16-000372 v. Unica Insurance Inc., 2017 CanLII 35319

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 no 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 P. Lamoureux, Executive Chair Date: May 29, 2017 File: 16-000372/AABS Case Name: 16-000372 v Unica Insurance Inc.

Written Submissions By: For the Respondent: Angela Comella For the Applicant: Samia M. Alam

Overview

1. On February 24, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter under the Statutory Accident Benefits Schedule – Effective after September 1, 2010, O. Reg. 34/10 (the “Schedule”). The central issue was whether the applicant, T.K., was entitled to attendant care benefits (“ACBs”) following a 2014 motor vehicle accident in which she was injured. The Tribunal determined that T.K. was not entitled to ACBs.

2. On March 17, 2017, T.K. asked me to reconsider the Tribunal’s decision. She argues that the Tribunal committed multiple errors of law, discussed below. For the reasons that follow, I deny her request.

The Facts

3. The facts are somewhat complicated, but can be adequately distilled as follows.

4. As mentioned above, T.K. was injured in a 2014 motor vehicle accident. As a result, she sustained a number of injuries, including one to her knee. That was not the first time she injured her knee. In both 2011 and 2013, T.K. was involved in other motor vehicle accidents, at least one of which also appears to have injured her knee. Seven months after the 2014 accident, she fell and injured her knee again, after which in November 2015 she had knee surgery. Following the surgery, an occupational therapist recommended ACBs. However, the respondent, Unica Insurance Inc. (“Unica”), did not receive the related Form-1 until almost four months later, on March 1, 2016.

5. The following month, in April 2016, Unica denied T.K. any ACBs before March 1, 2016, the date the required Form 1 was submitted. Unica informed T.K. that it would consider her claim for ACBs incurred after March 1, 2016, but only after she attended an examination under oath. For reasons that need not be discussed, T.K. did not attend.

6. In May 2016, T.K. applied to the Tribunal to resolve the parties’ dispute over her entitlement to ACBs.

7. As it does in the usual course, the Tribunal held a case conference to provide the parties a chance to discuss, among other things, procedure. The parties’ case conference was held initially on July 19, 2016 and resumed on August 12, 2016. After the resumption, the Tribunal ordered that T.K.’s application proceed to a written hearing on September 22, 2016. It also set down a schedule for the parties’ exchange of the documents and evidence upon which they intended to rely. T.K.’s representative – someone different from her representative here – raised no objection to any part of this procedure.

8. The written hearing occurred as scheduled. In support of her case, T.K. submitted a number of documents. T.K. was also entitled to submit affidavit evidence, whether from herself or anyone else, to establish her case. She submitted none.

9. The key factual issue before the Tribunal was whether T.K.’s 2014 accident was causally connected to her 2015 fall and subsequent need for ACBs. T.K.’s position is that the two events are related, specifically that the former caused her knee to buckle, causing the 2015 fall. Thus, she argues, she is entitled to the ACBs she claimed. Unica disagrees for various reasons.

10. In its decision dated February 24, 2017, the Tribunal dismissed T.K.’s claim for ACBs. In the Tribunal’s view, T.K. failed to establish that her 2014 accident was causally related to her 2015 fall and subsequent need for surgery and ACBs. In short, the Tribunal held that T.K.’s 2015 fall resulted from her chasing her daughter and, thus, was “an intervening and unrelated cause of injury”: see para. 32. Part of the Tribunal’s difficulty with T.K.’s claim was the absence of affidavit evidence to support a number of her assertions in written argument. The Tribunal also held in the alternative that, assuming the 2014 accident and 2015 fall were in fact causally connected, T.K. was still not entitled to ACBs. The Tribunal held that, given the late delivery of the related Form-1 to Unica, T.K. was not entitled to ACBs before March 1, 2016. As for the time thereafter, the Tribunal refused T.K.’s claim on the basis of what she self-reported to doctors and the nature of the services she received.

11. Assisted now by a different representative, T.K. asks that I reconsider the Tribunal’s decision. She raises a number of arguments that I will address in turn.

Discussion and Reasons

The submission concerning procedural fairness

12. First, T.K. asserts that the Tribunal breached its duty of procedural fairness in ordering that this matter proceed by way of written hearing. She argues that, given the complexity of the issues in dispute, her application should have instead proceeded by way of an oral or hybrid hearing, that the parties should have been given the opportunity to call expert and other witnesses, and that the Tribunal should have proactively requested affidavit evidence from the parties. I have a number of difficulties with this submission.

13. Generally speaking, the Tribunal is the master of its own procedure. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 empowers the Tribunal to hold written hearings: see s. 5.1. Further to this authority, the Tribunal developed its Rules of Practice and Procedure, which provide that it may hold a hearing in any format it considers appropriate, including a written hearing: see Rule 12. In this case, and as T.K. admits, neither party objected to the application being scheduled for a written hearing – it is only “[i]n retrospect,” as she acknowledges, that this procedural choice is now impugned.

