C.P. v. Certas Home and Auto Insurance Company, 2020 CanLII 12737

Safety, Licensing Appeals and Standards Tribunal Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Box 250, Toronto, ON M7A 1N3

In Person Service: 20 Dundas St. W., Suite 530, Toronto, ON M5G 2C2

Tel:

416-314-4260

1 800-255-2214

TTY:

416-916-0548

1 844-403-5906

FAX:

416-325-1060

1 844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Boîte n^o 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2

Tél. :

416-314-4260

1 800-255-2214

ATS :

416-916-0548

1 844-403-5906

Téléc. :

416-325-1060

1 844-618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Lori Marzinotto, Vice-Chair

Date: February 18, 2020

File: 17-003172/AABS

Case Name: C.P. and Certas Home and Auto Insurance Company

Written Submissions By:

For the Applicant: Kwaku Bona, Paralegal

For the Respondent: Brian Pak, Counsel

OVERVIEW

1This Request for Reconsideration, filed by the applicant, arises from a written hearing decision dated March 27, 2018 (the “Decision”).

2The applicant has raised a preliminary issue which I will deal with prior to getting into the merits of the reconsideration request.

Applicant’s Preliminary Issue Subsequent to Reconsideration Request

3The Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) confirmed its receipt of the applicant’s reconsideration request and advised the applicant that pursuant to s.17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, (“ATAGAA”) that the Executive Chair delegated authority to another adjudicator of the Safety, Licensing Appeals and Standards Tribunal Ontario (“SLASTO”) to deal with the request.

4I have been delegated responsibility to decide this matter in accordance with ATAGAA and the applicable rules of the Tribunal.

5After receiving the confirmation, the applicant objected to the reconsideration being delegated.

6The applicant indicated that the appeal had been filed prior to October 2, 2017 and therefore the applicable Tribunal Rules (“Rules Version 1”)¹ did not allow the Executive Chair to delegate authority to another adjudicator to deal with the reconsideration.

7The applicant argued that prior to October 2, 2017, the Executive Chair did not exercise the authority to delegate and therefore the only remaining option was to refer the matter back for a fresh hearing.

Result (Preliminary Matter)

8I find that for applications that were filed prior to October 2, 2017, the Executive Chair had the authority to delegate the reconsideration to another adjudicator and the applicant’s request that the matter be reheard is denied.

Analysis (Preliminary Matter)

9Although Rule 18 of the Rules Version 1 indicates that the Executive Chair may reconsider a Tribunal decision and does not specifically use the words “… the Executive Chair or his or her delegate” as stated in the Common Rules of Practice & Procedure, October 2, 2017 (the Common Rules”)², ATAGAA clearly provides the authority to the Executive Chair to delegate.

10The change to Rule 18 in the Common Rules clarified the authority that was already conferred by ATAGAA.

11Section 17(2) of ATAGAA grants authority to the Executive Chair to delegate any power, duty or function to an associate chair or vice-chair that is included in the cluster.

12Section 17(2) of ATAGAA came into force upon Royal Assent given on December 15, 2009 and therefore the Executive Chair’s statutory authority to delegate existed well before the applicant’s appeal and before the applicant’s reconsideration request were filed with the Tribunal. The Executive Chair’s authority to delegate existed independent of Rules Version 1 and the Common Rules.

13The Tribunal is included in the cluster of tribunals entitled “Tribunals Ontario”.³ Effective January 1, 2019, Tribunals Ontario combined 19 tribunals including the Safety, Licensing Appeals and Standards Tribunals Ontario (“SLASTO”) which includes the Tribunal. In addition, s.4 of ATAGAA Reg. 126/10, from January 25, 2011 to December 31, 2018, designated the Tribunal as part of SLASTO.

14Accordingly, as a vice-chair, I have authority to decide the reconsideration request.

RECONSIDERATION REQUEST

Background

15The applicant was injured in an automobile accident on October 30, 2014 and applied for accident benefits, specifically income replacement benefits (“IRBs”).

16The applicant received a lump sum payment of IRBs for the period of November 8, 2014 to June 3, 2015 after which the IRBs were terminated on the basis of insurer examinations (IEs) that found the applicant did not suffer a substantial inability to perform the essential tasks of his self-employment.

17The applicant appealed to the Tribunal and a written hearing occurred.

18In its Decision on the written hearing, the Tribunal found:

i) the applicant was not entitled to Income Replacement Benefits (“IRBs”) beyond June 3, 2015;

ii) the respondent was not entitled to a repayment of IRBs from the applicant in the amount of $2,437.49; and,

iii) the applicant was not entitled to an award under Ontario Regulation 664 or costs.

