RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 21-002186/AABS
Case Name: Aneta Strajch v. Intact Insurance Company
Written Submissions by:
For the Applicant: Paul Barrafato, Counsel
For the Respondent: Kristen Ogden, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, Anita Strajch ("A.S"). It arises out of a decision dated May 8, 2023, in which I determined that her injuries did not occur as a result of an accident.
2The remedy she seeks is that the initial decision be set aside, and a new hearing should be ordered to determine whether or not she is entitled to benefits as a result of the physical injuries caused by caring for her husband.
PROCEDURAL ISSUES
Further Reconsideration Submissions
3On August 16, 2023, A.S. wrote to the Tribunal indicating that she wanted to make further submissions on the following issues:
a. Based on a recent decision, Botbyl and Heartland Farm Mutual Inc. 2023 CanLII 72662 (ON LAT) ("Botbyl"), A.S. requested to make submissions seeking that the insurer be estopped from denying that she was involved in an "accident", as it already paid benefits to her under the claim; and
b. In another recent decision, the Divisional Court set aside the decision and reconsideration of the Tribunal in Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423 ("Kellerman-Bernard"). The initial Kellerman-Bernard Tribunal decision was relied on by Intact. A.S. submits that given the recent Divisional Court finding in Kellerman-Bernard, it is appropriate for the parties to make further submissions on this point of law as Kellerman-Bernard is similar in fact to the subject proceeding.
4On September 21, 2023, the parties were advised of my determination regarding the request for additional submissions as follows:
a. The request for submissions on the Botbyl matter regarding equitable relief was denied. The doctrine of estoppel is used to hold parties to their promises or agreements. Estoppel is an equitable remedy.
b. I have reviewed the submissions but do not find that they relate to the grounds for reconsideration. Subsequent case law does not fall under the criteria in Rule 18.2 and there is otherwise no post-decision opportunity to make these submissions. Further, equitable relief is not a new concept or novel issue, and it amounts to raising a new argument on reconsideration; and
c. Regarding the Kellerman-Bernard matter, I allowed the request for submissions, with the provision that the submissions were limited solely to the Divisional Court's decision on the matter.
5Accordingly, this reconsideration will focus on whether A.S. has met her burden on reconsideration as it relates to my decision at first instance and the submissions regarding the Divisional Court's findings in Kellerman-Bernard.
RECONSIDERATION CRITERIA
6The grounds for a request for reconsideration to be allowed are contained in Rule 18 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 ("Rules"). A request for reconsideration will not be granted unless 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.
7The following remedies are available to the Tribunal on a request for reconsideration:
a. Dismiss the request;
b. Confirm, vary or cancel the decision or order; or
c. Order a rehearing on all or part of the matter.
8A.S. relies on Rule 18.2(b), arguing that I erred in law; that I "misapplied the purpose and causation test, in finding that she was not an insured person under s. 3(1) of the Schedule as it relates to "named insureds."
9Intact submits that no error of law or fact was made, therefore I would not have reached a different decision.
RESULT
10A.S.'s request for reconsideration is dismissed.
ANALYSIS
11The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal's decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
"Insured Person" – Kellerman-Bernard – no error of law
12A.S.'s submissions are not grounds for reconsideration, do not establish an error of law, and there is no post-decision opportunity to make new arguments. Accordingly, she has not satisfied the criteria under Rule 18.2.
13Reconsideration is not a proper venue to raise new arguments. The issue before you was regarding A.S.'s physical impairments and being an "insured person" would only have given her access to benefits regarding psychological impairments. So, even if she had raised the issue in the original hearing, since A.S. was seeking benefits for physical impairments, the "insured person" route was not open to her.
14A.S. submits that the key takeaway from Kellerman-Bernard is that an individual who is noted in s. 3(1) of the Schedule, but not involved in the accident, but who suffered psychological or metal injury as a result of the fact that their family member was involved in the accident is an "insured person" pursuant to the Schedule.
15In Kellerman-Bernard, the applicant claimed eligibility for a CAT impairment designation on the basis of psychological injuries caused by her child's involvement in an accident. Justice Sachs found that the applicant fell within the second class of "insured persons" in s. 3(1) because she suffered a psychological or mental injury as a result of her son's direct involvement in an accident. Justice Sachs went on to consider whether the applicant was entitled to apply for a CAT designation, for which the applicant claimed entitlement on a psychological basis.
