,500 funding limit. He asks the court to set aside the Tribunal’s decisions and order the respondent insurer to pay the contested amounts to him, or alternatively remit the matter to the Tribunal for reconsideration.

[4] For the reasons below, I would dismiss the appeal and the judicial review application.

II. Background

[5] On May 25, 2020, Mr. Dooman was involved in an automobile accident, when his vehicle was struck from behind in a drive-through lane where he was waiting to buy coffee. He sought no-fault accident benefits from TD Insurance Company (“TD”), his automobile insurer, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”) under the Insurance Act, R.S.O. 1990, c. I.8.

[6] At issue between Mr. Dooman and TD was the applicability of the Minor Injury Guideline[^1] (the “MIG”) to Mr. Dooman’s accident-related injuries and his entitlement to medical and rehabilitation benefits beyond the funding limit of $3,500 set out in s. 18(1) of the SABS. Section 18 of the SABS provides in part:

Monetary limits re medical and rehabilitation benefits

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable … for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.

(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.

[7] A “minor injury’ is defined as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”: SABS, s. 3(1).

[8] Following TD’s payment of benefits to Mr. Dooman for treatment within the $3,500 funding limit, Mr. Dooman submitted additional treatment plans for medical and rehabilitative benefits. Among other things, Mr. Dooman alleged that he suffered from chronic pain as a result of the accident, requiring further treatment. TD denied payment of those further benefits on the basis that Mr. Dooman’s injuries were minor injuries that fell within the scope of the MIG.

III. Proceedings before the Tribunal

[9] In December 2021, Mr. Dooman made an application to the Tribunal under s. 280 of the Insurance Act to resolve the parties’ dispute relating to his entitlement to accident benefits. Under s. 280, the Tribunal has exclusive jurisdiction “with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”: see Insurance Act, ss. 280(1), 280(3).

[10] Following a case conference in September 2022, the LAT adjudicator ordered on consent that Mr. Dooman’s application proceed to a written hearing and set a timetable for the parties to serve and file written submissions and documentary evidence, as set out in the Case Conference Report and Order dated October 12, 2024. That report and order reflected the parties’ agreement that no affidavits or oral testimony would be submitted as evidence and that expert evidence would be submitted by reports.

[11] The application then proceeded to a written hearing to determine the following issues:

a. The applicability of the MIG to Mr. Dooman’s claim; and

b. Mr. Dooman’s entitlement to:

i. Medical benefits in the amount of $1,533.13 for physiotherapy services;

ii. Cost of examinations in the amount of $2,460 for a psychological assessment;

iii. Cost of examinations in the amount of $2,460.00 for a chronic pain assessment; and

iv. Interest on any overdue payments of benefits.

[12] The parties submitted written submissions and evidence for the Tribunal’s consideration in accordance with the hearing procedure settled on consent at the case conference.

[13] On November 9, 2023, the Tribunal released the Decision, dismissing Mr. Dooman’s application.

[14] The Tribunal found that Mr. Dooman’s injuries were predominately minor injuries as defined in the SABS: Decision, at para. 5. In reaching that conclusion, the Tribunal rejected Mr. Dooman’s submissions that (i) he met three (of six) criteria in the American Medical Association Guides, 6th edition, (“AMA Guides”) for establishing chronic pain, (ii) his pre-existing neck and left shoulder pain was aggravated by the accident, and (iii) he had a diagnosable psychological condition caused by the accident: see Decision, at para. 8.

[15] The Tribunal found that Mr. Dooman did not meet two of the three criteria he relied on for a chronic pain determination under the AMA Guides: Decision, at para. 20. In reaching that conclusion, the Tribunal did not accept as determinative the medical report provided by Dr. Karmy, Mr. Dooman’s pain management expert: Decision, at paras. 13-15.

[16] The Tribunal also found that Mr. Dooman had not established that his pre-existing neck and shoulder pain were exacerbated by the accident and could not be treated within the MIG, with the result that Mr. Dooman did not have the benefit of exception from the $3,500 funding limit in s. 18(2) of the SABS: Decision, at paras. 24-25. In reaching that conclusion, the Tribunal did not accept as determinative the clinical notes of Mr. Dooman’s family doctor and Dr. Karmy’s report: Decision, at para. 21. The Tribunal, at para. 24, found that there was a “chronological gap in pain reporting” by Mr. Dooman after the accident, rejecting Mr. Dooman’s explanation that while he did not initially report his impairments to his family doctor, “he did mention them to Complete Rehab Centre” where he received post-accident treatment: Decision, at paras. 22-23. The Tribunal also rejected Mr. Dooman’s submission that he had a diagnosable psychological disorder caused by the accident: Decision, at para. 28.

