RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 18-006384/AABS
Case Name: EC vs. Northbridge Commercial Insurance Corporation
Written Submissions by:
For the Applicant: Andrew Franzke, Counsel
For the Respondent: Stacey Morrow, Nicole Dowling, Counsel
1E.C.’s request for reconsideration, filed on September 1, 2020, arises from the Tribunal’s August 11, 2020 decision (“the decision”). The issues before the Tribunal were E.C.’s entitlement to a cost of examination expense, interest and an award claim. The Tribunal determined that E.C. was not entitled to the disputed treatment plan, and as such, no interest was payable. Further, that E.C. was not entitled to an award.
2E.C. has asked the Tribunal to reconsider that decision.
THE LAW
3There are limited grounds upon which a person can request a reconsideration. In this case, E.C. relies on the following criteria outlined in Rule 18.2 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”):
(i) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and
(ii) The Tribunal made an error of law and of fact such that the Tribunal would likely have reached a different result had the error not been made.
E.C. asserts that he therefore is entitled to a reconsideration pursuant to Rule 18.4(b).
RESULT
4E.C.’s request for reconsideration is dismissed.
ANALYSIS
5To be successful in a request for reconsideration, E.C. must satisfy one of the criteria set out in Rule 18.2(b) of the Rules. The criteria are:
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 evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is new evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.
4E.C. asserts that he therefore is entitled to a reconsideration based on the grounds found in Rules 18.2(a) and 18.2(b). The bases of E.C.’s argument are as follows:
a. The Tribunal’s decision contained insufficient reasons and resulted in a lack of procedural fairness;
b. The decision made an error of fact with respect to E.C.’s accident-related injuries based on the use of medical records, which E.C. submits is “presumptively inadmissible hearsay”;
c. The decision made an error of law by considering causation, which was not at issue; and
d. That the reconsideration should not be heard by the same adjudicator who presided over the initial hearing.
5In response to all of the alleged lack of procedural fairness and errors of law and fact, Northbridge submits that E.C.’s specific arguments do not justify granting the reconsideration request.
6Northbridge submits that E.C.’s allegation is that the decision contained insufficient reasons to allow him to ascertain whether it fell within a reasonable range of outcomes. Specifically, a) concerns related to the manner in which one of the key documents was identified, b) the use of the term “synchronous”, c) a comment with respect to the potential outcome of the denied assessments, d) the admissibility of hearsay evidence, and e) I should not hear the reconsideration.
7I agree with Northbridge that E.C.’s position is focused on the five issues listed in paragraph 6, and I will address them accordingly.
Errors of fact
OCF-18 not OCF-25
8E.C. submits that I erroneously referred to the disputed treatment plan as an OCF-25. Northbridge agrees. Upon review, I agree that an error was made in referring to the treatment plan as an OCF-25 - it should have correctly been referred to as an OCF-18.
9Northbridge submits that this is not a sufficient ground to change the decision.
10I agree with Northbridge. Despite this error, E.C. has not persuaded me that such an error would have led to a different outcome had the error not been made. The decision, at paragraph 2, correctly describes the treatment plan as being submitted for catastrophic assessments and details the purpose of the treatment plan at paragraph 4.
11There is no evidence that I misinterpreted the type of treatment plan - only that it was incorrectly identified as an OCF-25 instead of an OCF-18. I find there is no basis for me to grant a reconsideration on this ground.
“Synchronous”
12E.C. submits that I denied the treatment plan (OCF-18) on the basis that “Dr. Mula’s1 evaluation is synchronous with the medical evidence”. E.C. questions my use of the term, as it has caused E.C. to be “left guessing as to what the import of the phrase synchronous with the medical evidence is in relation to the Tribunal’s explicit acceptance of Dr. Mula’s evaluation”.
13E.C. provided the Merriam-Webster dictionary definition of “synchronous” as well as the understanding of that term according to one decision of the Ontario Court of Justice. E.C. submits that Dr. Mula’s evaluation did not “arise at precisely the same time” as the medical evidence, thus my use of the term “synchronous” was incorrect.
14E.C.’s position is that the use of the term “does not admit of an intelligible interpretation in this context (of determining entitlement to the OCF-18) and its use precludes E.C. from ascertaining whether the reasons provided by the Tribunal read together with the result falls within a reasonable range of outcomes”.
15Northbridge argues that in the entire context of the discussion of Dr. Mula’s report, the decision, at paragraphs 10, 11, and 12, analyzes Dr. Mula’s report, the medical evidence, E.C.’s previous and current pain complaints, and concludes that this analysis does not establish that the OCF-18 is reasonable and necessary.
16Upon further evaluation of E.C.’s reconsideration submissions regarding the use of the term “synchronous”, I agree the use of the word may have not been the right term. The intent was to convey that I found that Dr. Mula’s evaluation was consistent with the medical evidence. Despite this, E.C. has not proven that this clarification would result in a different outcome of the decision, had I not used the word “synchronous”.
