McKay v. Travelers Insurance Company of Canada, 2022 CanLII 98046

Citation: McKay v. Travelers Insurance Company of Canada, 2022 ONLAT 19-009671/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 19-009671/AABS

Case Name: Matthew McKay v. Travelers Insurance Company of Canada

Written Submissions by:

For the Applicant: Matt Gervan, Counsel Asheley Dunkley, Counsel

For the Respondent: Sharon C. Dagan, Counsel

OVERVIEW

1The applicant, Matthew McKay, filed a request for reconsideration of the February 4, 2022 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal). In the decision, I found that the applicant was not entitled to income replacement benefits (IRBs) from January 27, 2018 to date and ongoing. As a result, there was no basis upon which to consider an award under Regulation 664 and I dismissed the application.

2The applicant requested a reconsideration of the decision on the basis that I:

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

(ii) Made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made.

3The respondent’s position is that the request for reconsideration should be denied.

RESULT

4The applicant's request for reconsideration is dismissed.

PROCEDURAL ISSUE: Applicant’s Request to have the Reconsideration Determined by a Different Member or the Executive Chair

5As part of his submissions, the applicant requested that his request for reconsideration be referred to the Executive Chair or a different adjudicator to “avoid any potential apprehensive [sic] of prejudgment or bias.”²

6In the applicant’s reply submissions, he further submitted that a reconsideration heard by the same adjudicator that rendered the decision is “a clear apprehension of bias, or lack of independence,”³ and that if I rendered the reconsideration decision that it would lead to an “unquestionable apprehension of bias.”⁴

7The applicant submitted no case law or legislative authority to support his position that a reasonable apprehension of bias would arise if I rendered this reconsideration decision solely because I was the hearing adjudicator.

8In contrast, Rule 18.1 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) provides that an adjudicator may hear reconsideration requests from their decisions.

9It is also well settled by several Divisional Court decisions that the mere fact that an adjudicator determines a request for reconsideration of their own decision does not, in and of itself, create a reasonable apprehension of bias.⁵ In fact, the Divisional Court has found that having members reconsider their own decisions is a familiar feature in the administrative law landscape,⁶ promotes efficiency, and allows for timely resolutions since the hearing adjudicator knows the file and, therefore, are the best placed to assess the issues raised in a reconsideration request.⁷

10As the Divisional Court has spoken on the very issue raised by the applicant and the applicant provided no other basis to support his position that a reasonable apprehension of bias has arisen in this matter, the applicant’s request that his request for reconsideration be heard by another adjudicator or the Executive Chair is denied.

ANALYSIS

11The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Rules. The grounds that the applicant submits 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 several significant errors of law and/or fact such that I would likely have reached a different result had the errors not been made.

12For the reasons that follow, I find that:

(i) There was no violation of procedural fairness such that a reconsideration of the decision is warranted under Rule 18.2(a); and

(ii) No error was made in the decision such that a reconsideration under Rule 18.2(b) is warranted in this matter.

Procedural Fairness

13The applicant submitted that I breached the rules of procedural fairness by:

(i) Not considering and/or misapprehending the evidence such that the matter was not fairly adjudicated;

(ii) There was a substantial and unreasonable delay in rendering the decision; and/or

(iii) The decision appeared to be “rushed.”⁸

Failing to Consider Evidence

14While the applicant framed several of his submissions regarding my consideration of the evidence as errors of fact and/or law, he did raise the issue that I failed to consider the applicant’s reply submissions where the applicant provided a clarification of his pre-accident position at CommScope Canada Inc. (CommScope) as a breach of procedural fairness.

15I agree that the applicant provided further details about his CommScope position in his reply hearing submissions. As indicated at paragraph [11] of the decision, however, the applicant’s submissions are not evidence and there is no documentation or other evidence to support the information provided by way of the applicant’s submissions. As a result, I find that there was no breach of procedural fairness in failing to rely upon the applicant’s submissions about his CommScope position in the decision.