14. This objection arrives too late in the day. T.K.’s former representative acquiesced to this procedure, which was ordered by the case conference adjudicator, not the adjudicator who issued the Tribunal’s final decision in this matter. Any objection should have been raised at the time the procedural order was made, failing which T.K. should have pursued a request for reconsideration then, not now, on the issue. The time for an objection to the Tribunal’s choice of hearing is in advance of the hearing, not after the Tribunal renders its final decision.

15. At any rate, although her application proceeded by way of written hearing, T.K. was not prejudiced in the manner she alleges. An applicant to the Tribunal bears the onus of proving his or her claim under the Schedule on a balance of probabilities. In order to satisfy that onus, T.K. could have adduced affidavit evidence from herself or anyone else she thought necessary. The Tribunal’s orders following the parties’ case conferences left that possibility open, as did the Tribunal’s Rules of Practice and Procedure. The Tribunal cannot be expected to mount or maximize parties’ cases for them. Nor can parties expect to use the reconsideration process to deal with the consequence of tactical and procedural choices they made during the proceeding.

16. As part of this submission, T.K. also suggests that the Tribunal erred by overlooking the evidence from Dr. Albuquerque mentioned in para. 10 of the Tribunal’s reasons. While the Tribunal indicated in footnote 4 of its reasons that no such documents had been provided, T.K. asserts that these documents were indeed “submitted with [her] initial submissions under Exhibit 6.”

17. The Tribunal was clearly aware of Exhibit 6, which it referenced in para. 9 of its reasons. I have also reviewed T.K.’s evidentiary submission before the hearing and, like the Tribunal, do not see any January 2015 or February 2015 records created by Dr. Albuquerque, whether included in Exhibit 6 or elsewhere in the Tribunal’s record. (I do see a single page that is part of the OCF-3 at Exhibit 6 that might be a handwritten note but which, having been reproduced so poorly, is completely illegible.) For that reason, I do not give any effect to T.K.’s submission. However, in the event that, like the Tribunal, I have also missed these documents, I do not see how, if properly considered, they would have altered any of the multiple reasons in paras. 31-34 that the Tribunal offered for its decision.

The submission concerning causation

18. T.K. also asserts that the Tribunal erred in applying the “but for” test, rather than the “material contribution” test, in determining whether the 2014 accident was causally connected to her 2015 fall. She also argues that the Tribunal erred in not applying the “thin skull rule,” an argument that seems to suggest that the “material contribution” test and the “thin skull rule” are the same. Like her allegations concerning procedural fairness, this submission misses the larger picture.

19. As T.K. admits, the Tribunal referenced both the “but for” and “material contribution” tests. Applying either test, it was not clear to the Tribunal what caused the 2015 fall. As the Tribunal held, at para. 31:

The applicant submits that her knee “gave way” as result of the 2014 MVA. Based on the record before me, however, I cannot conclude that the applicant has established that the ACB claimed is “as a result of” the 2014 MVA. Whether on a “but for” or “material contribution” basis, it is not clear that (1) her knee spontaneously “gave way,” or, (2) if so, that the weakness was caused by this accident.

20. Given this lack of clarity, the Tribunal was left to weigh the evidence in the record and determine the 2015 fall’s cause. The Tribunal was entitled, as the trier of fact, to evaluate and weigh the evidence as it saw fit. In the relevant part of its analysis at paras. 32-34, the Tribunal preferred the evidence suggesting that the 2015 fall was caused not by the 2014 accident but by T.K. chasing her daughter. In this respect, any failure attributable to the Tribunal’s conclusion was not the result of the Tribunal’s choice of legal test, but in the lack of evidence adduced to support T.K.’s argument.

21. For these same reasons, I also have no concerns with the Tribunal’s failure to mention the “thin skull” principle. Indeed, the Tribunal specifically referenced T.K.’s “long-standing issues with her knee” (see para. 33) and, thus, effectively viewed her through the same “thin skull” lens. However, the Tribunal, as it was entitled to, underscored the lack of evidence drawing a causal link between the 2014 accident and the 2015 fall, and placed greater weight on the evidence suggesting that the 2015 fall resulted from T.K. chasing her daughter.

The submission concerning retroactive ACBs

22. Lastly, T.K. also suggests that the Tribunal erred in determining that, even if the 2014 accident and 2015 fall were in fact causally connected, she was still not entitled to ACBs. In light of the above, I need not consider these issues.

Conclusion

23. I therefore deny this request for reconsideration.

Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario Released: May 29, 2017