A.B.B. v. Aviva Insurance Canada, 2021 CanLII 60469

Citation: A.B.B. v. Aviva Insurance Canada, 2021 ONLAT 17-004309/AABS- R

RECONSIDERATION DECISION

Before: Ian Maedel, Vice Chair

Date of Order: 07/08/2021

Tribunal File Number: 17-004309/AABS

Case Name: A.B.B. v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Shahen A. Alexianian, Counsel and by A.B.B., Applicant

For the Respondent: Patrick M. Baker, Counsel

OVERVIEW

1This request for a reconsideration was filed by the applicant and arises out of a Motion Order released January 5, 2021 dismissing the Application before the Tribunal following a finding the applicant had committed an abuse of process.

2This Order followed a Notice of Motion filed by the respondent on October 20, 2020 requesting a dismissal of the Application due to the applicant’s failure to submit to a psychological insurer’s examination (“IE”). I granted the respondent’s motion for dismissal and the applicant is now disputing that decision.

3Specifically, the Applicant submits that the Tribunal:

i. Erred in finding there was an abuse of process pursuant to Rule 3.4 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”);

ii. Erred in redeciding the issue of non-attendance at an IE, pursuant to s. 55(1)2 of the Statutory Accident Benefits Schedule (the “Schedule”), was previously decided by Vice Chair White, and the issue was res judicata, and any attempts to vary her previous Order, or the conditions she imposed, were made without jurisdiction;

iii. Erred in failing to find the IE assessor lacked impartiality and was not in a position to conduct the assessment due to previous knowledge of the procedural history of this matter and attendances at previous IEs;

iv. The adjudicator was biased towards the respondent, disregarding the privacy concerns of the applicant and the facts of this case.

4The applicant is seeking an order:

a. Cancelling the Tribunal’s Motion Order released January 5, 2021; and

b. For a rehearing on all or part of the matter.

RESULT

5The Applicant's request for reconsideration is dismissed.

BACKGROUND

6The accident in question occurred on July 19, 2014, and an Application was filed with the Tribunal on July 11, 2017.

7A case conference was convened, and an in-person, preliminary issue hearing was scheduled to consider the applicant’s failure to submit to an IE, pursuant to s. 55(1)2 of the Schedule. An in-person, preliminary issue hearing was conducted in January 2018.

8In a Preliminary Issue Decision released July 6, 2018, Vice Chair White found the applicant was not precluded from proceeding with the Application, pursuant to s. 55(1)2 of the Schedule. The Vice Chair then ordered the applicant to attend a new psychological assessment before another Psychologist resulting in a report being rendered. Vice Chair White indicated it would be advisable for the parties to agree upon a consent form for this process to continue. Unfortunately, an IE following this Decision was not completed.

9The respondent filed a Notice of Motion on July 5, 2019 seeking to dismiss this Application as abandoned, pursuant to s. 3.4 of the Rules. Vice Chair Hunter conducted the motion hearing, and the applicant agreed he would attend a psychological assessment and the parties should resolve the form of consent or determine if a consent is required. The respondent’s motion to dismiss the Application was, therefore, denied.

10The second psychological IE was scheduled for September 11, 2019. The applicant attended the IE, but it was not completed after the applicant questioned the professional integrity of the assessor, who terminated the assessment.

11On March 23, 2020, the respondent filed a second Notice Motion seeking to dismiss the Application due to the applicant’s continuing frustration of the assessment process. In a Motion Order released June 1, 2020, Vice Chair Hunter “reluctantly” denied the respondent’s motion and ordered the applicant to attend a psychological IE within 90 days of his Order. Vice Chair Hunter indicated there shall be no dispute as to the consent, or any other form the applicant was required to sign in order to complete the IE. He also ordered the applicant shall not threaten complaints of professional misconduct to the assessor prior to the completion of the assessment. Finally, he noted the applicant shall cooperate to ensure the assessment is completed.

12The respondent filed a Notice of Motion dated October 20, 2020, seeking to dismiss the proceeding. Briefly, the applicant failed to complete the ordered psychological IE. Following a motion hearing on December 7, 2020 and January 4, 2021, I released a Motion Order (dated January 5, 2021) dismissing the Application as an abuse of process (pursuant to Rule 3.4).

