Z.R. v. Certas Direct Insurance Company, 2021 CanLII 50792

Z.R. v. Certas Direct Insurance Company

Citation: Z.R. v. Certas Direct Insurance Company, 2021 ONLAT 18-001468/AABS-R

RECONSIDERATION DECISION

Before: Paul Gosio, Adjudicator

Date: 06/01/2021

File: 18-001468/AABS

Case Name: Z.R. v. Certas Direct Insurance Company

Written Submissions by:

For the Applicant: Patrick Brown, Counsel

For the Respondent: Philippa Samworth, Counsel

OVERVIEW

1The applicant’s request for reconsideration arises out of a Decision dated July 31, 2021 ( the “Decision”) wherein the Tribunal found that the applicant was not catastrophically impaired as defined by section 3.1(1) 5(i) of the Statutory Accident Benefits Schedule (as amended June 2016) (the “Schedule”)¹. The applicant submits that the Tribunal made significant errors of law and furthermore exceeded its jurisdiction in making its decision and requests that the Tribunal Decision be set aside. The respondent submits that none of the issues raised by the applicant justify a reconsideration under 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) as amended (“Rules”).

RESULT

2After reviewing the submissions of the parties and for the reasons articulated below, I have dismissed the applicant’s request for reconsideration.

ANALYSIS

3The grounds for a request for reconsideration are contained in Rule 18.2 of the Rules. 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 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, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4In this case, the applicant submits that the Tribunal made errors of law by failing to consider the French versions of s.3.1(1) 5(i) and (ii) of the Schedule and by creating a temporal requirement under s.3.1(1) 5(i) of the Schedule. The applicant submits that the Tribunal would likely have reached a different result had the errors not been made. The applicant also submits that Tribunal acted outside its jurisdiction when it addressed “the absurd results that flow from his interpretation of the word ’with.’”

The Applicant’s Request for Reconsideration

A. Error in Law

Failing to Consider the French Versions of s. 3.1(1)(5)(i) and (ii)

5The applicant submits that the adjudicator erred in law by failing to consider the French versions of s. 3.1(1)(5)(i) and (ii) of the Schedule and that the Tribunal would likely have reached a different result had the error not been made. The applicant submits that the Tribunal was bound to consider the two-part procedure for the interpretation of bilingual statutes as set out by the Supreme Court in Canada in R. v. Daoust².

6The parties agree that the question of the French versions of s. 3.1(1)(5)(i) and (ii) were never put to the hearing adjudicator during the hearing. It was not raised in any factums nor was it raised in any submissions. As a result, I find that the adjudicator made no error in law in this regard.

7The applicant submits, however, that new arguments can be permitted on reconsideration and relies on the Tribunal’s decision in D.S. v. Travelers³ (“D.S.”) wherein Adjudicator Paluch states:

…there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, such as where the interests of justice require as much and where the argument can be fully and fairly determined on the basis of the Tribunal’s record.

8The applicant submits that these are exceptional circumstances and that the interests of justice favour hearing the new argument on the French version because the decision at first instance will carry precedential weight as first to consider the word “with”. The applicant also submits that this new argument can be determined fully and fairly on the basis of the Tribunal’s record but may, in part, require updated records from Holland Bloorview Rehabilitation Hospital.

9The respondent submits that the Tribunal has no authority to consider the new argument raised by the applicant in reconsideration. The respondent submits that new arguments should be considered in the same manner as new evidence. Rule 18.2(d) of the Rules provides that the Tribunal can consider new evidence where the party can show:

(a) The evidence could not have been obtained previously by the party; and

(b) Would not have affected the result.

10The respondent submits that the applicant has not provided any reasons as to why the argument with respect to the French version was not put to the hearing adjudicator. The respondent submits that the applicant is attempting to re-open and re-argue his case.

