R.K. v. Allstate Insurance, 2020 CanLII 98726

RECONSIDERATION DECISION

Citation: R.K. vs. Allstate Insurance, 2020 ONLAT 19-000502/AABS

Before: Jeffrey Shapiro, Vice-Chair

Date: December 3, 2020

File: 19-000502/AABS

Case Name: R.K. vs. Allstate Insurance

Written Submissions by:

For the Applicant: Georgiana S. Masgras and Andrew Franke, Counsel

For the Respondent: Heather Kawaguchi, Counsel

OVERVIEW

1R.K. seeks reconsideration of the Tribunal’s June 26, 2020 Decision and Order (“Decision”) which denied R.K.’s request for an attendant care benefit (“ACB”) and a treatment plan for $5,835.05 in physiotherapy treatment to be paid by Allstate under the Schedule¹ due to a March 25, 2017 motor vehicle accident.

2R.K. asserts procedural and factual flaws in the Decision require that the matter be reheard. R.K.’s submission can be summarized as asserting that the Tribunal decided the ACB issue despite that R.K. withdrew it after the written submissions were filed, and then various attempts to have the Tribunal reweigh the evidence. Allstate opposes the request and asks the decision to be upheld.

RESULT

3R.K.’s request for reconsideration is granted in part and denied in part. The Decision stands but is amended to reflect that no order is made on the ACB. My specific order is below. In other words, while the Tribunal was without jurisdiction to decide the ACB issue, the unique circumstances allowed the Tribunal to consider the evidence due to its relevance to the remaining substantive issue. Thus, the error requires amendment to the Decision, but is not fatal to it.

ANALYSIS

4The grounds for a reconsideration request are in Rule 18.2 of the Tribunal’s Rules.² The relevant criteria R.K. argues is Rule 18.2(a) and (b):

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and

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.

Did the Tribunal decide an issue not before it? If so, what is the effect?

5R. K. submits that the Tribunal erroneously decided the ACB issue despite that a September 26, 2019 Motion Order, at para. 4(i), issued by a different adjudicator, confirms its withdrawal. Allstate does not read the Motion Order as ordering the withdrawal and submits R.K. failed to secure a further motion or clarification of the order. I find the issue was withdrawn, but the effect of that error is limited.

6An overview of the procedure of this matter is central to understanding the withdrawal and appropriate relief - and many of the remaining arguments.

7As a result of the May 28, 2019 Case Conference, the Tribunal ordered this matter heard as a “combination” (a.k.a. “hybrid”) hearing on the two substantive issues. Practically, that meant R.K. would file written submissions supported by evidence by August 16, 2019, Allstate would respond with its submissions and evidence by August 30, 2019, and then R.K. could “reply” in writing by September 13, 2019. Two weeks later, on September 24, a live, in-person (a.k.a. “viva voce”) hearing session would be held, limited to R.K.’s testimony.

8There were three attempts to alter that process. First, the parties agreed to a minor scheduling change with the “Reply” still due on September 13.

9Second, on September 13, R.K. filed a short, five paragraph Reply that addressed a conflict issue about a medical clinic and sought to expand the dates of her ACB claim. R.K. also filed a separate motion seeking those amendments. Allstate opposed the motion and moved to strike the Reply. By a Motion Order dated September 24, and released September 25, the Tribunal rejected the amendment and struck the Reply.

10The next day (the day before the in-person session), on consent, R.K. moved to withdraw the ACB issue, cancel the in-person session and proceed solely on the written submissions, and clarify the Motion Order to allow the few paragraphs in R.K.’s Reply on the conflict issue. Later that day, in a Motion Order, the Tribunal granted the motion, as follows:

OVERVIEW

3…The in-person portion of the hearing was solely with respect to the issue of attendant care.

MOTION

4On September 26, 2019, [R.K.] filed a…Motion requesting...the Tribunal;

i. Vacate the in-person hearing scheduled for September 27, 2019 due to the withdrawal by the application [sic] of the attendant care issue.

ii. [R.K.] requests the remaining issues proceed in writing. The parties’ written submissions have been received by the Tribunal.

iii. To allow the hearing adjudicator to consider [R.K.’s] reply submissions as they relate to issues other than attendant care.

5[Allstate] consented to the motion to vacate the in-person component of the hearing and proceed based on the submissions filed.

RESULT

6[R.K.’s] motion is granted.

7With the consent of the parties, I order the following;

i. The written hearing is adjourned to October 7, 2019.

ii. [R.K.’s] Reply Submissions under the heading “There is no conflict of interest between [R.K.’s] lawyer of record and Meditec” shall be considered by the hearing adjudicator.

