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: 17-006956/AABS Case Name: [The Applicant] v. The Guarantee Company of North America
Written Submissions By: For the Applicant: Georgina Masgras and Danica Maslow, Counsel, and Carlos Ortiz, Licenced Paralegal For the Respondent: Kerry L. Figliomeni, Counsel
OVERVIEW
[1]. [The applicant] seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) July 16, 2018 Order, issued by Adjudicator D. Gregory Flude, Vice Chair. The Tribunal held that [the applicant]: (1) is time barred from proceeding on his application for a non-earner benefit; and, (2) is not entitled to $11,752.00 for the cost of assessments of catastrophic impairment, both benefits potentially available under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”).
[2]. [The applicant] only seeks reconsideration of the second finding, i.e. disallowing the $11,752 for assessments. For the reasons below, I deny this request for reconsideration.1
FACTS
[3]. The applicant, [the applicant], was injured in a motor vehicle accident on August 15, 2011. Guarantee paid him benefits under the Schedule until several disputes arose. At issue, Chiropractor Dr. J. Paton, in a September 20, 2017 Treatment & Assessment Plan, requested that Guarantee fund assessments to determine if [the applicant] should be designated as “catastrophically impaired” as defined by the Schedule. A person so designated is entitled to enhanced benefits. Guarantee denied the request.
[4]. [The applicant] appealed to this Tribunal and the matter was heard in writing. [The applicant] relied on submissions limited to 4 pages and 4 documents. Guarantee filed lengthy submissions, including surveillance evidence. The Tribunal found against [the applicant].
[5]. [The applicant] now requests under Rule 18 of the Tribunal’s Rules of Practice and Procedure that I overturn the Tribunal’s decision, on the grounds that the Tribunal made significant errors of law or fact, which will be addressed below. Guarantee disputes that, and argues that [the applicant] is attempting to improperly introduce new evidence.
DECISION AND REASONS
[6]. 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.
[7]. In 16-002782 v Aviva Ca. Ins., 2018 CanLII 39370 (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. Thus, the reconsideration process serves a curative role. For final decisions, it permits the Tribunal to correct a final decision made in error. For interlocutory decisions, it gives the Tribunal the tools to get a matter back on track for a just and timely resolution.
[8]. A party seeking reconsideration, and the Tribunal, has a high onus to meet. Minor or inconsequential procedural or substantive mistakes aren’t enough. Rather, reconsideration is only warranted where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, false evidence has been admitted, or genuinely new and undiscoverable evidence comes to light after a hearing.
[9]. A high onus makes sense because once met, the Tribunal has broad remedial powers to order a matter re-heard, or to cancel, confirm, or vary an order or decision.
[10]. [The applicant] asserts several arguments, including that the Tribunal used an incorrect test and improperly weighed evidence. Guarantee submits that [the applicant] is improperly attempting to “split” the case by relying on new arguments and evidence that could have been submitted at the hearing, cited the wrong version of the legislation and inapplicable sections, and other issues. Thus, rather than addressing each point of dispute, I will focus on the most important.
May [the applicant] rely on new evidence or arguments in this reconsideration?
[11]. Rule 18.2(4) is clear that previously available evidence cannot be introduced for the first time on reconsideration. For instance, 16-000066 v Waterloo Reg., 2017 CanLII 19186 (ON LAT), explained that the “reconsideration process cannot be used to re-litigate matters that should have been addressed in the first instance.”
[12]. Guarantee submits that [the applicant] now attempts to do exactly that – i.e. introduce new evidence (Dr. Huth’s January 28, 2018 letter and his clinical records (R.L. Tabs 2 & 3)), and new arguments about Dr. Pilowsky’s report. Also, Dr. Hugh’s [i.e. Huth] November 2, 2016 letter is mentioned as Tab 1, but no letter is attached.
[13]. I agree that this new evidence and argument is barred by Rule 18.2(4). I see no explanation of why these documents and arguments where not used in the hearing. In fact, all of Dr. Huth’s new records submitted for this reconsideration – both Tabs 2 & 3, and missing Tab 1 - all predate [the applicant]’s April 9, 2018 submission at the hearing. Thus, when [the applicant] argues that the Tribunal made a significant error and then cites to Dr. Hugh’s January 28, 2018, he’s relying on evidence that the Tribunal never saw. The Rule doesn’t allow such after the fact evidence or argument.