16Notably, the fact that the applicant's injuries were psychological in nature, did not require consideration as to whether she would be entitled to apply for medical benefits for physical injuries based on having suffered psychological impairments resulting from an accident in which she was not directly involved.
17Intact argues that Kellerman-Bernard is distinguishable, as it considered the applicant's entitlement to apply for a catastrophic ("CAT") designation for psychological injuries. Its position is that the issue in dispute at the hearing was whether A.S. is barred from pursuing medical benefits for physical injuries, pursuant to s. 3(1) of the Schedule.
18Intact submits that in the initial hearing, A.S. was claiming entitlement for medical benefits for physical impairments resulting from performing the physical tasks of taking care of her husband, who sustained injuries in an accident. Its position is that A.S.'s physical impairments and not her husband's involvement in an accident, is fundamentally different from an involuntary psychological reaction to a family member's involvement in an accident that results in a psychological or mental impairment.
19I agree with Intact that the different circumstances and nature of A.S.'s impairments distinguish this matter from Kellerman-Bernard; and therefore, no error of law was made.
20In considering the intended meaning of an "insured person", s. 3(1) of the Schedule specifies that an individual who is not directly involved in an accident is an "insured person" if they suffer a psychological or mental injury as a result of the accident but does not speak to physical injuries. At the initial hearing, A.S. sought a determination that she suffered from psychological impairments as a result of an accident she was not involved in, in order to make a claim for medical benefits for physical injuries. This is not the intent of s. 3(1) or (2) of the Schedule. Further, the intent was not to conflate the definition of an "insured person" who was not directly involved in an accident, who seeks a remedy for physical injuries. Even when ensuring a broad interpretation of the Schedule to the benefit of an insured, there is no provision under s. 3 that speaks to available remedies for physical injuries for an individual that was not directly involved in an accident.
21Accordingly, this distinguishes the Divisional Court's finding in Kellerman-Bernard from the circumstances in the subject proceeding. Further, for the reasons set out above, I find no error of law was made. I will now turn to the consideration of the remaining errors of fact or law alleged in by A.S.'s request for reconsideration.
22A.S. submits that I made further significant errors of law in my interpretation and application of s. 3(1) of the Schedule in my interpretation of "accident" and lack of interpretation of "insured person". She submits that had the legal test been properly interpreted and/or applied, the Tribunal would likely have reached a different decision.
"Insured Persons" and "accident" – no error of fact or law
23A.S. submits that I misapplied the purpose and causation tests, thus resulting in an error of law in finding that she was not an insured person under s. 3(1) of the Schedule. Her position is that my finding was inconsistent with the Schedule's provisions regarding "named insureds".
24Intact argues that A.S. is not an "insured person" pursuant to s. 3(1) of the Schedule as she did not suffer psychological or mental injury as a result of the accident, which is a requirement to be considered eligible for benefits. There was no claim for medical benefits for psychological or mental impairment as a result of her husband's accident.
25Section 3(1)(a)(ii) provides that an "insured person" means, if the named insured, specific driver, spouse or dependent is not involved in an accident but suffers psychological or mental injury as a result of an accident that results in a physical injury to his or her spouse. In other words, an individual who falls under the category in s. 3(1), although not involved in the accident, but who suffered psychological or mental injury as a result of the fact that a family member was injured in the accident, is considered an "insured person".
26The issue is there are two separate paths for A.S. to be eligible for benefits. First, whether A.S. could claim benefits for physical injuries as a spouse not personally involved in an accident. This is not explicitly addressed in the original decision, but the answer is no because of the reasons in paragraph 25, above. Second, whether her physical injuries were a result of the accident. This is what the decision focuses on.
27A.S. is trying to conflate both paths here. She is attempting to be found as an insured person as a result of an accident, for injuries that only an insured person involved in an accident can claim. Whether she was an insured person as a spouse not involved in an accident was irrelevant because she was seeking benefits for physical impairments.
28Consequently, the spouse insured person path is closed to her. Therefore, my analysis focused on "was it an accident". A.S. is confounding the two here.
