AMENDED RECONSIDERATION DECISION
Before: Jesse Boyce, Adjudicator
File: 18-000766/AABS
Case Name: J.L. v. Wawanesa Mutual Insurance Company
Written Submissions By:
For the Applicant: Robert M. Ben & Ian W. Furlong, Counsel
For the Respondent: Darrell P. March, Counsel; Paul C. Omeziri, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, J.L. It arises out of a decision in which the Tribunal found that J.L. did not suffer a catastrophic impairment under the Glasgow Coma Scale as a result of a 2015 accident.
2J.L. submits the Tribunal made a significant error of law that would have resulted in a different outcome when it excluded evidence from video footage of the accident and also erred when it heard misleading evidence from Wawanesa’s expert that did not permit J.L. to recall his expert to give reply evidence.
3J.L. is seeking an order that the Tribunal set aside its decision and order a new hearing on the matter.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act1, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The applicant’s Request for Reconsideration is dismissed.
ANALYSIS
6The grounds for a Request for Reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria are met:
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;
c) 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
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7Here, J.L. argues that Rules 18.2(b) and (c) apply. Specifically, he first submits under 18.2(b) that the Tribunal should have admitted video footage of the paramedic attending at the scene and allegedly administering the Glasgow Coma Scale test he recorded in a later report. Second, J.L. submits under 18.2(c) that the Tribunal should have permitted him to recall his expert neurologist to give reply evidence after allowing Wawanesa’s neurologist to give opinion evidence allegedly not contained in his report.
The Tribunal did not make a significant error of law or fact that would have resulted in a different conclusion when it excluded J.L.’s video footage from evidence
8J.L. argues that the video footage ought to have been admitted into evidence because it was relevant to the issue of whether paramedic Adam Drew administered the Glasgow Coma Scale test at the scene of the accident and that his later report was based on findings made after administering the test as shown in the video. Further, J.L. argues the video should have been admitted as an aide-memoire for Mr. Drew’s testimony. In response, Wawanesa submits that the video is irrelevant and has limited probative value because the issue is not whether J.L. was administered the Glasgow Come Scale test but rather whether J.L. is catastrophically impaired in the face of conflicting medical reports.
9I agree with Wawanesa. The Tribunal did not err when it excluded the video footage from evidence on the basis there was limited probative value and I find its admission into evidence is unlikely to have changed the result of the hearing.
10After reviewing the decision, it is clear the Tribunal’s reasons were based on the conflicting medical reports and the credibility of Mr. Drew’s testimony. There is no disagreement that the test was administered by Mr. Drew shortly following the accident. The disagreement lies in whether J.L. has a score of 15/15—the score Mr. Drew registered three times immediately following the accident—or a score of 8/15, which is the score that Mr. Drew registered in his report from November 2015, three months following the accident and on request of J.L.’s counsel. I find the admission of the video footage—which is not continuous, has no sound and does not alter the fact that the reports have conflicting scores—would not have been probative of the ultimate issue.
11Further, even if the footage were admitted, I fail to see how it would have changed the result since silent video cannot corroborate which Glasgow Coma Scale score was registered at the scene of the accident, which would not help J.L. meet his onus of proving catastrophic impairment. In submissions, J.L. does not offer a compelling explanation why he felt the footage was so needed, other than to aide in Mr. Drew’s memory. In my view, it is unclear what value video footage would provide in that context either, since Mr. Drew testified that he recalls many details of the accident and prepared a contemporaneous report that could have aided his memory just as well. On these facts, I see no reason to interfere with the Tribunal’s decision to exclude the video evidence.
12Accordingly, I find the Tribunal did not err when it excluded the video footage.
The Tribunal did not err under Rule 18.2(c)
13J.L. argues that the Tribunal ought to have permitted him to re-call his expert neurologist, Dr. Meloff, to comment on the evidence given by Wawanesa’s expert neurologist, Dr. Esmail. Specifically, J.L. argues that Dr. Esmail’s opinion evidence went to a material issue beyond the four corners of his report, namely his opinion that Mr. Drew’s November 2015 findings were “highly unusual.” In response, Wawanesa submits that no formal motion was made by J.L. to reopen his case and that Dr. Esmail was only commenting on inconsistencies in the reports and not providing opinion outside of the course of his expertise.
14Again, I agree with Wawanesa.
15First, experts are permitted to speak to inconsistencies and can certainly comment on matters within their expertise. Second, J.L. has not actually demonstrated how Dr. Esmail’s opinion evidence is false or misleading, as required by Rule 18.2(c). Third, J.L. has not explained how Dr. Meloff’s opinion evidence, if he were recalled, could have helped J.L. overcome the myriad other issues identified by the Tribunal in its reasons: the conflicting scores in the reports, why Mr. Drew completed an additional report three months after the accident, how he recalled the allegedly correct scores given the lapse in time and with no documentation of same, etc. In sum, while the hearing transcript does reflect J.L.’s objections, I find the Tribunal’s decision was based on several other factors that received significantly more weight than the “highly unusual” comments from Dr. Esmail that form the basis of J.L.’s reconsideration request.
16On this basis, I find no error under Rule 18.2(c).
CONCLUSION
17For these reasons, the applicant’s request for reconsideration is dismissed.
Jesse Boyce Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 16, 2019
Footnotes
- 2009, S.O. 2009, c. 33, Sched. 5.