[The Applicant] v. Intact Insurance Company, 2018 CanLII 130843

Safety, Licensing Appeals and Standards Tribunals Ontario

Automobile Accident Benefits Service

Licence Appeal Tribunal

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 Tel.: 416-327-6500 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto-tsapno.gov.on.ca

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Service d'aide relative aux indemnités d'accident automobile Tribunal d'appel en matière de permis

Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Tél.: 416-327-6500 Sans frais Tél: 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Téléc: 416-325-1060 Sans frais Téléc: 1-844-618-2566 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Jeffrey Shapiro, Vice-Chair Date: December 21, 2018 File: 17-004109/AABS Case Name: [The Applicant] v. Intact Insurance Company

Written Submissions By: For the Applicant: Michael L. Bennett For the Respondent: David Raposo

OVERVIEW

[1]. Intact seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) August 14, 2018 Order, on a preliminary issue. The Tribunal held that pursuant to s. 55 of the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”), until Intact has the opportunity to conduct two insurer examinations (“IEs”), [the applicant] is precluded from proceeding with his appeal to this Tribunal which seeks a determination that he be deemed catastrophically impaired (“CAT”) under the Schedule. The Tribunal also imposed terms regarding the IEs.

[2]. Intact takes issue with the terms imposed, and seeks to have the 2nd of the terms struck or a new hearing ordered. The terms concern the possibility of the IE taking place “by way of paper review in accordance with the Schedule”, i.e. an examination of materials without the insured’s attendance. This matter is set for a five date hearing commencing on February 27, 2019 on the CAT determination. As explained below, I deny the reconsideration.¹

FACTS

[3]. I accept the facts as found in the Tribunal’s decision, and thus only summarize the central facts relevant herein. In brief, [the applicant] was involved in a motor vehicle accident on January 21, 2015. He received benefits from Intact under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”), but Intact has denied requests for other benefits.

[4]. Since the accident, at Intact’s request, [the applicant] attended 13 IEs. Not all of the IEs, however, could be completed. In one, [the applicant] threatened suicide and was taken to the hospital. In another, an assessor found psychometric testing scores were invalid, and [the applicant] alleges the assessor accused him of “feigning” and terminating the IE.

[5]. [The applicant] submitted an application for a catastrophic determination, which Intact denied. [The applicant] appealed that denial to this Tribunal. As a result of [the applicant]’s seeking to be designated catastrophically impaired, Intact sought new neuropsychological and psychological IEs specific to the CAT determination. [The applicant] refused to attend, arguing that the IEs have been traumatic, further examinations put his mental health at risk, and further exams are duplicative or otherwise not reasonably necessary based on the prior results. Intact argues that prior IEs are for different benefits, it is entitled to them under the Schedule, it would be prejudiced by not to having such IEs, and [the applicant] has attended his own assessments.

[6]. In light of the history and those positions, the matter proceeded to a preliminary issue hearing to determine if the applicant is precluded under s. 55(1) of the Schedule from proceeding to a hearing on the CAT determination until he attends a neuropsychological and psychological IEs.

[7]. The Tribunal heard the matter by a combination of written submissions and the testimony of [the applicant]’s treating psychologist. The Tribunal found that Intact has a right to conduct IEs as per the Schedule and that the application cannot proceed until those occur, but the Tribunal in balancing Intact’s rights against the potential harm to [the applicant], imposed the following terms:

[30] …I am providing the following terms:

i. The parties are to cooperate in the scheduling and arrangement of the IEs. This may include consideration of reasonable conditions to be approved by the applicant’s treating psychologist with respect to how the IE is to take place. For example, flexible timing, an agreement with respect to one assessor rather than a panel of assessors and whether a support person should attend with the applicant;

ii. If the parties are unable to agree on the reasonable conditions of the IEs then at the least, the respondent is permitted to conduct the neuropsychological and psychological IEs by way of paper review in accordance with the Schedule.

[8]. Under Rule 18 of the Tribunal’s Rules of Practice and Procedure, Intact requests that I strike paragraph 30 (ii) regarding the paper review, or reorder a new hearing on the preliminary issue hearing, on the grounds that the Tribunal violated the rules of natural justice.

DECISION AND REASONS

[9]. Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. The Rule 18.2 criteria are:

• the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
• the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
• the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,
• there is new evidence that could not have reasonably been obtained earlier and would have affected the result.