PARTIES’ POSITIONS

THE APPLICANT’S POSITION

13The applicant submits that I lacked the authority to dismiss this appeal based on an abuse of process. Specifically, the applicant claims that I failed to identify what precise actions constituted an abuse of process, and abuse of process is not a ground for dismissal of an application, pursuant to Rule 3.4 of the Rules.

14The applicant then submits the s. 55(1)2 issue was addressed by Vice Chair White in a previous Preliminary Issue Decision (released July 6, 2018), where she determined the applicant was not barred from proceeding with the Application. Additionally, Vice Chair White did not impose any conditions for the successive IEs, and, as such, Vice Chair Hunter did not have the authority to impose the condition that the applicant sign the consent form at a future IE. This issue was res judicata and attempts to vary Vice Chair White’s Order were, therefore, made without jurisdiction.

15Put another way, the applicant submits both Vice Chair Hunter and I exceeded our jurisdiction by imposing conditions over and above those from Vice Chair White, namely any conditions beyond requiring him to attend a new assessment before another Psychologist, and a report be rendered as a result.

16Further, the applicant submits that I failed to consider whether the IE was tainted and should not have proceeded in any event. The assessor admitted the respondent had informed him of the history of the applicant’s purported lack of cooperation at the previous IEs, and that he had reviewed the applicant’s complete file. The applicant asserts that I ignored this issue completely, instead referring to a review of the medical history, not the potential issue of the assessor’s bias.

17Finally, the applicant submits both Vice Chair Hunter and I were biased in favour of the respondent. Together we honored the “unspoken alliance among adjudicators to back and support one another’s rulings, with total disregard for the particulars of the case, evidence, arguments, and witnesses”.

THE RESPONDENT’S POSITION

18The respondent submits there has been an abuse of process in this matter, pursuant to s. 23(1) of the Statutory Powers Procedure Act (“SPPA”).¹ As the adjudicator, I had the jurisdiction to dismiss this matter as an abuse of process, pursuant to this section of the SPPA. My Motion Order provided specific reasons, outlined the procedural history, and highlighted the previous opportunities to permit the applicant to comply with his obligation to participate in a psychological IE.

19The respondent submits that the applicant’s submissions lack merit and amount to little more than a disagreement with the outcome of the motion. My Order was a direct result of the applicant’s disregard for both the previous Orders from the Tribunal and his obligations pursuant to the Schedule.

20The respondent submits the applicant has misapplied the concept of res judicata, as there is no basis in law for the proposition that Vice Chair White had the sole jurisdiction to dismiss this matter pursuant to s. 55(1)2. The respondent argues that this is a new argument provided as part of the reconsideration and should be disregarded. Similarly, there is no basis to submit that Vice Chair White’s Order was superior in jurisdiction to the successive Motion Orders by Vice Chair Hunter and myself.

21The respondent submits that the applicant frustrated two previous psychological IE’s by refusing to provide written consent and threatening both to contact the assessors’ governing bodies and potential litigation. As a result, it was unreasonable to assume that the IE could have been arranged without this context being provided to the assessor. A failure to forewarn the assessor of the procedural history of this matter would have been irresponsible. Any potential taint of these assessments was of the applicant’s own creation. This notice to the assessor does not constitute an error of law.

22Further, the respondent submits that the applicant has provided unfounded and inappropriate allegations of bias toward Vice Chair Hunter and me. There is no viable legal argument to be made on these points. Both Vice Chair Hunter and I provided the applicant with fulsome opportunities to comply with the Schedule, and we both executed own duties as members of the Tribunal.

23Finally, the respondent submits that there was no attempt to force the applicant’s consent to the psychological IE in question. The applicant had an obligation to comply with the respondent’s IE requests, in accordance with s. 44(1) of the Schedule. He disregarded this obligation, and so his continued pattern of abuse warranted dismissal of his Application.

24Beyond opposing the reconsideration request, the respondent also sought costs. That is, according to the respondent, the applicant’s vexatious and abusive actions continue and must be harshly addressed by the Tribunal. Given these circumstances, the Tribunal should award $1,000.00 in costs against the applicant, pursuant to Rule 19.