Applicants Reasons for Seeking Reconsideration

19The applicant filed a request for reconsideration on a number of grounds which I have interpreted⁴ and summarized as follows:

a) The adjudicator erred in law by waiving Rule 10.2 of the Tribunal’s Common Rules and admitting the respondent’s medical reports into evidence when the Acknowledgment of Expert’s Duty form under Rule 10.2 had not been filed;

b) The Tribunal made a significant error in law in requiring the applicant to prove his psychiatric illness and by not drawing an adverse inference when the respondent did not file material in response to the applicant’s affidavit and chronic pain report⁵; and

c) The adjudicator made findings of fact based on the misapprehension of evidence.

20The applicant seeks an Order setting aside the Decision, costs of the hearing and reconsideration and other remedies that the Tribunal may permit.

Result

21A Request for Reconsideration will not be granted unless one or more of the criteria in Rule 18.2 are met. In submissions, the applicant implies that the Tribunal erred by making errors of law and fact and although not specifically stating such, implies that the Tribunal violated procedural fairness.

22Although the applicant requested an Order setting aside the Decision, the only Orders against the applicant in the Decision are the Tribunal’s findings that the applicant is not entitled to IRBs after June 3, 2016 and not entitled to costs or an award under Regulation 664⁶.

23The applicant’s Request for Reconsideration is dismissed. I find that there are no grounds upon which to grant the applicant’s request for reconsideration.

ANALYSIS – Ground (a)

24The applicant argues that the Tribunal erred when it failed to exclude the respondent’s reports⁷ from the IEs conducted by Dr. S.W. and Dr. G.G.⁸ (the “Reports”).

25To summarize the applicant’s submissions, he argues that the respondent did not comply with Rule 10.2(b)(i)(ii) which is mandatory. The applicant argues that the Tribunal erred by ignoring the mandatory nature of the Rule and allowing the Reports to be entered into evidence without both of the Acknowledgement of Expert’s Duty forms.

26The respondent submits that the Reports were not prepared in anticipation of litigation, i.e. they were not expert’s reports, but were reports prepared for the purpose of adjusting the file.

27The Tribunal found that the Reports were not expert reports and therefore at the time they were prepared the Acknowledgement of Expert’s Duty forms pursuant to Rule 10.2 were not required⁹.

28The applicant challenged the Reports in the Reply Submissions which were ordered to be filed by January 17, 2018 for the written hearing on January 18, 2018. Pursuant to Rule 10.4, a party challenging an expert report shall give notice with reasons for the challenge to the other party as soon as possible and no later than 10 days before the hearing. The applicant requested that the Tribunal waive this requirement given that 10 days’ notice was unavailable between the filing of submissions and the hearing.

29In essence, although both Rules 10.2 and 10.4 make use of the mandatory language “shall”, the applicant argues that the mandatory language cannot be waived for the respondent but should be waived for the applicant.

30Rule 3 provides discretion to the Tribunal and allows it to liberally interpret the rules and vary them to facilitate a fair hearing. It is clear from the Tribunal’s Decision that it exercised its discretion and considered the applicant’s challenge to the Reports. The Tribunal decided that the Reports were admissible and the fact there were no Acknowledgement of Expert’s Duty forms would go to weight.¹⁰

31I find no error in the Tribunal’s decision on this point. The Tribunal’s reasons for allowing the reports is well stated and ensured the process was fair, proportionate, efficient and allowed for the matter to be heard on its merits.

ANALYSIS – Ground (b)

32In the applicant’s second reason for the reconsideration request, he alleges that the Tribunal made a significant error in law in requiring the applicant to prove his psychiatric illness and by not drawing an adverse inference when the respondent did not file material in response in response to the applicant’s affidavit and chronic pain report.

33The applicant’s submissions regarding this issue can be summarized into two points: i) the Tribunal erred because it burdened the applicant with proving his psychiatric/mental injury on a “scientific and positive psychiatric illness” level; and, ii) the Tribunal erred because it failed to draw an adverse inference (which the applicant argues is mandatory) against the respondent for its failure to produce a responding affidavit to that of the applicant’s nor did it provide a responding chronic pain report.

34The applicant has included numerous cases which he argues provide binding principles that the Tribunal did not follow.

35The case law¹¹ provided by the applicant on this point is not relevant to the issue at hand nor does it assist the applicant.

