N.A. v. Aviva General Insurance, 2020 CanLII 30442

AMENDED RECONSIDERATION DECISION

Before: Derek Grant

Date: March 5, 2020

Tribunal File Number: 18-006048/AABS

Case Name: N.A. and Aviva General Insurance

Written Submissions by:

For the Applicant: Kal Stoykov

For the Respondent: Andy Smith

OVERVIEW

1On July 18, 2019, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter arising under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The issues before the Tribunal were N.A.’s entitlement to a cost of examination expense and interest. The Tribunal determined that N.A. was not entitled to the disputed treatment plan, and as such, no interest was payable.

2N.A. has asked the Tribunal to reconsider that decision.

3Pursuant 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.

RELIEF SOUGHT

4N.A. requests that my decision, dated July 18, 2019, be varied to grant her request because the Tribunal violated the rules of procedural fairness and/or made a significant error of law or fact.

5In the alternative, N.A. requests that the Tribunal order a rehearing on all, or part, of the matter.

RESULT

6N.A.’s Request for Reconsideration is dismissed.

BACKGROUND

7N.A. was injured in an automobile accident on October 25, 2016 and sought benefits from the respondent (“Aviva”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).

8N.A. was denied certain benefits by Aviva and submitted an application (17-005380/AABS) for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

9The parties participated in a case conference on December 1, 2017 but were unable to resolve the following issues submitted by Curity Dental Care:

(i) $1,600.00 for a treatment plan submitted December 21, 2016, denied April 11, 2017; and

(ii) $2,710.00 for a treatment plan submitted December 21, 2016, denied January 11, 2017.

10These issues in dispute were referred to a hearing in writing, scheduled for March 6, 2018, and proceeded before Adjudicator Melody Maleki-Yazdi.

11By way of a decision dated May 23, 2018, Adjudicator Maleki-Yazdi found that although she agrees that N.A. does have dental-related impairments, N.A. failed to establish that those impairments were sustained as a result of the accident.

12N.A. submitted a second application (18-006048/AABS) as a result of further denials by Aviva for dispute resolution services to the Tribunal, which proceeded to a case conference on October 18, 2018. At this case conference, the parties were unable to resolve the following issues submitted by Auxilium Wellness Centre:

(i) $2,215.00 for a TMJ and mouth assessment submitted December 21, 2017, denied December 21, 2017; and

(ii) Interest on any overdue payment of benefits.

13These issues in dispute were referred to a hearing in writing, scheduled for January 14, 2019, and proceeded before me.

14By way of a decision dated July 18, 2019, I found that the issue had already been decided (res judicata) and therefore no determination was made on the issue. As a result, I concluded that N.A. was not entitled to the treatment or any interest.

ANALYSIS

15The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Rules¹. 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 procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

16Reconsideration is only warranted in cases where an adjudicator has made a legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

17N.A. claims my decision failed in two ways:

(i) I did not properly apply Rule 3.1 of the Tribunal’s Rules, thus resulting in an error of law regarding the doctrine of res judicata; and

(ii) I did not consider documents that were not available to Adjudicator Maleki-Yazdi, ie. Dr. Grushka’s report².

18I will address each claim in turn.

The Tribunal did not Make any Errors of Law

19N.A. submits that the Tribunal’s decision not granting the treatment plan should be reconsidered on the following grounds:

(i) The Tribunal made a significant error of law by failing to interpret the Rules in a liberal manner. Rule 3.1 states that the Rules will be liberally interpreted and applied, and they may be varied or applied on the Tribunal’s own initiative, or at the request of a party, to: i) facilitate a fair, open and accessible process and allow effective participation by all parties, whether they are self-represented or have a representative; and ii) ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

20N.A. contends that circumstances change and allow for new assessments and applications for various benefits to be submitted at any time there is a change affecting that benefit. N.A. submits this is what the second application was intended to address, yet the Tribunal failed to take into account these changes.

21In her submissions, N.A. cited M.K. and Aviva Insurance Canada³. That decision sets out steps for determining whether the doctrine of res judicata applies in a proceeding. N.A.’s position is that I failed to properly apply Rule 3.1 as it pertains to considering the doctrine of res judicata.

