Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda Lamoureux, Executive Chair

Date: March 17, 2017

File: 16-000134/AABS 16-000646/AABS

Case Name: 16-000134/AABS & 16-000646/AABS v. TD General Insurance Company

Written Submissions By:

For the applicant: Catherine Raver

For the respondent: Fergal G. Murphy

[1]. On February 14, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued decisions in two related matters. In 16-000134/AABS, the Tribunal determined, among other things, that the applicant’s injuries were minor injuries and that he was not entitled to a number of benefits he claimed under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). In 16-000646/AABS, the Tribunal determined that the applicant was not entitled to non-earner benefits under the Schedule.

[2]. On February 15, 2017, the applicant requested a reconsideration of both decisions. For the sake of convenience, I will deal with both requests together.

[3]. For the reasons that follow, I deny the applicant’s requests.

The applicant’s request

[4]. The criteria for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version1 (April 1, 2016) (“the Rules”). In this case, the applicant relies on Rules 18.2(a) and (b), which, respectively, provide that the Executive Chair will not grant a request for reconsideration unless the Tribunal “acted outside its jurisdiction or violated the rules of natural justice or procedural fairness,” or “made a significant error of law or fact such that the Tribunal would likely have reached a different decision.”

[5]. The applicant’s central submission is that the Tribunal failed to consider relevant evidence. In his request for reconsideration in 16-000134/AABS, the applicant argues that “the entirety” of his evidence was “not considered at all.” Similarly, in his request for reconsideration in 16-000646/AABS, the applicant argues that his “evidence was not considered at all or put before the [Tribunal].”

Reasons

The preliminary issue

[6]. As a preliminary matter, the applicant argues that the Tribunal misinformed his representative about the “appeal clock.” Given that his request for reconsideration in both matters is styled as an “Appeal Submission,” I take the applicant’s use of “appeal clock” to mean the time prescribed under Rule 18 for requesting a reconsideration. The applicant appears to assume that, based on his representative’s reliance on the Tribunal’s correspondence, he is now barred from seeking a reconsideration.

[7]. This issue arises, in part, from the fact that the Tribunal’s decisions were amended. The Tribunal issued its original decisions on January 25, 2016. That day, the respondent’s counsel, Mr. Murphy, emailed the Tribunal, requesting that the decisions be amended to include his name as counsel on both hearings.

[8]. On January 26, 2017, the applicant’s representative, Ms. Raver, also emailed the Tribunal. In her email, Ms. Raver asserted that,” she was “concerned that there may be a possibility that [the applicant’s] evidence was not put before the adjudicator to consider when making her decision.” She explained this concern by naming certain documents, discussed in more detail below, that were not mentioned in the Tribunal’s decisions.

[9]. On January 31, 2017, Tribunal staff advised Ms. Raver that the adjudicator would be amending the decisions. In response, Ms. Raver sought and received email confirmation from staff that the “appeal clock” would not run until the Tribunal’s amended decisions were issued.

[10]. On February 8, 2017, the Tribunal wrote to the parties in response to their correspondence of January 26. The Tribunal informed the parties “all of the evidence and submissions submitted by the parties were before the adjudicator” prior to her rendering the original decisions.

[11]. On February 14, 2017, the Tribunal then issued its amended decisions. The only amendment to its original decisions was the addition of Mr. Murphy’s name. The following day, Ms. Raver asserts that she spoke to Tribunal staff – someone different from the individual with whom she spoke previously – and was advised that the “appeal clock” began to run when the decisions originally issued on January 25, 2017.

[12]. The following day, the applicant filed his “Appeal Submission” in both matters. As part of each “Appeal Submission,” the applicant argues that he was given “erroneous information” causing him “prejudice.” Neither of the “Appeal Submissions” actually details the nature of this prejudice. Nevertheless, given that both “Appeal Submissions” focus specifically on the “appeal clock” and the “erroneous information” provided to Ms. Raver on January 25, 2017, I understand the applicant as suggesting that the “erroneous information” he received prejudiced his ability to seek reconsideration of the Tribunal’s decisions.

[13]. I do not find that there is any prejudice. Rule 18 provides that requests for reconsideration must be made within 21 days of the date of a decision. Rules 2.7 and, more particularly, 5.1 inform how this period is calculated. Based on these Rules, and assuming the 21-day period prescribed by Rule 18 began to run on January 25, 2016, the applicant’s “Appeal Submission” of February 15, 2017 was filed on time.

The applicant’s central submission concerning 16-000134/AABS

[14]. The heart of the applicant’s request in both matters is that the Tribunal failed to consider relevant evidence.

[15]. The applicant states that the Tribunal held that he “did not submit any evidence to challenge the insurance assessments.” He points to the fact that he called the following evidence: the clinical notes and records of both Grand River Hospital and KW Urgent Care, a letter prepared by Dr. Butris, dated January 11, 2016, and a report prepared by Dr. Kurzman, dated August 7, 2016. The applicant submits that “the entirety” of this evidence was not considered.

[16]. I disagree. The Tribunal’s decision makes plain that, in fact, it did consider the applicant’s evidence.

[17]. In finding that the applicant was not entitled to income replacement benefits, the Tribunal relied explicitly on the applicant’s evidence, namely Dr. Butris’ clinical notes and records: see Findings at para. 17. The Tribunal also considered the applicant’s MRI evidence, but noted that the applicant failed to adduce a medical opinion interpreting the MRI’s findings, something that might have rebutted the respondent’s evidence from Dr. Nesterenko: see Findings at para. 18. The Tribunal also acknowledged Dr. Butris’ observation about the applicant’s pre-accident condition, but gave this little weight since the applicant did not provide any information as to how Dr. Butris reached her conclusions, a failure ultimately leading the Tribunal to accept the respondent’s competing evidence from Dr. West. In sum, the Tribunal clearly considered the applicant’s evidence – it found this insufficient to prove his entitlement to income replacement benefits.

