RECONSIDERATION DECISION
Before: Heather Trojek, Vice Chair
File: 18-000725/AABS
Case Name: R.D. v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Paul Wilkins, Counsel
For the Respondent: Kevin Griffiths, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises from a Tribunal decision on a preliminary issue. The Tribunal decided that the applicant could not proceed to a hearing regarding his entitlement to attendant care benefits and home modifications because he failed to attend insurer examinations (IEs) scheduled under section 44 of the Schedule.1
2The applicant submitted that he was unable to attend the IEs in question because his mental health and physical impairments prevent him from attending any assessments which are not therapeutic in nature.
3The Tribunal was not persuaded by the medical evidence submitted by the applicant. It suspended the applicant’s right to dispute entitlement to attendant care benefits and home modifications until he attended the IEs requested by the respondent. The Tribunal allowed the applicant to proceed to a hearing on his entitlement to housekeeping and home maintenance benefits.
4The respondent opposes the applicant’s request for reconsideration and submits that the applicant has failed to provide any basis upon which the Tribunal’s decision should be reconsidered.
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 for the reasons provided below.
BACKGROUND
7The applicant was designated as catastrophically impaired as a result of his involvement in an accident which occurred on December 17, 2013.
8The applicant attended seven medical assessments at the request of his counsel prior to March 27, 2018.
9On February 21, 2018 the respondent served the applicant with notice under section 44 of the Schedule of its request for him to attend three IEs. The purpose of the IEs was to assess his entitlement to attendant care benefits and home modifications. The applicant did not attend any of the assessments.
10In a letter dated March 27, 2018, the applicant’s family doctor stated that it would be detrimental to the applicant’s mental and physical well-being for him to attend non-therapeutic examinations.
11The applicant applied to the Tribunal disputing the respondent’s refusal to pay certain benefits. The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a preliminary issue hearing which was conducted in writing.
ANALYSIS
12The 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 grounds that the applicant argues apply to this case are as follows:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness; and
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
13More specifically, the applicant argues that the Tribunal erred because it:
c. failed to consider the importance of the Ontario Human Rights Code and section 55 (2) of the Schedule;
d. did not consider the totality of the medical evidence particularly medical reports which deemed the applicant to be catastrophically impaired; and
e. ordered the applicant to participate in litigation-related medical examinations which his doctor deemed to be detrimental to his mental and physical well-being
14I am not persuaded in any way by the arguments made by the applicant.
The Ontario Human Rights Code (“the Code”)
15I find that the Tribunal diligently and thoroughly addressed the importance of the Ontario Human Rights Code in this matter. As the respondent correctly points out, it was the Tribunal, not the applicant, that initially raised concerns that the Code may apply.
16After the parties filed their initial submissions, the Tribunal on its own initiative, requested that the parties file supplementary submissions on the Code and how the applicant’s medical conditions could be accommodated.
17Ultimately the Tribunal found, as stated in paragraph 25 of its decision, that it could not make an accommodation order due to the lack of medical evidence in relation to same. In his request for reconsideration, the applicant submits that the Tribunal failed to adequately consider the accommodations options presented by the applicant. The applicant’s submissions on this issue are vague and failed to direct to me to what accommodation options the Tribunal allegedly failed to consider.
18I find no merit in the allegations made by the applicant and dismiss the request to reconsider the Tribunal’s decision because it failed to consider the importance of the Code.
Section 55 of the Schedule
19The applicant alleges that the Tribunal failed to properly consider section 55(2) of Schedule which “contemplates” that the Tribunal can permit applicants to proceed to a hearing without attending IEs. The applicant made no submissions to support this allegation.
20Having reviewed the Tribunal’s decision, I completely agree with the Tribunal’s handling of Section 55 the Schedule. In paragraphs 21, 22 and 23 of its decision the Tribunal correctly states that the Tribunal’s Rules, the jurisprudence2 and section 55 of the Schedule, dictate that it would be procedurally unfair to deny either party the right to submit medical reports in response to those filed by the other. I agree.
21The Tribunal found that the applicant simply did not submit enough medical evidence to support that he should be able to proceed with a hearing without attending the in-person IEs requested by the respondent. To support this finding the Tribunal referred to the medical evidence submitted by the applicant and the fact that the applicant had attended seven medical assessments that were requested by his counsel. I find no evidence that the Tribunal failed to properly consider the facts of this case when applying section 55(2) of the Schedule.
22I find that the Tribunal was also correct in rejecting the procedural fairness arguments advanced by the applicant in his hearing submissions and again in his request for reconsideration. In terms of not attending the in-person IEs, the applicant argued that the respondent was not prejudiced because it could conduct paper-based assessments. In addition, the applicant submitted that the respondent could call and/or cross-examine the applicant’s medical experts in place of calling its own. The Tribunal found, based on the medical evidence before it, that the alternatives proposed by the applicant, would unduly prejudice the respondent’s ability to present its case to the Tribunal. Contrary to the submissions of the applicant, I find the Tribunal balanced the rights of both parties fairly and judiciously. As a result, I dismiss the applicant’s request for reconsideration on the grounds that the Tribunal violated rules of natural justice and procedural fairness.
Totality of Medical Evidence
23I find no support for the applicant’s claim that the Tribunal failed to consider the totality of the medical evidence in arriving at its decision. The applicant specifically argues that the Tribunal did not consider Dr. Rosenblatt’s opinion that the applicant is catastrophically impaired, Dr. Feinstein’s report and Dr. Hayami’s letter.
24In paragraphs 11 and 20 of its decision, the Tribunal respectively refers to the findings of Dr. Rosenblat and the psychiatric diagnosis of Dr. Feinstein. In paragraph 13, the Tribunal summarizes at length the contents of the March 27, 2018 letter written by the applicant’s family physician, Dr. Hayami. The Tribunal finds that Dr. Hayami’s letter did not provide a detailed enough explanation of why the applicant’s mental and physical disabilities prevent him from attending non-therapeutic assessments. The Tribunal’s decision focused on Dr. Hayami’s letter because it was the only medical evidence adduced by the applicant which was directly relevant to the issue to be determined by the Tribunal. The applicant relies on bald allegations to support his request for reconsideration but again fails to point me to any specific or relevant medical evidence that the Tribunal allegedly failed to consider in arriving at its decision.
25Based on the above, I have no reason to doubt that the Tribunal discharged its duty and fully considered the totality of the relevant medical evidence before it.
Attendance at Medical Assessments
26The applicant argues that the Tribunal erred because it decided that he must attend the IEs requested by the respondent before proceeding to a hearing. In other words, the applicant thinks that the Tribunal made a mistake because the Tribunal did not agree with his position. This is not an error nor is it a proper ground upon which to grant a request for reconsideration.
27The Tribunal has made it clear in many former requests for reconsideration that the reconsideration process is not to provide the losing party with an opportunity to have its case reheard.
CONCLUSION
28For the reasons noted above, I dismiss the applicant’s request for reconsideration. I find that the applicant has failed to establish that the Tribunal violated the rules of natural justice or made any error in law or in fact, such that its decision should be overturned.
Released: July 30, 2019
Heather Trojek Vice Chair
Footnotes
- O.Reg. 34/10: Statutory Accident Benefits Schedule – effective September 1, 2010
- Certas v Gonsalves [2011] O.J. No; 3290 (Div. Ct.)