ANALYSIS

25The grounds for granting a request for reconsideration are contained in Rule 18 of the Rules. Briefly, reconsideration is only warranted in cases where an adjudicator has acted outside of their jurisdiction or violated the rules of procedural fairness or has made an error of fact or law preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

JURISDICTION

26The dismissal of the Application in my previous Motion Order was premised on an abuse of process, pursuant to Rule 3.4 of the Tribunal’s Rules.

27Once again, according to the applicant, this Order is an error of law, as Rule 3.4 does not contain any reference to an abuse of process in consideration for a dismissal without a hearing.

28Rule 3.4 is clear; the Tribunal may dismiss an appeal without a hearing if:

a) The appeal is frivolous, vexatious, or commenced in bad faith;

b) The appeal relates to matters that are outside the Tribunal’s jurisdiction;

c) The statutory requirements for bringing the appeal have not been met; or

d) The appellant is found to have abandoned the proceeding.

29I would also add that the Tribunal has a mandate to ensure that the Rules are liberally interpreted to facilitate a fair, open, and accessible process, and to allow active participation by all parties, pursuant to Rule 3.1(a). Furthermore, s. 23(1) of the SPPA states the Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

30I have again reviewed the complete written record before the Tribunal, including the motion submissions and the audio recording made of the third and final attempted psychological assessment on September 16, 2020.

31Although I do not believe this application was commenced in bad faith, given the evidentiary record before me, I am satisfied the applicant repeatedly demonstrated a pattern of bad faith conduct, pursuant to Rule 3.4(a) of the Rules. Throughout this assessment process, and for a period of more than three years, the applicant repeatedly failed to submit to the IEs. When attending the assessments, he intentionally refused to sign consent forms, questioned the assessor’s professional integrity, raised the specter of potential litigation, or indicated he may contact the assessor’s professional regulating body. All, or a combination of these factors, led to assessments not being completed.

32Additionally, instead of contacting respondent counsel through his own retained legal counsel, the applicant sent correspondence directly to respondent’s counsel. This correspondence detailed allegations of harassment, illegal acts, and alleged violations of professional conduct. I am persuaded by the respondent’s submissions that this communication was an ongoing attempt to bully and intimidate the respondent and its vendors.

33The applicant has a positive duty to attend assessments that are “reasonably necessary”, pursuant to s. 44(1) of the Schedule. Assessments permit insurers the ability to determine if an insured person is entitled to, or continues to be, entitled to accident benefits. The applicant has not otherwise asserted he was improperly served with the Notices of Examination, pursuant to s. 44(5), nor has he alleged any other ground for non-compliance with the Schedule.

34Taken together, I am satisfied that the applicant’s efforts to prevent the psychological IE from taking place have deprived the respondent the ability to actively participate in this proceeding.

35This delay has also compromised the Tribunal’s ability to ensure an efficient, proportional, and timely resolution of this dispute on its merits, pursuant to Rule 3.1(b). This matter has now been before the Tribunal for three years and eleven months, and a merits-based hearing has yet to be completed.

36Once again, the applicant has demonstrated a pattern of bad faith behavior over the period of the past three years, depriving the respondent of a psychological assessment on three separate occasions. Beyond compromising the respondent’s ability to effectively participate, the extensive delay wrought by the applicant’s actions have prevented the Tribunal from efficiently resolving the dispute on its merits.

37Delay is a very real, and ongoing concern in relation to the respondent’s ability to complete a psychological assessment relating to the conditions present at the time of the accident or immediately thereafter. The accident occurred in 2014, now more than seven years ago, and so, with each passing day, an assessment of the applicant’s prognosis relating to the date of the accident grows more and more remote.

38Since 2018, the applicant has been afforded multiple opportunities to attend the assessments. The Tribunal has repeatedly afforded the applicant the utmost procedural fairness, thrice denying a request to dismiss this application for non-compliance for the same reasons.

39In sum, I am satisfied the Tribunal does have the jurisdiction to dismiss this appeal. I am not prepared to permit this pattern of bad faith and abuse of process to continue. Clearly, the Rules have been breached, and the Tribunal has the power to prevent a continued abuse of process through s. 23(1) of the SPPA or bad faith behavior through Rule 3.4 of the Rules.

40The applicant has not objected to any potential breach of Rule 3.5 regarding notice or service of intention to dismiss. I am otherwise satisfied the applicant received adequate notice of the respondent’s motion to dismiss this matter. I am further satisfied the applicant was afforded and exercised his right to provide submissions regarding the potential dismissal of this Application.