The Release of the Decision

16The applicant relied upon the Supreme Court of Canada’s decision in Baker v. Canada (Ministry of Citizenship and Immigration) (Baker)⁹ to support his position that there was a breach of procedural fairness. In Baker, the Supreme Court held, “if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.”¹⁰

17The applicant submitted that he had a legitimate expectation that the Tribunal would hold the written hearing on the hearing date scheduled (May 31, 2021) by considering the issues and rendering a decision shortly thereafter. The applicant further submitted that having the decision released on February 4, 2022 was unreasonable and “created the impression that procedural fairness was not provided to the parties.”¹¹

18No evidence was submitted by the applicant to support his submissions that he had any legitimate expectations regarding the written hearing date and the release of the decision, details of what his expectations were, or information as to what may have given rise to any such expectation. Further, legitimate expectations are not simply expectations sincerely held, but are based on some representation from a government entity. In any event, the only information provided on this position were submissions and, again, as stated in paragraph [11] of the decision, submissions are not evidence.

19It is also difficult to reconcile the applicant’s submissions regarding the release of the decision as on one hand he submitted that there was a delay while also submitting that the decision appeared to be “rushed” and, as a result of both, there was a breach of procedural fairness afforded to him.

20In any event, I agree with the respondent that a breach of procedural fairness does not arise solely based on the timing of when a decision is released. Indeed, procedural fairness has been defined as 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.¹²

21The Tribunal’s July 20, 2020 Case Conference Report and Order identified the issue in dispute between the parties and a written hearing was scheduled. The decision considered the issue in dispute as set out in the July 20, 2020 Case Conference Report and Order as well as the issue of an award under Regulation 664 following receipt of written submissions and evidence from both parties. Therefore, I find that the applicant had a full opportunity to argue his case pertaining to the issue identified in the July 20, 2020 Case Conference Report and Order and to respond to the respondent’s position. As a result, the requirements of procedural fairness have been met.

22For all these reasons, I find that the applicant has failed to prove on a balance of probabilities that there was a breach of procedural fairness such that a reconsideration of the decision is warranted on this basis.

Errors of Fact and/or Law

23The applicant relied upon Rule 18.2(b) for his position that I made several errors in fact and/or law such that I would have arrived at a different decision had those errors not been made. Specifically, the applicant submitted that I erred by:

(i) Finding that Ms. Jennifer Kengis, vocational assessor, was not provided with the applicant’s T4 slips or any other taxation documentation to confirm the applicant’s pre-accident income;

(ii) Finding that the applicant failed to report his previous work experience as a National Sales Manager and his work experience with CommScope to Ms. Kengis;

(iii) Making incorrect assumptions about the nature of the applicant’s CommScope position (i.e., that it was a sedentary position) without evidence from the applicant or from the vocational assessor;

(iv) Making inferences and substituting my opinion that the applicant had capacity to work in a sedentary position in place of the vocational assessor’s expert opinion that there were no occupations available to the applicant. The applicant also submitted that this conclusion was speculative, not based on any significant review of the considerable amount of medical evidence submitted at the hearing, and was not reconciled with other medical evidence that confirmed that the applicant’s impairments were chronic and disabling;

(v) Failing to accurately evaluate Ms. Kengis’ April 8, 2019 Vocational Assessment Report and to “holistically consider” the medical evidence of the applicant’s physical injuries (including chronic pain, neurological issues, and his diagnosis of chronic regional pain syndrome) and psychological injuries and impairments, and the combined disabling impact which prevented him from carrying on any gainful employment;

(vi) Ignoring, misapprehending, and/or mischaracterizing the vocational assessment evidence and the opinions that were provided by Ms. Kengis; and

(vii) Failing to compare the two psychological assessment reports before me and/or to provide a proper analysis of why I preferred the respondent’s report over that of the applicant’s.

24Firstly, I do not agree that I made an error regarding Ms. Kengis not having the applicant’s T4 slips or any other taxation documentation to confirm the applicant’s pre-accident income. Indeed, I cited page 11 of Ms. Kengis’ report in the decision where she writes, “T-4 slips and/or other taxation documentation have not been provided to confirm the individual’s pre-accident income variable [emphasis in original].”