8Except for the provisions contained in this order all previous orders made by the Tribunal remain in full force and effect.

11I find the Motion Order confirms the ACB withdrawal with the matter proceeding on the submissions filed. I reject Allstate’s reading that paragraph 7 only orders an adjournment and allows a portion of the Reply, but does not specify that the ACB was withdrawn, and that paragraph 8 means that the ACB was still a live issue to be resolved. Allstate’s reading ignores paragraph 6 - also of the “Result” section – that states “[R.K.’s] motion is granted”, and paragraph 4(i) specifically lists R.K. sought to withdraw the ACB issue.

12The context strengthens the result. The Motion Order states the purpose of the in-person portion was for the ACB (paragraph 3), the relief of proceeding solely in writing is for “the remaining issues” (paragraph 4.ii), and the relief for the Reply is to consider “issues other than attendant care.” Finally, the Motion is titled “Notice of Motion to Withdraw the AC Issue…” and the body of that motion is clear that R.K. sought to withdraw the ACB issue, noting Allstate takes “no position on the withdrawal of this issue and views it as the prerogative of [R.K.]…”³

13While the Motion Order could have been clearer, the ACB was withdrawn. The hearing adjudicator was aware of the two Motion Orders having referenced their substance but overlooked that the ACB was withdrawn. Thus, the question remains: What should result beyond striking the Tribunal’s Order on the ACB? R.K. submits that “the decision is irreparably tainted by the Tribunal having engaged in such a fulsome analysis of the [withdrawn ACB] issue” and must be cancelled⁴. I do not agree based on the procedure, facts and arguments in this case.

14First, this is not a case where the adjudicator decided issues based on evidence that was not before him. Rather, the adjudicator decided the matter on evidence the parties submitted and fully argued and, knowing that, R.K. had requested that the adjudicator decide the issue based on those submissions. At that, R.K. did not make any request to strike any part of the submissions or to handle the evidence in a particular way. Yet, R.K. now claims the Tribunal should not have thoroughly considered it. The evidence was validly before the adjudicator and R.K. had provided her interpretation of it.

15Second, R.K. has not shown or even alleged how the decision is tainted by the Tribunal’s “fulsome” analysis of the ACB evidence. In fact, not only is there no taint, but the evidence provided a fuller picture of R.K.’s medical history. As well, it was proper for the adjudicator to analyze all evidence that the parties placed before him and it would have been improper to not consider it. If this matter was reheard, Allstate could rely on this same evidence, making the same arguments.

16Third, beside general relevance, the Tribunal’s analysis shows the evidence was directly relevant to the treatment plan, even if the Tribunal was not asked to issue an order on the ACB. While Allstate’s hearing submissions briefly mentioned that its ACB OT assessor concluded that an ACB was not necessary, its main submission on the ACB was based on R.K’s admissions to the assessor and during an Examination Under Oath that she was independent despite her claim for ACB and that the services were not incurred. But the still greater focus was on general credibility issues affecting both issues such as: (a) differing accounts of the accident, (b) R.K.’s current claim that she fully recovered from her 2006 accident despite records showing otherwise and that her accident-related complaints all pre-date the subject accident, (c) claims about a PCL tear in her right knee despite other records, (d) surveillance evidence showing R.K. is very active contrary to her allegations, and (e) that her medical reports were based on “erroneous or incomplete” information supplied to the assessors. The adjudicator properly and thoroughly analyzed the evidence and agreed with Allstate.

Did the Tribunal violate R.K.’s right to procedural fairness by relying on Hearsay Evidence to Make Findings in Relation to the Applicant’s Credibility?

17R.K. alleges she was not afforded procedural fairness due to the Tribunal’s reliance on hearsay evidence and findings on her credibility, stating the “decision is heavily reliant on findings of fact and assessments of [R.K.’s] credibility arising out of its apprehension of double hearsay evidence contained in various medical records.” R.K. asserts variations of these points alleging the Tribunal misused the evidence; failed to “fulsomely” explain how and why it used the evidence; R.K. was not given the opportunity to defend her credibility and generally disputing the written hearing format. I find this submission unpersuasive for many reasons.⁵

18First, not only is R.K. improperly raising these issues for the first-time during reconsideration, but she requested the very “all-written” procedure based on her conflicting statements of which she now complains, and her actions during the hearing show she had no such concerns and she waived these issues.

