RECONSIDERATION DECISION
Before: Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number: 19-008097/AABS
Case Name: Sami Imeri v. Liberty Insurance
Written Submissions by:
For the Applicant: Baldeep Virk, Counsel
For the Respondent: Jennifer McGlashan, Counsel
BACKGROUND
1On April 6, 2022, the applicant requested reconsideration of the Tribunal’s decision dated March 17, 2022, where the Tribunal determined that the applicant was not entitled to an award under section 10 of Regulation 664 for unreasonably withholding benefits.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (Rules).1 To grant a request for reconsideration, the Tribunal must be satisfied that 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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2 (a) and (b). The applicant requests that the Tribunal’s Decision be varied to find the applicant is entitled to an award in the amount of 50 per cent on each of the items granted in the Tribunal’s March 17, 2022 order.
RESULT
4The applicant's request for reconsideration is dismissed.
ANALYSIS
5In its March 17, 2022 Decision, the Tribunal considered whether the applicant was entitled to an award under section 10 of Regulation 664. The Tribunal noted the legal test for ordering an award at paragraph 160. Citing 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949, the Tribunal stated: “It is well settled that an award should be not ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award, the insurer’s conduct must be ‘excessive, imprudent, stubborn, inflexible, unyielding or immoderate’”.
6The Tribunal articulated its analysis and reasons for the denial of the award. These are found at paragraphs 158-169, and can be summarized as follows:
i. The fact the Tribunal found the applicant entitled to certain benefits is not evidence of unreasonably withholding or delaying the payment of benefits. This is based on the Tribunal’s decision in 18-00383 v. Aviva Insurance Company, 2019 CanLII 14396.
ii. The applicant and respondent’s medical experts had very different opinions. The respondent conducted a number of assessments which demonstrate a continuing adjustment of the applicant’s file. It was reasonable for the respondent to rely on its medical professionals in maintaining the denials.
iii. While the Tribunal questioned the continued denial of the income replacement benefits (IRB) given the medical evidence that the applicant has driver and passenger anxiety, it found it was reasonable, given the surveillance of the applicant seen driving, for the respondent to rely on reports that indicated the applicant could work.
iv. The Tribunal found that a mitigating factor in the respondent’s favour was that it paid attendant care payments without evidence they were incurred, and in the absence of claims having been submitted.
7The applicant makes several interwoven arguments in support of his request for reconsideration.
The Tribunal failed to consider the applicant’s submissions
8The applicant submits that the Tribunal made an error of law and breach of procedural fairness in failing to consider any of the applicant’s written submissions and evidence on the question of an award. In his submissions, the applicant lists all the evidence he believes was not considered by the Tribunal with respect to the award.
9The applicant submits the Tribunal failed to consider any of the applicant’s submissions when arriving at the conclusion that it was reasonable for the respondent to rely on its medical professionals in maintaining its denials. The applicant also submits the Tribunal erred in law by not considering any of the respondent’s denial letters as evidence that the respondent acted unreasonably. The applicant submits the Tribunal erred in law by not considering the fact the respondent did not provide updated medical information to its Insurer’s Examination (IE) assessors. The applicant further submits the Tribunal erred in law and breached procedural fairness by failing to consider the applicant’s submissions pointing to Tribunal decisions in support of a finding of an award.
10I disagree. The Tribunal explicitly referred to the applicant’s submissions on the question of an award at paragraph 159, noting that while he took liberties with the page limits, the applicant’s submissions were largely of assistance to the Tribunal. The Tribunal went on to outline the nature of the arguments in the applicant’s submissions. The Tribunal stated with reasons which of the applicant’s submissions would be considered, and which would not. From this review, it is clear the Tribunal read and considered the applicant’s submissions.
11The Tribunal conducted an analysis of what it considered to be the relevant factors to ordering an award. The Tribunal is not required to refer to every piece of evidence or submission in its decision. I find the analysis in the Decision demonstrates the Tribunal considered the applicant’s submissions on the question of whether an award was payable, and concluded it was not. I see no breach of procedural fairness, nor any error of law that would have likely affected the outcome of the decision.