25The information that the applicant relied upon to refute this portion of my decision is a SecureDocs transfer document indicating that certain income taxation documents and cheque payment stubs from 2014-2016 were provided to the respondent. These documents, however, were transferred to the respondent on October 20, 2020, and the date of Ms. Kengis’ report was April 8, 2019, which was well before the date of the transfer of these documents. Therefore, there is no evidence before me that the respondent had these documents in its possession to provide them to Ms. Kengis prior to her assessment and report.

26I also do not agree with the applicant’s submissions that the applicant’s 2014 income tax return showed that he earned $117,885 in commission from CommScope. In fact, the applicant’s 2014 Income Tax Return form does not mention CommScope and it is also unclear from the SecureDocs transfer forms which paystubs were provided to the respondent.

27I also disagree with the applicant that I erred and misapprehended the evidence when I found that the applicant failed to report his previous work experience as a National Sales manager and his work with CommScope to Ms. Kengis. The applicant submitted that Ms. Kengis, “interviewed the [a]applicant about his business and the nature of this clients, large telecom companies, and equipment that he sold and served as part of his company’s services,”¹³ and that the fact that the applicant’s company sold and serviced telecommunications network equipment was not a factor in Ms. Kengis’ assessment of available occupations. Even if I accepted these submissions, which I do not as they are not evidence, there is no mention of CommScope or sales experience under the applicant’s work history in Ms. Kengis’ report.¹⁴

28The applicant also submitted in reply that if I had felt that there was evidence missing, rather than making unsupported inferences that I should have declined to decide the matter on a written record and order the matter instead to be reheard permitting oral evidence.¹⁵ The applicant relied upon the decision of Taylor v. Aviva Canada Inc. (Taylor)¹⁶ where the Divisional Court held that given the complexity of the case in that matter, the lack of clarity in the assessment of the evidence, and the complaints by both sides about the lack of an oral hearing, it was reasonable for the Executive Chair to decline to decide the matter on a written record and order that the matter be reheard after consideration had been given at a case conference to permitting oral evidence.¹⁷

29In Taylor, the Division Court noted that the matter was “complex,”¹⁸ and that it was unclear who the occupier of the property was on the date of the accident.¹⁹ No such complex facts exist here, and it is not incumbent upon me to change a format of a hearing especially when there was no pre-hearing request to do so from the parties.

30The applicant is also incorrect that I concluded that his CommScope position was sedentary. In fact, I stated at paragraph [10] of the decision that the applicant failed to provide any evidence of what his experience at CommScope entailed to allow me to undertake the analysis required by s. 6(2)(b) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule).²⁰ It was only in the alternative that I inferred that the applicant’s role at CommScope was sedentary. Therefore, even if I agreed with any of the other grounds advanced by the applicant as part of his reconsideration submissions as set out above in paragraph 23 to (vii), such a finding would not negate the applicant’s failure to provide any evidence of what his experience at CommScope actually entailed to allow me to conduct the required analysis under s. 6(2)(b) of the Schedule.

31The applicant also submitted that I erred by giving weight to the surveillance evidence that was “sprung” on him during the submissions phase of the hearing over the April 13, 2020 s. 25 Psychiatric Paper Review Report by Dr. Sujay Patel, psychiatrist, in which, according to the applicant, Dr. Patel opined that the applicant had significant psychological impairments that would make it difficult for him to obtain employment. The applicant also offered to swear an affidavit regarding the surveillance to explain its context.

32Even if I agreed with the applicant that the surveillance evidence was “sprung” on him, he sought, and was granted, an adjournment of the hearing to allow him time to prepare and respond to it. Further, the offering of an affidavit at the reconsideration stage is not appropriate as parties are required to put their best foot forward when first called to do so. Here, the applicant had sufficient time to do so having been granted an adjournment of the hearing. In any event, the applicant alleges that I incorrectly, or failed to thoroughly explain, why I placed greater weight on the surveillance evidence over Dr. Patel’s report. Even if I was incorrect on these issues, the applicant’s reconsideration request would still fail because s. 6(2)(b) of the Schedule requires an analysis of whether the applicant is completely unable to engage in any employment for which they are reasonably suited by education, training, or experience and I had no evidence before me of the applicant’s experience from his CommScope position. My comments about the surveillance and Dr. Patel’s report were again only in the alternative based on an inference of what the CommScope position entitled.

