Siomos v. Dominion of Canada General Insurance Company (Travelers), 2022 CanLII 92736

Citation: Siomos v. Dominion of Canada General Insurance Company (Travelers), 2022 ONLAT 19-011720/AABS – R

RECONSIDERATION DECISION

Before: Theresa McGee, Vice-Chair

Licence Appeal Tribunal File Number: 19-011720/AABS

Case Name: Vasilios Siomos v. Dominion of Canada General Insurance Company (Travelers)

Written Submissions by:

For the Applicant: Gus Triantafillopoulos, Counsel

For the Respondent: Sarah Scott, Counsel

BACKGROUND

1The applicant asks the Tribunal to reconsider its decision of August 11, 2021 (“the decision”) in which the Tribunal found that the applicant was not entitled to a non-earner benefit or the medical benefits he claimed. The Tribunal also declined to order an award for unreasonable withholding or delay of benefits.

RESULT

2The applicant's request for reconsideration is denied.

ANALYSIS

Preliminary matter

3The respondent submits that the request for reconsideration should be dismissed because the applicant failed to make his request within 21 days of the release of the decision, as required under Rule 18.1 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”). Having reviewed the Tribunal’s records, including the request for reconsideration and the accompanying certificate of service, I find that the applicant filed his application and served it on the respondent within 21 days of the release of the decision.

Analysis of the merits

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:

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.

5The applicant submits that the Tribunal made errors of fact and law and violated the rules of procedural fairness.

6In the decision, the Tribunal held that it did not need to consider the date on which the applicant submitted a disability certificate to apply for a non-earner benefit because the applicant was not entitled to the benefit in any event. The applicant submits that the Tribunal disregarded his submission that he is entitled to receive a non-earner benefit regardless of whether he suffers a complete inability to carry on a normal life because the respondent failed to comply with its obligations under Sections 32, 34, and 36 of the Schedule. The applicant also submits that the respondent’s noncompliance with these provisions of the Schedule is grounds for an award.

7The respondent submits that it complied with the Schedule. It submits that it provided the applicant with the necessary forms to complete an application for benefits, including a disability certificate, and that the applicant did not submit a completed disability certificate until more than 208 weeks after the accident.

8I find no error in the Tribunal’s conclusion on the effect of s. 36 in this case. The applicant did not submit a disability certificate until November 30, 2020, more than four years post-accident. The consequences in s. 36(4) are not triggered when no application is filed until after the statutory period for entitlement has passed.

9The applicant submits that the Tribunal also failed to comment on the issue of an award, and that this omission constitutes a breach of procedural fairness. On this point, the applicant relies on the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board)¹. The applicant’s submissions misapprehend the Supreme Court’s holding in Newfoundland Nurses, as affirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov². Those decisions held that the reasons given for a decision need not “respond to every argument or line of possible analysis” or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”.³ Reasons must be read “holistically and contextually.”⁴ Newfoundland Nurses stands for the proposition that alleged deficiencies and flaws in reasons should be addressed on substantive grounds. The do not constitute a breach of procedural fairness.⁵ Additionally, the Tribunal did comment on the issue of an award, however briefly. I see no violation of procedural fairness arising from a lack of reasons on this issue.

10The applicant submits the Tribunal violated procedural fairness by failing to properly consider his evidence. As part of its fact-finding function, the Tribunal weighs evidence as it considers appropriate. Dissatisfaction with the weight the Tribunal accords to evidence is not a basis for reconsideration. It does not constitute a breach of procedural fairness. The Tribunal is not required to reference every item of evidence contained in the record. I find nothing procedurally unfair about the manner in which the Tribunal weighed and assessed the evidence before it, as evidenced in its reasons for the decision.

11The applicant submits that the Tribunal placed him at a procedural disadvantage by not ordering payment of his Orthopedic Assessment Report because the respondent is not limited in the number of assessments it can conduct under s. 44 of the Schedule. The applicant submits,

“If the Applicant is denied all funding for assessments that can be obtained through OHIP, Applicants quite possibly may never be able to afford to obtain an expert opinions to address whether injuries meet the legal tests outlined in the SABS. Insurance companies on the other hand, have access to endless funds to conduct assessments and are not limited in scope by Section 44 of the SABS. 50. The Applicant submits therefore, that he is being placed at a procedural disadvantage to Insurance Companies.”