[17] Following Mr. Dooman’s request for reconsideration and further written submissions, the Tribunal released the Reconsideration decision on April 8, 2024, dismissing the request for reconsideration.

[18] By Notice of Appeal and Notice of Application for Judicial Review both dated May 7, 2024, Mr. Dooman appeals and seeks judicial review of the Decision and the Reconsideration Decision (collectively, the “Decisions”).

[19] The Tribunal is a respondent to the judicial review application by the exercise of its right of standing under s. 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”). By direction dated May 31, 2024, the court granted the Tribunal intervenor status on the appeal. The Tribunal takes no position on the merits of the appeal or the judicial review application but provided the court with helpful input relating to the regulatory framework and applicable law.

IV. Jurisdiction and standard of review

[20] The Divisional Court has jurisdiction to hear an appeal from a Tribunal decision under the SABS, but only on a question of law: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LATA”), ss. 11(1), 11(6).

[21] Despite any right of appeal, the Divisional Court has jurisdiction to hear Mr. Dooman’s judicial review application: JRPA, ss. 2, 6(1). Judicial review is a discretionary and extraordinary remedy, but the existence of a right of appeal limited to questions of law does not in itself amount to a discretionary bar nor preclude a judicial review application for questions of fact or mixed fact and law: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 DLR (4th) 191, at para. 57.

[22] When a party brings both an appeal and a judicial review application for the same decision, the Divisional Court’s practice is for both proceedings to be heard and decided by the same panel: see Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 25 C.C.C.L. (6th) 1, at paras. 55-56, rev’d. on other grounds, 2024 SCC 8; Shearer v. Oz, 2024 ONSC 1723 (Div. Ct.), at para.30.

[23] On the appeal, the standard of review is correctness for questions of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 26-37; see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. There is no appeal with respect to questions of fact or questions of mixed fact and law except where there is an extricable legal principle, which is reviewable on a correctness standard: Housen, at paras. 26-37.

[24] Whether there has been a breach of the duty of procedural fairness is a question of law, subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30, 129, 169, 179. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including: (i) the nature of the decision being made, and the process followed in making it; (ii) the nature of the statutory scheme; (iii) the importance of the decision to the individual or individuals affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choices of procedure made by the administrative decision maker itself: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28; Vavilov, at para. 77.

[25] With respect to the application for judicial review, this court will not entertain the application or grant a remedy to the extent that the substance of the application is adequately addressed by another process, that “other process” in this case being the appeal: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 40-45. Therefore, the only issues that this court will entertain for judicial review are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion: see Shearer, at para. 32. Upon judicial review, the presumptive standard of review is reasonableness: Vavilov, at paras. 23-25. There is no dispute that the standard of review for those matters is reasonableness in this case.

[26] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, at para. 13. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at paras. 31, 92-93.

[27] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para. 100.

V. Issues for determination

[28] Mr. Dooman submits that the Tribunal made significant errors of jurisdiction, law and fact and breached procedural fairness in reaching the conclusion that his accident-related injuries were minor injuries that fell within the MIG. He asks the court to set aside the Decisions and make an order that his injuries did not fall within the MIG and that he is entitled to medical and rehabilitation benefits in the amounts requested plus interest on overdue payments. In the alternative, he asks that the matter be remitted to the Tribunal for a new hearing.

[29] Mr. Dooman submits that in the Decisions, the Tribunal erred as follows:

a. The Tribunal acted outside its jurisdiction and otherwise erred in law by failing to defer to medical experts in finding that Mr. Dooman did not suffer from chronic pain.

b. The Tribunal erred in law and fact in its application of the AMA Guides in determining that Mr. Dooman does not suffer from chronic pain.

c. The Tribunal erred in law and fact by misapplying s. 18(2) of the SABS regarding Mr. Dooman’s pre-existing medical condition.

d. The Tribunal breached procedural fairness by disregarding clinical notes cited as evidence of Mr. Dooman’s pain complaints on the basis that the notes were illegible, which was not argued before the Tribunal.

[30] As explained below, I have concluded that the Tribunal did not make any reversible errors and that the appeal and the judicial review application should be dismissed.

