Phuong (Clara) Pham v. Coseco Insurance, 2022 CanLII 98042

RECONSIDERATION DECISION

Before: Theresa McGee, Vice-Chair

Licence Appeal Tribunal File Number: 19-005174/AABS and 20-004749/AABS

Case Name: Phuong (Clara) Pham v. Coseco Insurance

Written Submissions by:

For the Applicant: Kathryn McRae Hill, Paralegal

For the Respondent: Kathleen O'Hara, Counsel

OVERVIEW

1The applicant jointly requests reconsideration of two decisions of the Licence Appeal Tribunal (“Tribunal”), dated May 18, 2021 (“the first decision”) and April 29, 2022 (“the second decision”). By motion order dated December 6, 2021, the deadline for requesting reconsideration was extended to permit the second hearing to conclude.

RESULT

2The request for reconsideration is denied.

ANALYSIS

3The grounds for a request for reconsideration are contained in Rule 18.2 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”). 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.

Positions of the parties

4The applicant disputes a procedural order made by the Tribunal on May 12, 2021, refusing to combine her two applications. The order also provided that the Tribunal’s determination of the Minor Injury Guideline issue in the first decision would stand in the second hearing. The applicant submits that this order was procedurally unfair.

5The applicant asserts that the Tribunal erred in the first decision by making a finding of fact on an issue – a chronic pain treatment plan – that was not before it at that time. She submits that this finding affected her position in the second hearing because of the Tribunal’s procedurally unfair decision not to combine her applications, and because the Tribunal had effectively foreclosed the issue of treatment for chronic pain at the first hearing even though that issue was only before it in the second hearing.

6The applicant also submits that the Tribunal erred in the second decision by refusing to consider submissions and evidence that were assessed by the Tribunal in the first hearing, limiting its analysis to fresh evidence not previously filed.

7The respondent submits that the applicant’s attempt to overturn the procedural order of May 12, 2021 is improper. The order was interlocutory, the respondent submits, and is therefore not subject to reconsideration under Rule 18.1 of the Common Rules. It further submits that the order did not violate procedural fairness. The Tribunal refused the applicant’s request to combine the applications because doing so would cause prejudice to the respondent, who had already filed submissions in the first matter.

8The respondent submits that the applicant misunderstands or mischaracterizes the Tribunal’s findings in the first decision. It submits that the Tribunal made no findings on the reasonableness and necessity of the chronic pain treatment plan disputed in the second application. It submits that the applicant had asserted no specific grounds for removal from the Minor Injury Guideline in the first hearing, and the Tribunal therefore considered the injuries and conditions that commonly ground removal from the Minor Injury Guideline.

9The respondent submits that in reaching the second decision, the Tribunal was legally correct to consider only the new evidence submitted in the second hearing. Moreover, the respondent submits that the applicant has failed to show how the Tribunal’s purported errors would have led to a different result. Therefore, the respondent submits, there is no basis for the decisions to be reversed.

10In reply, the applicant submits that the Tribunal violated the rules of procedural fairness “pursuant to the Baker factor of administrative law.” She submits that the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration)¹ (“Baker”) supports overturning the May 12, 2021 order of the Tribunal because “[g]reater procedural protections […] will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.”² I take the applicant’s reliance on this passage from Baker and her submissions on this point to mean that because an interlocutory order is excluded from the scope of the Tribunal’s reconsideration rule, such an order attracts just as high a degree of fairness protection, if not higher, than a final decision on the merits.

11The applicant submits that the Tribunal’s refusal to combine her applications “foreclosed the outcomes of both.” She submits it “reinforced unfairness into the proceeding” and was fatally flawed, opening it up to challenge on reconsideration based on the Divisional Court’s ruling in Taylor v. Aviva Canada Inc.³ (“Taylor”).

12I disagree with the applicant’s submission that the Tribunal’s procedural order of May 12, 2021 was procedurally unfair, fatally flawed, or determinative of the outcome on the merits of her applications. The Divisional Court was clear in Taylor that judicial review is rarely appropriate before the administrative process has ended. It is well settled that procedural orders are best reviewed on the basis of a complete record of proceedings after a final decision has been rendered.

13I agree with the respondent that in principle, an interlocutory order is not subject to reconsideration. While procedural orders are not normally subject to reconsideration or immediate appeal, they are routinely assessed in terms of their impact on the final decision.⁴

14However, none of the circumstances set out in the case law for review of a procedural order are present here. The applicant received full and fair consideration of her submissions and evidence. First, the applicant is not correct that the Tribunal improperly made findings about chronic pain in the first decision. The applicant failed to make focused and coherent submissions on the grounds for removal from the Minor Injury Guideline in the first hearing. At paragraph 5 of the first decision, Vice-Chair Boyce explained,

“The applicant’s submissions do not specifically engage with the grounds for removal from the MIG and it is difficult to ascertain her theory of the case as presented. Indeed, her submissions on the MIG amount to copying and pasting from various clinical notes and records of different treating practitioners with her own commentary seemingly interspersed between direct quotations.”

