S.B. v. Aviva Insurance Company, 2019 CanLII 101607

Tribunals Ontario Safety, Licensing Appeals and Standards Division

Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes

Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Chloe Lester, Vice-Chair

Date: October 9, 2019

File: 17-001414/AABS

Case Name: S.B. v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Michael Yermus, Yermus and Associates

For the Respondent: Jason Frost/Jessica Green, Schultz Frost LLP

OVERVIEW

1This request for reconsideration arises from a decision of the Licence Appeal Tribunal (the “Tribunal”) denying that the applicant’s injuries fall outside the Minor Injury Guideline (“MIG”) and medical benefits. The applicant now asks that I reconsider the Tribunal’s order and order a new hearing.

2Pursuant 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 matter.

3As explained below, I grant this request for reconsideration.

FACTS

4The applicant filed a request for reconsideration in this matter on March 15, 2018 in respect of a decision dated February 22, 2018.

5The applicant applied to the Tribunal on the issues of MIG, non-earner benefit (“NEB”) and medical benefits. The issue of MIG was mistakenly included in their application to the Tribunal. This error was then included in the case conference report and order. The matters proceeded to an in-person hearing with written submissions. The adjudicator’s decision found the applicant to be in the MIG, denied the entitlement to NEB and determined the applicant was not entitled to medical benefits. The decision is silent on the reasonableness and necessity of the treatment plans for medical benefits.

6The applicant requests the decision be reconsidered on the basis that there is an error in fact and law. The applicant was already removed from the MIG from a psychiatrist insurer’s examination dated May 26, 2015. The applicant argues the adjudicator decided an issue that was not properly before him, he failed to fully consider the evidence fully including the documents which resulted in an error in fact and law.

7The respondent argues that although it would have been preferable for the adjudicator to comment on reasonableness and necessity of the treatment plans, the result would have been the same. The adjudicator found the applicant sustained minor injuries and was not adequately convinced of the ongoing need for medical benefits. If the request for reconsideration is granted the respondent asks that for efficiency, proportionality and timely resolution of the file the treatment plans be decided by the same adjudicator who heard the hearing.

DECISION AND REASONS

8Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2.

9Under Rule 18.2, one or more of the following four grounds needs to be established:

1. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

2. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

3. 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,

4. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.

10The rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.

11Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

12Both parties agree that the question of whether the applicant’s impairments fall within the MIG was not in issue in this case. The respondent had removed the applicant from the MIG prior to the hearing. This was an error of fact in the decision issued by the Tribunal. Due to that error, the treatment plans were not adjudicated. The applicant requests that a new hearing be ordered, and a new adjudicator be assigned.

13The respondent claims that even though the adjudicator did not consider the reasonableness or necessity of the treatment plans the results would have been the same. The adjudicator found that the applicant suffered from soft tissue injuries and therefore did not adequately convince the Tribunal the applicant should be entitled to further benefits. If the Tribunal finds that an error had been committed which allows the issues to be heard, they should be heard before the same adjudicator as he is seized of the hearing. This allows for a timely and cost effective resolution of the issues.

14The applicant argues and disagrees because that adjudicator failed to consider all the material facts in this matter, he made what they feel is an inexcusable error and therefore the issues should be adjudicated in front of another member.

15The adjudicator made an error of fact which led to several treatment plans not being adjudicated. Even though the application and case conference report listed the MIG as in issue in dispute, it is clear from the submissions of the parties that the issue had resolved prior to the hearing. This was a simple mistake by the adjudicator. As one of the mandates of the Tribunal is to ensure efficient, cost effective and timely resolution of issues in dispute, it is only reasonable to for the adjudicator seized of this matter to adjudicate the issues. Just because an adjudicator made an error does not mean he cannot impartially adjudicate the issues. I see no reason why a new hearing must be ordered.

16I order the seized adjudicator re-issue a decision solely on whether the treatment plans are reasonable and necessary. The adjudicator will render the decision based on the submissions and evidence already before the Tribunal. The parties are not required to do anything else.

Chloe Lester Vice-Chair

Licence Appeal Tribunal