TTC Insurance Company Limited v. Shoba Kolapully, 2019 ONFSCDRS 4

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 4

Appeal P18-00016

OFFICE OF THE DIRECTOR OF ARBITRATIONS

TTC INSURANCE COMPANY LIMITED

Appellant

and

SHOBA KOLAPULLY

Respondent

BEFORE:

Maggy Murray

REPRESENTATIVES:

Chad Townsend for TTC Insurance Company Limited

Mireille Dahab for Mrs. Kolapully

HEARING DATE:

November 19, 2018

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 Orders of Arbitrator Barrington dated March 9, 2018 and of Arbitrator Matheson dated June 7, 2018 are confirmed and this appeal is dismissed.

2. Before the appeal, the parties agreed that the successful party to the appeal would be entitled to $10,000.00 inclusive of disbursements and HST. TTC Insurance Company Limited shall pay Ms. Kolapully her legal expenses of the appeal proceedings herein, in the amount of $10,000.00, inclusive of legal expenses, disbursements and HST.

February 8, 2019

Maggy Murray Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

A four day arbitration was held before Arbitrator Barrington in December, 2017 on the issues of Mrs. Kolapully’s entitlement to non-earner benefits (NEB’s), a medical benefit, various cost of examination expenses and a special award. The parties also provided the Arbitrator with written submissions following the hearing. Later, an expense hearing on the record was conducted before Arbitrator Matheson and his decision is dated June 7, 2018.

TTC appeals the orders of Arbitrators Barrington and Matheson.¹

In Arbitrator Barrington’s decision dated March 9, 2018, she found that Mrs. Kolapully is entitled to: (i) A NEB benefit at the rate of $185.00 per week for the period from November 20, 2012 to date, and ongoing; (ii) a medical benefit in the amount of $4,090.61 for a treatment plan provided by Scarborough Physio; (iii) the cost of neuropsychological assessments provided by Dr. Gilman of Oshawa Physio in the amount of $6,827.76; (iv) her expenses given her degree of success and (v) interest for the overdue payment of benefits.

TTC also appeals the expense order of Arbitrator Matheson wherein he found that Mrs. Kolapully is entitled to her expenses of the four day arbitration, plus expenses written submissions, in the amount of $38,000.00 inclusive of legal fees, disbursements and HST.

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

II. BACKGROUND

On March 6, 2012, Mrs. Kolapully was hit by a TTC bus that was turning when she was a pedestrian crossing the street at a corner. Mrs. Kolapully sought accident benefits under the Schedule² from TTC. Mrs. Kolapully sustained both orthopaedic injuries and a traumatic brain injury that included psychological problems.

TTC appeals the Arbitrator's awards of the NEBs, medical expenses, the cost of examinations and the arbitration expenses. The appeal is dismissed because the grounds of appeal asserted by TTC dispute the Arbitrators findings of fact and how they weighed the evidence. They do not raise questions of law.

III. ANALYSIS

Appeals from an Arbitrator’s order are restricted to questions of law.³ 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.⁴

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."⁵ Moreover, the Arbitrator's reasons simply need refer to the principal evidence relied upon by the Arbitrator and provide a justification for the conclusions.⁶

According to TTC, Arbitrator Barrington erred in law because:

i. She did not compare Mrs. Kolapully’s life before the accident to her life after the accident;

ii. She did not consider whether Mrs. Kolapully’s impairments continuously prevented her from engaging in substantially all of the activities she ordinarily engaged in before the accident;

iii. She did not require Mrs. Kolapully to discharge her burden of proof by proving on a balance of probabilities that she suffered a complete inability to carry on a normal life and that her complete inability was continuous; and

iv. She relied on the evidence of Shoba Kolapully (the Applicant) and Shalini Prakash (the Applicant’s daughter).⁷

TTC's submissions essentially ask me to re-weigh the evidence and to disagree with inferences drawn by the Arbitrator, which is not my role.

