H.M.L. v. Northbridge Personal Insurance Corporation, 2020 CanLII 87983

RECONSIDERATION DECISION

Before: Susan Mather, Vice-Chair

Date: October 28, 2020

File: 19-000375

Case Name: H.M.L. v. Northbridge Personal Insurance Corporation

Written Submissions by:

For the Applicant: Phillip Kai Kwong Yeung, Counsel

For the Respondent: Linda M. Kiley, Counsel

OVERVIEW

1The applicant was injured in a motor vehicle accident on June 8, 2017. She applied for income replacement benefits (“IRBs”) and medical benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Following a written hearing, I determined that the applicant remained unable to complete the essential tasks of her pre-accident employment for the full 104 weeks after the accident. I ordered Northbridge to pay her income replacement benefits (“IRBs”) for the full 104 weeks after the accident.

3However, I was not satisfied on the balance of probabilities that, after the first 104 weeks of disability, the applicant was suffering from a complete inability to engage in any employment or self-employment for which she is reasonable suited by way of training, education, or experience. I dismissed her claim for IRBs beyond the 104-week period after the accident.

4Rule 18 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission, Version I (October 2, 2017) (the “Rules”), gives the Tribunal the discretion to reconsider any decision of the Tribunal that finally disposes of an appeal. One of the criteria for reconsidering a decision is that 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.²

5The applicant submits that four multidisciplinary reports prepared for a determination of a potential catastrophic impairment meet the criterion in Rule 18.2(d).

6On the basis of these reports, the applicant asks me to vary my decision to provide that she meets the test in the Schedule to be entitled to IRBs beyond 104 weeks after the accident.

7Northbridge opposes this request for reconsideration. Northbridge submits that the applicant has not met the high test for a reconsideration in the light of new evidence. Northbridge submits that the evidence the applicant relies upon as new evidence is not genuinely new and previously undiscoverable evidence. Northbridge submits this evidence could have been obtained previously. Northbridge asks me to dismiss this request for reconsideration.

8Northbridge also asks for costs on this reconsideration.

9Effective February 7, 2019, Rule 18.1 of the Rules permits a request for reconsideration to be heard by the same Member whose decision is the subject of the request.

RESULT

10For the reasons provided below, I dismiss both the applicant’s request for reconsideration and Northbridge’s request for costs.

Requirements of Rule 18.2(d) of the Rules

11In order to grant the applicant’s request to vary my decision and Order from the written hearing based on Rule 18.2(d), I must be satisfied on the balance of probabilities that:

1. There’s evidence that was not before me when I made my decision,
2. The evidence could not have been obtained previously by the applicant, and
3. That evidence would likely have affected the result.

FACTS

12On June 4, 2019, on consent of the parties, the Tribunal ordered the application to proceed to an in-person hearing, with written submissions to be submitted in advance of the hearing scheduled for November 25, 2019. The order provided that new assessment reports from the applicant were due August 25, 2019 and responding assessment reports were due September 30, 2019. All documentary evidence was to be exchanged by September 30, 2019. The applicant’s submissions and evidence were due October 25, 2019. The respondent’s submissions and evidence were due on November 4, 2019. The applicant’s reply submissions (if any) and evidence were due on November 12, 2019.³

13According to the applicant’s submissions, on October 22, 2019, Northbridge approved a treatment plan proposing multidisciplinary catastrophic determination assessments by Somatic Assessments and Treatment Clinic Inc (“Somatic”).⁴ On October 24, 2019, the applicant’s counsel, Sareena Samra, asked Northbridge to agree to an adjournment of the hearing to await the outcome of the Somatic multidisciplinary assessments.⁵

14Counsel for Northbridge advised Ms. Samra that Northbridge would not consent to the adjournment of the hearing and would oppose any motion for an adjournment to await the outcome of the multidisciplinary reports. The applicant decided to proceed to the hearing without the reports.⁶

15A written motion brought by Northbridge was heard on November 21, 2019. On consent of both parties, the Tribunal ordered that the in-person hearing date be vacated and the hearing proceeded on the basis of the written submissions that were filed.⁷

16The written hearing took place as scheduled.

17According to the applicant’s reply submissions, the reports were not completed until April 2020. The applicant submits that, for that reason, they could not have reasonably been obtained to file with her written submissions for the hearing. I have reviewed the multidisciplinary reports and determined that the assessments were completed prior to the March 26, 2020 release of my decision. The Summary Report for the Determination of the Catastrophic Assessments dated April 24, 2020 appears to be the April 2020 report the applicant refers to in her reply submissions. The dates of the four reports the applicant relies on are set out in this report as follows⁸

1. Dr. Georgia Palantzas – October 28, 2019
2. Dr. Sharleen McDowell – November 27 and December 19, 2019
3. Raymond Wong – January 24, 2020
4. Dr. Shobahn Vachhrajani – February 27, 2020

ANALYSIS

Is There Evidence That Was Not Before Me When I Made My Decision?