15I have reviewed the applicant’s written submissions in the first hearing and find that Vice-Chair Boyce’s characterization of the record before him is accurate. In the absence of clear and cogent submissions, the Tribunal analyzed the grounds commonly relied upon for Minor Injury Guideline removal. The Tribunal’s reasons demonstrate, in my assessment, responsiveness to the central issues and concerns of the parties as called for by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov.⁵

16Moreover, while the chronic pain treatment plan to which the applicant refers was not in dispute in the first hearing, I do not accept that the issue of chronic pain was not properly before the Tribunal. Though the applicant advanced no clear argument in the first hearing that she suffered from chronic pain exceeding the definition of a minor injury, her written submissions for the first hearing refer to pain complaints no fewer than two dozen times. Several of those complaints are characterized as “chronic”. I conclude that the Tribunal made no error in engaging with the subject of chronic pain; arguably, its reasons would have been incomplete if it had failed to address it.

17I reject the applicant’s submission that the Tribunal’s prior procedural orders and findings on chronic pain at the first hearing foreclosed the outcome of the second application. An interlocutory case management order does not bind a hearing adjudicator’s assessment of the evidence. I note that while Adjudicator Norris remarked that his interpretation of the definition of finality in Rule 18 was consistent with the May 12, 2021 order of the Tribunal, his reasons do not state, explicitly or impliedly, that he considered himself bound by any prior ruling of the Tribunal, procedural or substantive. Rather, he found as a matter of law that the doctrine of res judicata applied to the first hearing adjudicator’s Minor Injury Guideline determination. On that basis, he refused to reweigh the evidence that grounded that determination.

18Adjudicator Norris clearly set out his reasoning on the res judicata issue. He concluded that the first decision was a final judgment because it provided a decision on the substantive issues in dispute, and it finally disposed of an application. The applicant has identified no error of law in Adjudicator Norris’s analysis on this point.

19Upon finding that the Minor Injury Guideline determination was res judicata, Adjudicator Norris moved on to consider whether the circumstances of this case warranted a waiver of res judicata. Adjudicator Norris applied the principles laid out by the Supreme Court of Canada in Toronto (City) v. CUPE Local 79⁶ (“CUPE”). In CUPE, the court held that relitigation should be avoided “unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.”⁷ The court went on to note that there will be circumstances where relitigation will enhance, rather than impeach, the integrity of the judicial system, such as when fresh, new evidence, previously unavailable, conclusively impeaches the original results. This is the standard Adjudicator Norris applied in the second decision, and the applicant has identified no error of fact or law in his approach.

20Adjudicator Norris considered the new evidence tendered by the applicant in the second application, including updated clinical notes from her family physician which, the applicant submitted, demonstrated that her condition had deteriorated. In his assessment, this was not the case. He found that the updated evidence was uncompelling and did not conclusively impeach the Tribunal’s previous findings. It did not establish that her condition had deteriorated to the point of justifying her removal from the Minor Injury Guideline. Again, there is no error in the Tribunal’s analysis. Dissatisfaction with the way the Tribunal weighed the evidence before it is not a basis for reconsideration, and I will not re-weigh that evidence here.

21To conclude, the applicant has not demonstrated a violation of procedural fairness. She received full and fair consideration of her submissions and evidence, in both the first and second hearings. The Tribunal appropriately considered the evidence before it in each case and set out reasons for its conclusions that are transparent, intelligible, and justified. The applicant has identified no factual or legal error in those reasons, let alone an error that would have led to a different outcome. Both applications were fairly adjudicated on their merits, and neither party was hampered in making submissions or tendering evidence on issues of concern to them. Fundamentally, the applicant failed to discharge her evidentiary onus in proving entitlement to the benefits she seeks. Reconsideration is not warranted.

CONCLUSION

22The applicant has not established grounds for reconsideration of either the May 18, 2021 decision or the April 29, 2022 decision of the Tribunal. She has not established that the Tribunal’s May 12, 2021 case management order violated procedural fairness. There is no error of fact or law in the Tribunal’s findings on the merits of her applications, and those findings stand.

23The request for reconsideration is denied.

Theresa McGee Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 11999 CanLII 699 (SCC), [1999] 2 SCR 817.
2. 2Ibid at para 24.
3. 32018 ONSC 4472 at para. 19.
4. 4See, for example, the Divisional Court’s reversal of a Tribunal decision in Lockyear v. Wawanesa Mutual Insurance Company, 2022 ONSC 94, based on the Tribunal’s refusal to permit a witness to reply to new evidence in an oral hearing.
5. 52019 SCC 65.
6. 62003 SCC 63.
7. 7Ibid at para. 52.