RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Tribunal File Number: 20-005392/AABS
Case Name: Danielle Hardy-MacDonald and Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Joshua Lindzon, Counsel
OVERVIEW
1The applicant requests reconsideration of a preliminary issue decision dated June 8, 2021 (the “decision”). In the decision, the Licence Appeal Tribunal (“Tribunal”) found that the applicant was barred under s. 55 of the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”) from proceeding with her Tribunal application because she failed to comply with a series of requests under s. 44 to attend insurer’s examinations. The Tribunal accordingly dismissed her application. The Tribunal also denied her request for costs.
2The applicant submits that the Tribunal misinterpreted and misapplied the case law, thereby erring in fact and law. She submits the Tribunal would likely have reached a different conclusion had those factual and legal errors not been made. She also submits that there is new evidence which was unavailable at the time of the preliminary issue hearing that would likely have affected the result.
RESULT
3The applicant has failed to meet her onus of establishing grounds for reconsideration. The Tribunal did not require submissions from the respondent. The request for reconsideration is denied.
ANALYSIS
4The grounds for a request for reconsideration are contained 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), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:
i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
ii. 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;
iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
iv. 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.
5The applicant submits that the Tribunal erred in fact and law by concluding that the respondent’s requests for insurer’s examinations satisfied the notice requirements set out in s. 44(5) of the Schedule. She submits that the Tribunal misinterpreted case law and incorrectly applied it to the facts of her case. She seeks a reversal of the Tribunal’s finding that she is barred under s. 55 from proceeding with her application.
6The applicant also seeks a reversal of the Tribunal’s decision to deny her claim for costs. She submits that there is new evidence which was not available at the time of the hearing that shows that the respondent’s conduct was unreasonable, justifying an award of costs under Rule 19 of the Common Rules.
7For the following reasons, I find that the applicant has identified no factual or legal error in the decision and has not advanced new evidence which would have likely affected the outcome of the decision. I therefore decline to grant reconsideration.
The case law does not support the applicant’s position on s. 44(5)
8The applicant submits that the Tribunal erred by misinterpreting the case law on an insurer’s obligations to provide the “medical and any other reasons” for requesting an insurer’s examination under s. 44(5) of the Schedule. She submits that the case law requires an insurer to specifically cite a medical condition and or diagnosis in its reasons for requesting an insurer’s examination.
9In her reconsideration submissions, the applicant re-argues the position she advanced at the preliminary issue hearing, relying on the Tribunal’s reconsideration decisions in M.B. v. Aviva Insurance Canada [“M.B.”], and 16-003316/AABS v. Peel Mutual Insurance Company, [“T.P.”]. She also directs me to consider case law not introduced at the preliminary issue hearing, including N.A. v Aviva General Insurance, [“N.A.”].
10The applicant restates her position that M.B. and T.P. require insurers to specifically cite a medical diagnosis and to discuss the medical records in their possession when giving reasons for a notice of examination under s. 44(5). This is inaccurate. M.B. deals directly with the reasons requirement under s. 44(5) of the Schedule. T.P. dealt with the reasons requirement under s. 38(8), but as both provisions engage similar principles, T.P. affirmed and adopted the rationale set forth in M.B. at para. 26:
In my view, an insurer satisfies its obligation to provide its “medical and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
[Emphasis added.]
11In addition to adopting the approach to the notice requirement set out in M.B., the Tribunal at para. 22 of T.P. made the following clear:
In evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. It would be naïve or impractical or to expect them to articulate something resembling a medical opinion. Likewise, their reasons should not be measured by the inch or held to a standard of perfection. Moreover, reasonable minds may disagree about the content of an insured’s file. Those allowances should be made. If it offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8).
[Emphasis added.]
12The applicant submits that the Tribunal erred at para. 23 of the decision in finding, “Insurance adjusters are not medically trained and cannot be expected to analyze medical documentation in an insured person’s file.” There is no error in this finding. It is wholly consistent with the passage in T.P. cited above.
13This passage from T.P. was cited approvingly by the Divisional Court in Hedley v. Aviva Insurance Company of Canada [“Hedley”]. In Hedley, the court reiterated that reasons will satisfy notice requirements if they contain a principled rationale based fairly on an insured person’s file to which an insured person can respond.
14The case law does not stand for the proposition advanced by the applicant, both at the preliminary issue hearing and again in her reconsideration submissions, that the law requires specific reference to a medical condition for reasons to be adequate under. s. 44(5). Since prior Tribunal decisions are only persuasive authority, I am only bound to follow the Divisional Court’s ruling in Hedley. As such, even if the Tribunal’s decision in this case had departed from M.B. and T.P., there would be no error of law. But the decision directly aligns with the holdings in M.B. and T.P.: if an insurer identifies information about an insured’s condition that it does not have but requires, the notice will be sufficient for the purposes of s. 44(5). Ultimately, what is required is a principled rationale for the decision to which the insured person can respond.