RES JUDICATA

41The applicant has raised the issue of res judicata in relation to the Preliminary Issue Decision released by Vice Chair White on July 6, 2018. VC White found that the applicant was not precluded from proceeding with the Application, pursuant to s. 55(1)2 of the Schedule at the time of her decision. Vice Chair White ordered that the applicant re-attend at an IE, but did not make an order requiring the applicant to sign a consent form prior to the IE.

42The applicant submits that Vice Chair Hunter did not have the authority to decide the issue and impose conditions with regard to the consent required at the IE. The applicant contends that this subsequent Motion Order offended the doctrine of res judicata, otherwise known as issue estoppel.

43For res judicata to apply, the following must be found:

i. The same question or issue has been decided;

ii. That decision was judicial and final; and,

iii. That parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which estoppel is raised.²

44The doctrine of res judicata does not apply in this case, as Vice Chair White’s decision was an interim order, not a final determination of the issue, pursuant to s. 55(1)2 of the Schedule. Thus, this analysis fails the second criteria listed above.

45What the applicant also fails to consider was that a material change in circumstance had occurred between Vice Chair White’s Preliminary Issue Decision and my Motion Order. In the thirty months between these two decisions, the applicant again failed to complete a second, psychological IE, and two separate Motion Hearings were conducted, both before Vice Chair Hunter.

46In the first Motion Hearing, the respondent’s motion to dismiss the Application was denied, and the applicant agreed to attend a further IE. At the second Motion Hearing, Vice Chair Hunter ordered the applicant to attend an IE and imposed conditions regarding his attendance.

47While Vice Chair Hunter and I were certainly required to consider the previous procedural history of this matter, neither of us were bound by Vice Chair White’s decision, especially given the material change caused by the applicant’s repeated and ongoing failure to submit to an IE. When I was seized of the matter in November 2020, the applicant had failed to complete a third IE and failed to comply with Vice Chair Hunter’s most recent Order.

48I reject the applicant’s submissions that the dismissal of this application was somehow predicated solely on Vice Chair Hunter’s previous Motion Order of June 1, 2020. Once more, I was obliged to review the procedural history of this matter and the previous orders issued by the Tribunal, but Vice Chair Hunter’s Order was only one piece in a larger, contextual puzzle. This included three failed IEs over several years, including the bad faith actions of the applicant that led to an abuse of process, both counter to the Rules and the SPPA.

THE ASSESSOR’S ALLEGED PARTIALITY AND PRIVACY ISSUES

49I reject the applicant’s submissions that the assessor at the September 16, 2020 IE was tainted because he was made aware of the procedural history of the matter, including the applicant’s failure to complete consent forms at previous attempted IE’s. This is not a valid reason to fail to submit to an IE, pursuant to s. 44(1) of the Schedule.

50Any concerns regarding the alleged reliability of the results of an IE are best challenged as part of the overall hearing (or in the lead up to said hearing). For instance, issues of assessor bias may be challenged by way of a Notice of Motion, or by testing this evidence during cross-examination at the hearing.

51The applicant cannot simply refuse to submit to an IE simply because they have doubts about the reliability of the resulting expert reports. Testing this evidence is a key feature of any adjudicative hearing process, and there is no cogent reason to deviate from this well-established practice.

52I placed little weight on this argument previously, but I failed to note it in the Motion Order. The applicant is correct, I should have responded to the submissions and indicated that I found them unpersuasive relating to the reasons for non-attendance at the hearing. However, I fail to see how this oversight affected the overall reasoning in my Motion Order.

53Similarly, potential issues regarding the protection of private medical information is not a valid reason to fail to submit to an IE. If the applicant has concerns about safeguarding this information, he had the option of applying to other forums which are dedicated to addressing privacy breaches or misuse of personal information. The Tribunal is not the appropriate venue to address concerns of this nature, and privacy issues should not otherwise be used as a sword to refuse to comply with a valid request for an assessment, pursuant to s. 44(1) of the Schedule.

54The applicant’s refusal to complete a consent form is a consistent theme related to the failure to complete these IEs as scheduled. Issues regarding the consent figured prominently at the Preliminary Issue Hearing before Vice Chair White, who urged the parties to utilize a consent form agreed upon by the parties. Unfortunately, this was not done, and it remained a contentious issue when the applicant attended for the third, attempted IE more than two years later.

