S.M. v. Aviva Insurance Canada, 2019 CanLII 34592

RECONSIDERATION DECISION

Before: Heather Trojek, Vice Chair

Date: March 19, 2019

File: 17-003731/AABS

Case Name: S.M. v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Michael Brill, Counsel

For the Respondent: Amanda R.M. Faulkner, Counsel

OVERVIEW

1This Request for Reconsideration was filed by S.M., the applicant in this matter. It arises out of a decision in which the Tribunal found that the applicant was not entitled to non-earner benefits ("NEBs")¹, a number of medical benefits and interest. The applicant submits that the Tribunal’s decision regarding her entitlement to NEBs is incorrect and requests that I send the matter back to be re-heard.

2Aviva, the respondent, submits that the Tribunal’s decision is correct and the relief sought by the applicant should be denied.

3Pursuant 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.

RESULT

4The applicant’s Request for Reconsideration is dismissed.

BACKGROUND

5The applicant was involved in an accident on February 9, 2016. Prior to the accident the applicant was a home-maker. Her pre-accident activities included cleaning, cooking and grocery shopping. The applicant sustained physical and psychological injuries², as a result of the accident. She also complained of pain.

6After being denied entitlement to benefits by the respondent, the applicant submitted an application to the Tribunal. The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a written hearing. The decision rendered following that hearing is the subject of this Request for Reconsideration.

ANALYSIS

7The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. The ground that the applicant argues applies to this case is as follows:

a. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.

8Specifically, the applicant argues that the Tribunal erred:

b. in law, because it failed to properly consider the complete legal definition of NEBs contained in the Schedule³; and

c. in fact, because it failed to properly consider the facts of the case which establish that the applicant is entitled to NEBs.

9I do not agree with the applicant’s submissions. I find that the Tribunal did not make an error in law or in fact in rendering its decision. The applicant has failed to establish any grounds upon which the Tribunal’s decision should be overturned, her Request for Reconsideration is therefore dismissed.

The Tribunal properly considered the legal test for entitlement to NEBs

10Contrary to the applicant’s submission, I find that the Tribunal applied the correct and complete test for NEBs contained in the Schedule and in the case law when analyzing the evidence and rendering its decision. The Tribunal, in paragraph 5 of its decision, correctly states that in order to qualify for NEBs the applicant must establish that as a result of the accident she has a complete inability to carry on a normal life. The Tribunal accurately defines a complete inability as one that continuously prevents the applicant from engaging in substantially all the activities in which she engaged in prior to the accident. These are the exact criteria to be met for NEBs, set out in the Schedule. The applicant has failed to persuade me that the Tribunal failed to apply them.

11I am satisfied that the Tribunal considered and applied the principles established by the Court of Appeal for determining the applicant’s entitlement to NEBs. As in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, the Tribunal compares the applicant’s pre-accident activities to her post-accident activities in order to assess whether she has a complete inability to carry on a normal life. In paragraph 11 of its decision, the Tribunal, for ease of reference, includes a chart which outlines the applicant’s pre-and post-activities of daily living. Based on the contents of this chart, I find that the Tribunal applied the approach established in Heath to the evidence before it.

12In her Request for Reconsideration, the applicant took issue with the above-noted chart. The applicant argues that she provided a chart listing the activities that she performed before and after the accident and that the Tribunal disregarded it. I disagree. I find that the Tribunal reviewed the evidence in the applicant’s chart and in fact synthesized that evidence in the chart contained in paragraph 11 of its decision.

13The applicant also argues that the Tribunal made an error in law because it did not cite or apply the principles established in the case of Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508 ("Galdamez"). Galdamez establishes that the Tribunal must consider the importance of pre-accident activities in the applicant’s life prior to the accident when determining entitlement to NEBs. The Court of Appeal in this decision, also points out that an applicant does not have to have a complete inability in literally "all" activities in order to meet the test for entitlement to NEBs.

14I do not agree with the applicant’s submissions regarding Galdamez. Although the Tribunal does not refer specifically to Galdamez in its decision, I find that this was not an error in law for the following reasons:

i) Many of the concepts and principles set out in Heath, which the Tribunal did cite, are similar to those contained in Galdamez. In both decisions, the Court of Appeal directs decision-makers to assess the importance of pre-accident activities in the lives of applicants and the extent that the applicant is realistically able to participate in those activities after the accident.

ii) Practically, the Tribunal applied the principles contained in Galdamez. In paragraph 26 of its decision, the Tribunal states that the evidence supports that the applicant is able to continuously engage in her pre-accident activities in a "meaningful way" (emphasis mine). Based on the evidence before it, the Tribunal was satisfied that after the accident the applicant was able to socialize, engage in housekeeping and care for herself. The Tribunal’s reference to the applicant’s ability to do so in a "meaningful" way satisfies me that the Tribunal applied the principles established by the Court of Appeal in rendering its decision.

iii) The Tribunal notes in paragraph 12 of its decision that it afforded equal weight on all the activities the applicant participated in because she failed to provide evidence regarding which were more important to her. The Tribunal’s finding, which it was entitled to make, demonstrates that its analysis was guided by Heath and consistent with Galdamez.

iv) It is also trite law that the Tribunal in its reasons is not required to refer specifically to every argument or piece of jurisprudence it considered in arriving at its decision.