A. The Tribunal did not err by failing to defer to medical experts

[31] Mr. Dooman submits that the Tribunal acted outside its jurisdiction and otherwise erred in law by failing to defer to medical experts in finding that Mr. Dooman did not suffer from chronic pain.

[32] Mr. Dooman says that the Tribunal overstepped its legislative authority in failing to defer to experts on a matter that was beyond the adjudicator’s scope of knowledge and authority as the trier of fact. In the Decision, at para. 7, the Tribunal correctly recognized that chronic pain was a sufficient reason not to categorize an injury as being minor in its impact. However, Mr. Dooman submits that such an evaluation is technical and complex in nature, requiring thorough medical assessment, one that may only be conducted by informed and qualified experts. The need for expert medical evidence to make such a determination is recognized in the Tribunal’s procedural rules and case law: see Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016), r. 10; Eastern Power Ltd. v. Ontario Electricity Financial Corp., 2008 48132 (Ont. S.C.), rev’d. on other grounds 2010 ONCA 467, 101 O.R. (3d) 81. Mr. Dooman argues that in the absence of expert medical evidence, the Tribunal’s capacity to determine the issue of chronic pain would be significantly limited, given the adjudicator’s lack of medical knowledge.

[33] Mr. Dooman placed such evidence before the Tribunal, in the form of Dr. Karmy’s Chronic Pain Assessment Report. Dr. Karmy expressed the opinion that Mr. Dooman met three of the six criteria set out in the AMA Guides, which was sufficient to establish that he suffered from chronic pain. Had there been other expert evidence before the Tribunal that expressed a different view, it would have been open to the Tribunal to weigh competing evidence and make a determination: see Shalto v. Intact Insurance Co., 2023 52320 (Ont. LAT), at para. 24. Mr. Dooman submits there was no contrary expert evidence before the Tribunal, nor was there any basis for discrediting Dr. Karmy’s evidence. In these circumstances, Mr. Dooman argues that it was beyond the scope of the Tribunal’s authority to determine that Mr. Dooman did not suffer from chronic pain.

[34] I disagree.

[35] In essence, Mr. Dooman’s position is that since TD did not submit a medical expert’s report addressing chronic pain, the adjudicator should have accepted Dr. Karmy’s report at face value and exceeded his jurisdiction and otherwise erred in law by failing to do so. I see no merit in that position.

[36] In the Decision, at para. 13-20, the Tribunal considered Dr. Karmy’s report as well as other relevant evidence before concluding that it was not persuaded that Mr. Dooman met the required criteria to establish chronic pain. The Tribunal was free to accept all, none, or some of the hearing evidence, including any expert evidence. While a trier of fact is obliged to consider all the evidence before it, it are not required to accept all of a medical expert’s evidence merely because there is no contrary expert testimony tendered on behalf of the other party: see Dekany v. Parenteau, 2014 ONSC 49 (Div. Ct.), at para. 15. As the trier of fact, the Tribunal was entitled to reach its own conclusion as to whether Mr. Dooman sustained chronic pain, as part of the Tribunal’s fact-finding function: see Azeff v. Ontario (Securities Commission), 2014 ONSC 5365 (Div. Ct.), at para. 10; see also A.J.W. v. B.W., 2016 ONCA 581, 401 D.L.R. (4th) 128, at para. 47. The Tribunal did not find Dr. Karmy’s evidence persuasive in the context of all the evidence. It was within the Tribunal’s discretion to reach that conclusion as the trier of fact. I am not persuaded that the Tribunal exceeded its jurisdiction or otherwise erred in law in doing so.

[37] Mr. Dooman also argued that the Tribunal’s failure to properly engage with the chronic pain expert evidence and operate within prescribed boundaries violated the Tribunal’s duty of procedural fairness. He relies on the recent decision of this court in Shahin v. Intact Insurance Co., 2024 ONSC 2059 (Div. Ct), citing that case for the principle that a tribunal’s reliance on improperly admitted evidence constitutes a breach of procedural fairness.

[38] I do not consider Mr. Dooman’s reliance on Shahin to be of assistance to him, given the highly fact-specific nature of that case. In Shahin, the Tribunal denied accident benefits to the applicant insured, finding that the accident did not cause her impairment and that in any event, her condition did not meet the required level of impairment: Shahin, at para. 2. The court found that the Tribunal breached procedural fairness, since the Tribunal hearing had proceeded on the agreed basis that that causation was not contested: Shahin, at paras. 19-24. The Tribunal also made key adverse findings about the insured’s level of impairment based on oral and documentary evidence provided by Dr. West (the opposing party’s expert witness) who failed to remain at the hearing to be cross-examined. In these circumstances, the court found that “the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness”: Shahin, at para. 18. The court considered as a significant factor “the nature of the hearing itself, which proceeded as a full, contested, oral hearing, with witnesses, including experts, examinations, and, apart from Dr. West, cross-examinations”, giving rise to the requirement for “a high level of procedural fairness”: Shahin, at para. 11.

