Nicholas Crecoukias v. Toronto Transit Commission, 2022 CanLII 117085

Citation: Crecoukias v. Toronto Transit Commission, 2022 ONLAT 19-014590/AABS- R

RECONSIDERATION DECISION

Before: Adjudicator Deborah Neilson

Licence Appeal Tribunal File Number: 19-014590/AABS

Case Name: Nicholas Crecoukias v. Toronto Transit Commission

Written Submissions by:

For the Applicant: Mr. Daniel Lee, Counsel Nicole Elizabeth Walker, Counsel

For the Respondent: Tamara Mida, Counsel

BACKGROUND

1This request for reconsideration was filed by the Applicant in this matter.

2It arises out of a decision dated July 28, 2022 in which I dismissed the applicant’s claims for catastrophic impairment, attendant care benefits, and medical and rehabilitation benefits.

3The issue that was before the Tribunal was whether the applicant sustained a catastrophic impairment as a result of witnessing the accident. He is also claiming entitlement to attendant care benefits and medical and rehabilitation benefits consisting of occupational therapy services, rehabilitation support worker services and cost of living expenses. The applicant was diagnosed with schizophrenia after the accident. The parties disagreed on whether the accident caused the schizophrenia, whether the accident was the cause of his functional impairments, and on the extent of his functional impairments.

4I found that that the accident triggered an acute psychotic episode. In other words, but for the accident, the applicant would not have had a number of the psychological impairments that he had, such as a fear of the auditory hallucinations recurring. However, I also found that the applicant failed to establish that he sustained a catastrophic impairment as a result of the accident.

5The applicant submits that I made three significant errors during the hearing and in determining that the applicant did not suffer a catastrophic impairment as a result of the accident as follows:

a. I allowed the respondent’s psychiatric expert, Dr. Ali, to provide expert opinions outside the scope of her report after allowing her to be present during the testimony of the applicant’s psychiatric expert, Dr. Pallandi;

b. I excluded and/or severely limited the scope of the applicant’s expert witness, Dr. Persi; and

c. I made an error in fact when determining that the applicant failed to prove that he suffers from marked or extreme impairment in four spheres of function. Specifically, I failed to consider whether the Applicant’s level of activities was consistent with the meaning of “useful function.”

6The applicant is seeking reconsideration of my decision. He did not state the relief that he was seeking other than a reconsideration. I have assumed this means he is seeking the following orders:

a. Cancelling the Tribunal’s decision; and

b. Varying the Tribunal’s decision to find that the applicant sustained a catastrophic impairment.

7Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

8The applicant's request for reconsideration is dismissed.

BACKGROUND

9At the hearing, parties sought an order excluding witnesses. The respondent asked that its expert psychiatrist, Dr. Sherose Ali, be exempted from the exclusion order. The applicant objected on the basis she might tailor her evidence. I determined there was no evidence that there was a risk that she would tailor her evidence and granted the respondent’s request.

10I later allowed Dr. Ali to provide her opinion on whether the applicant sustained a marked impairment in any of the four spheres of activity required under s.3.1(1) 8. of the Schedule, commonly referred to as criterion 8. The applicant was provided with an opportunity to file a report from its psychiatric expert in response to Dr. Ali’s testimony in order to cure any prejudice he may have sustained as a result. The applicant chose not to file anything.

11The respondent sought to exclude the testimony of Dr. Adriano Persi, a chiropractor. I did not grant the respondent’s request because the time for objecting to Dr. Persi testifying was when the applicant brought a motion to add him as an expert witness. Dr. Persi was qualified as an expert in the AMA Guides¹ with respect to the spine and musculoskeletal system only as there was no evidence to support the applicant’s submission that he was also qualified as an expert in the AMA Guides with respect to mental and behavioural disorders. Dr. Persi had prepared a report in which he made the determination of the levels of impairment under the four spheres of activity for mental and behavioural disorders. Dr. Persi’s report was signed by Dr. Pallandi, a psychiatrist who conducted a catastrophic assessment at the applicant’s request. However, Dr. Pallandi testified that he did not make the determination about the severity of the applicant’s impairments under chapter 14 of the AMA Guides. This was done by Dr. Persi. As Dr. Persi is not qualified to provide an opinion on the severity of a psychological or behavioural impairment, I gave no weight to Dr. Persi’s opinion.

ANALYSIS

12The grounds for a request for reconsideration to be allowed are contained in 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) [the “LAT 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 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.

13Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

14The ground that the Applicant argues applies to this case is as follows:

a. 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;

15More specifically, the Applicant submits that I erred in law as follows:

a. I allowed the respondent’s psychiatric expert, Dr. Ali, to be present during the testimony of the applicant’s psychiatric expert, Dr. Pallandi;

b. I allowed Dr. Ali to provide expert opinions outside the scope of her report after allowing her to be present during the testimony of the applicant’s psychiatric expert, Dr. Pallandi; and

c. I excluded and/or severely limited the scope of the applicant’s expert witness, Dr. Persi.

16The applicant more specifically submits I made an error in fact when determining that the applicant failed to prove that he suffers from marked or extreme impairment in four spheres of function. Specifically, I failed to consider whether the Applicant’s level of activities was consistent with the meaning of “useful function.”

Dr. Ali

17The applicant submissions with respect to Dr. Ali are twofold. The first is based on my allowing her to be present for the testimony of Dr. Pallandi. The applicant sought to have Dr. Ali excluded from the hearing out of concern that she would tailor her evidence. There was no indication or evidence that Dr. Ali would do so and, in fact, as set out at paragraph 9 of my decision, there was evidence to the contrary.

18The applicant has provided no case law to show that I made an error of law in allowing Dr. Ali to be present for Dr. Pallandi’s testimony. Nor has the applicant provided any evidence that Dr. Ali did in fact tailor her evidence.

19The second area the applicant submits I made an error is in allowing Dr. Ali to testify on the severity of the applicant’s psychological or behavioural impairment on the basis that she did not provide a written opinion on that. He relies on the Rules of Civil Procedure, which have no application to the Tribunal’s practice or procedure.

20I agreed with the applicant that Dr. Ali should have provided her opinion on the four spheres of function under s.3.1(1)8 of the Schedule (“criterion 8”) in an addendum report. However, I determined that I had a discretion to allow her opinion evidence and found that her opinion on the severity of the applicant’s impairment in four spheres of function under criteria 8 was essentially the same as the opinion she reported on with respect to s.3.1(1)7 of the Schedule (criteria 7) dealing with the applicant’s level of impairment in the six spheres of function.

21The applicant submitted that I determined that criteria 7 and 8 are substantially different and stated at the hearing that the testimony of Dr. Ali in relation to criterion 8 was not latent to her expert report and indeed opened up a new subject area. I have no recall of stating that the Psychiatric Impairment Rating Scale (“PIRS”) in Dr. Ali’s report was not latent to her opinion on criterion 8. No transcript of this was filed by the applicant. If I did so, it was a mistake that was rectified by my written decision which explains why I allowed Dr. Ali to testify. I agree that criterion 7 details a method for determining a whole person percentage rating for a mental or behavioural impairment under Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 that is to be combined with the whole person impairment rating for physical injuries under the AMA Guides. The procedure is different for criterion 7 than it is for criterion 8. However, as demonstrated in paragraphs 22 and 23 of my decision, Dr. Ali’s opinion did not open a new field, but was latent in her report on the levels of impairment under the PIRS, which is part of the assessment required under criterion 7.

22Further, if there was any prejudice to the applicant, it was cured by the opportunity offered to the applicant to file a new report from his expert addressing Dr. Ali’s opinion on criterion 8 and to file further submissions. The applicant chose not to do so. Accordingly, I find that the applicant has failed to show that I erred in law or violated the rules of procedural fairness in allowing Dr. Ali to testify on the applicant’s level of impairment on the four spheres of function. Further, the applicant has failed to show that if I had excluded Dr. Ali’s opinion evidence or not allowed her to attend the examination-in-chief of Dr. Pallandi that my decision that the applicant failed to satisfy his onus of proof would have been any different.

Dr. Persi

23The applicant submits that I should have allowed Dr. Persi to testify on the applicant’s psychological impairments. He submits that my failure to do so is an error of law.

24The applicant relies on a Supreme Court of Canada decision, R. v. Marquard, for his submission that the only requirement for the admission of expert opinion is that the expert witness possess special knowledge and experience going beyond that of the trier of fact. Deficiencies in the expertise go to weight, not admissibility.² R. v. Marquard dealt with experts who gave opinion evidence beyond the scope of their areas of expertise without any objection from the opposing party. That was not the case here. The respondent at the start of the hearing objected to Dr. Persi providing any evidence.

