RECONSIDERATION DECISION
Before: Robert Watt
File: 17-009034/AABS
Case Name: J.Y. and Aviva Insurance Canada
Written Submissions by:
For the Applicant: Fawad Siddiqui
For the Respondent: Catherine Zingg
OVERVIEW
1This Request for Reconsideration was filed by the insured, the applicant in this matter.
2It arises out of a decision dated February 28, 2019, in which the Tribunal dismissed the applicant’s claims.
3The applicant submits that the decision should be reconsidered for the following reasons:
a. The Tribunal violated the rules of natural justice by not reviewing the applicant’s written submissions prior to issuing its decision.
b. The Tribunal incorrectly made uses of surveillance evidence submitted by the respondent.
c. The Tribunal applied the wrong test for the determining eligibility of the IRB and;
d. The Tribunal misinterpreted the medical evidence for the applicant’s claims for a Work Site Assessment and a Functional Abilities Evaluation.
4The applicant is seeking an order varying the Tribunal’s decision.
5Pursuant 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
6The applicant’s Request for Reconsideration is dismissed.
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.
8The applicant’s request for reconsideration is based on the following:
(a) The Tribunal 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;
The applicant’s written submissions were not provided prior to the decision of the Tribunal
9The order of Adjudicator Norris issued at the case conference held on May 15, 2018, stipulated that “the parties will make written submission following the oral hearing.” The subsequent order of Adjudicator Maedel dated August 1, 2018, on a motion by the applicant to add four witnesses was granted on consent and confirmed that the terms of the order of Adjudicator Norris remained in full force and effect.
10At the end of the oral hearing the Tribunal asked the applicant when he could get his written submissions in. There were discussions between the parties about needing to wait for the transcripts.
11The respondent provided the applicant with the transcripts on October 18, 2018.
12The Tribunal followed up with both parties by letter on November 19, 2018, reminding the parties to submit their written submissions.
13I am not satisfied that the Tribunal violated the rules of natural justice or procedural fairness. The applicant was given clear notice from the order of Adjudicator Maedel that written submissions were required after the oral hearing. The applicant made no request at any time for an extension of time to provide the required submissions. The applicant was reminded again by letter dated November 19, 2018, from the Tribunal, that written submissions were to be sent in. The applicant had sufficient time to get any written submissions in before the decision was written but chose not to do so. The LAT Rules, Rule 3.1 requires every Tribunal to ensure efficient, proportional, and timely resolution of the merits of the proceedings. The Tribunal is not required to wait indefinitely for any party to make written submissions on their own timetable. There was no additional information in the applicant’s submissions, that would have changed the Tribunal’s decision.
The Tribunal incorrectly made use of surveillance evidence submitted by the respondent for the IRB claim
14The surveillance evidence submitted by the Respondent was not taken during the period from April 27, 2016 to July 25, 2017, which is the time period for which the applicant was claiming IRB benefits. The surveillance evidence however was only one factor mentioned in the analysis of the Tribunal’s decision and related to the issue of the applicant’s ability to return to work and what he was capable of doing. The main evidence accepted by the Tribunal for its decision for the time frame in question were the admissions given by the applicant and his son about the applicant’s going back to work set out in paragraphs [10] and [11] of the decision. This evidence was also supported by the applicant’s tax returns showing he was back to work set out in paragraph [12] of the decision and the medical evidence of Dr. Iqbal, indicating that the applicant was back working.
15I therefore find that there was no significant error of law or fact relating to the review of the surveillance footage, such that the Tribunal would likely have reached a different decision.
The Tribunal applied the wrong test for the determining eligibility of the IRB.
16The Tribunal applied the correct test as set out in sec 5, 6 of the Schedule and set out in paragraph [22] of the decision The Tribunal reference to the Heath v. Economical Mutual Insurance Company case was an error, but it does not affect the result based on the findings of fact. The Tribunal is required under Schedule to look at pre-accident and post-accident abilities to decide whether the applicant can perform the essential tasks of his or her employment. This analysis was correctly determined and is set out in paragraphs [24] and [25] of the decision.
17I therefore find that there was no significant error of law in that the correct test was applied, as set out in the Schedule.
The Tribunal misinterpreted the medical evidence for applicant’s claims for Work Site Assessment and Function Abilities Evaluation
18The applicant submits that the medical report of Dr. Craig Rosenblatt, chiropractor dated June 28, 2018, based on the subjective information of the applicant, should have been accepted. This report indicated that the applicant suffered a serious impairment preventing the applicant from performing his pre-accident work. The Tribunal gave little weight to this report, because the conclusion came from the subjective report of the applicant, which was inconsistent and contrary to the evidence given about his return to work.
19I therefore find that there was no misinterpretation of the medical evidence relating to the applicant’s claims for a Work Site Assessment, and for a Function Abilities Evaluation.
CONCLUSION
20For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Robert Watt
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: July 25, 2019