Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 18

Appeal P18-00033

OFFICE OF THE DIRECTOR OF ARBITRATIONS

CHHINDERPAL BHANDAL Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Respondent

BEFORE: Maggy Murray

REPRESENTATIVES: Samiya Ahmad for Ms. Bhandal Michael Huclack for State Farm

HEARING DATE: March 12, 2019; Written Submissions Completed March 19, 2019

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The Arbitrator's Order of April 26, 2018 is confirmed and this appeal is dismissed.

2. Before the appeal, the parties agreed that the successful party to the appeal would be entitled to $3,390.00 ($3,000.00 + HST at 13%), inclusive of disbursements and HST. Ms. Bhandal shall pay State Farm Mutual Automobile Insurance Company its legal expenses of the appeal proceedings herein, in the amount of $3,390.00, inclusive of legal expenses, disbursements and HST.

April 30, 2019

Maggy Murray Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–1996 (the Schedule).¹

A 17 day arbitration was held before Arbitrator Musson between November, 2017 and January 2018 on the issues of whether Ms. Bhandal is catastrophically impaired as defined in the Schedule,² whether she is entitled to attendant care benefits, caregiver benefits, medical benefits, housekeeping and home maintenance benefits and interest. The Arbitrator found that Ms. Bhandal is not catastrophically impaired and she is not entitled to any of the aforementioned benefits.³

Ms. Bhandal appeals Arbitrator Musson’s order.

According to Ms. Bhandal, Arbitrator Musson erred in law because he:

i. Failed to provide adequate reasons for his decision; ii. Applied the wrong legal test for the burden of proof; iii. Failed to properly weigh the evidence in coming to his decision; iv. Relied on irrelevant factors when determining the credibility of evidence; and v. Applied the wrong legal test for causation.

For the reasons set out below, the appeal is dismissed.

II. BACKGROUND

On January 21, 2009, Ms. Chhinderpal Bhandal was injured in a motor vehicle accident when her car was hit while she was making a left hand turn at an intersection. She broke the tibia and fibula in her left leg and also suffered soft tissue injuries as a result of the accident. She was 35 years old and on maternity leave at the time of the accident. She has two sons, ages 11 and 15. Ms. Bhandal has a Grade 12 education which she completed in India. She also completed two years of personal support worker courses. Ms. Bhandal immigrated to Canada from Punjab, India in 2001. The Arbitrator found that her English skills as they relate to writing, reading and speaking are weak.

Before the accident, all of Ms. Bhandal’s employment involved labour intensive jobs. There was a pre-existing medical history including being a victim of spousal abuse prior to the accident. After the accident, she also had to deal with child support and custody issues with her ex-husband. Ms. Bhandal has not returned to work since the accident.

Ms. Bhandal made numerous claims against State Farm arising from the accident under the Schedule. She claimed to be catastrophically impaired and entitled to attendant care benefits, caregiver benefits, medical benefits and housekeeping and home maintenance benefits. The Arbitrator dismissed all of Ms. Bhandal’s claims for benefits.

III. ANALYSIS

Appeals from an Arbitrator’s order are restricted to questions of law.⁴ An appellate body, whose jurisdiction is limited to reviewing errors of law:

i. Cannot review errors of fact; ii. Is not entitled to review findings of fact just because it believes the findings to be wrong unless the tribunal committed an identified error of law.⁵

This was a fact-based decision. In that regard, the Divisional Court stated in Kanareitsev v. TTC Insurance Co. "when results involve a fact-driven analysis, appellate review must take 'proper account of the distinct advantage' of the first-instance decision maker's assessments. The appeal judge must not try the case de novo or simply substitute his or her views for those of the trial judge."⁶ Moreover, the Arbitrator's reasons simply need refer to the principal evidence relied upon by the Arbitrator and provide a justification for the conclusions.⁷

i. Whether The Arbitrator Failed To Provide Adequate Reasons For His Decision:

A failure to give adequate reasons is a breach of natural justice and procedural fairness that mandates setting aside a decision.⁸ An Arbitrator’s reasons must refer to the principal evidence relied upon and provide a justification for the conclusions.⁹ And, an Arbitrator’s reasons need to resolve serious conflicts in evidence.¹⁰

The importance of a person knowing the reasons as to why a result was reached is an integral part of the duty of procedural fairness.¹¹ The factors to be considered in determining the adequacy of an adjudicator's reasons include:

The decision-maker setting out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue; it is insufficient for the decision-maker to summarize the parties' positions and "baldly state its conclusions"; and the reasoning process followed must be set out and reflect consideration of the main relevant factors.¹²

The hearing was 17 days. Thirteen witnesses testified at the Arbitration hearing, including Ms. Bhandal, her mother, an occupational therapist and 10 doctors. The Arbitrator’s decision was 24 pages long.