The Tribunal failed to apply the facts to the legal test
12The applicant submits the Tribunal made an error of law by stating the legal test, and then failing to apply its findings of fact, or relevant evidence submitted by the applicant, to this test. In support of his submissions, the applicant cites at length what he believes are the relevant evidence and submissions in support of his position with respect to the award.
13I disagree that the Tribunal failed to apply its findings of fact or relevant evidence from the applicant to the legal test. The Tribunal set out the legal test in paragraph 160, and then applied what it viewed as the relevant facts and evidence. It is well within the Tribunal’s purview to assign weight and assess the relevance of the evidence and facts before it. I see no error of law that would have likely affected the outcome of the decision.
It was an error of law to find the respondent was entitled to rely on its medical professionals’ opinions in maintaining its denials
14The applicant submits that the Tribunal erred in law by finding it was reasonable for the respondent to rely on its medical professionals’ opinions in maintaining its denials. The applicant submits that this conclusion is in direct contradiction to the findings of fact made by the Tribunal. In support of his position, the applicant points to the Tribunal’s findings with respect to the neutrality and inherent contradictions in the evidence of the respondent’s experts, as well as findings made by the Tribunal when assessing what weight to assign expert evidence and IE reports.
15I disagree. In the course of making its decision, the Tribunal engaged in a process of weighing evidence in order to assess whether or not the applicant was entitled to the benefits in dispute. This is the role of the Tribunal. As noted at paragraph 165 of the Decision, the fact the Tribunal found the applicant entitled to certain benefits is not evidence of unreasonably withholding or delaying the payment of benefits.
16I accept this position, as the Tribunal’s preference for the applicant’s experts’ opinions in awarding benefits does not, in turn, mean it erred in finding the respondent was entitled to rely on its own experts while adjusting the file. The fact the Tribunal preferred the applicant’s evidence when assessing entitlement does not mean he is entitled to an award under section 10. I see no error of law that would have likely affected the outcome of the decision.
It was an error of law and breach of procedural fairness to conclude an award is not payable because the respondent demonstrated it continued to adjust the applicant’s file
17The applicant submits that the Tribunal erred in law and breached procedural fairness in concluding that an award was not payable because the respondent demonstrated it continued to adjust the applicant’s file. The applicant submits that the Tribunal’s conclusion ignores the applicant’s evidence that the respondent did not consider or respond to letters from the applicant outlining opposing medical information and providing new information.
18I disagree. The Tribunal stated at paragraph 166 that the applicant and respondent’s medical experts had very different opinions. In the same paragraph, the Tribunal noted that the respondent conducted a number of assessments which demonstrated a continuing adjustment of the applicant’s file. As a result, the Tribunal found that it was reasonable for the respondent to rely on its medical professionals in maintaining the denials. Decision makers are not required to include every argument or piece of evidence leading to their conclusion. While the applicant took issue with the respondent’s communications, the Tribunal provided cogent reasons for why it found the respondent had been continually adjusting the file. It was allowed to make this finding, and it was allowed to use this as a factor in its analysis about the award.
19I see no breach of procedural fairness or error of law that would have likely affected the outcome of the Tribunal’s decision.
It was an error of law to find it was reasonable for the respondent to rely on surveillance evidence in concluding the applicant could work
20The applicant submits that the Tribunal erred in law in finding it was reasonable for the respondent to rely on surveillance evidence to conclude the applicant could work. In support of his submission, the applicant points to what he views as contradictory findings of fact at paragraphs 50-53 of the Decision. These paragraphs set out the Tribunal’s analysis of the surveillance evidence and its impact on the question of whether the applicant was entitled to income replacement benefits. The applicant also submits that it was an error of law for the Tribunal not to consider the relevant testimony of each of the witnesses as to their view of the surveillance evidence.
21I disagree. The Tribunal considered at paragraph 167 whether the respondent’s continued denial of income replacement benefits entitled the applicant to an award and found that it did not. In the course of its analysis, the Tribunal noted the medical evidence of driver and passenger anxiety, but, nevertheless, concluded the respondent’s denials were reasonable in light of the surveillance evidence. The fact the Tribunal did not find the respondent’s surveillance evidence persuasive when determining entitlement to benefits does not then mean it must also conclude the respondent unreasonably withheld or delayed payment of benefits by using this evidence to support the denial. This is the point the Tribunal addresses at paragraph 165 of its Decision. The Tribunal is also not required to list the testimony of each witness as to their view of the surveillance evidence.