17At paragraph 13 of the decision, I discuss the evidence of E.C.’s physical and psychological impairments and conclude that E.C. has not proven that the OCF-18 is reasonable and necessary. The OCF-18 listed physical injuries that would be considered minor, and as specifically stated in paragraph 13, “there is no evidence that E.C. suffered a head or brain injury or any emotional or psychological impairment as a result of the accident”.
18For these reasons, while I agree that the word “synchronous” should not have been used, I disagree with E.C. that my use of the term and the reasons provided would not fall within a reasonable range of outcomes when the decision is read in its entire context.
The Tribunal’s determination with respect to the ‘likelihood’ of what a catastrophic assessment would find in relation to questions of causation
19E.C. argues that my comment, “there is a likelihood that the assessment will prove negative”, had no basis as to what his catastrophic assessment may determine. E.C. further argues that the question of causation was not an issue before the Tribunal. Regarding causation, E.C. submits that I erred in law in relying on a finding at paragraph 11, that “…there is no medical evidence that supports the current pain complaints were directly caused by the accident”.
20Northbridge’s position is that E.C. is not considering the entire context of my comments on assessments. Northbridge submits that E.C.’s disagreement of my assessment of the evidence, and my findings based on that assessment, does not equate to a finding of an error of law.
21I agree. In paragraph 8 of the decision, I state:
“In addressing the issue of the reasonableness and necessity of a catastrophic impairment assessment, I note that E.C. bears the onus, on balance of probabilities, to show entitlement to the assessment. I also note that, by their nature, assessments are speculative. They are conducted to determine if an applicant has a specific condition or meets a specific threshold. There is a likelihood that the assessment will prove negative. Having said that, I accept Northbridge’s position that there must be some suggestion that the specified condition exists, and that further investigation is reasonable and necessary”.
21My comment on the likelihood of the outcome of an assessment is not specifically addressing the OCF-18 that E.C. relies on. It would be presumptuous and erroneous of me to assume that the only outcome of the disputed OCF-18 assessments would be negative. Considering the paragraph in its entire context, I made a general statement about a possible outcome of an assessment. Without having felt the need to be specific in saying that there is also a likelihood that the outcome of an assessment will prove positive, this was an exercise in avoidance of stating the obvious.
22In response to the issue of causation, I agree with E.C. that causation is not the test to determine reasonable and necessary, however, in the context of considering whether E.C. provided persuasive medical evidence to establish that the disputed OCF-18 was reasonable and necessary, the correct test was applied.
23The decision does not rely on a consideration of causation to determine whether the OCF-18 was reasonable and necessary. As was clearly summarized at paragraph 13, the medical evidence regarding E.C.’s physical and psychological condition was reviewed, considered and determined to establish that the OCF-18 was not reasonable and necessary, which is the correct test.
Hearsay evidence – hospital records and Dr. Cekan
24E.C. submits that a statement made by E.C. at the hospital following the accident is hearsay evidence that is presumptively inadmissible. E.C. disagrees with the emphasis I placed on the hospital record which notes his comments about his post-accident physical injuries.
25E.C. further relies on the records of Dr. Cekan, with references to E.C. feeling depressed and finds it difficult to cope with his stressors; and that E.C. suffers from major depressive disorder, difficulty concentrating and insomnia. In support of his position on hearsay evidence, E.C. relies on the Supreme Court of Canada’s decision, R v Khelawon, 2006 SCC 57, [2006] SCJ No 57. In Khelawon, the Supreme Court states:
“Hearsay evidence, an out-of-court statement adduced for the proof its contents, is presumptively inadmissible. As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function.”2
26Northbridge submits that E.C.’s reliance on Khelawon to support that hearsay evidence is not permissible, is incorrect in law. In its response to the case law, Northbridge submits that E.C. failed to acknowledge the Supreme Court’s comments on the subject of medical records, which specifically relates to the within proceeding. In Flood (which was submitted by E.C.), the Ontario Court of Justice quotes the Supreme Court’s decision in Ares v. Venner, stating:
“Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as a prima facie proof of the facts stated therein”.3
27Northbridge refers to its initial submissions wherein it references E.C.’s statement to his psychiatrist, Dr. Bartolucci, that he had “no change in symptoms and no new symptoms” following the subject accident.4
28I find E.C.’s argument on hearsay fails for three reasons. First, on the basis of E.C.’s argument, this would raise an issue of procedural fairness for Northbridge, as Northbridge would not have an opportunity to question or investigate the accuracy of the hospital record. Second, in a tribunal setting, hearsay evidence is permissible. Third, as laid out in Ares, a nurse or any other medical professional has a “duty to make the entry or record”. For E.C. to suggest that his post-accident statement recorded in a hospital, by a medical professional, is inadmissible hearsay, is without merit. Further, if E.C. wished to question the note taker of the hospital records, he had a right to exercise that opportunity. He did not. Tellingly, E.C.’s position is internally inconsistent as he argues that I ought not to have considered the hospital records but consider the records of another medical professional (Dr. Cekan) that recorded post-accident statements.
29There is no evidence that the hospital records were incorrect or that E.C. denies making a statement at the hospital about his physical well-being following the accident. E.C. has not persuaded me that this was factual error that would justify a reconsideration on this issue.