[10]. In 17-002160 v RBC Gen. Ins. Co., 2018 CanLII 83519 (ON LAT), Associate Chair J. Batty explained that the rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution. Still, reconsideration is only warranted in cases where an adjudicator has made a significant legal mistake or [violated the rules of natural justice or procedural fairness…] preventing a just outcome. To meet the high onus required to obtain reconsideration of a decision, a requester must provide some evidence and argument to the Tribunal.

Has the Tribunal violated the rules of natural justice by imposing the terms on the IE?

[11]. Intact raises several concerns with the order. Intact argues that the Tribunal’s terms allow [the applicant] “to control the process”, in that [the applicant] can refuse any compromise, thus forcing the IE to proceed by writing without [the applicant]’s attendance, which is unfair and places it at a serious disadvantage.² The 2nd Term – an IE by paper review – also undermines the Tribunal’s own finding at para 24, that “it would be unfair to [Intact] if it is not given the opportunity to assess whether the applicant has sustained a catastrophic impairment under Criteria 8, the central issue of the hearing”.

[12]. In sum, it argues, “To force the respondent to proceed with IEs only by way of paper review would put the respondent at a significant disadvantage…”, and that disadvantage is a denial of natural justice.

[13]. [The applicant] submits that the Tribunal’s terms are proper – the Tribunal properly balanced the parties’ rights and considerations and the remedies available under the Schedule. [The applicant] notes that other decisions have also called for a key IE to be conducted by paper review. [The applicant] notes that Intact has failed to produce a “scintilla of evidence” that an in person assessment is necessary and lists several practical options available for Intact to conduct a meaningful IE without an in person assessment. Finally, [the applicant] provided a “post-decision update” which was that he offered a reasonable compromise to attend a neuropsychological assessment with an attendant and other conditions.

[14]. I agree with [the applicant]. Boiled down, Intact’s argument is that Intact’s failure to receive the IE in the manner it prefers is grounds for reversing or amending the Tribunal’s decision. Assuming for the moment that in some cases an Insurer’s failure to conduct an IE in the manner it prefers is grounds to amend a Tribunal decision, in this case, as [the applicant] submitted, the Tribunal was required to and properly preformed a “balancing act” and so the results of the balancing mean that Intact may not receive the IE that it prefers. In that light, Intact is essentially asking that I substitute my opinion for that of the Tribunal’s member that heard the parties’ written submissions, the testimony of [the applicant]’s treating psychologist about potential harm, and the parties arguments. I find that the Tribunal did not make an error and I decline to substitute my own ‘balancing’ determination for the Tribunal member that heard the evidence.

[15]. As [the applicant] argues, the Tribunal faced a situation of diametrically opposed interests, and needed to balance those interests with a practical result. The Tribunal did so, appropriately considering the options contemplated under the Schedule with the possibility of an IE proceeding under s. 44(4). This is not a novel approach. Specifically, s. 44 of the Schedule allows for “paper reviews” as a means of conducting an IE. Similar results were reached in 16-003144 v. Cumis General Ins. Co. and 17-005291 v. Travelers Canada. To be clear, the result in this case is very fact specific to the evidence the Tribunal heard in this case. The Tribunal obviously considered the evidence of risk of harm in this case to be very significant, and accordingly imposed the terms that it did. Without a meaningful risk of harm, the appropriate range of terms, if any, would be different.

[16]. There is also no evidence before me that a paper review in this matter is impossible or essentially meaningless. In fact, the opposite appears true, as Intact has conducted 13 IEs to date including several neuropsychological assessments. For that matter, Intact has minimally explained the disadvantage, particularly as one of its assessors concluded that [the applicant] provided invalid testing results. As noted above, [the applicant] offers several reasons why the disadvantage is illusory. Thus, Intact is not really presenting a breach of natural justice, as much as simply asking me to hear the same evidence and come to a different result.

[17]. Finally, as mentioned above, Intact also argues that [the applicant] “could” control the process. However, there is no evidence before me that [the applicant] actually failed to “cooperate in the scheduling and arrangement of the IEs.”

CONCLUSION

[18]. For the reasons above, I find that Intact has failed to establish that the Tribunal’s decision including its imposed terms reflect the type of error that merits reconsideration. This request for reconsideration is denied. The Tribunal’s order remains in effect.

Jeffrey A. Shapiro Vice-Chair, Licence Appeal Tribunal Safety, Licensing Appeals and Standards Tribunals Ontario

Released: December 21, 2018

Footnotes

1. 1Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
2. 2At the Tribunal’s inquiry, the parties advised that a compromise was not reached and a ruling is necessary.