15N.A. was a decision in which the Tribunal found reasons for requesting an insurer’s examination to be insufficient on account of the insurer’s failure to specifically cite a medical condition or diagnosis. In my respectful view, the adjudicator in N.A. misapplies M.B. and departs from other leading case law on this issue. I am not persuaded that specific reference to a diagnosis or to clinical notes and records in the insurer’s possession is a strict requirement. Instead, following M.B., what is required when evaluating the sufficiency of a notice under s. 44(5) is the presence of reasons that:
include specific details about the insured’s condition forming the basis for the insurer’s decision
OR, alternatively,
identify information about the insured’s condition that the insurer does not have but requires
AND
refer to the specific benefit or determination at issue
AND
be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue
16To conclude, the applicant’s request for reconsideration identifies no error of fact or law in the Tribunal’s determination that the insurer’s examinations she refused to attend were properly requested under s. 44 of the Schedule. Her reconsideration request is an attempt to relitigate the preliminary issue and proceeds from the same erroneous reading of M.B. and T.P. advanced at the hearing. She submits that the Tribunal erred in law by failing to follow past Tribunal decisions. Setting aside the fact that those decisions are not binding authority and it would be no error to depart from them, the decision is, as these reasons demonstrate, in line with leading Tribunal jurisprudence on the issue.
17Disagreement with the outcome of a decision is not grounds for reconsideration. The applicant has failed to identify an error in the Tribunal’s s. 44 and s. 55 analysis, let alone an error that would have likely resulted in a different outcome.
The new evidence does not alter the determination on costs
18The applicant submits that the Tribunal should overturn its denial of a costs award on account of new evidence that was not available at the time of the hearing and would likely have changed the result.
19At the preliminary issue hearing, the applicant sought costs totalling $10,000.00 for what it described as unreasonable, frivolous, vexatious and bad faith conduct on the part of the respondent. The new evidence the applicant has tendered in support of her reconsideration request is a fax confirmation establishing that the respondent only produced the accident benefits file on January 22, 2021, several days after the applicant filed her submissions for the preliminary issue hearing. The respondent had been ordered to produce the file by November 27, 2020. The records produced did not contain the adjuster’s log notes, contrary to the Tribunal’s order.
20In the decision, the Tribunal rejected the applicant’s request for costs because it found:
i. it was not unreasonable, frivolous, vexatious, or in bad faith for the respondent to raise the preliminary issue;
ii. the parties had an opportunity to make submissions on the preliminary issue and lead evidence within the timelines established by the Tribunal;
iii. the applicant had presented no evidence that the respondent had failed to comply with the Tribunal’s production order; and
iv. there was no basis to conclude that the respondent had engaged in conduct meriting a costs award.
21The question I must consider is whether the email confirmation establishing the respondent’s late production of the accident benefits file would have likely changed the costs analysis, resulting in an award.
22I accept the applicant’s argument that the fax confirmation is evidence she was unable to obtain at the time of the hearing because it had not yet been sent. I am also prepared to accept based on the fax confirmation that the respondent did not produce the accident benefits file by the deadline ordered by the Tribunal, which was November 27, 2020. However, the new evidence does not alter my conclusion on the issue of costs.
23The applicant argued at the preliminary issue hearing that the failed production resulted in serious prejudice to her because she has a right to understand the reasons for the requests for insurer’s examinations and without the log notes, she does not have the ability to understand the thought process behind the notice letters. She relies on the Tribunal’s decision in 16-003460 v The Dominion of Canada General Insurance Company2 for her submission that prejudice may amount to unreasonable conduct deserving of a costs award.
24I am not persuaded that the absence of the log notes prejudiced the applicant’s ability to state her case on the preliminary issue. The entirety of her submissions on the preliminary issue focused on the sufficiency of the reasons for the notices of examination on their face.
25Procedural orders made by the Tribunal should be respected. But when a party fails to comply with an order, it is incumbent on an opposing party whose interests are affected to bring the non-compliance to the attention of the Tribunal in a timely manner so that an appropriate remedy may be ordered. If the applicant considered the log notes central to her ability to make her case, it is unclear to me why she did not raise an objection to the respondent’s non-compliance with the production order sooner than she did. The deadline for productions was November 27, 2020. She brought no motion for a procedural remedy in the nearly two months before the deadline for the filing of submissions. She waited to raise the issue in her submissions in the context of a costs claim. Costs are an exceptional remedy. Even after the partial production was made on January 22, 2021, it was open to the applicant to bring a motion for a lesser remedy such as a sur-reply. She did not take any such step.
26The Tribunal’s decision on the costs award stands. The evidence does not establish unreasonable, vexatious, frivolous, or bad faith conduct on the part of the respondent. The applicant has not shown that she suffered prejudice as a result of the respondent’s late and partial production of the accident benefits file that is serious or substantial enough to warrant costs, let alone a costs award of $10,000.00.
CONCLUSION
27The request for reconsideration is dismissed.
Theresa McGee
Vice Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: August 25, 2021