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
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes
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: Rebecca Hines, Adjudicator
File: 17-007909/AABS
Case Name: D.P. v. Chieftan Insurance
Written Submissions by:
For the Applicant: Frank E. Van Dyke, Counsel
For the Respondent: Jocelyn Tatebe, Counsel
OVERVIEW
1The applicant was injured in a car accident on January 31, 2017. The applicant was denied certain benefits and filed an application for dispute resolution to the Licence Appeal Tribunal (the “Tribunal”). The parties were unable to resolve the matter at a case conference so the matter proceeded to an in-person hearing in August 2018 in Belleville, Ontario. The issues in dispute included whether the applicant sustained a minor injury, as well as her entitlement to an income replacement benefit (IRB) and two treatment plans for occupational therapy and chiropractic treatment.
2The Tribunal released its decision on December 11, 2018 and determined that the applicant’s impairments fell outside of the minor injury guideline (MIG) due to chronic pain. The Tribunal also found the two treatment plans reasonable and necessary, but determined that she was not entitled to an IRB.
3The applicant has requested a reconsideration of the Tribunal’s decision on the IRB issue. The applicant argues that the Tribunal violated the rules of natural justice and procedural fairness and made a significant error of fact or law as it applied the incorrect legal test in denying the applicant’s entitlement to an IRB.
4The respondent objects to the request for reconsideration stating that the Tribunal’s decision is correct. It takes the position that the applicant’s request is an attempt to reargue her case which ultimately failed at the hearing. Further, she failed in her onus to prove that the Tribunal made a significant error in fact or law or violated the rules of procedural fairness and natural justice.
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 granted.
7I order that this matter go back before the original panel members of the Tribunal to redetermine the applicant’s entitlement to an IRB.
LEGAL TEST
8The grounds for a Request for Reconsideration are contained in section 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
9The section states a Request for Reconsideration will not be granted unless one or more 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.
10The applicant argues that the Tribunal violated the rules of natural justice and procedural fairness and made a significant error of law or fact as it applied the incorrect legal test in denying the applicant’s entitlement to an IRB. Specifically, the Tribunal disregarded the applicant’s experts’ reports because they failed to explicitly address the legal test for entitlement to an IRB as set out in the Schedule in their reports. The applicant asserts that it is well settled law that expert witnesses are not to determine the ultimate issue before the Tribunal. In addition, the applicant contends that the Tribunal failed to consider other relevant evidence or provide fulsome reasons in its decision. Had the Tribunal not made these errors, the Tribunal would have decided in the applicant’s favour. Therefore, the applicant is entitled to a reconsideration pursuant to section 18.2 (a) and (b) of The Rules.
ANALYSIS
Did the Tribunal’s decision violate Rules 18.2 (a) and/or (b) regarding its determination of the IRB issue?
11For the reasons that follow, I find the Tribunal breached Rule 18.2 (b) in that it made a significant error in its findings of fact by misapprehending the evidence in determining the applicant’s entitlement to an IRB. I find the Tribunal did not properly assess or give appropriate weight to the applicant’s experts’ reports. In short, the Tribunal ultimately rejected this evidence on the basis that the experts did not address the substantial inability test for entitlement to an IRB. There are two problems with this. First, I agree with the applicant that this is a legal test which is ultimately up to the Tribunal to decide based on all of the facts and evidence before it. Second, the Tribunal did not adequately look at the substance of the reports. The Tribunal did not properly analyze and consider all of the evidence and provided insufficient reasons for its decision on the issue of the applicant’s entitlement to an IRB. In addition, the Tribunal overlooked evidence that was consistent with other evidence elsewhere. I find the Tribunal’s decision in respect of IRBs inconsistent with its findings on impairment and function in regards to its findings on the MIG and medical benefits.
12I find in its analysis of the applicant’s three main expert reports the Tribunal specifically acknowledged that it placed less weight on the reports because the experts failed to address the substantial inability test.1 The applicant submitted the decisions of R v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R.9 and Graat v. R. [1982] 2. S.C.R. 819, 1982 CanLII 33 (SCC), 144 D.L.R.(3d) 267,45 N.R.451 as authority. These decisions quote excerpts from “The Law of Evidence in Canada2” and the applicant maintains that these authorities support her position that it is settled law that expert witnesses are not to address the ultimate issue or legal test before the Courts or Tribunal.
13The respondent argued that the case law relied upon by the applicant is distinguishable as they are both criminal cases heard before the Supreme Court of Canada (SCC).3 The respondent contends that the rules of evidence in a criminal trial before the SCC are more stringent than the rules of evidence before the Tribunal. The respondent quoted Rule 3.1 in support of its position that the Rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s initiative. Further, Rule 10 allows for experts to testify and to provide such additional evidence as the Tribunal may reasonably require.
14While I agree that the case law submitted by the applicant is distinguishable in that they deal with the admissibility of evidence in criminal court cases before the SCC, I agree with the legal principle highlighted by those decisions that it is not a witness or medical expert’s job to establish whether a legal test has been met.