The Arbitrator concluded that:

This case hinged on credibility, and the Applicant failed in this respect. The testimony of the Applicant, her mother and other witnesses, at times bordered on fiction as opposed to reality.

The Arbitrator's reasons were not inadequate to allow for meaningful appellate review. They were sufficiently thorough to make clear his basis for rejecting the evidence of Ms. Bhandal and her witnesses and accepting the evidence offered on behalf of State Farm.¹³

Ms. Bhandal is able to determine from the Arbitrator’s decision what factors the Arbitrator considered relevant to the issues of entitlement, how they were applied, and which of the parties submissions he accepted. The Arbitrator’s decision provides the basis for meaningful appellate review¹⁴ and she was not denied her right to natural justice and procedural fairness. ¹⁵

ii. Whether The Arbitrator Applied The Wrong Legal Test For The Burden Of Proof

According to Ms. Bhandal, the Arbitrator applied the wrong legal test for causation when he said: “he cannot say for certain that the Applicant’s car accident is the cause of her psychological symptoms.”¹⁶ However, it was Dr. Archaryya (a psychiatrist) who used the word “certain,” and the Arbitrator was summarizing Dr. Archaryya’s evidence. The Arbitrator’s summary of Dr. Archaryya’s evidence on this point was:

Dr. Archaryya testified that the Applicant’s physical and mental issues are related to the car accident as well as the spousal abuse, social problems and the lack of support by her in-laws, however, the car accident is only one of several contributing factors. He further testified that the Applicant’s symptoms of depression, post-traumatic stress disorder (”PTSD”) as well as anxiety are caused by some combination of the accident, martial dysfunction and lack of a social support network. He also stated that he cannot say for certain that the Applicant did not suffer from depression and PTSD prior to the accident. Ultimately, he testified that he cannot say for certain that the Applicant’s car accident is the cause of her psychological symptoms (emphasis added).

In determining whether Ms. Bhandal was catastrophically impaired, the Arbitrator stated:

The onus is on the Applicant to establish that on a balance of probabilities she has sustained a catastrophic impairment as a result of the January 21, 2009 MVA (emphasis added).¹⁷

Ultimately the onus is on the Applicant to prove on a balance of probabilities that she sustained a catastrophic impairment from a psychological and physical perspective under criterion 7 and 8. In this regard, the evidence overwhelmingly shows she failed to discharge this onus.¹⁸

In determining whether Ms. Bhandal was entitled to attendant care benefits, the Arbitrator stated:

There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for the attendant care services rendered. From the evidence presented and based on a balance of probabilities, the Applicant has not met her onus to prove that she is entitled to attendant care benefits (emphasis added).¹⁹

The Arbitrator concluded that:

The onus of proof is on the Applicant to prove her entitlement to benefits. Based on the evidence presented at this Hearing, she has failed to achieve this threshold as it related to all benefits in dispute. As a result, the Applicant has not established on a balance of probabilities that she has sustained a catastrophic impairment, that she requires attendant care, housekeeping and home maintenance as well as caregiving services or that the treatment plan in dispute is reasonable or necessary. Therefore the Applicant is not entitled to any benefits in dispute (emphasis added).²⁰

The Arbitrator did not apply the wrong legal test for the burden of proof. Specifically, he found that Ms. Bhandal failed to prove, on a balance of probabilities, that she was entitled to any of the benefits she claimed.

iii. Whether The Arbitrator Failed To Properly Weigh The Evidence In Coming To His Decision

Ms. Bhandal’s submissions essentially ask me to re-weigh the evidence and to disagree with inferences drawn by the Arbitrator, which is not my role. The fact that the Arbitrator did not refer to the matters relied upon by her on this appeal does not mean that he failed to take them into consideration to the extent that he considered these issues to be relevant. And, “Not reciting all the evidence does mean the arbitrator failed to consider it.”²¹

The arbitrator provided a clear, logical and detailed basis for his conclusions. He dealt with everything required. The evidence on which he commented at length, supported the decision at which he arrived.²²

iv. Whether The Arbitrator Relied On Irrelevant Factors When Determining The Credibility Of Evidence

It is not my role to weigh conflicting evidence, to determine the credibility of witnesses or to weigh the effect of contradictory evidence. Those are matters within the province of the trier of fact. Ms. Bhandal discussed over three pages in her second set of written submissions the difficulty with an adjudicator relying on a witness’s demeanor to assess credibility. However, the Arbitrator does not mention witness demeanor anywhere in his 24 page decision.