11I agree with Adjudicator Paluch that there may be exceptional circumstances in which a new argument should be permitted on reconsideration. I find, however, that this is not one of those cases as I do not find that this new argument could fully and fairly be determined on the basis of the Tribunal’s record. This case proceeded to a one-day hearing wherein witnesses were called, and both written and oral submissions were made. I agree with the respondent’s submission that, had this issue been raised at first instance, that additional expert evidence may have been required and that the substance of the cross-examination of the witnesses called may have been different in order to address this new argument. The applicant also conceded that updated records from the Holland Bloorview Rehabilitation Hospital may be required in order to flesh out their argument. To allow this new argument at this stage would amount to a denial of natural justice and procedural fairness to the respondent.

Creating a Temporal Requirement under s. 3.1(1)(5)(i)

12The Tribunal found that the word "with" denotes a link as between the admission as an in-patient to the hospital and the positive findings on a test that reflects brain impairment. Paragraph 37 of the Decision notes that the plain reading of the section, while keeping in mind the intentions of the legislation, supports this finding. The adjudicator noted:

The legislature's use of the word 'with' denotes a temporal association or connection between a person's admission to a hospital on an in-patient basis and a positive finding on one of the appropriate tests outlined. If the legislature had intended a different interpretation, it could have used the words 'in addition to' or 'and' instead of the word 'with.'

13The Tribunal found that this was consistent with the legislative intent to speed up determinations and to provide a more accurate, consistent and objective process.

14The applicant submits that the Tribunal erred in law by reading into the provision a temporal requirement where no such requirement exists. The applicant submits that the Legislature never intended the positive imaging under s. 3.1(5) (i) to be tied to or limited by a point in time and that if that was the intention, the Legislature would have said so explicitly. The respondent submits that no such error in law was made with respect to the Tribunal’s interpretation with respect to the word “with.”

15The Tribunal’s decision reviewed the principles of statutory interpretation as well as the legislative purpose and policy objectives behind the Schedule. The conclusion drawn with respect to the temporal requirement is well within the bounds of legislative interpretation and is a result of applying the appropriate law and analysis. The applicant has not satisfied me that the Tribunal made an error of law that was so significant that the Tribunal would have likely reached a different result had the error not been made.

B. Tribunal’s Jurisdiction

16The applicant submits that the Tribunal exceeded its jurisdiction when it addressed the absurd results that flow from the adjudicator’s interpretation of the word “with”. The applicant submits that this warrants a reconsideration of the Decision.

17The applicant argued at the hearing that the adjudicator’s ultimate interpretation of the word “with”, if made, would lead to an absurd result. At paragraph 38 of the Decision, the Tribunal noted the following:

The applicant submits that this interpretation would lead to absurd results as an in-patient may not be given one of the required tests due to hospital resources, the discretion of the treating physician, and/or due to other more observable and apparent injuries that may command immediate attention. I disagree with the applicant's submission in this regard. If an applicant can establish that a positive finding would have been made but for one of the circumstances outlined by the applicant, then they may be able to satisfy the criteria outlined in the section.

18The applicant submits that not only did the Tribunal’s Decision impose a temporal requirement, it also carved out an exception to that temporal requirement. The applicant submits that the Tribunal “overstepped the adjudicative function of the Tribunal, reaching well-into the Legislature’s domain.”

19The applicant further submits that this exception would impose unrealistic burdens on applicants to prove on a “but for” basis anything related to physician discretion and hospital resources. It is also entirely inconsistent with reducing disputes in a no-fault auto insurance regime which the Tribunal recognized as the legislative objective here.

20I disagree with the applicant’s submission in this regard. The comments of concern in paragraph 38 of the Decision are obiter and do not create precedent. No evidence was led at the hearing by the applicant that he was not able to be given a test due to hospital resources or any other circumstance raised by the applicant. These comments alone do not satisfy me that the Tribunal acted outside its jurisdiction.

CONCLUSION AND ORDER

21For the reasons noted above, I find that the applicant has failed to establish that the Tribunal made any error in law or acted outside its jurisdiction such that Decision should be reconsidered. The applicant’s request for reconsideration is dismissed.

Paul Gosio Adjudicator Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1O. Reg. 34/10
2. 22004 SCC 6 at para. 28-30.
3. 3CanLII 94018 (ON LAT)