M.C. v. Wawanesa Mutual Insurance Company, 2018 CanLII 141025

RECONSIDERATION DECISION

Before: Heather Trojek, Vice Chair

Date: September 12, 2018

File: 17-005611/AABS

Case Name: M.C. v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Stanley Razenberg, Sokoloff Lawyers

For the Respondent: Paul Omeziri, Beard Winter LLP

OVERVIEW

1This request for reconsideration arises from a decision in which the Tribunal denied Wawanesa Mutual Insurance Company’s (“Wawanesa”) request to stay the applicant’s hearing. The issues to be determined at the hearing include the determination of catastrophic (CAT) impairment, entitlement to attendant care benefits (ACBs) from March 6, 2016 ongoing and entitlement to an award.¹

2The complicating issue is that the applicant’s entitlement to ACBs for the period from March 5, 2014 to March 5, 2016 was adjudicated by the Financial Services Commission of Ontario (FSCO). This dispute is currently the subject of an appeal before the Director’s Delegate at FSCO, which is scheduled for August 8, 2018.

3In its request for reconsideration, Wawanesa argues that the Tribunal made a significant error in law and fact by allowing the FSCO appeal and the Tribunal hearing to proceed concurrently.

4Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Schedule 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.

5For the reasons that follow, I deny Wawanesa’s request for reconsideration and uphold the Tribunal’s decision not to stay the hearing. The hearing will proceed as scheduled.

BACKGROUND

6The applicant was involved in a motor vehicle accident on March 5, 2014. After being denied certain benefits by Wawanesa, she applied to FSCO.²

7At the commencement of the arbitration hearing at FSCO on June 22, 2017, Wawanesa requested that the FSCO arbitrator limit his decision regarding the applicant’s entitlement to ACBs to the period from March 5, 2014 to March 5, 2016 (the pre-104 week period) because she had not been determined to be CAT.³ Post 104-week ACBs are only available to applicants who have been determined to be CAT. The applicant objected to the FSCO arbitrator limiting his determination to pre-104 ACBs. Ultimately the FSCO arbitrator determined that his decision would be limited to the applicant’s entitlement to post-104 week ACBs.

8The FSCO arbitrator denied the applicant’s claim for attendant care benefits because she was unable to establish that she had paid for or “incurred” attendant care expenses. As a result, the FSCO arbitrator found it unnecessary to adjudicate the applicant’s entitlement to ACBs or make a determination regarding quantum.⁴

9The applicant submitted an application to the Tribunal. A case conference was conducted at which Wawanesa raised its objection to proceed. A date for a preliminary issue hearing to address Wawanesa’s request to a stay of the hearing was set. A date for a hearing to determine the substantive issues in dispute (CAT, post-104 ACBs, and an award) was also set.

10In a preliminary issue decision dated May 18, 2018, the Tribunal denied Wawanesa’s request to stay the applicant’s hearing pending the outcome of the applicant’s appeal at FSCO.⁵ Wawanesa filed a request for reconsideration of the decision. In its request for reconsideration, Wawanesa submits that because both proceedings involve substantially similar facts and legal issues, allowing one hearing to proceed before the conclusion of the other could result in potentially inconsistent findings, unnecessary delay and increased costs to the parties. Wawanesa argues that the Tribunal erred in finding that the proceedings at FSCO and at the Tribunal deal with distinct issues and that a stay is not appropriate.

11The applicant argues that the Tribunal’s decision to proceed with the hearing is correct because a) the issues in dispute are not the same; b) the applicant had no recourse other than to submit an application for post-104 ACBs to the Tribunal; c) staying the hearing would be unjustly unfair to the applicant; and d) it would not result in any cost savings to the parties.

12Rule 18.2 of the Tribunal’s Rules of Practice and Procedure,⁶ provides the grounds upon which the Executive Chair or her delegate will grant a request for reconsideration. Wawanesa relies on Rule 18.2(b), arguing that its request for reconsideration should be granted because the Tribunal made significant errors in fact and in law, that had they not been made, the Tribunal likely would have reached a different decision. I do not agree.

13The Tribunal has the jurisdiction and the discretion to stay a proceeding before it. The Tribunal also has the right to control its own process⁷ in order to fulfil its mandate. The mandate of the Tribunal is to provide a just, expeditious and cost-effective determination of each case on its merits. I find that the Tribunal acted in accordance with its mandate when it denied Wawanesa’s request to stay the applicant’s hearing after considering all the relevant factors.

The Tribunal did not fail to consider that the issues in both proceedings are substantially similar

14Wawanesa has failed to persuade me that the Tribunal made a significant error in law or fact which warrants its decision be overturned. Wawanesa directed me to a number of FSCO decisions⁸ to support its position that the hearing should be stayed. It argues that these decisions demonstrate that the Tribunal’s reasoning is flawed because it focused narrowly on periods of eligibility and failed to appreciate that the factual and legal issues in both proceedings are substantially similar. I do not agree.

15The Tribunal is not bound by decisions which were rendered by FSCO. Moreover, I find that the three FSCO decisions on which Wawanesa relies are distinguishable from the case at hand. In each of those cases, the applicant had commenced a civil action against their insurer. In addition, the civil actions commenced by the applicants in the cases cited by Wawanesa included the determination of CAT impairment. As a result, the FSCO arbitrators found that the best way to avoid inconsistent findings was to stay the FSCO proceedings until the outcome of the civil action and the determination of CAT impairment were completed.