18In her reply submissions, the applicant confirms that she is relying on the Multidisciplinary Reports of Dr. Palantzas (chiropractor), Dr. McDowell (psychologist), Dr. Vachhrajani (neurosurgeon) and Raymond Wong (occupational therapist) as the evidence that was not before me at the hearing. I have reviewed the Tribunal record and these reports were not in evidence at the written hearing.

19Northbridge submits that the reports the applicant relies on relay evidence that was already considered and weighed by me at the hearing. I do not agree. The reports are all dated after the applicant’s August 25, 2019 deadline for serving new assessment reports and after the applicant’s October 25, 2019 deadline for submissions. The assessors all met with the applicant and did not simply conduct paper reviews.

20The applicant relied on an earlier assessment of Dr. McDowell at the written hearing. The assessment was a pre-assessment screening report in support of a September 20, 2018 treatment plan for a psychological assessment.⁹ She also relied on a January 4, 2018 psychological counselling progress report of Dr. Mandy Fang, whose work was supervised by Dr. McDowell.¹⁰ Dr. McDowell’s report filed on this reconsideration request, however, is based on a psychological assessment conducted on November 29 and December 17, 2019. I do not see how the 2019 assessment of Dr. McDowell could have been considered and weighed by me at the written hearing when it was not submitted in evidence for the hearing.

21Dr. Palantzas, Dr. Vachhrajani and Mr. Wong did not provide any evidence for the written hearing. The multidisciplinary assessments review documentary evidence that was before me at the written hearing. The authors’ assessments of the applicant and the opinions they provided as a result of their assessments were not before me in evidence at the written hearing.

22For the reasons provided above I am satisfied that the four multidisciplinary reports and the opinions provided in them were not before me when I made my decision.

Could Such Evidence Have Been Previously Obtained by the Applicant?

23The applicant submits that the Somatic multidisciplinary reports she relies on to show that she meets the test for IRBs after 104 weeks could not have “reasonably” been obtained previously by the applicant. Rule 18.2(d) does not, however, include a reasonableness requirement. She relies on the fact that the treatment plan authorizing the multidisciplinary assessments was not approved until three days before her submissions for the hearing were due.

24The applicant argues that the reports could not have been obtained before the day submissions were due for the hearing or the hearing date. Northbridge argues that the applicant could have requested the assessments in time for the November 25, 2019 hearing. Northbridge’s submissions fail to recognize that it did not agree to pay for the assessments until three days before the submissions for the hearing were due.

25Rule 18.2(d) is not clear as to whether the cut off point for evidence being able to be previously obtained is the date for the final submission of new assessment reports, the date for filing submissions/reply submissions, the hearing date or the date the decision is released. In my view the cut-off point is the date the decision is released.

26For the reasons provided below, I am satisfied on the balance of probabilities that multidisciplinary reports could have been previously obtained.

27I agree with the applicant that the multidisciplinary reports could not have been available before the hearing submissions were due. I further find that three of the reports could not have been available for the November 25, 2019 hearing date. The four reports, however, were prepared prior to my decision being released and could have been available for me to consider in my deliberations. I remained seized of the matter until my final decision was issued. It was open to the applicant to bring a motion to ask me to consider the multidisciplinary reports in my deliberations until the decision was released.¹¹ For that reason, I am satisfied on the balance of probabilities that the multidisciplinary reports could have been available for me to consider in my deliberations.

28In reaching this conclusion I have considered the decision of Associate Chair Jonathan Batty in N.N. v. Allstate Insurance Company.¹² Associate Chair Batty was of the view that a request for review under Rule 18.2(d) should only be available when genuinely new and undiscoverable evidence comes to light after a hearing. I understand the phrase ”after a hearing” to mean after a decision is rendered. In this case, the evidence came to light before the decision was rendered and for that reason the applicant is not entitled to a reconsideration of the decision.

29For the reasons provided above I dismiss the request for reconsideration.

If The New Evidence Could Not Have Been Previously Obtained By The Applicant Would The New Evidence Likely Have Affected The Result?

30In the event that I am wrong in my determination that the multidisciplinary report evidence could have been obtained prior to my decision being rendered, I have considered whether this new evidence would likely have affected the result.

31For the reasons provided below, I am not satisfied on the balance of probabilities that the new evidence submitted by the applicant would likely have affected my determination that the applicant was not entitled to IRBs post-104 weeks after the accident.