19For example, she now submits that had she “known that her credibility was going to be so intensely scrutinized on the basis of presumptively inadmissible evidence, …, then she would have showed up to explain it to the Tribunal in person, in addition to adducing evidence to substantiate its existence.” Yet, she clearly knew her conflicting statements would be scrutinized, as the overall theme of Allstate’s hearing submission was attacking R.K.’s conflicting accounts of events. In fact, six of 11 pages of Allstate’s submissions formed a section entitled in bold type “There are Serious Credibility Issues”, followed by specific conflicts in the evidence – most surrounding R.K.’s own statements. Allstate concluded, “Given the credibility issues with respect to whether the knee or any impairments are actually related to this MVA, [Allstate] submits the treatment plan and the attendant care benefit are not reasonable or necessary.”

20Yet, except for a few paragraphs about the conflict-of-interest issue with a clinic and the stricken attempt to expand the ACB claim period, R.K.’s Reply did not address those statements, credibility/reliability, or any of Allstate’s arguments on them. Then, after failing to address those concerns in her Reply, R.K. moved to cancel the in-person session of the hearing and thereby waive her right to testify where she could have attempted to explain the obvious inconsistencies raised by Allstate. Thus, R.K. consented to the procedure, hearing format and use of the “hearsay” evidence, and her current request becomes an unpersuasive request to reweigh the evidence.

21Second, R.K.’s entire perspective on hearsay evidence is misplaced – it is out-of-context. For instance, R.K. posits that “Hearsay evidence…is presumptively inadmissible”; however, that standard is for the courts, while a Tribunal is widely-accepted to have the latitude to consider evidence not necessarily accepted within the courts.⁶ For instance, s. 15 of the Statutory Powers Procedure Act⁷ specifically provides that a tribunal may admit, if relevant, “any document…”.

22Third, as Allstate submits, R.K. produced the balance of the medical documents as either clinical notes and records from doctors who treated R.K., or assessment reports obtained via s. 25 of the Schedule. It is not in R.K.’s power to submit medical records on which she wishes to rely yet denounce them when negative findings can be made based on them.

23Fourth, the SPPA aside, the key “hearsay” records are medical records, which are long recognized as a type of business record that is an exception to the hearsay rule under both s. 30(1) of the Canada Evidence Act and s. 35(2) of the Ontario Evidence Act. Moreover, medical reports are further specified as exceptions under s. 52(2) of the Ontario Evidence Act. R.K.’s statements within those records would also be considered statements against interest, a long-recognized exception to the hearsay rule.

24Fifth, R.K. cites caselaw for points of law, but the cases are based on court rather than Tribunal procedure and the general discussion in those cases supports the Tribunal’s use of hearsay.

25For instance, R.K. quotes the Supreme Court in R v Khelawon⁸ discussing the danger of hearsay evidence, yet Khelawon is a criminal prosecution that has different rules of procedure, has the “beyond a reasonable doubt” standard of proof, and requires the highest degree of procedural fairness given that a person’s liberty is at stake. This contrasts with a Tribunal proceeding, which has a lower standard of proof and whose procedure places an emphasis on an efficient, proportional, and timely resolution of the merits. The rest of the paragraph quoted by R.K. explains that the use of hearsay evidence “obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding.” Khelawon explains that “a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence. The hearsay statement, because of the way in which it came about, may be inherently reliable…”, noting many exceptions.

26R.K. also quotes Flood v Flood⁹ for the proposition that while business records may be admissible, a third-party statement is not automatically admissible. However, Flood is a child removal case from the Ontario Court of Justice – again, not a Tribunal – discussing records from police services and Children’s Aid Society investigating domestic abuse, but still largely admits them. Notably, the case discusses how medical records do tend to be more reliable and notes that those records may contain third-party statements – but the court would still allow them if the third-party statements are “statements against interest.” In effect, that is what R.K.’s statements are in this case.

27R.K. cites the Supreme Court in N.L.N.U.¹⁰ for the proposition that a Tribunal must give adequate reasons for its decision. R.K. then extrapolates that point to assume the Tribunal must explicitly explain why it admitted each piece of “presumptively inadmissible” hearsay evidence. R.K.’s extension of N.L.N.U. is flawed given the reasons above, including that hearsay is not presumptively inadmissible in a Tribunal. The decision also makes clear that a decision maker is not required to make explicit findings on each element, nor is perfection the standard, and a decision’s reasons are reviewed in the context of the evidence, the parties’ submissions and the processes. It notes arbitration/Tribunal practice often requires speed, economy and informality “facilitated by much less stringent procedural and evidentiary rules than those [in] court proceedings.”

