Muneesh Aeri v. Aviva General Insurance, 2021 CanLII 97059

Citation: Aeri v. Aviva General Insurance, 2021 ONLAT 19-013288/AABS-R

Before: Theresa McGee, Vice-Chair

Date of Order: 2021-10-04

Tribunal File Number: 19-013288/AABS

Case Name: Muneesh Aeri v. Aviva General Insurance

Written Submissions by:

For the Applicant: Joshua Lindzon, Counsel

OVERVIEW

1The applicant requests reconsideration of a preliminary issue decision dated July 27, 2021 (the “preliminary issue decision”). In the preliminary issue decision, the Licence Appeal Tribunal (the “Tribunal”) found that the applicant was barred under s. 55(1)2 of the Schedule from proceeding before the Tribunal with his claims for a non-earner benefit, an attendant care assessment, and treatment plans for assistive devices and occupational therapy services. The preliminary issue decision permitted the applicant to proceed to a substantive hearing for his attendant care benefit claim and several additional substantive issues listed in the Tribunal’s September 10, 2020 case conference report and order.

RESULT

2This request for reconsideration does not comply with Rule 18 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”) because the preliminary issue decision does not finally dispose of the application. The Tribunal has ordered the matter to proceed to a substantive issue hearing on the issues remaining in dispute.

3If I am wrong, and this reconsideration request does comply with Rule 18, I find that the applicant has not met his onus in establishing grounds for reconsideration. Because the applicant has not met his onus and I am dismissing the request, under Rule 18.4, it is not necessary to hear from the respondent. The request is accordingly dismissed. The matter shall proceed to a hearing as ordered.

ANALYSIS

4The grounds for a request for reconsideration are contained in Rule 18.2 of 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 acted outside its jurisdiction, violated the rules of procedural fairness, and made errors of law and fact such that it would likely have come to a different conclusion had the errors not been made. He submits that by finding that the respondent met the requirement to provide “medical and any other reasons” for its Insurer’s Examination requests, the Tribunal incorrectly interpreted the Schedule and leading case law.

Notice of Examination regarding the non-earner benefit claim

6In his reconsideration submissions, the applicant attempts to re-argue the position he advanced, unsuccessfully, at the preliminary issue hearing. In disputing the Tribunal’s conclusion on the sufficiency of the Notice of Examination in relation to his non-earner benefit claim, the applicant refers me again to case law he advanced at the hearing, namely the Tribunal’s reconsideration decision in 16-003316/AABS v. Peel Mutual Insurance Company [Peel Mutual].¹ He argues that the Tribunal “grossly acted outside the scope of her jurisdiction” by concluding at para. 24 of the preliminary issue decision that:

The applicant’s own submissions on this issue, which refer to clinical notes and records referencing serious pre-existing chronic and degenerative conditions, highlight the need for clarity on the causation of the applicant’s impairments. The reasons for the request can hardly be described as incongruous or contrived. The reasons constitute a principled rationale based fairly on the applicant’s file.

7There is no error of fact or law in the Tribunal’s factual and legal findings on this point. The Tribunal’s finding at para. 24 of the preliminary issue decision that “reference to a specific diagnosis is not a strict requirement” is consistent with para. 26 of M.B. v. Aviva Insurance Canada [M.B.],² which was cited with approval at para. 19 of Peel Mutual, upon which the applicant relies. The specific finding in M.B. that is adopted by the Tribunal in Peel Mutual is as follows:

[…] 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.

[Emphasis added.]

8The case law on this point may be nuanced, but it is clear: the requirement set out in M.B. is disjunctive, meaning an insurer may include specific details about the insured’s condition or identify information about their condition that the insurer requires.

9The Tribunal found at para. 24 of the preliminary issue decision that the latter requirement was met when the insurer identified information about the applicant’s condition that it required - “information about the causation and duration of the applicant’s impairments.” Nowhere in M.B. or Peel Mutual does the Tribunal strictly require reasons to refer to a specific medical diagnosis. The Tribunal’s conclusions on the sufficiency of the disputed notices are consistent with the very line of authority the applicant directs me to consider.

10There is no excess of jurisdiction in the Tribunal’s determination of the issues. Its findings are clearly explained, based on the evidentiary record before the Tribunal, and fall squarely within the scope of the issues in dispute.