i. Mrs. Kolapully’s Life Before The Accident Compared To Her Life After The Accident:⁸

The Arbitrator set out the law regarding NEB’s and stated:

Section 12(1) of the SABS provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

a. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.⁹

In determining whether a claimant suffers from a complete inability to carry on a normal life, the claimant’s activities and circumstances before the accident are compared to those after the accident. This is not a mere snapshot of her life immediately prior to the accident, but involves an assessment of the claimant’s activities and circumstances over a reasonable period of time prior to the accident. “Complete inability” is an impairment that continuously prevents a person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.¹⁰

The Arbitrator’s description of Mrs. Kolapully before and after the accident included the following:

(According to Shalini, the Applicant’s daughter, Mrs. Kolapully was) an active, social person, wanting to maintain connections with India and eager to participate in her new community in Canada. Her mother was active in the parent-teacher association at her school and encouraged her to do well at school. Her mother knew all Shalini’s friends, frequently inviting them to their home. She was also getting to know other people in their apartment building and meeting other people from the same area of India.¹¹

(According to Shalini, the Applicant’s daughter) “After the accident, it’s mostly about her. … she just gets stressed out. Dad takes care of things now instead of Mom.” (Mrs. Kolapully) also no longer goes to the community centre and doesn’t keep in contact with people she had met there. “After the accident, family and friends came and brought food, but now they think she is okay and she avoids them to avoid their questions.” Now in Fort McMurray, Mrs. Kolapully has lost her interest in making new friends and is, in the words of Dr. Becker, “Limited in her ability to interact with friends... due to pain and associated difficulties.”¹²

(According to Shalini, the Applicant’s daughter) (A)fter the accident. … (her mother) loathed herself. She encouraged her mother to get counselling after a suicide attempt in 2015. “Before that,” she said, “we just thought her bad mood was because of pain.” She testified that she cannot think of her mother enjoying things now. She used to bake for the family or visitors but has stopped baking now and has no more contact with these people. Before the accident, it was Mom who took care of Dad. Now it is the reverse, and the two sisters manage their own affairs.¹³

(Mrs. Kolapully) no longer able to take the long walks she previously enjoyed.¹⁴

(Mrs. Kolapully) takes … longer to do everything than before and that she can do light chores like dishes, but not laundry or cleaning the bathtub.¹⁵

I am convinced that she has suffered real impairments which prevent her, to some extent, from enjoying activities in which she engaged before the accident. There is ample evidence of depression.¹⁶

(Mrs. Kolapully’s) failure to recover normally has provoked a depressive state which in turn results in a severe curtailment of her enjoyment of life. But for a sudden unexpected impact on March 16, 2012, she would most probably have continued with her plans to find a job and build a new life in Canada. The Applicant has lost that normal life, and found herself in a miserable life as a social recluse without hope of anything better.¹⁷

Based on the above, the Arbitrator did not ignore or fail to consider Mrs. Kolapully’s life before and after the accident.

ii. The Arbitrator’s Consideration Of Whether Mrs. Kolapully’s Impairments Continuously Prevented Her From Engaging In Substantially All Of The Activities She Ordinarily Engaged In Before The Accident:¹⁸

The Arbitrator stated:

There is ample evidence of depression, both from medical records on both sides and from the Applicant’s aspect (sic)at the Hearing. Doctors agree that depression exacerbates her symptoms.¹⁹

Based on the above, the Arbitrator did not ignore or fail to consider whether Mrs. Kolapully’s impairments continuously prevented her from engaging in substantially all of the activities she engaged in before the accident.

iii. The Arbitrator Did Not Require Mrs. Kolapully To Discharge Her Burden Of Proof By Proving On A Balance Of Probabilities That She Suffered A Complete Inability To Carry On Normal Life And That Her Complete Inability Was Continuous:

The Arbitrator stated:

After careful consideration of the evidence I have reached the conclusion that the Applicant has discharged the burden of proving she is unable to carry on a normal life as a result of impairments flowing from the accident. I therefore find that she meets the requirements of the SABS and is entitled to receive non-earner benefits from November 19, 2012 to date, and ongoing.²⁰

While I have found, on a balance of probabilities, that the Applicant has proven her case …²¹

Based on the above, the Arbitrator weighed the evidence at the hearing based on a balance of probabilities and found that Mrs. Kolapully suffered a complete inability to carry on a normal life and that her inability was continuous.

iv. The Arbitrator’s Reliance On The Evidence Of Shalini Prakash And Shoba Kolapully:²²

The insurer states in its written submissions:²³

… the reliance on the evidence of Shalini Prakash and Shoba Kolapully to discharge the burden of proof that the Applicant had suffered an impairment that prevented her from engaging in substantially all of the activities she ordinarily engaged in before the accident continuously from September 4, 2012 (the date of first entitlement) to date and ongoing was a palpable and overriding error.²⁴

Shoba Kolapully is the Applicant who was involved in the accident.

Shalini Prakash is Mrs. Kolapully’s daughter. Shalini was 21 years old when she testified at the arbitration hearing.²⁵

The Arbitrator decided the issues in dispute by relying upon both the oral evidence of witnesses and the documentary evidence presented by the parties during the hearing. The acceptance of the testimony of both Shoba and Shalini was within the discretion of the Arbitrator.

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.

The fact that the Arbitrator did not refer to the matters relied upon by the insurer on this appeal does not mean that she failed to take them into consideration to the extent that she considered these issues to be relevant.

In the text The Law of Evidence in Canada, it is stated: "an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.²⁶

Mrs. Kolapully cannot be faulted for having her 21 year old daughter testify at the arbitration hearing because Shalini had knowledge of the facts and would be assumed to be willing to assist her mother. The Arbitrator relied upon that evidence, as well as medical documentary evidence, to make her decision.

v. Arbitrator Matheson’s Award of $38,000.00 Inclusive of Legal Fees, Disbursements and HST for the Arbitration Hearing:

TTC appeals the arbitration expenses order of Arbitrator Matheson dated June 7, 2018, wherein he assessed a total of $38,000.00 for fees, disbursements and HST against TTC.

According to TTC, Arbitrator Matheson’s expense decision is not entitled to deference because he did not conduct the arbitration hearing. TTC did not provide any case law in support of its position.

Rule 71.1 of the Dispute Resolution Practice Code – Fourth Edition states:

If an adjudicator becomes unable, for any reason, to complete a hearing or issue a decision, the matter may be reheard by a new adjudicator appointed by the Director.

I disagree with TTC’s submission regarding not giving deference to Arbitrator Matheson’s decision. The appeal submissions largely turn on the Arbitrator's findings of facts.²⁷ Arbitrator Matheson fully and fairly considered all evidence that was before him and correctly applied the law.²⁸

Arbitrator Matheson’s expense award may not be overturned simply because a different arbitrator might have arrived at different conclusions. These are not subject to review. TTC has not identified any areas where the Arbitrator's decision was legally incorrect. Therefore, I have no basis to intervene.

Conclusion:

Arbitrators Barrington and Matheson made findings on the issues and evidence before them and exercised their discretion appropriately. I find no error of law. Accordingly, the appeal is dismissed and the orders of Arbitrators Barrington and Matheson are affirmed.

IV. EXPENSES

Before the appeal, the parties agreed that the successful party to the appeal would be entitled to $10,000.00 inclusive of disbursements and HST. TTC Insurance Company Limited shall pay Ms. Kolapully her legal expenses of the appeal proceedings herein, in the amount of $10,000.00, inclusive of disbursements, HST.