CLAIMS OF BIAS

55This reconsideration is somewhat unique in that applicant’s counsel and the applicant both provided separate submissions. In the applicant’s direct submissions, he made several allusions to my bias in favor of Vice Chair Hunter and the insurance company, resulting in an unfair Motion Order that ultimately dismissed his Application.

56As per the dissent in Committee for Justice and Liberty v. Canada (National Energy Board),³ and endorsed by the Supreme Court of Canada in Wewaykum Indian Band v. Canada⁴, the test for bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude it was more likely than not, that the decision-maker, whether consciously or unconsciously, would not decide fairly.

57This two-fold test indicates that not only must the person considering the alleged bias be reasonable, but the apprehension of bias itself must also be reasonable in the circumstances of the case.⁵

58The Supreme Court in Wewyakum indicated that the burden is on the party seeking disqualification to establish a finding that a trier of fact be disqualified for bias. Critical to the analysis are the specific facts at play, requiring a careful and thorough review of the findings regarding the cumulative effect of alleged improprieties.⁶ The grounds for a reasonable apprehension of bias must be substantial, and they require cogent evidence.⁷ Put another way, there must be more than a mere suspicion of bias, but rather a real likelihood or probability of bias, due to the cumulative effect of the adjudicator’s conduct in order to rebut the strong presumption of impartiality afforded to decision-makers.⁸

59In this matter, the applicant himself makes bald assertions of bias. First referring to me “following the bias line of Vice Chair Terry Hunter in favour of the corporate insurance company”. Secondly, he refers to “honouring the unspoken alliance among adjudicators to back and support one another’s rulings with total disregard for particulars of the case, arguments, and witnesses”.

60To be clear, the applicant has not provided any specific instances or evidence regarding my conduct at the previous Motion Hearing that evinces any partiality toward: Tribunal adjudicators, the IE assessors, the respondent, or respondent’s counsel. Given these bald statements, I am not satisfied the applicant has demonstrated that an informed person, viewing the matter realistically and practically, would conclude the fairness of this matter was compromised by bias.

61Given the lack of any air of reality to these assertions of bias, I was unprepared to remove myself as the adjudicator for the purposes of this reconsideration. I am steeled by the Court of Appeal’s comments in Beard Winter LLP v. Shekhdar, where it noted “to step aside in the face of a specious bias claim is to give credence to a most objectionable tactic”.⁹ While the applicant may not agree with my findings in the previous Motion Order, he has provided no reasons to doubt my impartiality in rendering it.

COSTS

62Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuant to Rule 19. The Tribunal is also compelled to consider the criteria pursuant to Rule 19.5 in awarding costs, particularly relating to the seriousness of the misconduct, whether a party’s behaviour was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to other parties and the impact of an order of costs would have on individuals accessing the Tribunal system.

63I accept the applicant did not agree with my previous Motion Order, which ultimately dismissed his Application for accident benefits before the Tribunal. However, the test for costs is a high threshold and costs are rarely awarded.

64Although I have concluded the applicant acted in bad faith in failing to attend the scheduled IEs, I do not view his request for a reconsideration as the “epitome of abuse” as the respondent submits, or an example of bad faith behaviour. Certainly, every party that appears before the Tribunal has the right to request a reconsideration of a previous decision or order according to Rule 18. In this matter, I am simply not persuaded the test for costs pursuant to Rule 19 has been met. Thus, no costs shall be awarded.

CONCLUSION

65For the reasons noted above, I deny the Applicant's request for reconsideration.

66The respondent’s claim for costs is denied.

67The Tribunal file shall remain closed.

Ian Maedel

Vice Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1R.S.O. 1990, CHAPTER S.22.
2. 2Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at para. 25.
3. 31976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at pp. 394-395, de Grandpre J. in dissent.
4. 42003, SCC 45 at para. 60. (“Wewyakum”).
5. 5R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, Cory J. at para. 111.
6. 6Miglin v. Miglin, 2003 SCC 303 at para. 30
7. 7Marchand v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ONCA) leave to appeal to SCC refused, at para. 131.
8. 8Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856.
9. 92016 ONCA 493, at para. 10.