[39] I see no parallel between Shahin and the current case, where (among other things) the agreed procedure before the Tribunal was a written hearing, with no oral or affidavit evidence. Shahin and the issue of procedural fairness are considered further later in these reasons.

B. The Tribunal did not err in the application of the AMA Guides in determining that Mr. Dooman does not suffer from chronic pain.

[40] Mr. Dooman submits that the Tribunal erred in law and fact in the application of the AMA Guides in determining that Mr. Dooman does not suffer from chronic pain.

[41] As noted in the Decision, at para. 11, the AMA Guides require that for a person to be found to have chronic pain, at least three of the following criteria must be met:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical de-conditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social contracts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.

[42] Before the Tribunal, Mr. Dooman argued that his injuries met criteria 3, 5 and 6 of the AMA Guides, establishing that he suffered chronic pain as a result of the accident: Decision, at para. 12. To support his position, Mr. Dooman relied on Dr. Karmy’s pain assessment report, including his medical opinion and the description of Mr. Dooman’s pre-accident and post-accident personal and professional activities, as reported to Dr. Karmy.

[43] The Tribunal found that the evidence did not support a finding that he met two of the criteria he relied on, criteria 3 and 5. With respect to criterion 3, the Tribunal, at para. 15, noted that the part of that criterion Mr. Dooman relied on required “the avoidance of physical activity to be based on fear.” The Tribunal found that the examples that Mr. Dooman provided from Dr. Karmy’s report (Mr. Dooman’s reported inability to enjoy hockey and football) were not persuasive, since there was no indication in the report that his avoidance of those activities was fear-based. The Tribunal, at para. 16, also referred to the report of a psychologist completed for Mr. Dooman as supporting the conclusion that he did not avoid physical activity due to fear of pain.

[44] With respect to criterion 5 (failure to restore pre-injury function after a period of disability), the Tribunal also found unpersuasive Mr. Dooman’s reliance on his failure to return to recreational activities such as hockey and football and the fact that he had not returned to working full time: Decision, at para. 18. The Tribunal noted, at para. 19, that Mr. Dooman returned to work part-time as a hairstylist, engaged in recreational activities such as tennis and rollerblading and reported to a psychiatrist in an insurer’s examination that he socializes with family and friends. In these circumstances, the Tribunal found that the evidence did not support the finding that Mr. Dooman met the requirements of criterion 5: Decision, at para. 19. The Tribunal also found that since Mr. Dooman did not meet two of the three factors he relied on for a chronic pain determination, “he does not have chronic pain as per the [AMA] Guides”: Decision, at para. 20.

[45] Mr. Dooman submits that the Tribunal erred in fact and law in its application of criteria 3 and 5 of the AMA Guides. He also argues that the Tribunal fell into error by failing to address criterion 4 (withdrawal from social milieu), despite the fact that Dr. Karmy’s report opined that Mr. Dooman met that criterion.

[46] Among other things, Mr. Dooman submits that in the Tribunal’s analysis relating to criterion 5 was based on the erroneous premise that in order to meet that criterion, the injured party had to be wholly unable to pursue work, family or recreational needs. Mr. Dooman says that analysis is not consistent with the AMA Guides or Dr. Karmy’s assessment report. With respect to criterion 3, Mr. Dooman challenges the Tribunal’s reliance on the psychologist’s report to support the conclusion that Mr. Dooman does not avoid physical activity because of fear, which he submits is contrary to other parts of the same report.

[47] I see no merit in Mr. Dooman’s submissions.

[48] The errors that Mr. Dooman alleges are in substance challenges to the sufficiency or weight of evidence supporting findings of fact or relate to questions of mixed fact and law that do not give rise to extricable questions of law. The standard of review for those questions is reasonableness. The Tribunal’s findings relating to the application of the AMA Guides meet that standard.