[18]. The same applies to the Tribunal’s determination that the applicant’s injuries were minor injuries within the meaning of s. 3 of the Schedule. In making this determination, the Tribunal explicitly referenced the chronic pain diagnosis from KW Urgent Care, along with the same diagnosis from Dr. Butris: see Findings at paras. 26 and 27. The Tribunal rejected this evidence. It found KW Urgent Care’s diagnosis premature, and could not understand the basis for, or the significance of, Dr. Butris’ diagnosis: see Findings at paras. 27 and 28. The Tribunal also referenced the applicant’s MRI evidence, but noted that the applicant “failed to provide any medical analysis from a medical practitioner in respect of the MRI findings”: see Findings at paras. 30. Lastly, the Tribunal also found that the applicant “did not provide a report or any other persuasive evidence to challenge Dr. West’s findings”: Findings at paras. 31. Based on my review of the decision as a whole, the Tribunal’s statement does not suggest that the applicant failed to provide any evidence, but that it gave the applicant’s evidence little weight. As the Tribunal remarked in its Introduction, the applicant “did not provide compelling evidence to show that his injuries were non-minor” [emphasis added]: see Introduction at para. 8.

[19]. The applicant may be correct in that the decision does not reference the clinical notes and records of Grand River Hospital or Dr. Kurzman’s report. However, the Tribunal was not required to mention them. It is trite law that administrative decision-makers are not obliged to refer to every piece of evidence put to them or that they consider in rendering their decisions: see, recently, Avery v Pointes Protection Association, 2016 ONSC 6463 (Div. Ct.) at para. 94. Provided that its “path” in rendering its decision is clear, the Tribunal need not “describe every landmark along the way”: Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670 at para. 29. In this case, that path is clear.

The applicant’s central submission concerning 16-000646/AABS

[20]. I am also not persuaded by the applicant’s “Appeal Submission” in 16-000646/AABS.

[21]. In her email to the Tribunal of January 26, 2017, Ms. Raver pointed out that the decision made no mention of either the reports prepared by Dr. Majl or Dr. Pilowsky, or the affidavits the applicant submitted from Fared Lazr, Khatoon Sadeq and Yokhanna Toma. The applicant states that he also submitted two MRIs, a referral for mental health services from Grand River Hospital, and the clinical notes and records of Dr. Jacqueline Butris. The applicant submits that this evidence “was not considered at all or put before the adjudicator.”

[22]. Again, the decision explicitly provides otherwise.

[23]. The issue in this case was the applicant’s entitlement to non-earner benefits under the Schedule. As the Tribunal recognized, the essential inquiry involved comparing the applicant’s activities and life circumstances before his second accident to his activities and life circumstances thereafter: see Analysis at para. 3. The Tribunal applied this approach in order to determine whether, as required by s. 3(7) of the Schedule, the accident caused the applicant to suffer a “complete inability to carry on a normal life.”

[24]. The Tribunal held that the applicant failed his evidentiary burden. A key reason for this finding was “the absence of evidence from the Applicant”: see Analysis at para. 6. The Tribunal was particularly troubled by the applicant’s decision to not provide any evidence of his own. It explained, in para. 5, as follows:

The Applicant has not provided me with evidence outlining his activities and life circumstances prior to the accident. Without such evidence, I am unable to determine what activities the Applicant engaged in before and after the accident. I also do not know what activities were more important to him. Normally, I would attribute more weight to those activities when assessing to entitlement to NEBs. Given that the applicant was in two accidents, in a short period of time, the need for the Applicant’s evidence on this point is even more important in order to compare his life before and after the second accident.

[25]. In the absence of the applicant’s own evidence on the essential inquiry, the Tribunal relied on three reports submitted by the respondent. Based on these reports, the Tribunal concluded that, while the applicant experienced some changes in his life because of the accident, these changes did not rise to the degree compensable by non-earner benefits.

[26]. Importantly, the Tribunal did not, as the applicant argues, fail to consider the evidence he submitted from others. The Tribunal specifically mentioned “the reports” that the applicant submitted as part of his case. The Tribunal found that, like the respondent’s evidence, these reports also suggested that any changes in the applicant’s life after the second accident “were not significant enough:” see Analysis at para. 13. In addressing the applicant’s evidence, the Tribunal also noted that, while the applicant “reported to several assessors that he must now walk with a cane and cannot bend,” the respondent’s surveillance evidence suggested otherwise: see Analysis at para. 14. This analysis necessarily entailed the Tribunal considering the applicant’s evidence.

[27]. Read as a whole, the Tribunal’s “path” in rendering its decision clearly involved either considering and rejecting the applicant’s evidence, or finding that the evidence undermined his case. As mentioned above, the Tribunal was not required to mention every piece of the applicant’s evidence by name.

Conclusion

[28]. For the above reasons, I see nothing to suggest that the Tribunal “acted outside its jurisdiction or violated the rules of natural justice or procedural fairness.” The applicant has also failed in both matters to demonstrate how the Tribunal’s “proper” consideration of his evidence would have affected the decisions’ result. That is, while his “Appeal Submissions” allege an error, the appellant offers no argument as to how this error, if corrected, would have, as required by Rule 18.2(b), likely resulted in the Tribunal reaching a different decision. At any rate, after reviewing its decisions, I am satisfied that the Tribunal considered the applicant’s evidence.

[29]. I therefore deny the applicant’s request for reconsideration in both matters.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: March 17, 2017