16In this case, due to legislative changes in April 2016 and the decision rendered by FSCO, the applicant had no option other than to file an application to dispute entitlement to post-104 attendant care benefits with the Tribunal. Also, in this matter, the broader issue of CAT impairment is an issue before the Tribunal, which is opposite to the three cases cited by Wawanesa.

17In addition to post-104 ACBs, the Tribunal must determine whether the applicant is CAT. The test for catastrophic impairment is complex and involves an in-depth analysis of the medical and other evidence of the applicant’s accident-related impairments. The applicant will only be entitled to post-104 week ACBs if she is found to be CAT. It is clear to me that the Tribunal took the issue of CAT determination into consideration when it exercised its discretion not to order a stay of the hearing. At paragraph 27 of its decision, the Tribunal states:

part of the Tribunal’s mandate is to ensure an efficient, proportional and timely resolution of the matters before it. To allow the applicant to proceed with her application for ongoing attendant care benefits along with her claims for catastrophic determination, is in keeping with this mandate.

18I note that this was the same argument that Wawanesa made when it requested the FSCO arbitrator limit his decision regarding entitlement ACBs to the first two years following the accident.

19I find that the Tribunal correctly balanced the risk of a multiplicity of proceedings and any prejudice to Wawanesa against the rights and needs of the applicant. I find no error in the Tribunal’s decision or how it arrived at it.

The Tribunal did not fail to consider that the same Assessment of Attendant Care (Form 1) would be considered in both proceedings

20Adjudicating an applicant’s entitlement to accident benefits, including ACBs, often involves the consideration of overlapping evidence. This is true because the injuries/impairments sustained in an accident are the same regardless of the benefit that an applicant is seeking entitlement to.

21Contrary to Wawanesa’s submissions, I do not find that the Tribunal failed to appreciate that similar evidence would be considered in the appeal before FCSO and the hearing before the Tribunal.

22The evidence in question is a Form 1 dated June 26, 2014. The Form 1 sets out the amount and type of attendant care services that the applicant claims to be entitled to. The applicant did not submit a second Form 1 until February 12, 2018. Wawanesa argues that the Tribunal will therefore be asked to consider the same Form 1 which was before the FSCO arbitrator. I agree that at first glance there appears to be some overlap. However, I am not persuaded that the Tribunal failed to appreciate this or made an error when it determined that this was not a sufficient reason to stay the applicant’s hearing.

23In paragraph 22 of its decision, the Tribunal correctly notes that the FSCO arbitrator did not consider or make a finding regarding whether the ACBs claimed by the applicant were reasonable and necessary. The FSCO arbitrator instead based his decision of entitlement on whether or not the applicant had established that she “incurred” ACBs. Due to the limited scope of the ACB issue decided by FSCO, the Tribunal determined that the issues in the two proceedings were distinct and therefore could not result in inconsistent findings. I therefore find that the Tribunal did not fail to consider the possibility of overlapping evidence or made a significant error in denying Wawanesa’s request to stay the hearing.

The Tribunal did not misconstrue the relief requested

24Wawanesa argues that the Tribunal’s decision should be dismissed because it misunderstood the type of relief Wawanesa was seeking. Wawanesa submits that the Tribunal wrongly concluded that Wawanesa was seeking to preclude the applicant from bringing the issue of entitlement to post 104-week attendant care benefits before it.

25I find no evidence that the Tribunal misunderstood the relief being sought by Wawanesa. In paragraph 4(i) of its decision, the Tribunal states that Wawanesa is asking the Tribunal to “stay” the application for post-104 week attendant care benefits. Again, at paragraph 13, it states that the respondent submits that the application should be stayed to avoid a multiplicity of proceedings. I find that the Tribunal made no error in this regard.

CONCLUSION

26I am not persuaded by Wawanesa’s request for reconsideration. I find that the Tribunal acted within its authority and mandate, properly weighted the interests of the parties and provided clear and sufficient reasons for its decision not to stay the applicant’s hearing.

27For the above reasons, I deny the request reconsideration.

Heather Trojek Vice Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1Pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10 and Ontario Regulation 664.
2. 2Prior to the Tribunal being granted exclusive jurisdiction over accident benefits disputes, on April 1, 2016, parties were required to undergo mandatory mediation at FSCO before proceeding to arbitration or commencing a civil action.
3. 3Transcript of the FSCO hearing at tab 5 of Applicant’s Reconsideration Brief.
4. 4Decision of October 30, 2017 from Arbitrator Alan Smith at tab 2 of the Respondent’s Reconsideration Brief.
5. 5LAT Decision 17-005611/AABS (M.C. and Wawanesa), May 18, 2018.
6. 6Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
7. 7s. 25.1 (1) and (2) of the Statutory Powers Procedure Act (SPPA), RSO 1990.
8. 8Wasiela v. Wawanesa Mutual Insurance Co., {2015} O.F.S.C.D. No. 83, Insurer’s Written submission, Tab 11, Bhutta v. Economical Mutual Insurance Co., {2009} O.F.S.C.D. No.87, Insurer’s Written Submissions, Tab 12; Keffer v. Wawanesa Mutual Insurance Co., {2009} O,F.S.C.D. No 45, Insurer’s Written Submissions, Tab 13.