Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
i. Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes ii. 77 rue Wellesley Ouest, 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: Jonathan Batty, Associate Chair
File: 18-006654/AABS
Case Name: J. P. v. Royal Sun Alliance Insurance (RSA)
Written Submissions By:
For the Applicant: Peter Murray, Campisi LLP
For the Respondent: Pamela Brownlee, AMR LLP
Introduction
1The applicant requests reconsideration of a Case Conference Order made on November 19, 2018 (and released November 23, 2018).
2At the case conference, the adjudicator ordered a preliminary issue be heard and decided before proceeding to a hearing on the merits of the application. The preliminary issue is whether the applicant is barred from proceeding with his application on the basis of failing to attend Insurer Examinations (IEs) as per section 55 of the SABS. The adjudicator ordered that the preliminary hearing take place in writing.
3During the case conference, the applicant requested that the respondent produce the contracts between itself and HVE Healthcare Assessments (“HVE”) which was to perform the IEs on its behalf. The adjudicator denied this request on the basis that the contracts are not relevant to the preliminary issue.
4By way of reconsideration, the applicant seeks an order that:
a. the respondent produce a copy of the contract it entered into with HVE; and,
b. the preliminary issue hearing be heard orally.
5Pursuant 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.
6For the reasons that follow the applicant’s request for reconsideration is denied.
The Facts
7The applicant was involved in a motor vehicle accident on December 29, 2015.
8The applicant submitted an Application for Determination of Catastrophic Impairment (OCF 19) dated April 6, 2018.
9The respondent scheduled a pre-screen paper review by its assessor, Dr. Khaled. The applicant did not consent to this assessment on the basis that the respondent’s use of HVE was “unlawful”. Dr. Khaled conducted a pre-screen paper review regardless and prepared a report dated May 26, 2018 recommending a variety of assessments. The applicant subsequently refused to attend the scheduled in-person assessments.
Decision and Reasons
10Rule 18.1 of the Rules of Practice and Procedure requires a request for reconsideration to include the reasons for the request, specifying the criteria under Rule 18.2.
11The criteria for reconsideration under Rule 18.2 are as follows:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) 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;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
12As I have noted in 16-002782/AABS v. Aviva Canada Insurance, 2018 CanLII 39370 (ON LAT), this rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. If faced by such circumstances, the reconsideration process serves a curative role. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution.
13A party seeking a reconsideration has a high onus to meet to engage this remedy. Minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. It is only warranted in cases where an adjudicator has either 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.
14I find that the applicant has not met any of the above criteria for granting a reconsideration.
(i) Denial of Production Order
15The applicant’s position is that the contract between the insurer and HVE is unlawful. The insurer contracted with HVE to provide assessment services. The applicant submits HVE, as an entity, is not a "regulated health professional” and for this reason the applicant was not required to attend the IE at issue because the assessment does not comply with section 44 of the SABS.
16Section 44 of the SABS states that: “For the purposes of assisting an insurer… an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals …” The applicant, in effect, submits that an insurer cannot retain a third party which contracts with regulated health professionals to perform IEs.
17Section 44 of the SABS does not prohibit insurers from retaining third party service providers to conduct IEs. A third party service provider could directly employ persons, or retain independent contractors, to do so. The legal requirement is that whoever actually performs the assessment must be a regulated health professional.
18In this case, the paper review, which resulted in the recommendation that further assessments be conducted, was arranged by HVE and done by Dr. Khaled. He is a regulated health professional. There is no reason to assume that the subsequent assessments would have been performed by someone who is not a regulated health professional.
19I agree with the respondent that an assessment performed by a regulated health professional, who is employed or retained by third party service provider under contract with an insurer, is an agent of that insurer. HVE and the assessors selected to conduct the IEs are agents of the respondent. The use of HVE was for the purpose of carrying out functions pursuant to section 44 of the SABS on behalf of the respondent. In this case, the applicant’s reasons for seeking production of the contract between HVE and the insurer are not relevant.
20The applicant’s request for reconsideration on this issue is denied.
(ii) Hearing Format
21In respect of the written hearing, there has been no breach of procedural fairness. I find that a written hearing is appropriate for a single issue preliminary hearing of this nature and sufficient to allow parties to provide all relevant evidence.
22Determining hearing format is within the scope and discretion of the case conference adjudicator. During a case conference, the adjudicator has the opportunity to review and clarify the issues in dispute and take submissions from the parties on a variety of procedural issues. S/he is in the best position to assess procedural issues related to the hearing. I do not find that the adjudicator erred in determining that a written hearing was the most appropriate format for the preliminary hearing portion of this case. The parties received adequate notice and had the opportunity to provide submissions at that time.
23The applicant’s request for reconsideration on this issue is denied.
CONCLUSION
24For the reasons noted above, this request for reconsideration is denied.
25A written hearing on the preliminary issue will take place on May 13, 2019. If the parties have concerns or questions about this timing, or the deadlines set out in paragraph 22, they are to contact the Tribunal on or before March 23, 2019 and I will consider and address such matters.
26The parties will serve their written submissions and evidence on each other and file with the Tribunal according to the following timetable:
Applicant’s submissions and evidence due: April 22, 2019
Respondent’s submissions and evidence due: May 6, 2019
Applicant’s reply submissions (if any) and evidence due: May 13, 2019
27The parties submissions will not exceed 15 pages, double spaced, 12 point, Arial or Times New Roman font. The applicant’s reply submission will not exceed 5 pages. The page limits are exclusive of evidence and case law. The hearing adjudicator may not consider submissions which exceed the page limits.
28Submissions must make pinpoint reference to the evidence and law by tab and page number. Evidence not so referenced may not be reviewed by the hearing adjudicator.
29As reflected in the original Case Conference Order, it is understood affidavit evidence will not be submitted. Additionally, clinical notes and records will not be submitted in their entirety but will be limited to only those pages that are referenced in submissions.
30Finally, the hearing adjudicator will have the discretion to modify these procedural requirements as the adjudicator sees fit.
Jonathan Batty Associate Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: March 11, 2019