28Applying N.L.N.U., it appears that R.K. submitted most of the evidence she now questions, the records are exceptions to the hearsay rule even under Court procedure, R.K. never challenged its admissibility or weight below, failed to address it her Reply, and waived her right to explain or be challenged on it during testimony. At that, the Decision’s discussion is thorough in explaining how it interpreted the extensive medical history and documentation. In fact, even now in reconsideration, except for R.K.’s unpersuasive submissions on the miscarriage issue discussed below, R.K. does not point out how the evidence was unreliable.

Did the Tribunal make errors of fact that resulted a different decision?

29R.K. alleges several alleged factual errors changed the decision. I find this to be an attempt to reweigh the evidence. I also do not find there to be errors. For instance, R.K. submits that the Tribunal failed to accept or even consider Dr. Paton’s opinion on causation about R.K.’s right knee PCL (a ligament) tear, despite that R.K.’s submissions referred to it. I disagree. In a nutshell, Dr. Paton, a chiropractor, opined that an MRI after the accident shows a PCL tear, yet a 2006 MRI does not, thus meaning the PCL tear was caused by the accident. Allstate had that letter reviewed by Dr. Jaroszynski, an orthopaedic surgeon. While the Decision does not mention Dr. Paton’s name, the adjudicator clearly reviewed his report as the Decision directly addressed Dr. Paton’s opinion and explained why it prefers Dr. Jaroszynski’s interpretation.¹¹

30R.K. similarly submits that “the Tribunal erred in finding that “there is no evidence of the impact of this further knee damage, if any, on R.K.’s ability to function.” I disagree. As Allstate points out, it was unnecessary for the Tribunal to consider the impact of knee damage on function, since it was already concluded that any knee impairment was not accident-related.

31Finally, R.K. submits the Tribunal erred in not accepting that R.K. suffered an accident-related miscarriage, which finding undermined Dr. Pilowsky’s diagnosis of accident-related depression. In support, R.K. argues that Dr. Ghally’s August 29, 2016 clinical note of “intermediate assessment/well baby care” coupled with a post-accident May 5, 2017 “pelvic and transvaginal ultrasound in response to complaints of vaginal bleeding” establish both the pregnancy and accident-related miscarriage. I disagree. None of the documents speak to a pregnancy or a miscarriage, and the absence of any records mentioning a pregnancy or miscarriage in the eight months leading to the accident or during in emergency care support the Tribunal’s finding. At that, R.K. notes that the ultrasound revealed an ovarian cyst; yet that does not establish a miscarriage occurred.¹²

CONCLUSION AND ORDER

32R.K.’s request for reconsideration is granted in part and denied in part. Consistent with my discussion above, I order that the Tribunal’s June 26, 2020 Decision and Order stands, but vary it pursuant to Rule 18.4(b)(i) as follows:

1. In the decision’s “Order” section, at paragraph [42], the words “an attendant care benefit and” are stricken,

2. In the “Issues” section, at the end of para. [6] i., a footnote is added “Following the close of written submissions, this issue was withdrawn. Accordingly, the Decision’s discussion of the ACB issue shall be understood as considering the evidence before it to decide the treatment plan, but not to make an order on the ACB.”, and

3. The last lines of paragraphs 6 and 41, both referring to the ACB, are stricken.

Footnotes

1. 1Statutory Accidents Benefits Schedule, O. Reg. 34/10.
2. 2The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended (“the Rules”).
3. 3In fact, the Notice of Motion served as a Notice of Withdrawal effectuating the withdrawal of the ACB issue, even without an order.
4. 4Applicant’s Reconsideration Submissions, at para. 1.
5. 5As a threshold matter, I note that while the parties use the term “credibility”, the Tribunal’s findings concern R.K.’s lack of reliability, rather than a finding addressing her mindset or intention to mislead.
6. 6M.S. and Certas Home and Auto Insurance Company, 2019 CanLII 94043 (ON LAT), par. 14
7. 7Statutory Powers Procedure Act, RSO 1990, c S.22
8. 8R v Khelawon, 2006 SCC 57, [2006] SCJ No 57 at para 2. See also paras. 42, 47, 28.
9. 9Flood v Flood, 2019 ONCJ 12 at para 43.
10. 10N.L.N.U. v. Newfoundland and Labrador (Tres. Bd.), 2011 SCC 62, [2011] 3 SCR 708, par. 14
11. 11Decision, para. 23 – 39, and particularly para. 29, 31, 35-39.
12. 12R.K. also takes issue with the Tribunal’s practice of having reconsiderations heard by the hearing adjudicator, but as that has not occurred in this case, that point of error is moot.