36The main issue in dispute at the hearing was whether the applicant was entitled to IRBs from June 3, 2015 to date and ongoing. In order to be entitled to IRBs from June 3, 2015, the applicant had the burden of proving that within 104 weeks after the accident he suffered a substantial inability to perform the essential tasks of his employment. Given that he was seeking on-going benefits, the applicant had the burden of proving that after the 104 week mark, he had a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

37It is clear from the Decision that the evidence the applicant provided was his affidavit, a chronic pain assessment from Dr. P, a functional impairment evaluation of Dr. D.M., clinical notes and records from his family doctor (CNRs), and Hospital Records from [a hospital].¹² The Tribunal reviewed the applicant’s evidence, weighed it and assessed it. In doing so, the Tribunal preferred some evidence over other evidence and provided ample reasons for doing so.

38I do not accept the applicant’s submission that the Tribunal required the applicant to prove his psychiatric/mental injury on a “scientific and positive psychiatric illness” level. This is not the test the applicant had to meet. The Tribunal found that the applicant did not meet the test for IRBs post June 3, 2015 not because he was not diagnosed with a psychiatric/mental illness but because on a balance of probabilities, the Tribunal was not satisfied that the applicant had suffered an impairment as a result of the accident that prevented him from performing the essential tasks of his employment within 104 weeks of the accident.

39I do not find the case of Saadati v. Moorhead¹³ applicable or helpful to the applicant in this case. In Saadati, the Supreme Court of Canada agreed that an applicant does not need to show a scientific “positive psychiatric illness” in order to succeed in a claim. Saadati was a tort claim dealing with whether or not the plaintiff had proven a mental injury.

40The Tribunal did not require the applicant to prove a psychiatric illness but did require evidence of the applicant’s post-accident condition.

41It is clear from the Decision that the Tribunal extensively reviewed the evidence from the parties. The Decision includes significant reasons why it preferred certain evidence, gave little weight to other evidence and found the affidavit of the applicant self-serving and lacking in credibility. It was clear from the Decision that the Tribunal found that the applicant did not provide sufficient evidence to prove entitlement.

42The respondent is under no requirement to file a responding affidavit or a chronic pain assessment report in response to that of the applicants. Even if the Tribunal had made an adverse inference, I find that the Tribunal would not have likely reached a different decision in this case.

43The Tribunal found ample reasons in the evidence to find that the applicant was not entitled to the benefit being sought without the need for a responding affidavit or responding chronic pain assessment report.

44I agree with the respondent that the Levesque case does not help the applicant. In Levesque, a tort case, the issue was whether it had been shown that it was more probable than not that the accident was the cause of the appellant’s hearing impairment. Levesque, as stated by the Respondent, was not a case where the Defendant or Respondent was required to provide evidence to counter the Plaintiff or Applicant’s evidence and that because no such evidence was presented that the Court made an adverse inference against the Respondent.

45Quite the contrary occurred in Levesque. In Levesque, the appellant’s own expert indicated that trauma was only one possible cause for her hearing impairment and listed some unusual factors. Although the appellant had seen multiple doctors and could bring that evidence to Court, she failed to do so. The Court stated that because she failed to bring evidence of the other examinations, the Court presumed that such evidence would adversely affect her case. The Court found that her and her husband’s evidence were insufficient to exclude other possible causes of her hearing impairment.

46I find that the case of Clements v. Clements¹⁴ also does not assist the applicant. Clements largely dealt with causation. In Clements, the Court found that an inference of causation can be found even where scientific evidence has not been presented. This principle is not applicable to the applicant’s case. It did not deal with causation but whether the applicant met the test for entitlement.

47The onus is not on the respondent to disprove the applicant’s case but on the applicant to prove on the balance of probabilities that he is entitled to the benefits sought.

48The Tribunal clearly and succinctly reasoned that the applicant did not meet his onus on the evidence presented. I find no error in law made by the Tribunal.

ANALYSIS – Ground (c)

49The applicant argues that the adjudicator made findings of fact based on the misapprehension of evidence. The applicant takes issue with two findings of fact which he states the Tribunal found in error: i) that there was no evidence to show that the applicant took any prescription medication after the accident; and, ii) that the applicant was not “previously a healthy young man” given his history of drug abuse and frequent use of marijuana before and after the accident.

50In the reconsideration submissions, the applicant states that the family doctor’s records tell a different story than what the Tribunal found at paragraph 38 of the Decision; that is, that the applicant did not take medication or fill his prescriptions. The applicant argues that the Tribunal did not pinpoint where in the family doctor’s notes it is stated that the applicant did not fill the prescriptions.