32The test for IRBs after the first 104 weeks of disability is whether an applicant is suffering from a complete inability to engage in any employment or self-employment for which he or she is reasonably suited for reason of her education, training or experience. I denied the applicant’s claim for IRBs after the first 104 weeks of disability because there was no evidence that the applicant had applied for any jobs or made any attempt to seek employment following the accident. The video surveillance evidence shows that the applicant was mobile enough to get out of the house, go shopping, play some ping-pong and badminton and walk her dog. She provided no medical opinion to support her claim that she was unable to work at any job she is reasonably suited for.

33While the some of the multidisciplinary medical reports touch on the question of whether the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment, the new reports do not directly address the question of whether the applicant suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

34The Orthopaedic Assessment Report of Chiropractor, Dr. Palantzas dated October 28, 2019 confirms the applicant has not returned to work but does not provide the opinion that she is unable to return to work.¹³ In the Summary and Conclusions section of her report, Dr. Palantzas states:

It is more than likely that Ms. L’s injuries will require her to take intermittent time off from work as well as taking medication to cope with her accident related injuries.¹⁴

35This comment suggests to me that she expected the applicant could return to some form of work. I also note that the applicant told Dr. Palantzas that she had been unable to do any social or recreational activities since the accident, which is contrary to the surveillance evidence filed by Northbridge at the hearing.

36The Psychological Assessment Report of Dr. McDowell confirms that the applicant had not returned to work.¹⁵ Dr. McDowell states that the applicant no longer has the stamina nor the confidence to complete any of her pre-collision activities including future work responsibilities. She adds that the applicant has been unable to attain gainful employment due to her injuries. Dr. McDowell’s comment suggests that the applicant has looked for work. There is no evidence, however, to support this statement. Dr. McDowell also did not consider the surveillance evidence of the applicant’s activities following the accident.

37The Neurosurgical Report of Dr. Vachhrajani dated December 19, 2019 confirms that the applicant had not returned to work since the accident and has not tried going back to work since the accident.¹⁶ Dr. Vachhrajani’s report does state that the applicant’s musculo-skeletal pain contributes to the applicant’s inability to manage work.¹⁷ I understand this comment to refer to the applicant’s pre-accident employment. This report also gives no recognition to the fact that the applicant resumed playing ping pong and badminton and walking her dog following the accident.

38The Occupational Therapy In-Home Assessment Report of Occupational Therapist Raymond Wong dated January 23, 2020 does not persuade me that the applicant meets the test for IRBs beyond 104 weeks. One of Mr. Wong’s assessment tools was a work simulated task to simulate the gross motor and skills/coordination required in her pre-accident work.¹⁸ I give this assessment little weight because the report states:

…the activity was to simulate the fine and gross motor skills/coordination required of her pre-accident work roles. As Ms. L was accustomed to engaging in physically demanding tasks working as a real estate agent (emphasis added).¹⁹

39Prior to the accident, the applicant worked full-time at a blinds manufacturer and as a part-time server at a restaurant. There is no evidence that the applicant has ever worked as a real estate agent. Mr. Wong makes no finding that the applicant was suffering a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

40The new assessments/reports are based on the applicant’s self-reports to the assessors that she is no longer driving a car or participating in any social activities or other activities outside the home. The surveillance evidence provided by Northbridge at the written hearing clearly contradicts the applicant’s self reports to the assessors.²⁰ The surveillance evidence obtained in May and June 2019 shows the applicant leaving her home on regular basis, driving her car, shopping, socializing, walking her dog and playing ping-pong and badminton.

41The report/assessments filed as new evidence in this request for reconsideration do not suggest that the applicant’s condition worsened between the spring/summer of 2019 and the fall of 2019. They are written on the basis that the applicant was unable to do any of these activities since the date of the accident.

42For the reasons provided above, I am not satisfied on the balance of probabilities that the new evidence would likely have affected the result.

Rule 18.2 is Discretionary

43Rule 18.2 gives the Tribunal discretion to grant a request for review if one or more of its criteria are met. Even if I was satisfied that the applicant met the requirements of Rule 18.2(d), I would not exercise my discretion and grant the request for reconsideration.

44Parties to an application before the Tribunal are entitled to expect Tribunal decisions to have finality. The applicant is not entitled to have the decision reconsidered because of the procedural and/or tactical decisions she made.

45The applicant made a deliberate decision to forgo the opportunity to bring a motion to adjourn the hearing to await the reports.

46Although the applicant suggested she might bring an emergency motion for an adjournment of the hearing, she decided to proceed with the in-person hearing as scheduled. In her e-mail dated October 24, 2019, counsel for the applicant wrote:²¹

It may be useful to adjourn but we are ready to proceed to submissions and hearing, it was canvassed and I have your position. Let’s proceed, the submissions will be with you tomorrow and I will see you in November.