11The applicant submits that causation was not a reason provided by the respondent for its request for the non-earner benefit examination, and it is not the role of the Tribunal to insert its own conclusions about what those reasons meant. He submits that the reasons themselves must be clear enough to be understood.

12To be clear, the reasons themselves include the word “caused”. To suggest that the respondent’s reasons never identified causation concerns is factually inaccurate. Further, with respect, the applicant conflates two separate findings made by the Tribunal: first, that the reasons were capable of being understood, even by an unsophisticated person, and second, that the reasons were not incongruous and contrived. It is open to the Tribunal to look to the surrounding context in determining whether reasons are incongruous and contrived. Such an inquiry relates to the question of whether the reasons provide a principled rationale for the insurer’s request, based fairly on the applicant’s file. Answering that question requires examining the file in its entirety.

Notice of Examination regarding the $12,848.20 assistive devices claim

13The applicant makes similar submissions in relation to the Tribunal’s findings on the sufficiency of the Notice of Examination for his $12,848.20 assistive devices claim. He submits that the Tribunal inappropriately concluded that the claimed massage chair was due to his pre-existing kidney disease when he submitted that is was for back and shoulder pain. That conclusion, he submits, was never stated by the respondent as a reason for requesting the Insurer’s Examination and it was improper for the Tribunal to insert it.

14It is incorrect to state that the respondent never raised concerns as to the need for the massage chair given his pre-existing conditions. As noted at para. 33 of the preliminary issue decision, the reasons for the respondent’s request specifically cite his “concurrent medical conditions that might affect treatment and prognosis” and state that “the types of assistive devices claimed did not appear to be consistent with the applicant’s diagnosis.” Given the applicant’s own submissions that his daily dialysis treatment contributed to his need for a massage chair, the Tribunal’s observation that “[the need] would appear to arise from the applicant’s pre-existing kidney disease,” is reasonable. I cannot agree that the Tribunal exceeded its jurisdiction in finding that the respondent gave a principled rationale for its request based fairly on the applicant’s file.

15Similarly, I find no error in the Tribunal’s conclusion that the use of the phrase “unusual, novel, alternative, experimental or otherwise questionable treatment techniques” in the Notice of Examination for the assistive devices claim demonstrated that “the respondent required more information about the use of some of the devices in the treatment context” (see para. 34 of the preliminary issue decision.) The reasons in the notice indicate that the insurer questioned the efficacy of the proposed intervention to treat the applicant’s accident-related injuries. The Tribunal’s finding is reasonable and rooted in the evidentiary record.

Notice of Examination regarding the $2,628.35 claim for assistive devices and occupational therapy services

16The applicant makes similar submissions as to the Tribunal’s analysis of the reasons in the Notice of Examination in relation to his claim for assistive devices and occupational therapy services. He submits that had the Tribunal misinterpreted and misapplied the case law which requires specifics about an insured’s injuries and medical documentation. Had the Tribunal correctly applied the case law, especially considering the applicant’s pre-existing conditions, it would have found this notice deficient for being very general.

17The discussion of the case law set out at paras. 6-9 of these reasons applies equally to this asserted error. The Tribunal was not, as the applicant submits, advocating for the respondent in finding its reasons sufficient. The Tribunal’s conclusions are in line with the case law, supported by the record, and properly within the scope of the dispute.

Reference to supporting case law

18The applicant submits that the Tribunal erroneously attributed reliance on Hedley v. Aviva Insurance Company of Canada [Hedley]³ to him at para. 17 of the preliminary issue decision, when the case he relied on in his submissions about boilerplate reasons was N.A. v. Aviva General Insurance [N.A.].⁴

19It is true that the applicant did not rely on Hedley. This characterization of his submissions was inaccurate. However, Hedley is the leading authority on the use of boilerplate statements in medical reasons in notices under the Schedule. A decision of the Divisional Court, Hedley is also binding on this Tribunal whereas N.A. is not. Although the applicant relied only on persuasive authority for his submission that boilerplate language renders a notice deficient, the Tribunal would have arrived at the same conclusion had it cited N.A. As this Tribunal held in its reconsideration of MacDonald v Wawanesa Mutual Insurance Company,⁵ the adjudicator in N.A. misapplies M.B. and departs from other leading case law on this issue. The Tribunal addressed the current state of the law on this point correctly.

