H.K.C. v. Aviva Insurance Company, 2020 CanLII 63602

Tribunals Ontario Safety, Licensing Appeals and Standards Division 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 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

Citation: H.K.C. vs. Aviva Insurance Company, 2020 ONLAT 18-011956/AABS

Before: Sandeep Johal, Adjudicator

Date: August 17, 2020

File: 18-011956/AABS

Case Name: H.K.C. v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Julia Zhiyuan Hou, Counsel

For the Respondent: Sarah Fasih, Counsel

OVERVIEW

1The respondent filed a request for reconsideration from a decision dated March 25, 2020 in which I found the applicant did not have a minor injury as defined under the Minor Injury Guideline (the "MIG") pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule"). Furthermore, I found that the chiropractic treatment plan was reasonable and necessary and the applicant was entitled to interest on the overdue payment of benefits.

2The respondent submits that I erred in law when I introduced case law from the Supreme Court of Canada for the purpose of determining that a formal psychological diagnosis was not required for an applicant to be removed from the MIG.

3The respondent further submits that I made an error of law when I failed to uphold a previous Tribunal decision.

4The respondent requests that the Tribunal reconsiders its decision that the applicant has a psychological impairment removing her from the MIG and that the treatment plan is reasonable and necessary.

RESULT

5The respondent's Request for Reconsideration is denied.

ANALYSIS

6The grounds for a Request for Reconsideration are contained in Rule 18.2 of the Tribunal's Common Rules of Practice and Procedure.² 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;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

No error of law or fact with respect to the MIG

7The respondent's position is that I relied upon the Supreme Court of Canada case of Saadati v. Moorehead,³ in support of my decision that a psychological diagnosis was not required for an applicant to be removed from the MIG without affording either party the opportunity to make submissions in relation to this decision.

8Furthermore, the respondent submits that I did not follow the legal precedent set by the Tribunal in Y.X.Y. v. The Personal Insurance Company,⁴ that an applicant must show that her psychological complaints are not merely psychological or psychosocial symptoms but that she has a psychological impairment as a result of the accident.⁵

9The applicant takes the position that the original decision was based on the medical information and there was no error in law that would cause the Tribunal to come to a different conclusion. According to the applicant, the original decision noted that the applicant complained of psychological symptoms roughly three weeks after the accident which supported her impairment as well as her dependence on medication. It is the applicant's position that the original decision carefully considered and weighed all of the evidence and made clear findings that on a balance of probabilities the applicant sustained a psychological impairment.

10Furthermore, the applicant points out that Adjudicators have previously relied upon the Saadati case without either party referring to the case and this was done in Y.Z. v Certas Home and Auto Insurance Company,⁶ W.C.P. v. Certas Home and Auto Insurance Company,⁷ and LB v Wawanesa Mutual Insurance Company.⁸

11According to the applicant, even if the Saadati case was not mentioned, there is no evidence that I would have come to a different conclusion as in my original decision I found there was enough compelling evidence of a psychological impairment beyond symptoms, to warrant being removed from the MIG. As a result, the applicant submits, there was no error in law in stating that a formal diagnosis was not required for the applicant to be removed from the MIG.

12I agree with the applicant. The parties are expected to know the current state of the law and the decision did not turn in any way on the reference to the Saadati case. Even if the original decision did not mention the Saadati case, I found the evidence to be sufficient on a balance of probabilities that the applicant had a psychological impairment which is not within the definition of the MIG.⁹ Therefore, I do not find there to be an error of law such that I would have likely reached a different result if the Saadati case was not mentioned.

Tribunal Jurisprudence

13The respondent submits the Tribunal case of Y.X.Y. was a legal precedent and should be followed or reasons should have been provided to explain why the decision was not reasonable.

14The applicant submits the Tribunal is not bound by its own precedents,¹⁰ and Tribunal decisions on whether or not psychological symptoms alone warrant a removal from the MIG are not in agreement,¹¹ so therefore, Adjudicators must consider and weigh the evidence as they see fit.

15In my view, Adjudicators are not bound be previous Tribunal decisions and the reason for that is that the role of the Tribunal is to provide a cost-effective and timely decision on the facts of each case. Adjudicators should not have to spend an inordinate amount of time reviewing Tribunal case law and providing reasons on why a case being relied upon by a party should not be followed. To be bound by Tribunal jurisprudence would hinder the independence of an Adjudicator as they must be free to focus on the facts at hand and arrive a conclusion that is just and reasonable in accordance with the Schedule.

16Furthermore, in the original decision at paragraphs 10 and 14, I noted the psychological complaints made by the applicant to her family doctor. Her family doctor diagnosed her with anxiety and insomnia and prescribed medication on several occasions. The applicant's doctor also discussed counselling to treat her psychological injuries. In paragraph 14, I concluded that I found the applicant provided compelling evidence of a psychological impairment that warrants her being removed from the MIG.

17As a result of the evidence, there was no need to get into an analysis of why the Y.X.Y decision may have been unreasonable as the facts and evidence the applicant presented was sufficient to conclude that the applicant had a psychological impairment and therefore her injuries did not fall within the MIG.

18As a result of the above, I do not find there to be any error of law or fact in the original decision such that I would have likely reached a different result.

No error of law or fact with respect to the chiropractic treatment plan

19The respondent does not provide any submissions on the alleged error of law or fact with respect to my decision that the treatment plan was reasonable and necessary.

20With the onus on the party alleging the error, I find that the respondent has not satisfied its burden and as a result, I find that there was no error of law or fact such that I likely would have reached a different result.

CONCLUSION

21For the reasons noted above, I dismiss the respondent's Request for Reconsideration.

Footnotes

1. 1O. Reg 34/10.
2. 2Effective February 7, 2019.
3. 32017 SCC 28, [2017] 1 SCR 543. ("Saadati")
4. 42017 CanLII 59515 (ON LAT). ("Y.X.Y.")
5. 5Ibid at para. 38.
6. 62018 CanLII 110936 (ON LAT).
7. 72020 CanLII 19579 (ON LAT).
8. 82019 CanLII 94020 (ON LAT).
9. 9See paragraphs 10 and 14 of the original decision dated March 25, 2020.
10. 1017-005791 v Aviva Insurance Canada, 2019 CanLII 72223 (ON LAT) at para. 14.
11. 1118-005474 v Certas Direct Insurance Company, 2019 CanLII 76976 (ON LAT) at para. 18.