[49] With respect to criterion 5, I do not agree that the effect of the Tribunal’s analysis was to impose a requirement that the injured party be totally unable to pursue work, family or recreational needs. Rather, the Tribunal found that Mr. Dooman failed to demonstrate that his physical incapacity was insufficient to pursue work, family or recreational needs, as required by criterion 5. The Tribunal reasonably reached that conclusion because Mr. Dooman had returned to work on a part-time basis, was able to engage in recreational activities (such as playing tennis and rollerblading) and was able to socialize with family and friends. With respect to the issue of employment specifically, the Tribunal’s findings were consistent with the reasoning in Kanagarajah v. Economical Insurance, 2023 9230 (Ont. LAT), in which the Tribunal held, at para. 65, that when considering criterion 5, a failure to return to work cannot be viewed in a vacuum without considering the larger context. Similarly with respect to criterion 3, the Tribunal reasonably considered the description of Mr. Dooman’s recreational and other activities as set out in Dr. Karmy’s report in the context of all the evidence, including the contents of the psychologist’s report. I see no reversible error in the Tribunal’s analysis.

[50] With respect to the submission that the Tribunal erred in failing to consider criterion 4, Mr. Dooman made the same argument unsuccessfully in his request for reconsideration: Reconsideration Decision, at paras. 24, 27. While Dr. Karmy’s report opined that Mr. Dooman met that criterion, his submissions in the initial written hearing made no reference to criterion 4, his position being that his injuries met the requirements of criteria 3, 5 and 6. In those circumstances, TD argued upon reconsideration that Mr. Dooman was inappropriately trying to relitigate his case with new submissions that were not made at the original hearing: Reconsideration Decision, at para. 25. The Tribunal agreed, reasonably finding, at para. 27. that “it is inappropriate for adjudicators to go through a party’s evidence, as suggested by the applicant, to make their case for them.” I see no error in that finding.

[51] Accordingly, Mr. Dooman has not established that the Tribunal erred in the application of the AMA Guides in determining that Mr. Dooman does not suffer from chronic pain.

C. The Tribunal did not err in the application of s. 18(2) of the SABS regarding Mr. Dooman’s pre-existing medical condition

[52] Mr. Dooman submits that the Tribunal erred in law and fact in the application of s. 18(2) of the SABS regarding Mr. Dooman’s pre-existing medical condition.

[53] As previously noted, s. 18(2) provides an exception to $3,500 funding limit in s. 18(1) that applies if the insured person’s “health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury” if the injured person is subject to the MIG (emphasis added).

[54] Mr. Dooman submits that in the Decision, at para. 24, the Tribunal endorsed the wrong test as it related to s. 18(2), stating:

The applicant must provide compelling evidence that his [pre-existing] conditions were exacerbated by the accident and cannot be treated within the MIG. The only evidence cited by the applicant is a post-accident increase in neck and left shoulder pain. This evidence is not supported by the previously mentioned chronological gap in pain reporting. [Emphasis added.]

[55] Mr. Dooman argues that contrary to para. 24 of the Decision, there is no requirement in s. 18(2) that the insured person’s pre-existing conditions be exacerbated by the accident. What s. 18(2) requires is that the pre-existing condition “will prevent the insured person from achieving maximal recovery from the minor injury” if the injured person is subject to the MIG. Mr. Dooman also submits that the Tribunal erred in not assigning sufficient weight to the clinical notes of Mr. Dooman’s family doctor indicating that Mr. Dooman’s pre-existing neck and shoulder pain worsened since the accident.

[56] I do not agree that the Tribunal made any reversible error in its analysis relating to s. 18(2) of the SABS.

[57] It is evident from the text of s. 18(2) that there is no express requirement that the insured person’s pre-existing condition be exacerbated by the accident in order to fall within the exception from the $3,500 funding limit. However, it is clear from previous Tribunal decisions relating to s. 18(2) that the question of whether the accident exacerbated the insured person’s pre-existing condition would be a relevant factor in determining whether there was compelling evidence that the pre-existing condition will prevent the insured person from achieving maximal recovery from a minor injury: see Thelemaque v. Cooperators General Insurance Co., 2023 74628 (Ont. LAT), at para. 22; Ahmed v. The Co-operators, 2023 23614 (Ont. LAT), at paras. 10-12, 19-25. As well, with respect to the application of s. 18(2), Mr. Dooman argued before the Tribunal that his pre-existing neck and left shoulder conditions “were exacerbated by the accident”, relying on two clinical notes from his family doctor and Dr. Karmy’s report: Decision, para. 21.