15In this case, the Tribunal applied the correct test for NEBs as defined by the Schedule together with the principles outlined in the relevant decisions of Heath and Galdamez. For the reasons noted above, the applicant has failed to persuade me that the Tribunal made any errors in law such that its decision should be sent back for re-determination.

The Tribunal did not make any errors in fact

16Rather than point me to an error in fact that the Tribunal made, what the applicant is essentially attempting to do in her Request for Reconsideration is to re-argue her case. Almost half of the applicant’s submissions in her Request for Reconsideration are devoted to reiterating the contents of medical reports that were submitted into evidence at the hearing. The applicant, for instance, spends two pages quoting verbatim excerpts from the medical reports of Dr. Kennedy, Dr. Belyakova, Dr. Gladshteyn, Dr. Koptyo and so on. The role of the Tribunal is to review and weigh evidence and to make a final determination based on its findings. This is not the purpose of the reconsideration process. Disagreeing with how much weight the Tribunal accorded to certain pieces of evidence is not a grounds upon which to grant a Request for Reconsideration nor it a useful way to expend the Tribunal’s resources.

17In this section of her Reconsideration Request, the applicant argues that the Tribunal erred because it failed to consider or properly consider some of the key medical reports that the applicant relied on at the hearing. The applicant, for instance, argues that the Tribunal failed to consider the reports of Dr. Belyakova, psychologist and Dr. Kennedy, internal medicine specialist. Contrary to the applicant’s submissions, I find, as referenced in paragraphs 13, 15, 25, 44, and 45 of its decision, that the Tribunal did in fact consider the evidence of Dr. Belyakova and Dr. Kennedy. The applicant essentially disagrees with the weight that the Tribunal accorded to this evidence. In paragraph 19 of its decision, the Tribunal provides reasons why it chose to give less weight to the medical reports submitted by the applicant and more weight on the medical reports submitted by the respondent⁴. I find no error in how or why the Tribunal made this finding and thus have no reason to interfere with its assessment of the evidence or its decision.

18The applicant also argues that the Tribunal erred because it did not refer specifically to the clinical notes and records (CNRs) of physiotherapist Tom Soules and therefore must not have considered them. Although the Tribunal did not specifically refer to the CNRs of Mr. Soules, I find that this does not amount to an error. My decision is based on the following;

i) In paragraph 14 of its decision the Tribunal confirms that it reviewed and considered two disability certificates (OCF-3s) completed by Mr. Soules. The first OCF-3 indicated that the applicant did not meet the test for NEBs;

ii) My review of Mr. Soules CNRs does not support the finding that even if the Tribunal did not review them that the Tribunal likely would have come to a different decision had it done so. The CNRs of Mr. Soules confirm that after the accident the applicant was participating in activities such as cleaning kitchen cupboards, vacuuming carpets and edging her garden, albeit with pain. I do not find that this evidence supports the applicant’s position that she had a complete inability to carry on a normal life after the accident or that Mr. Soules CNRs support the finding that she did.

iii) As with arguments made by the parties, it is well established in the case law ⁵ that the Tribunal is not required to expressly refer to every piece of evidence before it.

19I find that the Tribunal provided sufficient reasons and explanation for weighing the evidence the way that it did. It is not my role to re-weigh evidence that has already been properly considered by the Tribunal, as the decision maker of first instance. My role is to determine if the Tribunal made an error in fact or law as alleged by the applicant, which in this case I find that it did not.

20Although the applicant is naturally disappointed with the outcome of the hearing, the purpose of the reconsideration process is not to give an unsuccessful party a second opportunity to have its case heard. I find that the applicant has failed to establish that the Tribunal made any error in law or in fact such that its decision should be reconsidered.

CONCLUSION

21For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.

Heather Trojek Vice Chair Tribunals Ontario – Safety Licensing Appeals and Standards Division

Footnotes

1. 1s. 12(1)(1) of the O.Reg. 34/10: Statutory Accident Benefits Schedule – effective September 1, 2010
2. 2Bursitis, tendonitis, adjustment disorder, and driving phobia
3. 3O.Reg. 34/10: Statutory Accident Benefits Schedule – effective September 1, 2010
4. 4The respondent’s assessors provide a thorough review of the applicant’s pre-and-post accident abilities from a physical and psychological perspective.
5. 5See Avery v Pointes Protection Association, 2016 ONSC 6463 (Div. Ct) at para. 94.