February 8, 2019

Maggy Murray Director’s Delegate

Date

Footnotes

1. 1The full citations of each case are used throughout this decision because there are two different decisions being appealed.
2. 2The Statutory Accident Benefits Schedule Ontario Regulation 34/10– Effective September 1, 2010 (the Schedule)
3. 3Subsection 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.
4. 4Belair Direct Insurance Co. v. Green (2018), 2018 ONSC 2782, 80 C.C.L.I. (5th) 44, 292 A.C.W.S. (3d) 853 (Ont. Div. Ct)
5. 5(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.)
6. 6Kanareitsev, Westlaw at para. 32
7. 7TTC’s written submissions, para’s 1, 2 and 8
8. 8TTC’s written submissions, para. 1
9. 9Kolapully and Toronto Transit Commission, Westlaw, para. 10 (FSCO, A14-001178, March 9, 2018)
10. 10Kolapully and Toronto Transit Commission, Westlaw, para. 11 (FSCO, A14-001178, March 9, 2018). The Arbitrator also referenced Heath v. MacLeod 2009 ONCA 391, [2009] I.L.R. I-4838, [2009] O.J. No. 1877, 177 A.C.W.S. (3d) 483, 249 O.A.C. 164, 73 C.C.L.I. (4th) 31, 83 W.C.B. (2d) 155, 95 O.R. (3d) 785, Westlaw at para. 33 (Ont. C.A.)
11. 11Kolapully and Toronto Transit Commission, Westlaw at para. 26 (FSCO, A14-001178, March 9, 2018)
12. 12Kolapully and Toronto Transit Commission, Westlaw at para. 27 (FSCO, A14-001178, March 9, 2018)
13. 13Kolapully and Toronto Transit Commission, Westlaw at para.’s 28 (FSCO, A14-001178, March 9, 2018)
14. 14Kolapully and Toronto Transit Commission, Westlaw at para. 30 (FSCO, A14-001178, March 9, 2018)
15. 15Kolapully and Toronto Transit Commission, Westlaw at para. 57 (FSCO, A14-001178, March 9, 2018)
16. 16Kolapully and Toronto Transit Commission, Westlaw at para. 79 (FSCO, A14-001178, March 9, 2018)
17. 17Kolapully and Toronto Transit Commission, Westlaw at para. 81 (FSCO, A14-001178, March 9, 2018)
18. 18TTC’s written submissions, para. 1
19. 19Kolapully and Toronto Transit Commission, Westlaw at para. 79 (FSCO, A14-001178, March 9, 2018)
20. 20Kolapully and Toronto Transit Commission, Westlaw at para. 82 (FSCO, A14-001178, March 9, 2018)
21. 21Kolapully and Toronto Transit Commission, Westlaw at para. 99 (FSCO, A14-001178, March 9, 2018)
22. 22TTC’s written submissions, para.’s 2 and 8
23. 23TTC’s Written Submissions, para. 2
24. 24However, the Divisional Court determined in Belair Direct Insurance Co. v. Green that a “palpable and overriding error” is not the correct test for an appellate body, whose jurisdiction is limited to reviewing errors of law, like the Director's Delegate, to review errors of fact (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)
25. 25Kolapully and Toronto Transit Commission, Westlaw at para. 17 (FSCO, A14-001178, March 9, 2018)
26. 26Fifth edition, J. Sopinka, S.N. Lederman, A.W. Bryant, LexisNexis Canada Ltd, 2018 at p. 406, para. 6.471 as cited in Nguyen v. State Farm Mutual Automobile Insurance Co., Westlaw at para. 4 (FSCO A13-012623, September 14, 2016). See also Kwatemaa v. Certas Direct Insurance Co., Westlaw at para. 25 (FSCO A04-001458, June 2, 2006)
27. 27Such as “both parties hav(ing) unclean hands.” Kolapully and Toronto Transit Commission, Westlaw at para. 39 (FSCO, A14-001178, June 7, 2018)
28. 28For example, using a “broad stroke” approach to calculating expenses. Kolapully and Toronto Transit Commission, Westlaw at para. 40 (FSCO, A14-001178, June 7, 2018)