Did the Tribunal Apply the Wrong Test for Approving an Assessment?
[14]. [The applicant] argues in various ways that the Tribunal applied an incorrect standard to determine entitlement to the assessment, such as: “We respectfully submit that the Tribunal made a significant error of law given that there is no requirement that the impairment under section 45 must [meet] the threshold in section 3.1 prior to making an application for a designation of a catastrophic Impairment.” (Emphasis supplied.)
[15]. However, that is not the standard the Tribunal applied. In fact, the Tribunal agreed that an applicant seeking an assessment does not need to prove he or she is entitled to the benefit (or in this case, prove that he meets the definition of catastrophically impaired as defined in s. 3.1) when seeking an assessment, articulating that:
“[37]…I also note that, by their nature, assessments are speculative. They are conducted to determine if an applicant has a specific condition or meets a specific threshold. There is a likelihood that the assessment will prove negative. Having said that, I accept the respondent’s position that there must be some suggestion that the specified condition exists and that further investigation is reasonable and necessary.”
[16]. The Tribunal, therefore, properly considered if it is reasonable and necessary to investigate the condition. Without setting a definitive standard, the Tribunal found there was not “some [reasonable or minimal level of] suggestion” that the condition exists to make the investigatory assessment reasonable or necessary.
[17]. The Tribunal explained “…I can see no reasonable basis to conduct an assessment to determine if the applicant is catastrophically impaired…I see no objective evidence to suggest the applicant may have a whole person impairment of 55% or greater.” (Emphasis added.) The Tribunal supported its conclusion citing to available medical reports and surveillance evidence, which showed that [the applicant] over-stated his symptoms. In essence, the Tribunal found further investigation for catastrophic status was not reasonable and necessary. I find no error in the Tribunal’s decision.
[18]. In a variation of the above argument, [the applicant] submits: “We respectfully submit the fees in the treatment plan are reasonable to determine whether the applicant has sustained a catastrophic impairment. The assessments were recommended for the purpose of completing an application under section 45.”
[19]. This statement misses the mark. This matter is not about the amount charged for the assessment. Issue before the Tribunal was whether there was “some suggestion that the specified condition exists and that further investigation is reasonable and necessary”.
Did the Tribunal properly determine if assessments are reasonable & necessary?
[20]. [The applicant] argues that “Instead of making a ruling on which assessments or examinations submitted by Dr. Paton are necessary to allow [[the applicant]] to submit his application under section 45(1) of the SABS, the adjudicator substituted his opinion to that of a physician or other regulated health professional and conducted the assessment in connection with the determination of catastrophic impairment, which is contrary to the law.”
[21]. [The applicant] cites s. 45(2)1, saying “The adjudicator is not a physician or other regulated health professional and he or she cannot conduct the examination in connection with the determination of catastrophic impairment.”
[22]. [The applicant] essentially argues that the Tribunal must follow the recommendation of his medical providers for further assessments. I disagree. The Tribunal’s role is to determine if those recommendations are reasonable and necessary, based on the evidence presented. The Tribunal did so, including considering that surveillance evidence weakens the factual basis of [the applicant]’s claims, and also relying on the opinion of Dr. Shafik Dharamshi, which the Tribunal quoted.
CONCLUSION
[23]. For the reasons above, [the applicant] has failed to show that the Tribunal’s Order includes any sort of error that merits reconsideration. I note that even considering for argument’s sake the new evidence and arguments which may not be properly raised at this stage, I do not find that Tribunal erred. This request for reconsideration is denied. The Tribunal’s order remains in effect.
[24]. Finally, I note that [the applicant] is not barred from self-funding the assessments or applying for a determination of catastrophic impairment as he claims. Rather, the practical effect of the Tribunal’s finding is that Guarantee is not obligated to pay [the applicant] for the requested assessments. Also it appears that [the applicant] still has over $20,000 of un-accessed benefits under the policy, so [the applicant] has available benefits for treatment or other assessments if he can prove those requests to be reasonable and necessary.
Jeffrey A. Shapiro Vice-Chair, Licence Appeal Tribunal Safety, Licensing Appeals and Standards Tribunals Ontario Released: December 21, 2018
Footnotes
- Pursuant 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.