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: Jonathan Batty, Associate Chair Date: December 4, 2018 File: 16-003757/AABS Case Name: M. R. vs. State Farm Mutual Automobile Insurance Company

Written Submissions By: For the Applicant: Allan S. Blott For the Respondent: Nicholaus de Koning

Overview

[1]. This request for reconsideration arises from a decision of the Licence Appeal Tribunal (the “Tribunal”), in which the Tribunal denied M.R.’s, the applicant, application for income replacement benefits (“IRBs”) and interest. M.R. now requests a reconsideration of the Tribunal’s decision on the basis that the Tribunal heard “misleading evidence” from Dr. Aziz, M.R.’s witness and family physician.

[2]. Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this reconsideration request.

[3]. As explained below, I deny this reconsideration request.

The Facts

[4]. M.R. was involved in a motor vehicle accident on September 16, 2013 and he received IRBs from State Farm Insurance Company (“State Farm”), the respondent, under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

[5]. Under section 6(2)(b) of the Schedule, an insured person is eligible for IRBs after the first 104 weeks of disability following the accident only if they suffer a complete inability to engage in any employment for which he was reasonably suited by education, training or experience (the “complete inability test”). The burden of proof to establish eligibility to benefits under the Schedule lies with the applicant.

[6]. State Farm terminated M.R.’s IRBs on October 28, 2015, 111 weeks after his accident, on the basis that he did not suffer a complete inability to engage in any employment for which he was reasonably suited. M.R. applied to the Tribunal for the determination of his entitlement to IRBs.

[7]. The Tribunal found M.R. had failed to satisfy his burden to establish that he was eligible for IRBs and denied his application.

[8]. In coming to its conclusion, the Tribunal considered a disability certificate prepared by Dr. Dyson, two medical reports prepared by Dr. Kwok and Dr. Aziz, and an MRI consultation report submitted by M.R. in support of his application, as well as the testimonies of M.R. and Dr. Aziz. Having considered the totality of M.R.’s evidence, the Tribunal found he had failed to provide sufficient evidence to meet satisfy the complete inability test.

[9]. Specifically, the Tribunal reviewed Dr. Aziz’s testimony and report in paragraphs 15-17 of its decision. In the Tribunal’s view, both Dr. Aziz’s testimony and his report were indeterminate, failed to address the complete inability test directly, and ultimately appeared to support that M.R. could be able to engage in suitable employment with some accommodation.

[10]. Furthermore, the Tribunal noted its conclusion that M.R. did not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience, was reinforced by State Farm’s evidence, specifically the reports of Dr. English, Dr. Rubenstein, and Ms. Kresak.

[11]. Ultimately, the Tribunal’s decision was based on a thorough analysis of all of the evidence presented by both parties and did not hinge on any single piece of evidence.

[12]. M.R. now challenges the Tribunal’s decision.

Decision and Reasons

[13]. M.R. seeks a reconsideration of the Tribunal’s decision under Rule 18.3(c) of the Tribunal’s Rules of Practice and Procedure. Rule 18.3(c) provides reconsideration may be granted if 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.

[14]. M.R. claims that the Tribunal heard misleading evidence from Dr. Aziz because Dr. Aziz failed to bring his clinical notes and records with him to the hearing, and therefore was unable to provide any substantial evidence regarding M.R.’s condition. M.R. further claims that he was unable to communicate with Dr. Aziz prior to the hearing to instruct him to bring his clinical notes and records to the hearing.

[15]. M.R has not identified what part of Dr. Aziz’s testimony was misleading or what additional evidence he failed to provide in support of M.R.’s application. In short, M.R. has not explained either the nature of the misleading evidence or how it affected the Tribunal’s decision.

[16]. M.R.’s request for reconsideration does not meet the requirements set out under Rule 18.2 (c) for two reasons. First, Rule 18.2(c) is aimed at witnesses who have an intention to deceive or mislead the Tribunal. That a witness made an inadvertent mistake or was ill-prepared at the time of the hearing is not a ground for reconsideration under Rule 18.2(c). Second, even if the Tribunal had heard misleading evidence from Dr. Aziz, it is not clear how it would have affected the Tribunal’s decision, which was based on the totality of the evidence before the Tribunal.

[17]. Although M.R. did not explicitly raise Rule 18.2(d), that there is new evidence that could not have reasonably been obtained earlier and would have affected the result, as a ground for reconsideration, I considered his claim that he was unable to communicate with Dr. Aziz to instruct him to bring his clinical notes and records to the hearing under Rule 18.2(d).

[18]. However, M.R.’s request for reconsideration does not meet the requirements of Rule 18.2(d) either. Dr. Aziz’s clinical notes were in existence before the hearing and M.R. could have obtained them at an earlier point in time. The fact M.R. did not does not afford grounds to reconsider the Tribunal’s decision. Finally, as noted above, M.R. has not established that Dr. Aziz’s clinical notes and records, if they had been present, would have affected the Tribunal’s decision. Therefore, there is no basis to grant reconsideration under Rule 18.2(d).

Conclusion

[19]. This request for reconsideration is denied.

Jonathan Batty Associate Chair Safety, Licensing Appeals and Standards Tribunals Ontario Released: December 4, 2018