RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice-Chair
Licence Appeal Tribunal File Number: 19-001788/AABS and 19-007595/AABS
Case Name: Michael Norris v. Aviva General Insurance
Written Submissions by:
For the Applicant: Gordon Harris, Counsel
For the Respondent: Kevin Griffiths, Counsel
RECONSIDERATION REQUEST
1The applicant, Captain Michael Norris, asks for reconsideration of the Tribunal’s decision released on September 15, 2021 (“Decision”) finding, inter alia, that he was not entitled to a non-earner benefit. He seeks reconsideration on the basis of the criteria of Section 18.2, specifically subsection (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”), that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision (“material error”).
2Captain Norris is seeking an order varying the Tribunal’s decision to award him a non-earner benefit.
RESULT
3Reading the Decision as a whole, it is clear that the Tribunal found that Captain Norris was not “significantly limited on the whole in his previous activity and function.” That finding was open to the Tribunal on the evidence. The request for reconsideration is dismissed.
BACKGROUND
4Captain Norris served Canada for many years in the Canadian Armed Forces. During that service, he sustained a back injury while serving in Bosnia that led to the development of severe spinal stenosis. In March, April and October 2016, he was incarcerated for a period of time and, while incarcerated, he was involved in three incidents which exacerbated his pre-existing condition. The respondent, Aviva General Insurance, took the position that two of those incidents were not accidents. In a preliminary issues motion, the Tribunal ruled that the two incidents were accidents as defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (“SABS”).
5The matter proceeded to a consolidated hearing where the Tribunal considered the cumulative effect of all three incidents. Aviva argued that Captain Norris’s injuries were predominantly minor and subject to the $3,500 limit in s. 18(1) of the SABS. Captain Norris successfully opposed this position. He advanced a claim for an attendant care benefit, a non-earner benefit, various costs of examinations and several treatment plans. In the Decision, the Tribunal denied his claims for an attendant care benefit and a non-earner benefit, approved one cost of examination claim, and partially approved one treatment plan in the amount of $85 for grab bars in his bathroom.
6Captain Norris has limited his request for reconsideration to his claim for a non-earner benefit. He argues that the Tribunal failed to consider and apply the factors set out in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), a decision that is binding on the Tribunal. According to Captain Norris, Heath required the Tribunal to address his independent and rugged lifestyle before the accidents with his limited circumstances post-accident and the Tribunal failed to do so. In his submission, this failure constituted a material error.
ANALYSIS
7In my view, Heath does not require a mechanistic approach. Before even getting into the Heath analysis, the Tribunal must first be satisfied that Captain Norris suffered impairments as a result of the accident. It then must analyze whether those impairments prevented him from continuously “engaging in substantially all of the activities in which he ordinarily engaged before the accident.” Throughout the Decision, the Tribunal concludes that Captain Norris suffered from no accident-related impairments, so the Heath analysis was not triggered.
8The Tribunal addresses the question of non-earner benefits starting at paragraph [14] and continuing through paragraph [20]. The adjudicator points out at paragraph [16] that: “The only medical document that is in keeping with the notion that MN is completely incapable of carrying on a normal life as a result of the accident is the OCF-3 dated June 14, 2017 completed by Raza Anwar (occupational therapist). Mr. Anwar’s conclusion is not supported by the balance of medical evidence including the totality of the notes and records submitted.”
9At paragraph [20] the Tribunal concludes:
Perhaps more importantly, MN’s evidence in the course of this hearing is not reconcilable with a complete inability to carry on a normal life. This is not to say he is not limited in any fashion, but he testified that he is able to do many activities and has little assistance in his day to day life. For example, he is able to make meals and to do light maintenance on his home. He estimated he does approximately half of the household chores including some cleaning and shoveling as necessary. During his incarceration he was able to read consistently and for extended periods. He is able to climb a ladder. He is able to change the oil in a vehicle. None of this is in keeping with the suggestion that he is completely incapable of carrying on a normal life.
10A review of the transcript shows that, while Captain Norris testified extensively about what he can and cannot do since the accident, this evidence was tested on cross-examination. All of the findings of fact in paragraph [20] of the Decision were available to the Tribunal on the evidence. To weigh evidence and make factual findings that are supported by that evidence is not a material error.
11Further to the section of the Decision specifically addressing non-earner benefit entitlement, the Tribunal made other findings in analyzing Captain Norris’s claims for examinations and medical benefits. At paragraph [28] the Tribunal found that the evidence suggested that Captain Norris “has returned to largely independent function.” At paragraph [29] the Tribunal finds “both [Captain Norris’s] testimony and the opinions of Dr. Boucher and Thomas Buckley, which I consider persuasive, indicate that he is not significantly limited on the whole in his previous activity and function.”
12Faced with evidence that Captain Norris had largely returned to previous activity and function, it is hard to see how the Heath factors come into play. The Tribunal committed no material error in not applying them.
CONCLUSION
13For the reasons noted above, I deny the Applicant's request for reconsideration of his entitlement to a non-earner benefit.
D. Gregory Flude
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 28, 2022