15In my view, the role of witnesses and medical experts is to provide medical diagnoses and opinions with respect to how an individual’s disability or diagnosis impacts their ability to function. While the medical expert may have a medical opinion it is the role of the Tribunal to assess the value of that opinion and determine the facts, the consistency of the evidence, assess the credibility of the witnesses and apply the law to the ultimate issue to be decided. Simply put, none of the medical experts in this case were experts in applying the Schedule to determine whether the applicant has a “substantial inability to do the essential tasks of her employment.” This is the job of the expert Tribunal. While the respondent submits that the case law submitted by the applicant was distinguishable it ultimately agreed in its submissions that it is not for an expert witness to determine the issue at hand.4
16I find that a close review of the Tribunal’s decision reveals that the clear and overriding basis in the Tribunal’s determination is that the applicant did not meet her onus because her expert reports did not address the substantial inability test. The respondent argues that the Tribunal properly considered and weighed all of the evidence and considered these reports. I find that the Tribunal’s reasons for its decision is lacking in this regard and found its determination on the issue inconsistent as it did not reconcile with the findings of fact made earlier in its decision pertaining to its determination on the MIG and medical benefits in dispute.
17For example, the Tribunal found the applicant to be an honest and credible witness and made the following findings:
The applicant suffers from chronic pain which removes her from the MIG;5
The applicant consistently reported her complaints of pain and that she is unable to sleep for longer than three hours per night due to pain since the accident;6
The applicant was consistent with reporting the distress and functional limitations that her pain is causing…She suffers from fatigue, headaches and a decline in her mood which she describes as “depressed.” … that she is socially isolating herself because of the difficulties she encounters with self-grooming;7
The respondent’s occupational therapist testified that due to the applicant’s limitations, she was unable to participate in a large portion of the functional testing because of her inability to complete the tasks;8
The applicant was unable to care for her autistic son and was unable to pay for outside agencies because she is not working;9
The Tribunal found the treatment plan for occupational therapy reasonable and necessary as the applicant could not independently bathe, dress herself or do household chores.10
18Finally, I find that the decision does not give fulsome reasons with respect to why the Tribunal preferred the respondent’s evidence over the applicants’ in relation to its determination of the IRB issue. The Tribunal’s decision is silent on the respondent’s denial of the applicant’s IRB and why it preferred the reports of the respondent’s insurer examiners (IE) over the applicants. Of note is the respondent’s IE doctor does refer to the legal test and finds that the applicant does not have a substantial inability to do the essential tasks of her employment.11 However, this alone is not determinative of the issue. In any event, the decision does not provide clarity as to why this evidence was preferred.
19The onus was on the applicant to prove on a balance of probabilities that her left arm impairment and chronic pain prevented her from doing the essential tasks of her employment. The Tribunal highlights that the applicant’s experts had very little information regarding the applicant’s employment but was it really required as the applicant never went back to work. The essential tasks of her employment were simple and straightforward. The Tribunal needed to address based on all of the evidence and facts before it whether the applicant’s chronic pain affected her ability to do the essential tasks of her employment. More importantly did the applicant require the use of her left arm to type, sit for long periods of time and answer customer complaints. I am not making a finding in this regard. This matter was before two qualified panel members with expertise in the subject matter. However, I find the Tribunal erred by leaving it to the experts to decide the issue. The applicant has a right to understand why and how the decision makers came to their determination. While I agree that the Tribunal does not have to provide all reasons for its decision, I find in this case a fulsome analysis was missing.
Remedy
20Rule 18.4 gives me broad discretion to order a fair remedy to correct the error. As already highlighted above this was an oral hearing before a panel of two. I am not privy to all of the oral testimony that was presented during the course of the hearing or how that testimony impacted the Tribunal’s ultimate decision. No transcripts were submitted by the applicant on this request for reconsideration. Therefore, I order that this matter be sent back to the panel members who heard the matter so they can take the above factors into consideration, correct its errors and complete the analysis on the IRB issue.
CONCLUSION
21For the reasons noted above, I grant the applicant’s Request for Reconsideration.
22This matter is referred by back to the panel who heard the matter to redetermine the applicant’s entitlement to an IRB.
Rebecca Hines Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: July 12, 2019
Footnotes
- 17-007907 Decision, paragraphs 54, 55 and 57.
- J.Sopinka, S.Lederman, A.Bryant, The Law of Evidence in Canada (2nd ed-1999) Pages 634 and 635.
- R. v. Mohan dealt with an expert testifying in a sexual assault case of a doctor on patients. In that case the expert gave an opinion with respect to whether the accused fit the psychological profile of the perpetrator. R v. Graat dealt with a police officer giving an opinion on the alcohol impairment of the accused.
- Respondent’s submissions in response to the Request for Reconsideration, page 19.
- 17-007907 Decision, paragraph 29.
- Ibid, paragraph 23
- Ibid, paragraph 26
- Ibid, paragraph 27
- Ibid, paragraph 28
- Ibid, paragraph 39
- Dr. Marchuk’s IE report dated September 12, 2017, page11.