Notice of Examination regarding the attendant care assessment claim

20The applicant asserts that the Tribunal erred in fact and law in finding the Notice of Examination for his attendant care assessment sufficient. It is apparent that the applicant disagrees with the Tribunal’s conclusions on this point. Disagreeing with the outcome is not a basis for reconsideration. The applicant has identified no error of fact or law. He refers me to case law not relied upon at the preliminary issue hearing where medical reasons were found to be deficient, namely Harvey v. TD Insurance Meloche Monnex [Harvey].⁶ In Harvey, the applicant submits, the adjudicator concluded the reasons were generic and did not specify the details of the applicant’s conditions. He submits that it should not be left to him to determine which of his pre-existing conditions or clinical records the respondent was referring to when it said that there appeared to be pre-existing or concurrent medical conditions that might affect his care, treatment, and prognosis.

21A reconsideration is not an opportunity to buttress one’s case through new argument and additional authorities. In any event, the decision relied on for the applicant’s submission on this point is not binding and it does not constitute a legal error to depart from it. I need not repeat the Tribunal’s analysis of the case law governing the sufficiency of medical reasons, which is set out in detail in the preliminary issue decision and further articulated in these reasons.

22Fundamentally, I am not satisfied that there is any error in finding the respondent’s medical reasons for its request sufficient. The applicant’s medical records extensively reference his serious chronic and degenerative medical conditions, conditions that pre-dated the accident. I find it disingenuous for the applicant to suggest, as he does in his reconsideration submissions, that the respondent’s failure to enumerate his pre-existing diagnoses left him unable to determine whether to challenge the denial of the benefit or to attend the Insurer’s Examination. That, the case law makes clear, is the fundamental purpose of the reasons requirement in s. 44(5).⁷

Timeliness of the denial of the $1,293.80 claim for assistive devices

23The applicant submits that the Tribunal ignored the fact that the respondent’s June 12, 2018 Notice of Examination regarding his $1,293.80 claim for assistive devices was given more than 10 business days after receipt of the treatment plan on May 14, 2018.

24There is no Explanation of Benefits contained in the record for this treatment plan dated earlier than June 12, 2018. It may well be the case that the denial exceeded the time limit set out in s. 38(8). But the preliminary issue hearing was not to decide whether the denial was non-compliant with s. 38(8), or whether the consequences of that non-compliance, set out at s. 38(11), should flow. It would be for the Tribunal to decide, in the context of a substantive issue hearing, whether the respondent should be compelled to pay for the goods and services proposed in the plan from the 11th day after submission to the date the non-compliance was cured.

25The Schedule does not waive the procedural bar in s. 55(1)2 because of s. 38(8) non-compliance. Here, is important to distinguish between the timeline for notice of a denial, set out in s. 38(8), and the timeline for notice of an in-person examination under s. 44(6), which is no less than five business days before the examination. The June 12, 2018 Notice of Examination alerted the applicant to July 4, 2018 and July 10, 2018 examination dates, and therefore it met the requirement for timeliness in s. 44(6).

CONCLUSION

26The Tribunal is alive and sensitive to the serious nature of the applicant’s medical needs, be they pre-existing, or accident related. There is no question that he suffers considerably from his health challenges. Nothing in the Tribunal’s decisions – on the preliminary issue or on the reconsideration request - is intended to diminish his suffering or discourage his pursuit of treatment. However, the Tribunal cannot proceed to properly adjudicate the merits of the affected issues because s. 55 of the Schedule imposes a clear procedural bar on applicants who decline to participate in properly requested Insurer’s Examinations. In choosing not to participate in the requested Insurer’s Examinations, the applicant impeded his own ability to pursue some of his claims before this Tribunal.

27The applicant’s request for reconsideration is dismissed because it does not comply with Rule 18 of the Common Rules. In the alternative, the applicant has failed to establish grounds for reconsideration and his request is dismissed on that basis. As ordered by this Tribunal on July 27, 2021, this matter shall proceed to a hearing on the issues remaining in dispute.

Theresa McGee Vice Chair Tribunals Ontario – Licence Appeal Tribunal

Released: October 4, 2021