47The fact that the respondent refused to consent to a motion for adjournment does not prevent the applicant from bringing a motion, nor does it guarantee an adverse ruling from the Tribunal on a such motion.

48Once the reports were prepared, the applicant did not bring a motion to have the reports considered in evidence prior to the decision being released.

49The Rules allow a party to bring a motion to the Tribunal, asking it to grant an adjournment of a hearing and to extend the time for evidence and submissions. The Tribunal regularly hears motions for adjournments of hearings and motions to extend the time for filing of evidence and hearing submissions. Most of these motions are heard in writing on an expedited basis in order to offer timely dispute resolution and preserve the hearing schedule where possible.²²

50It is impossible to know if the applicant would have been successful in obtaining an adjournment to await the reports or in bringing a motion to have the reports considered by me before the decision was released. I am of the view, however, that, if she wanted the evidence considered she was obligated to try to put the evidence before me prior to my decision being released.

COSTS

51Rule 19.1 provides that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

52Northbridge asks for costs on this reconsideration on the basis that the applicant’s request for a reconsideration lacks merit, is not serious, is insufficient on its face and presents no rational argument that could support the grounds for reconsideration. Northbridge submits that the applicant’s arguments make no effort to meet the test for reconsideration and interfere the Tribunal’s effective and efficient process for adjudicating disputes.

53The applicant submits that Northbridge is not entitled to costs. In the alternative, the applicant submits that if Northbridge suffered prejudice the amount of prejudice was minimal.

54For the reasons provide below, I find that Northbridge is not entitled to costs.

55I agree with Northbridge’s submission that the applicant’s request for reconsideration submissions did not fully address the question of whether the multidisciplinary assessments could have been included in the evidence for the November 25, 2019 hearing. The applicant did not fully explain her position as to why the multidisciplinary reports could not be provided as evidence at the hearing until her reply submissions.

56The Tribunal has much latitude and is required to facilitate a fair, open and accessible process to allow effective participation by all parties. The Tribunal must ensure efficient proportional and timely resolution of the merits of the proceedings before the it.²³ The Rules do not provide formal rules for pleadings as found in the civil courts.

57I do not find the deficiency in the applicant’s request for reconsideration submissions to be evidence that the applicant acted unreasonably, vexatiously, frivolously or in bad faith. Northbridge has not pointed to any behaviour of the applicant which meets the requirements of the cost rules.

ORDER

58For the reasons provided above, I Order:

1. The request for reconsideration of the decision in this matter released on March 26, 2020 is dismissed without costs.

Susan Mather Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1O.Reg.34/10
2. 2Rule 18.2(d) the Rules
3. 3Order of Vice Chair Eleanor White released July 11, 2019
4. 4I have not been provided with a copy of the treatment plan or the Explanation of Benefits approving the treatment plan for multidisciplinary catastrophic assessments. Northbridge does not dispute the fact that it approved this treatment plan in its response submissions.
5. 5Tab 4, applicant’s reply submissions, exchange of e-mails between the parties.
6. 6Tab 4, applicant’s reply submissions e-mail from Ms. Samra to Northbridge’s counsel dated October 24, 2019.
7. 7Order of Vice Chair Terry Hunter issued on November 21, 2019.
8. 8Tab 1, applicant’s reply submissions, Summary Report for the Determination of Catastrophic assessment, Dr. Vachhrajani, April 24, 2020
9. 9Tab 1, applicant’s submissions for written hearing, page 28
10. 10Tab 11, applicant’s submissions for written hearing
11. 11I can’t guarantee what the outcome of a motion would have been. I am only making the observation that no motion was ever brought.
12. 122018 CanLII 141007 (ONLAT)
13. 13Tab 1, page 8, applicant’s request for reconsideration
14. 14Tab 1, page 19 applicant’s request for reconsideration
15. 15Tab 1, page 31, applicant’s request for reconsideration
16. 16Tab 1, page 39 applicant’s request for reconsideration
17. 17Tab 1, page 42 applicant’s request for reconsideration
18. 18Tab 1, page 53, applicant’s request for reconsideration
19. 19Tab 1, page 53 applicant’s request for reconsideration
20. 20Tab 34 and 35 Northbridge’s written submissions dated November 4, 2019, for written hearing
21. 21Tab 4, applicant’s reply submissions
22. 22The Notice of Motion to convert the hearing to a written hearing was made on November 20, 2019. The order of Vice Chair Terry Hunter converting the hearing was made on November 21, 2019.
23. 23Rule 3.1