Narinder Sidhu v. Dominion of Canada General Insurance Company, 2021 CanLII 93241

Citation: Sidhu v. Dominion of Canada General Insurance Company (Travelers), 2021 ONLAT 19-008008/AABS

RECONSIDERATION DECISION

Before: Lindsay Lake, Adjudicator

Date of Order: 10/01/2021

Tribunal File Number: 19-008008/AABS

Case Name: Narinder Sidhu v. Dominion of Canada General Insurance Company

Written Submissions by:

For the Applicant: Ilya Artemyev, Counsel Linda To, Paralegal

For the Respondent: Kylie Weber, Counsel

OVERVIEW

1The applicant, Narinder Sidhu, filed a request for reconsideration of the April 14, 2021 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal). In the decision, I found that the applicant failed to meet his onus of proving that his accident-related impairments warrant removal from the Minor Injury Guideline (MIG).² I also found that he was not entitled to the disputed treatment plans as the applicant had exhausted the maximum amount of benefits payable under the MIG.

2The applicant requested a reconsideration of the decision. The applicant submitted that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made.

3The respondent opposed the request for reconsideration. The respondent submitted that the applicant’s reconsideration request is largely an attempt to reargue his unsuccessful initial position and, therefore, should be dismissed.

RESULT

4The applicant’s request for reconsideration is dismissed.

ANALYSIS

5The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules) The ground that applies in this matter is Rule 18.2(b), as the applicant submitted that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made. Specifically, the applicant submitted that I erred in the decision by:

(i) Finding that the applicant’s psychological impairments and/or chronic pain syndrome fit the definition of a “minor injury” in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule);³

(ii) Finding that the applicant’s chronic pain syndrome is a “clinically associated sequelae” that should be treated under the MIG;

(iii) Failing to give injuries that fall within the MIG a broad interpretation against the interests of the applicant;

(iv) Not treating the MIG as a “treatment protocol,” or guide such that the applicant should be allowed to access funds for benefits in excess of the MIG limits because he has not yet reached maximum medical recovery;

(v) Not giving persuasive weight to T.S. v. Aviva General Insurance Canada (T.S. v. Aviva);⁴ and/or

(vi) Failing to apply the doctrine of contra proferentem.

6For the reasons that follow, I find that the applicant has failed to prove on a balance of probabilities that I made errors of fact and/or law in the decision. Therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.

The MIG and the applicant’s impairments

7The applicant submitted that I erred in finding that his psychological impairments and chronic pain syndrome can, or should be, treated under the MIG is a misstatement of the findings in the decision. On the evidence, I found that the applicant did not meet his onus of proving that he sustained a psychological impairment as a result of the accident.⁵ I also found that that while the applicant reported ongoing pain well beyond the 3 to 6 month post-accident period, he failed to prove that this pain caused any functional limitation or that it adversely affected his well-being in light of the six criteria from the American Medical Association (AMA) Guides.⁶ Further, the applicant did not present any evidence or make any arguments in his initial hearing submissions that he suffered from chronic pain syndrome and I made no such finding in the decision.

8At any rate, the applicant’s submissions that I erred in finding that his chronic pain syndrome is a “clinically associated sequelae” that should be treated under the MIG and in support of his position that I failed to give injuries that fall within the MIG a broad interpretation do not point to any errors. Instead, the applicant is proposing a re-weighing of the evidence that was fully available to me and that I considered in its entirety as part of the decision. Seeking a re-weighing of the evidence is not an error and, therefore, is not a ground for reconsideration under the Rules.

9Moreover, the applicant’s submission that I failed to treat the MIG as a “treatment protocol” such that he should be allowed to access funds for benefits in excess of the MIG limits because he has not yet reached maximum medical recovery is a new argument that was not made at first instance. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter. As a result, I find that the applicant’s submissions regarding maximum medical recovery and entitlement to benefits beyond the MIG is not properly before me and will not be considered as part of this reconsideration.

T.S. v Aviva

10The applicant submitted that I erred in law in my application of the Tribunal’s reconsideration decision of T.S. v. Aviva. The applicant submitted that I erred because T.S. v. Aviva does not require an applicant to prove functional impairment according to the AMA Guides to have chronic pain such that their injuries would fall outside of the MIG.

11While the applicant is correct that T.S. v. Aviva does not refer to the AMA Guides in determining whether or not an insured person suffers from chronic pain and/or chronic pain syndrome as a result of an accident, T.S. v. Aviva still requires evidence that a person’s ongoing pain adversely affects their well-being.⁷ I emphasized this portion of T.S. v. Aviva in the decision and found that both the Executive Chair’s comments in T.S. v. Aviva and the AMA Guides criteria can be read harmoniously, and both were persuasive in determining whether the applicant should be removed from the MIG as a result of chronic pain.

12Therefore, I do not agree with the applicant that I made an error of law in interpreting the decision in T.S. v. Aviva and, in any case, I am not bound by prior Tribunal decisions.

Doctrine of Contra Proferentem

13The applicant submitted in reply that any ambiguity of whether or not the applicant’s chronic pain syndrome should fall outside of the MIG should be resolved in favour of the applicant because the doctrine of contra proferentem applies as the applicant did not draft the contract.

14In addition to my comments above in paragraph [7] that I made no finding that the applicant suffered from chronic pain syndrome as a result of the accident, I also find that this is a new argument raised in the applicant’s reconsideration submissions that is not properly before me. As a result, it will not be considered based on the reasons discussed above in paragraph [9].

CONCLUSION

15For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Lindsay Lake Adjudicator Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Sidhu v. Dominion of Canada General Insurance Company, 2018 CanLII 153163 (ON LAT) (the “decision”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3O. Reg. 34/10.
4. 42018 CanLII 83520 (ON LAT).
5. 5Supra note 1 at para. 14.
6. 6American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24 and supra note 1 at para. 27.
7. 7Supra note 1 at para. 23.