33The applicant also submitted that I erred by:

(i) Failing to give adequate reasons for my decision because the parties cited a total of 84 pieces of evidence for the hearing and the decision was only 10 paragraphs in length;

(ii) Failing to evaluate and weigh the evidence adduced by the applicant and effectively ignored the applicant’s submissions and evidence; and

(iii) Failing to consider all evidence that was before me and the case law that was presented.

34To support his position regarding the inadequacy of my reasons in the decision, the applicant relied upon the Tribunal’s Reconsideration decision of D.P. v. Chieftan Insurance (D.P. v. Chieftan)²¹ where it was held that myself and another panel member did not adequately address or give appropriate weight to the applicant’s expert reports at first instance.

35As acknowledged by the applicant, the Tribunal is not required to address or reference every piece of evidence or case law that is put before it. Further, a concise decision does not equate with a failure to give reasons and the applicant did not provide any case law to support this position.

36D.P. v. Chieftan is also distinguishable on the facts in this matter as in D.P. v. Chieftan, there was evidence regarding the applicant’s essential tasks of her employment²² such that the expert reports were reviewed and ultimately given less weight at first instance because the experts failed to address the substantial inability test which was found to be an error.²³ Here, the applicant’s experience is not “simple and straightforward” as it was in D.P. v. Chieftan, and the issue is not giving greater weight to certain expert reports over the other: the clear issue here is that the applicant did not provide any evidence of what his experience at CommScope entailed to allow me to undertake the analysis required by s. 6(2)(b). Therefore, I find that I did not err by failing to give fulsome reasons that would allow a meaningful review of the decision such that I erred in law.

37Finally, the applicant submitted that I erred by failing to consider the relevant criteria in determining if the applicant was entitled to an award under Regulation 664.

38As stated in paragraph [16] of the decision, s. 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. Therefore, no award may be ordered where the Tribunal has not found any payment for benefits were withheld or unreasonably delayed. That was the conclusion at first instance, and it remains true after reconsideration.

39For all of the reasons set out above, I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made. Therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.

CONCLUSION

40For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Lindsay Lake Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1McKay v. Travelers Insurance Company of Canada, 2022 CanLII 6748 (ON LAT) (the “decision”).
2. 2Request for Reconsideration of the Applicant, para. 69.
3. 3Reply Submissions of the Applicant, para. 7
4. 4Ibid. at para. 17.
5. 5See: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 15-17; Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 90-99; Decosse v. Miklos, 2019 ONSC 6034 at paras. 25-26; and, most recently, Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 (Warren) at paras. 9-14.
6. 6For example, this process is followed by the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, the Information and Privacy Commissioner of Ontario, the Ontario Labour Relations Board, the Workplace Safety Insurance Board, the Workplace Safety and Insurance Appeals Tribunal, the Financial Services Tribunal, and the Health Services Appeal Board: See Warren at para. 12.
7. 7Warren at paras. 12-13.
8. 8Supra note 2 at para. 63 and supra note 3 at para. 7.
9. 91999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
10. 10Ibid. at para. 26.
11. 11Supra note 2 at para. 63.
12. 12See 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.
13. 13Supra note 2 at para. 22.
14. 14Page 12 of the April 8, 2019 Vocational Assessment Report by Jennifer Kengis, vocational assessor, Written Submissions of the Applicant, page 364.
15. 15Supra note 3 at para. 8.
16. 162018 ONSC 4472.
17. 17Ibid. at para. 44.
18. 18Ibid. at para. 35.
19. 19Ibid. at paras. 36-37.
20. 20O. Reg. 34/10.
21. 212019 CanLII 83888 (ON LAT Reconsideration).
22. 22Ibid. at para. 19.
23. 23Ibid. at para. 12.