22I see no error of law that would have likely affected the outcome of the Tribunal’s decision.
It was an error of fact and law for the Tribunal to find that the payment of attendant care benefits is a mitigating factor in the respondent’s favour
23The applicant submits that the Tribunal made an error of fact and law when it found that the payment of attendant care benefits, without evidence that they were incurred or a claim being submitted, was a mitigating factor in the respondent’s favour. In his submissions the applicant notes that attendant care benefit payments were not made by the respondent, and there was no evidence before the Tribunal to suggest such payments had been made.
24The respondent submits the fact that it approved attendant care benefits is a mitigating factor, even if the payments were not made. The respondent further submits that the fact these benefits were not paid would not have made a difference to the Tribunal’s decision on the award, particularly as the Tribunal found the applicant was not entitled to attendant care benefits and considered a number of factors in reaching its conclusion with respect to the award.
25Based on the applicant’s and respondent’s reconsideration submissions, I find that the respondent did not make payments for attendant care benefits, nor were any claims submitted. The Tribunal erred at paragraph 168 when it stated that attendant care payments had been made.
26However, finding a factual error is not enough to grant a reconsideration. Rather, Rule 18.2 (b) requires the Tribunal to be satisfied that the error is such that the Tribunal would likely have reached a different result had the error not been made. The applicant submits that this error would have changed the outcome of the decision. The respondent disagrees, noting that it is one of several factors that went into the Tribunal’s analysis with respect to entitlement to an award.
27I find that the Tribunal considered a number of factors in its assessment of whether a section 10 award was payable. At paragraph 168 the Tribunal states that “a mitigating factor in the respondent’s favour is also the payment of ACBs” (emphasis added). While I do find the Tribunal erred in finding the respondent paid attendant care benefits, I have not been satisfied by the applicant that the Tribunal made an error such that the Tribunal would likely have reached a different result had the error not been made, as required by Rule 18.2 (b).
It was an error in law and breach of procedural fairness to not allow the applicant to cross examine the respondent on the issue of an award
28The applicant submits the Tribunal erred in law and breached procedural fairness in its ruling that the respondent was not an adverse witness, and, therefore, the applicant was not entitled to cross examine the respondent’s adjuster on the issue of an award. The applicant does not provide supporting submissions for this ground in his application for reconsideration. In his reply submissions, the applicant cites Rule 53.07(5) of the Rules of Civil Procedure which permit an adverse witness to be cross-examined by the party who called him, or by any other party who is adverse in interest to that person. The applicant refers to a Tribunal decision2 that found the Rules of Civil Procedure can provide useful guidance from a procedural perspective regarding when cross-examination is appropriate. However, in the same paragraph of his submissions the applicant also notes the Rules of Civil Procedure are not binding on the Tribunal.
29I disagree that the Tribunal made an error of law. The applicant had an opportunity to both ask the adjuster questions and to make written submissions on the issue of an award. At paragraph 158, the Tribunal notes that the parties agreed to provide written submissions on the award issue. At the hearing, the Tribunal ordered the following submission lengths: 15 pages for the applicant’s submissions, 15 pages for the respondent’s submissions, and 3 pages for reply. At paragraph 159 of the Decision, the Tribunal notes that, despite the fact the applicant exceeded the allotted page length, his submissions were considered by the Tribunal, with the exception of 3.5 pages of single-spaced footnotes.
30These procedural decisions were all within the Tribunal’s purview. The Tribunal controls its own process. The applicant was provided ample opportunity to make submissions about the award, and the Tribunal structured this part of the hearing as it saw fit under the circumstances. I see no error of law that would have affected the outcome of the decision, nor do I see a breach of procedural fairness.
CONCLUSION
31For the reasons noted above, I deny the applicant's request for reconsideration.
E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: August 23, 2022
Footnotes
- 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.
- Bishop v. TD General Insurance 2022 CanLII 33194 (ON LAT).