20-008204/AABS-R

RECONSIDERATION DECISION

Before:

Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number:

20-008204/AABS

Case Name:

Daniel Strouble v. Unifund Assurance Company

Written Submissions by:

For the Applicant:

F.J. Burns, Counsel

For the Respondent:

Damien Van Vroenhoven, Counsel

BACKGROUND

1The applicant, Daniel Strouble, filed a request for reconsideration of the November 9, 2021 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).

2In the decision, I found, among other things, that the applicant was not entitled to an April 30, 2020 OCF-18 for an orthopaedic assessment.² The applicant requested a reconsideration of this finding on the basis that I made significant errors of fact such that I would likely have reached a different decision had the errors not been made and/or that I violated the rules of natural justice or procedural fairness.

3The respondent’s position is that the applicant’s request for reconsideration 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 grounds that the applicant submitted apply in this matter are Rules 18.2(a) and (b), as he submitted that I:

(i) Violated the rules of procedural fairness; and/or

(ii) Made an error fact such that I would likely have reached a different result had the error not been made.

Procedural Fairness

6The applicant submitted that I violated the rules of procedural fairness in failing to provide him an opportunity to address any concerns, deficiencies, or misapprehension about Dr. Ogilvie-Harris’ qualifications.

7Procedural fairness has been defined as primarily encompassing the following:

(i) Ensuring that parties understand the case they must meet; and

(ii) Ensuring that the parties have an opportunity to be heard to allow them to respond accordingly.³

8In this matter, the respondent questioned Dr. Ogilvie-Harris’ qualifications in its hearing submissions.⁴ As such, the applicant had an opportunity to address Dr. Ogilvie-Harris’ qualifications in his reply hearing submissions. The applicant, however, only submitted that Dr. Ogilvie-Harris was a “well respected Orthopedic Surgeon with many years of experience” without any further details. Moreover, the applicant appears to have been aware that Dr. Ogilvie-Harris’ qualifications were at issue in this matter as the applicant’s initial hearing submissions stated that if Dr. Zabieliauskas, a s. 44 assessor, questioned and wanted the qualifications of Dr. Ogilvie-Harris that “he should ask” for them.⁵

9Therefore, I find that there was no breach of rules of procedural fairness as the issue of Dr. Ogilvie-Harris’ qualifications was raised by the respondent, the applicant had an opportunity to respond to these submissions in reply, and, as a result, it was an appropriate area for me to canvass in the decision.

Error of Fact and/or Law

10The applicant relied upon r. 18.2(b) for its position that I erred in fact. Specifically, the applicant submitted that I erred by failing to properly review Dr. Ogilvie-Harris’ qualifications, expertise, and experience regarding his ability to address and provide an expert opinion on chronic pain syndrome among other conditions. The applicant submitted that this information is found in Dr. Ogilvie-Harris’ Medicolegal Research Brief, which was accessible via a URL link in the PDF copy of Dr. Ogilvie-Harris’ May 22, 2020 report that was submitted in his initial hearing submissions. The applicant’s position is that the Medicolegal Research Brief is important documentary evidence that had I reviewed, I would likely have come to a different decision regarding the applicant’s entitlement to the April 30, 2020 treatment plan.

11The URL link for the Medicolegal Research Brief is included in Dr. Ogilvie-Harris’ May 22, 2020 report but there is no accessible link to access it in the PDF version submitted to the Tribunal. I do agree, however, that I could have accessed the link by typing the link into an internet browser. Nevertheless, the Tribunal ordered parties to exchange and file their evidence for the hearing with their written submissions in the November 19, 2020 Case Conference Report and Order. It is not the role of an adjudicator to access documents not submitted for the hearing in accordance with Tribunal orders.

12Even if I am wrong in this finding, there was no indication in the applicant’s hearing submissions that he was relying upon any portion of the Medicolegal Research Brief to support his case. In fact, the Medicolegal Research Brief was not once referenced in the applicant’s written submissions. Had the Medicolegal Research Brief been an “important document” as alleged by the applicant in his reconsideration submissions, one would expect that it should at least have been referenced in his hearing submissions.

13In any event, the parties were notified by the Tribunal in the November 19, 2020 Case Conference Report and Order that they were required to make specific reference to evidence by tab and page number and evidence not so referenced may not be reviewed. As the Medicolegal Research Brief was not referenced by tab or page number as ordered, it was not reviewed. I also find that it is an unreasonable expectation that I would somehow be aware that the applicant was relying on a document that was neither submitted as evidence nor referenced in submissions as required by the Tribunal to support his case. For these reasons, I find no error in not referring to the Medicolegal Research Brief in the decision.

14The applicant also submitted that I erred by:

(i) Failing to appreciate and understand the substance of Dr. Ogilvie-Harris’ report and evidence including the testing that Dr. Ogilvie-Harris administered as part of the applicant’s assessment;

(ii) Ignoring Dr. Ogilvie-Harris’ findings and diagnoses of the applicant in the decision;

(iii) Affording less weight to Dr. Ogilvie-Harris’ report than other medical evidence before me;

(iv) Finding that Dr. Ogilvie-Harris’ report was not reasonable or necessary as it did not diagnose any new musculoskeletal or joint related injuries that had not been previously identified by the applicant’s other treatment and healthcare providers; and/or

(v) “Second-tiering” chronic pain by suggesting that an orthopedic or other joint injury was an essential finding for Dr. Ogilvie-Harris to make in order that the applicant be entitled to the April 30, 2020 OCF-18 for an orthopaedic assessment.

15These submissions point to no errors of fact and/or law. Instead, the applicant appears to disagree with my findings which is open for him to do but is not a ground to grant a reconsideration of a decision. Further, I agree with the respondent that I did not “second-tier” chronic pain to other orthopedic injuries as alleged by the applicant. Instead, I found that the proposed orthopedic assessment as set out in the April 30, 2020 OCF-18 was not reasonable and necessary for various reasons including that it was, in essence, a chronic pain assessment which was not proposed in the treatment plan. As a result, I find that no error was made in this regard.

CONCLUSION

16The applicant’s request for reconsideration is dismissed.

Lindsay Lake

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Strouble v. Unifund Assurance Company, 2021 CanLII 122491 (ON LAT) (the “decision”).
2. 2Ibid. at para. [5].
3. 3See the reconsideration decision of IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
4. 4Written Submissions of the Respondent (for the hearing), para. 39.
5. 5Written Submissions of the Applicant (for the hearing), para. 40.