30E.C. submits that I favoured the hospital records over the remarks of Dr. Cekan (noted above in paragraph 22 regarding E.C.’s psychological well-being). E.C. argues that the finding in the decision that there was no evidence that E.C. suffered any emotional or psychological impairment as a result of the accident amounts to an error of fact.
31The records of Dr. Cekan indicate psychological issues that are not accident-related. Dr. Cekan notes “underlying stressors (financial, family illness related to a grandmother)”. Dr. Cekan’s notes on August 30, 2016, also discuss psychological complaints, however, there is no evidence that relates the psychological complaints to the subject accident.
32The onus was on E.C. to establish that the OCF-18 is reasonable and necessary. At paragraph 12 of the decision, I note that Dr. Mula was not provided with any medical documentation in support of mental/behavioural or neurocognitive impairment. At paragraph 13, I also considered the psychological evidence of the OCF-18 author, Dr. Milad. I determined that the psychological-based assessments recommended by Dr. Milad were not supported by the medical evidence. Consequently, I concluded that from both a physical and psychological perspective, E.C. had not met his onus that the OCF-18 is reasonable and necessary.
33E.C. has failed to show that my consideration of the medical evidence and the resulting determination resulted in an error of fact that would result in a different outcome had the alleged error not been made.
Adjudicator Grant should not hear the reconsideration
34E.C. objects to the “LAT’s consistent practice of having reconsiderations heard by the same adjudicator who presided over the Application being reconsidered”. E.C. submits that the practice raises an apprehension of personal and institutional bias. E.C. further submits that this practice erodes public opinion of the Tribunal and the rule of law. His position is that a reasonable, informed person would not think that he or she will get a fair hearing from the same person who dismissed his or her case initially.
35Northbridge submits, “that a qualified adjudicator would not reconsider an earlier decision in light of a legitimate legal or factual error being brought to their attention has no legal basis”.
36I agree with Northbridge for the following reasons. E.C. did not point me to any evidence that supports that an adjudicator would not properly reconsider a decision in “light of a legitimate legal or factual error”. There are numerous reconsideration decisions from the Tribunal wherein the initial hearing adjudicator was the same adjudicator tasked with hearing the reconsideration of the same matter and the adjudicator overturned their own decision in part or in whole.
37On the issue of a reasonable apprehension of bias regarding a tribunal’s reconsideration process, I am guided by Justice Aston who wrote for the unanimous court in Landau v. Ontario (Minister of Finance)5:
15The applicant submits no one should sit in appeal on a review of his or her own decision. She submits that the [Human Rights] Tribunal’s Practice Direction on reconsideration, specifically allowing adjudicators to reconsider their own decisions, is insufficient to avoid the reasonable apprehension of bias. The well-known test for “reasonable apprehension of bias” is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly.
16We agree with the Tribunal submission on this point. The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.
17A reconsideration is not an appeal or a hearing de novo. More importantly perhaps, there is no right to have a decision reconsidered. Under s.45.7(2) of the Code “the Tribunal may reconsider its decision” but is not bound to do so. The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. In this case, the applicant has not established anything more than the fact that the Associate Chair was reviewing his own decision. By itself that does not constitute a breach of procedural fairness under this legislative scheme. We would therefore not give effect to this ground of appeal.
38Under Rule 18.1 of the Rules, the Tribunal may, upon request of a party or on its own initiative reconsider any decision of the Tribunal that finally disposes of an appeal. Rule 18.1 also states that a reconsideration may be heard by the same Member whose decision is the subject of the request. The Tribunal’s reconsideration process is governed by section 21.2 of the Statutory Powers Procedure Act (SPPA) and the Rules created pursuant to section 25.1 of the SPPA. The Tribunal has the ability to control its process and establish rules of practice and procedure to “secure the just, most expeditious and cost-effective determination of every proceeding on its merits” (section 2 of the SPPA) and “ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal” (Rule 3.1 of the Rules). As set out in Landau, “the original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions”. Similarly, to Landau, E.C. has not established anything more than that I am reviewing my own decision. There is no evidence of a breach of procedural fairness on this basis, nor is there any evidence of bias or a reasonable apprehension of bias.
39E.C.’s claim regarding the appropriateness of me hearing the reconsideration is without merit, and not based on fact or evidence.
CONCLUSION
40For the reasons set out above, I dismiss E.C.’s request for reconsideration.
Derek Grant Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: October 21, 2020
Footnotes
- Dr. Mula Primary Care Physician and s. 44 assessor for Northbridge
- R v Khelawon, 2006 SCC 57, [2006] SCJ No 57 at para 2 – Tab 7 – Applicant’s Reconsideration Document Brief
- Flood v. Flood, [2019] O.J. No. 152 at para 43, citing Ares v. Venner, 1970 CanLII 5 (SCC) – Tab 8 of Applicant’s Reconsideration Document Brief
- Paragraph 22 of Respondent’s Initial Submissions
- Landau v. (Ontario) Minister of Finance, 2012 ONSC 6926 (Div. Ct.) at paras 15-17.