25According to R. v. Marquard, as long as I was satisfied that Dr. Persi was sufficiently experienced in assessing psychological impairment, I should not be concerned with whether his skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence. I relied on R. v. Mohan that held the admission of expert evidence depends on relevance, necessity in assisting the trier of fact and a properly qualified expert.³ I find that R. v. Marquard was clarified by R. v. Mohan. Therefore, before allowing Dr. Persi to testify on the issue of the severity of the applicant’s psychological impairments as a result of the accident, he only had to demonstrate that Dr. Persi was qualified to provide opinion evidence on psychological impairments, or was more qualified in making a finding of fact for the purposes of chapter 14 of the AMA Guides than a Tribunal adjudicator.⁴ I found, and Dr. Persi admitted, that he was not qualified to provide opinion evidence on psychological impairments. Nor did the applicant demonstrate that Dr. Persi was more qualified than me in making a finding of fact for the purposes of chapter 14 of the AMA Guides. In fact, Dr. Persi’s evidence for being qualified was that he was an adjudicator for an unrelated tribunal. I found that he did not have any special knowledge or experience beyond mine as the only evidence of his training in the AMA Guides was with respect to the spine.

26The applicant submits that Dr. Persi was in no way attempting to usurp the role of the adjudicator and the Tribunal as a finder of fact. However, I find there was no error in my determination that to allow him to testify on the severity of the applicant’s psychological impairments would have resulted in just that. Dr. Persi is not a physician nor a psychologist and is, therefore, not qualified to provide an opinion on the severity of the applicant’s psychological impairments. In other words, he has no special knowledge or expertise in determining the severity of psychological impairments. This must mean the only other purpose for his testimony or report about the severity of the applicant’s opinions is to usurp my position as the finder of fact.

27Accordingly, I find that the applicant has failed to establish that I made any error of law in limiting Dr. Persi’s qualifications or in limiting his evidence to that for which I found he was qualified. Further, even if I had made an error of law, I am not convinced that Dr Persi’s testimony on the severity of the applicant’s psychological impairment would have changed my determination given that his opinion conflicted with Dr. Pallandi’s testimony and other evidence of the applicant’s level of function as stated at paragraph 70 of my decision.

Useful Function

28The applicant submits that I failed to consider whether his level of activity is consistent with the meaning of “useful function.” It is trite law that an adjudicator in her reasons is not required to refer specifically to every argument made or considered in her decision.⁵ It appears the heart of the applicant’s submission is that it was an error of law for me to not assign a level of impairment to any of the applicant’s spheres of function.

29The applicant submits that useful functioning implies being able to initiate the related tasks or activities independently, without cuing or prompting, and sustaining the tasks or activities and staying engaged for an appropriate amount of time; not just going through the motion while completing said tasks or activities. The applicant failed to provide a citation for his definition of useful function.

30The onus was on the applicant to show on a balance of probabilities that he sustained a marked class 4 impairment in three out of four spheres of function or an extreme class 5 impairment in one sphere of function. Those spheres of function are 1) activities of daily living; 2) social functioning; 3) concentration, persistence and pace; and 4) adaption to or deterioration or decompensation in work or work-like settings. To establish a marked class 4 impairment, the applicant was required to show his impairment levels significantly impede useful function. To show a marked class 5 impairment, the applicant was required to show his impairment levels preclude useful functioning in any one of the spheres of activity.

31A reconsideration is not an opportunity to ask that the Tribunal reweigh evidence and come to a different conclusion or give greater weight to the applicant’s submissions than was given at the first instance.⁶ The applicant’s request for reconsideration is an attempt to relitigate the issues that I already determined. I preferred some evidence and testimony over other evidence and testimony and provided reasons why. I also provided reasons why I gave the weight I did to the evidence before me. It is clear from my decision that I was alive to the level of useful function required to show a marked class 4 or a severe class 5 impairment. The applicant has not demonstrated that I erred in determining that he failed to satisfy his onus of proof after I weighed and considered the evidence. Nor has he provided any case law or other authority to show that I was required to determine what level of impairment the applicant has sustained in each of the three spheres in the face of his failure to satisfy his onus. Given that a reconsideration is not an opportunity to relitigate the issues, this part of the applicant’s request for reconsideration is denied.

CONCLUSION

32For the reasons noted above, I deny the Applicant's request for reconsideration.

Deborah Neilson Adjudicator Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”),
2. 2R. v Marquard 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223
3. 3R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9
4. 4R. v Marquard
5. 5A.J. v. Aviva Insurance Canada, 2021 CanLII 35559 (ON LAT) reconsideration, para.39
6. 6P.P. v. Wawanesa Mutual Insurance Company, 2021 CanLII 60480 (ON LAT) reconsideration