[58] The Tribunal, at paras. 21-25, considered that evidence together with other evidence before it and concluded that Mr. Dooman did not meet the onus under s. 18(2) of establishing that the MIG did not apply to him. At para. 25, the Tribunal stated “the evidence cited by the applicant is not compelling and does not establish, on a balance of probabilities, that his [pre-existing] conditions were exacerbated by the accident and that he should be removed from the MIG.” While inelegantly expressed, that conclusion was reasonable, taking into account the submissions before the Tribunal and previous Tribunal decisions.

D. The Tribunal did not breach procedural fairness by disregarding evidence on a basis not argued before the Tribunal

[59] As previously noted, in the Decision, at para. 24, the Tribunal found that there was a “chronological gap in pain reporting” by Mr. Dooman after the accident, despite his explanation that while he did not initially report his impairments to his family doctor, “he did mention them to Complete Rehab Centre” where he received post-accident treatment: Decision, at para. 22. The Tribunal, at para. 23, rejected that explanation:

The applicant makes no pinpoint references in the clinical notes and records from Complete Rehab Centre, whose records mostly consist of illegible handwritten notes. Under these circumstances, there is no way to tell if the applicant made any pain complaints after the initial intake during the first six months of treatment. As such, these notes are of little evidentiary value.

[60] Mr. Dooman submits that the Tribunal breached its duty of procedural fairness by disregarding clinical notes cited as evidence of Mr. Dooman’s pain complaints on a basis not argued before the Tribunal, that is, that the notes were illegible. He relies on the recent decision of this court in Shahin, in which the court found that the Tribunal panel breached procedural fairness by making a key finding adverse to the applicant (the accident did not cause her impairment) on a basis not argued at the tribunal hearing (the parties had agreed causation was not contested): see Shahin, at paras. 19-24.

[61] Among other things, Mr. Dooman submits that when reviewing the documentary evidence provided for the written hearing below, it was open to the Tribunal to convene a case conference to obtain a typewritten transcription of the rehabilitation centre’s clinical notes and records. Mr. Dooman says that it was unfair for the Tribunal to support its finding of “a chronological gap in pain reporting” by reference to the alleged illegibility of those records when the Tribunal had the means of rectifying that issue.

[62] I see no merit in Mr. Dooman’s submission.

[63] Having regard to the factors set out in Baker regarding the required degree of procedural fairness, I appreciate the remedial nature of the SABS and the importance of the Decisions to Mr. Dooman. However, I am not satisfied that the duty of procedural fairness would require the Tribunal to take steps to fill the alleged gap in the evidence caused by the absence of a typewritten transcription of the rehabilitation clinical’s notes and records.

[64] Consistent with Tribunal practice, the agreed procedure for Mr. Dooman’s Tribunal application was a written hearing, in which the Tribunal makes its decision based on written submissions and documentary evidence that the parties provide. The courts accord deference to a tribunal’s procedural choices. It is the parties’ responsibility to provide written material in a form that is useful to the Tribunal. In these circumstances, I am not satisfied that the legitimate expectations of the parties (or other relevant considerations) would extend to requiring the Tribunal to take steps to address issues with the legibility of the material provided or to require the Tribunal to seek further submissions before finding that documents provided had little evidentiary value. I see no breach of procedural fairness in these circumstances.

VI. Disposition

[65] For the above reasons, I would dismiss the appeal and the judicial review application, with costs in the agreed amount of $5,000, payable by Mr. Dooman to TD. As the parties agreed, I would not award costs for or against the Tribunal.

___________________________ R.A. Lococo J.

I agree: ___________________________ D.L. Corbett J.

I agree: ___________________________ R. Gordon J.

Date: January 13, 2025

CITATION: Dooman v. TD Insurance Co., 2025 ONSC 184

DIVISIONAL COURT FILE NO.: 281/24 and 283/24

DATE: 20250113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, R.A. Lococo and R. Gordon JJ.

BETWEEN:

sharukin dooman Applicant/Appellant

– and –

TD INSURANCE COMPANY Respondent

– and –

LICENCE APPEAL TRIBUNAL Respondent/Intervenor

REASONS FOR JUDGMENT

R. A. LOCOCO J.

Date: January 13, 2025

[^1]: Superintendent’s Guideline No. 01/14, Financial Services Commission of Ontario, issued under s. 268.3(1.1) of the Insurance Act: see SABS, s. 3, definition of “Minor Injury Guideline”, which “establishes a treatment framework in respect of one or more minor injuries”.