The Arbitrator found that:

there is no credible evidence presented as to why the Applicant has not recovered from these injuries despite the fact that the assessment doctors all concluded that she has achieved maximum medical recovery.²³

The Arbitrator noted that Dr. Gnam, a psychologist, concluded that: “there were no credible examples of impaired cognition”²⁴ that Ms. Bhandal sustained.

Regarding the housekeeping expenses that Mrs. Bhandal claimed, the Arbitrator concluded that:

There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for services rendered.²⁵

Regarding the caregiving expenses that Mrs. Bhandal claimed, the Arbitrator concluded that:

There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for caregiving services rendered.²⁶

Regarding the attendant care expenses that Mrs. Bhandal claimed, the Arbitrator concluded that:

There was no credible evidence submitted that shows specific details as to the attendant care tasks which were completed by Ms. Malhi (Ms. Bhandal’s mother) as being required on behalf of the Applicant … (and) There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for the attendant care services rendered.²⁷

Regarding the medical benefits that Mrs. Bhandal claimed, the Arbitrator concluded that there was:

no credible evidence given by the Applicant as to the reasonableness of this treatment plan.²⁸

As partially set out above, the Divisional Court stated in Kanareitsev:

Particularly when results turn on the first instance decision maker’s view of the credibility of witnesses and involves a fact-driven analysis, appellate review must take “proper account of the distinct advantage” of the first-instance decision maker’s assessments. The appeal judge must not try the case de novo or simply substitute his or her views for those of the trial judge.

The nature of the proceedings was highly fact-intensive. There was a significant amount of documentary evidence tendered, and a number of witnesses testified. The credibility and reliability of the evidence were very much in issue, and the arbitrator was charged with the responsibility of determining these issues.

The Arbitrator's decision reviewed much of the evidence that had been placed before her and offered conclusions as to which evidence she accepted and why. In our view, it was well-reasoned and addressed the factors relevant to the issue in dispute. While she may not have engaged in a detailed analysis of each and every aspect of the major points in issue, her reasons refer to the principal evidence she relied upon and provide a justification for her conclusions. ²⁹

There was ample evidence before the Arbitrator to support his findings of credibility as described in his decision. Accordingly, I am not persuaded there is a basis to overturn the arbitrator's findings on credibility.

v. Whether The Arbitrator Applied The Wrong Legal Test For Causation

Ms. Bhandal states in her written submissions:

Arbitrator Musson stated that Dr. Archaryya cannot say for certain that the Applicant’s car accident is the cause of her psychological symptoms.

Arbitrator Musson suggested that the Appellant had to prove that the accident alone could have caused the impairment. This is not the definition of the “but for” test. Scientific proof of causation is not required and all that needs to be proven is that the accident was necessary to bring about the injury.³⁰

In Clements v. Clements,³¹ the Supreme Court of Canada explained that the correct test for causation is “but for,” and that the onus is on a plaintiff to prove that their injury would not have occurred without the negligence of the defendant:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

As explained above, it was Dr. Archaryya (a psychiatrist) who used the word “certain,” and the Arbitrator was summarizing Dr. Archaryya’s evidence. Although the Arbitrator did not refer to the “but for” test, it is clear from reading the decision that he did not conclude that the accident alone had to be the sole cause of Ms. Bhandal’s impairments.

The Arbitrator concluded that Ms. Bhandal was not entitled to any of the benefits she claimed because:

there is no credible evidence presented as to why the Applicant has not recovered from these injuries despite the fact that the assessment doctors all concluded that she has achieved maximum medical recovery. Further, there are entries in the Applicant’s clinical notes and records which show that she has a track record of non-compliance with medication and treatment prescribed.

When looking at the totality of the evidence, it shows that the Applicant has evaded truthfulness to (sic)her pre and post-accident medical history.³²

This case hinged on credibility, and the Applicant failed in this respect. The testimony of the Applicant, her mother and other witnesses, at times bordered on fiction as opposed to reality.³³

IV. EXPENSES

Before the appeal, the parties agreed that the successful party to the appeal would be entitled to $3,390.00 ($3,000.00 + HST at 13%) inclusive of disbursements and HST. Ms. Bhandal shall pay State Farm Mutual Automobile Insurance Company its legal expenses of the appeal proceedings herein, in the amount of $3,390.00, inclusive of legal expenses, disbursements and HST.