12The role of the Tribunal is to interpret an apply the law. It would be an improper exercise of the Tribunal’s legislative authority to order payment of benefits to rectify an applicant’s perceived lack of procedural advantage flowing from the legislation. The applicant has identified no violation of procedural fairness that would warrant reconsideration.

13The applicant submits that the Tribunal made a significant error of fact and law when it concluded that an occupational therapist is not qualified to comment on psychiatric health. It submits the Tribunal would have come to a different conclusion about his psychological impairments if it had no so erred. The applicant submits that occupational therapists are qualified to provide psychotherapy.

14I see no error in the Tribunal’s weighing of the applicant’s evidence. An occupational therapist is not qualified to make psychiatric diagnoses. It is clear from the Tribunal’s reasons that the absence of a valid psychiatric diagnosis was of central importance to the analysis. I find no error in the manner the Tribunal weighed the evidence of the occupational therapist.

15The applicant submits that the Tribunal erred by placing weight on the submissions of the respondent when the respondent did not put forth evidence to support their submissions and did not put their submissions to the applicant’s witnesses to let them respond or explain any inconsistencies. The applicant submits this offends the rule in Browne v Dunn, by which the Tribunal is bound.

16The rule in Browne v Dunn is a rule of evidence that a party intending to call evidence to contradict the testimony of a witness should put that evidence to the witness to give them an opportunity to respond to it. The applicant fundamentally misapprehends this rule and its application. Submissions are not evidence. A party is not required to rehearse their submissions before every opposing witness to give them an opportunity to counter their theory of the case. The respondent is the responding party in these proceedings and is not required to call any evidence if it so chooses. The Tribunal did not err in law by finding the respondent’s submissions persuasive.

17The applicant submits that pain can be a psychological condition, and that the clinical notations of his family physician recording pain complaints therefore established that he suffered from a psychiatric condition. The applicant’s submission that pain is a psychological condition is not evidence. The Tribunal duly considered and weighed the evidence of the family physician and concluded that no diagnosis of a psychiatric condition had been made.

18The applicant submits that the Tribunal erred by concluding that the disputed Orthopedic Assessment was not reasonable and necessary because it was available through OHIP. He submits that the disputed report was prepared under s. 25(1)1 and s. 25(1)(2) of the Schedule, not s. 25(1)3, and that therefore he is not required to seek coverage for the benefit from OHIP before claiming it from the respondent. The respondent submits that this is new argument not raised at the original hearing. The applicant makes no further mention of the issue in reply.

19A reconsideration is not an opportunity to raise new argument. The Tribunal carefully considered the issue in paragraphs 29 to 33 of the decision. I see no reason to disturb those findings.

20The applicant submits that the Tribunal gave uneven treatment to the burden of proof. As the Tribunal noted at paragraph 30 of the decision, an insurer seeking to avail itself of s. 47(2) of the Schedule has the burden of showing that the benefit is “reasonably available” through a collateral insurer. Then, the burden shists to the insured to prove that the benefit is not reasonably available. The Tribunal clearly understood and applied this shifting burden. The Tribunal was satisfied, based on the applicant’s prior referral to an orthopedic surgeon, that the services of such a specialist were reasonably available. The applicant’s submission at the hearing, which he renews in his reconsideration request, is that the quality and scope of the assessment services he could receive through OHIP were diminished compared to those he received through a private assessor. The Tribunal rejected those arguments, having found no factual basis for them. A reconsideration is not an opportunity to re-argue one’s case. The applicant has identified no error of fact or law.

21The applicant submits that the Tribunal erroneously held it to a much higher standard of proof than a balance of probabilities in this case, because the respondent submitted no evidence to counter his medical evidence and testimony. I see no error in the standard of proof the Tribunal applied. As a matter of law, the applicant bears the onus of establishing entitlement to benefits.⁶ Even an undefended application to the Tribunal could be dismissed if the applicant failed to satisfy the Tribunal of his or her entitlement to benefits. I find that the Tribunal applied the correct standard of proof and made no error of law in the manner it assessed the applicant’s medical evidence.

CONCLUSION

22The applicant has failed to establish any of the grounds for reconsideration. The request for reconsideration is denied.

Theresa McGee, Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 12011 SCC 62, (“Newfoundland Nurses”).
2. 22019 SCC 65, (“Vavilov”).
3. 3Ibid at para. 128.
4. 4Ibid at para 97.
5. 5Newfoundland Nurses, supra note 1 at paras 21 and 22.
6. 6Scarlett v Belair Insurance, 2015 ONSC 3635.