51Rather than the applicant confirming that the doctor’s notes do not indicate what the Tribunal found, the applicant, at paragraph 66, points to entries in the family doctor’s records suggesting that the entries show that the applicant had in fact filled the prescriptions and/or was taking them. Nowhere do the entries referred to indicate that the applicant filled and/or was taking the medication prescribed. The submissions from the applicant clearly indicate that the applicant was prescribed Naproxen and Flexeril in December 2014 and prescribed Elavil and Cymbalta in October 2016.¹⁵ The notes do not say he filled the prescriptions and was taking the medication.

52Other than the notation in Dr. L’s letter of November 10, 2016 which indicates that the applicant was using one pill for nerve pain and another anti-depressant which he had started only 2-3 weeks from the date of the letter, there was no evidence corroborating the claim that he was taking 4 different medications at the time of Dr. P’s report dated June 12, 2017, which the Tribunal gave little to no weight to.

53The Tribunal is entitled to weigh the evidence presented. The Tribunal gave little to no weight to Dr. P’s opinions and provided supporting reasons for doing so.

54The fact that the Tribunal indicated that the report of Dr. P described the applicant as a “previously healthy man” and makes no mention of the applicant’s marijuana use before and after the accident was not to attack the applicant but was pointed to as the Tribunal’s reasons for giving little to no weight to Dr. P’s report.

55This is a case where the applicant had submitted that as a result of the accident his marijuana use had increased after the accident making him unable to work. Paragraph 76 of the applicant’s reconsideration submissions states that there was unchallenged evidence before the Tribunal that there was a dramatic increase in the use of marijuana to control his depression and chronic pain¹⁶. One would think that this would be mentioned in the report of Dr. P, the applicant’s chronic pain assessor. However, as stated in the Decision and the respondent’s reconsideration submissions, Dr. P makes no mention of the applicant’s use of marijuana before or after the accident.

56The adjudicator explained why she rejected the applicant’s evidence of increased use of marijuana at paragraph 20 of the Decision. The adjudicator was entitled to do so given the inconsistencies of the evidence on that aspect.

57I find no misapprehension of evidence or findings of fact by the Tribunal.

CONCLUSION

58For the above reasons, I dismiss the applicant’s Request for Reconsideration.

Footnotes

1. 1Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016), (“Rules Version 1”) Rules 18.2 and 18.4.
2. 2Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission, October 2, 2017.
3. 3ATAGAA, O. Reg. 126/10, s.2
4. 4The applicant does not clearly state the grounds upon which he is requesting the reconsideration. Paragraphs 1-4 of the applicant’s written submissions in the request for reconsideration outline the concerns of the applicant which I have summarized as grounds (a) – (c) of the applicant’s request for reconsideration.
5. 5The applicant states this as “a party’s failure to challenge an opponent’s evidence and mandatory adverse inference” (Applicant’s Written Submissions on Request for Reconsideration, Issue 2 at page 19)
6. 6There were no reconsideration submissions made with respect to the Tribunal denying costs or an award under Regulation 664 and therefore there is no basis to grant a reconsideration regarding costs or an award.
7. 7Despite the fact that the applicant’s submissions on this point is approximately 11 pages in length, the applicant fails to identify the respondent’s specific reports he takes issue with. The applicant does reference a report from a psychiatrist, Dr. S.W. earlier in his submissions however. Given that the Decision identifies two reports from Insurer Examinations (“IEs”); one from Dr. S.W. and one from Dr. G.G. (discipline not indicated), I have inferred that these are the reports the applicant takes issue with for the purpose of this reconsideration request.
8. 8Dr. S. W.: IE Assessment date: May 8, 2015, Report dated May 22, 2015; Dr. G.G.: IE Assessment date: January 22, 2015, Report dated: January 27, 2015
9. 9Decision para. 10
10. 10Decision paras. 7-11
11. 11Saadati v. Moorehead, 2017 SCC 28, Clements v. Clements, 2012 SCC 32, Levesque v. Comeau et al., 1970, SCC 4).
12. 12The Tribunal also indicated that the Application for Benefits, Minor Injury Discharge Reports and Disability Certificates were also in evidence. (Decision paras. 25, 26)
13. 13Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543
14. 14Clements v. Clements, [2012] 2 S.C.C. 181 (“Clements”).
15. 15The applicant refers to entries that indicate that applicant was taking Tylenol and Advil but these are not prescriptions but over the counter medicines.
16. 16The report of Dr. S.W. indicated that the applicant reported smoking marijuana just as much even prior to the accident as after the accident and that he was smoking during work breaks.