April 30, 2019

Maggy Murray Director’s Delegate

Date

Westlaw at para. 28 (Ont. Div. Ct.)

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Section 2(1.1)
3. 3Bhandal and State Farm Mutual Automobile Insurance Co., Westlaw at para. 3 (FSCO, A13-004412, April 26, 2018)
4. 4Subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I.8 and Rule 50.1 of the Dispute Resolution Practice Code – Fourth Edition.
5. 5Belair Direct Insurance Co. v. Green (2018), 2018 ONSC 2782, 80 C.C.L.I. (5th) 44, 292 A.C.W.S. (3d) 853, Westlaw at para. 24 (Ont. Div. Ct)
6. 6R. v. W. (G.), 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075, at para.’s 18 and 57 (Ont. C.A.) as cited in Kanareitsev v. TTC Insurance Co. (2008), 2008 CanLII 26262 (ON SCDC), 66 C.C.L.I. (4th) 46, 297 D.L.R. (4th) 373, Westlaw at para. 29 (Ont. Div. Ct.)
7. 7Kanareitsev, Westlaw at para. 32
8. 8Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CanLII 699 (SCC), 2 S.C.R. 817 at para. 43
9. 9Kanareitsev v. TTC Insurance Co. (2008), 2008 CanLII 26262 (ON SCDC), 66 C.C.L.I (4th) 46, 297 D.L.R. (4th) 373
10. 10Lyons v. Metropolitan Insurance, Westlaw at para. 13 (FSCO, P-009824, December 16, 1996)
11. 11Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para 43. (S.C.C.)
12. 12Kalin v. College of Teachers (Ontario) (2005), 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523, at paras. 58-60 (Ont. Div. Ct.), as cited in Kanareitsev v. TTC Insurance Co. (2008), 2008 CanLII 26262 (ON SCDC), 66 C.C.L.I. (4th) 46, 297 D.L.R. (4th) 373, Westlaw at para. 28 (Ont. Div. Ct.); see also Fisher v. Moir, [2005] O.J. No. 4479 (Ont. Div. Ct.)
13. 13Kanareitsev, Westlaw at para. 36
14. 14I.B.E.W., Local 1739 v. I.B.E.W. (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508, Westlaw at para. 88 (Ont. Div. Ct.),
15. 15Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 43; see also Kanareitsev, Westlaw at para.’s 24-28
16. 16Ms. Bhandal’s Written Submissions, at para. 118; emphasis added
17. 17Bhandal, Westlaw at para. 66
18. 18Bhandal, Westlaw at para. 76
19. 19Bhandal, Westlaw at para. 87
20. 20Bhandal, Westlaw at para. 91
21. 21Movahedi v. State Farm Mutual Automobile Insurance Co. (2001), CarswellOnt 4594, [2001] O.J. No. 5099, 110 A.C.W.S. (3d) 593, Westlaw at para. 3 (Ont. Div. Ct.)
22. 22Barrick v. General Accident Indemnity Company, 1998 CanLII 31617 (ON CTGDDC), [1998] O.J. No. 6559, 110 A.C.W.S. (3d) 542, 6 C.C.L.I. (3d) 73, Westlaw at para. 6 (Ont. Div. Ct.)
23. 23Bhandal, Westlaw at para. 64
24. 24Bhandal, Westlaw at para. 75
25. 25Bhandal, Westlaw at para. 80
26. 26Bhandal, Westlaw at para. 83
27. 27Bhandal, Westlaw at para.’s 86 and 87
28. 28Bhandal, Westlaw at para. 89
29. 29R. v. W. (G.), 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075, at paras. 18 and 57 (Ont. C.A.) as cited in Kanareitsev v. TTC Insurance Co. (2008), 2008 CanLII 26262 (ON SCDC), 66 C.C.L.I. (4th) 46, 297 D.L.R. (4th) 373, Westlaw at para.’s 29, 31 and 32 (Ont. Div. Ct.)
30. 30Ms. Bhandal’s Written Submissions served March 12, 2019, at para.’s 126 and 127
31. 312012 SCC 32, Westlaw at para. 8
32. 32Bhandal, Westlaw at para.’s 64 and 65
33. 33Bhandal, Westlaw at para. 90