22For the reasons that follow, I disagree with N.A.’s interpretation of Rule 3.1 and the reasons set out in M.K. The Tribunal’s adjudicators are not bound by decisions of other adjudicators; further, the M.K. case is distinguishable from this proceeding. In M.K., the dispute was for attendant care benefits, not a TMJ assessment. Section 42 of the Schedule sets out the requirements for new assessments regarding applications for attendant care benefits (my emphasis). Again, this matter is dealing with a TMJ assessment.

23Rule 3.1 does not apply to the law. Rule 3.1 applies to the Tribunal’s adjudicative process allowing the Tribunal to liberally interpret the Rules. The Tribunal’s Rules are set out as parameters for how the Tribunal deals with matters before it. There is no provision in the Rules for how the law is to be interpreted or applied.

24At paragraphs 12 to 16 are my analysis and reasons for finding that the doctrine of res judicata applies, and that a determination of entitlement to the treatment plan was not necessary. Specifically, at paragraphs 21 to 23 I summarized the evidence I found significant. I noted the medical evidence considered by Adjudicator Maleki-Yazdi. I also noted N.A.’s self-reporting regarding her TMJ impairment and found that the pre- and post-accident complaints were no different. Significantly, I considered the medical evidence and found that the accident was not the cause of N.A.’s TMJ impairment.

25I find the correct test for res judicata was used and applied when it considered the Adjudicator Maleki-Yazdi’s decision and treatment plan in dispute. A review of my decision clearly indicates that Adjudicator Maleki-Yazdi’s decision considered all relevant factors typically considered in a reasonable and necessary analysis and were in fact considered by the Tribunal.⁴

26For the reasons noted above, N.A. has failed to persuade me that I made any errors in law in applying the doctrine of res judicata. I find that Rule 3.1 was correctly applied in liberally interpreting the Rules as they pertain to this proceeding. I therefore reject N.A.’s submissions and find that the Tribunal made no error of law.

The Tribunal did not fail to consider the report of Dr. Grushka

27N.A. contends that I failed to consider the Dental Assessment completed by Dr. Miriam Grushka, which was not available during the first application. The significance of Dr. Gruska’s assessment was that she opined that N.A.’s jaw, right greater than left, had been severely impacted as a result of the accident and clearly warrants treatment.

28Aviva did not provide a response or rebuttal to the Dr. Grushka report. Aviva relied on its evidence that supported that N.A. suffered from a pre-existing TMJ impairment that was not caused or exacerbated by the accident. In her decision, Adjudicator Maleki-Yazdi, considered the medical evidence and found that the TMJ impairment existed prior to the accident and was not caused or exacerbated by the accident.

29The Tribunal is not required to expressly address every piece of evidence, argument, or case submitted by a party. Even if I had specifically referred to the Grushka report, I was not persuaded by the report, that N.A.’s TMJ impairment was caused or exacerbated by the accident.

30I find that the Grushka report did not change my opinion of the circumstances of impairments that were found to exist prior to the accident. Further, the Grushka report does not change the resulting circumstances of the accident which was found not to cause or exacerbate N.A.’s pre-existing TMJ impairment.

31Turning to N.A.’s claim that the Tribunal violated the rules of procedural fairness regarding the Grushka report, my decision stated,

(ii) “As a trier of fact, preventing an abuse of process is one of the main underpinnings for ensuring that procedural fairness is maintained in a proceeding”.

32The Tribunal’s underlying goal in making a determination in the matter was to ensure that procedural fairness was maintained. Further, my decision was “based on a review of the evidence”.

33I find the reasons in the decision to be balanced, reasonable, sufficient, and responsive to the parties’ submissions. In addition, I find the doctrine of res judicata was correctly applied. I find there was no violation of the rules of procedural fairness in rendering a decision in this matter. I do not accept that there was a failure to consider Dr. Grushka’s report given that Adjudicator Malkei-Yazdi found the pre-existing TMJ impairment was neither caused nor exacerbated by the accident.

CONCLUSION

34For the reasons set out above, N.A.’s Request for Reconsideration is dismissed.

Derek Grant

Adjudicator

Tribunals Ontario- Safety, Licensing Appeals and Standards Division

Footnotes

1. 1All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)
2. 2Dental Assessment by Dr. Grushka, Dental Specialist, dated October 19, 2018
3. 316-003909 v Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT)
4. 4See paras 21, 22, 23 and 24 of the decision