Misapplication of the Purpose Test
29A.S.'s argument that I misapplied the purpose test, even if correct, would not have led to a different outcome had a different test been used.
30As discussed above, the provisions under s. 3(1) Schedule are clear, the "insured person" must have suffered a psychological or mental injury as a result of the family member being injured in an accident. The legal test applied to determine whether A.S. is an "insured person" would not affect the outcome of the decision, as she has not put forth any evidence that she suffered a psychological or mental impairment; the requirement under s. 3(1). On those facts alone, she has failed to demonstrate that she is an "insured person" in accordance with s. 3(1) of the Schedule.
31A.S. submits that I was incorrect at paragraph 16 of my decision, where I found that her injuries did not arise out of the ordinary and well-known activities for which automobiles are put.
32Her position is that the purpose test was satisfied by the fact that her husband was a pedestrian involved in a motor vehicle collision. Further, that the fact that her husband was involved in the collision, and her being an "insured person", the purpose test is met.
33I disagree.
34Section 3(1) is clear, the "insured person" must have suffered a psychological or mental injury. A.S. has not demonstrated that she has, in addition, she sought medical benefits for physical injuries, which is not contemplated by the provisions under s. 3(1). Applying the provisions of the Schedule, A.S. cannot have met the threshold of the purpose test, because her physical injuries did not arise out of the ordinary and well-known activities for which automobiles are put.
35I considered A.S.'s circumstances in light of other Tribunal decisions (which are persuasive but not binding on me). At paragraph 20 of the decision, I considered the decision of Wawanesa Mutual Insurance Company and Webb (FSCO Appeal P11-00015, July 18, 2012), p. 6 and Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA). I considered this issue in paragraph 24 of the decision and found that A.S.'s injuries were not a consequence directly caused by the use or operation of an automobile. More specifically, at paragraph 25, I provided reasons for finding that her injuries resulted from providing care for her husband, which arose from "completely different circumstances that were entirely separate from being as a result of an accident as defined in the Schedule."
Misapplication of the Causation Test
36A.S. also submits that her impairments arose as a direct result of her husband's accident, which she submits satisfies the causation test. Her position is that my finding that she "assumed" the risk in providing care to her husband and that her impairments arose from different circumstances that were separate from being as a result of an "accident" was incorrect.
37A.S. further submits that there was no other cause for her impairments, that the repeated years of caring for her husband, who was injured in an accident, resulted in physical impairments to her own body.
38I find that A.S. is rearguing many of her submissions already put forth at the initial hearing. Reconsideration is not a proper venue for a party to reargue their position. By her own submissions, I find that A.S. has failed to demonstrate that she has satisfied the causation test and that she is an "insured person" as contemplated by the Schedule. Again, A.S.'s submissions are conflating two different things. She wouldn't need to go through the spouse not personally involved in an accident route if her physical injuries had been caused directly by the accident.
39While I agree with her position that the definition of an "insured person" does not require direct causation, the circumstances of her impairments still do not satisfy the definition of an "insured person". At paragraph 31 of her reconsideration submissions, she submits that, "if a psychological impairment arises as a result of one's spouse who did suffer physical injuries in the accident, then the definition of "insured person" has been met." She did not suffer or claim any psychological impairment.
40Regardless of the sub-tests of the causation test: (i) but-for; (ii) intervening cause; and (iii) dominant feature, A.S. has not satisfied the key requirement to be considered an "insured person", that is, that she suffered a psychological impairment as a result of an accident.
41On reconsideration, her claim focuses on the physical impairments she suffered in caring for her husband. The disputed benefits are for treatment for physical injuries, which is outside the scope of the definition of "insured person" for the purpose of claiming accident benefits as a spouse of a person injured in an accident. A.S. is not entitled to medical benefits for her physical injuries as a result of providing attendant care services.
42In addition, despite her submission on reconsideration, that Intact paid and settled the attendant care benefit claim, does not then automatically make her an "insured person". The settlement of the attendant care benefit was for services she was providing, for which she is entitled to claim under s. 19 of the Schedule. This agreement between the parties does not then re-categorize A.S. as an "insured person" under s. 3(1). Rather, it is an acknowledgment of services she was providing, and that she is entitled to under the Schedule. As this was not an issue in dispute before me, it was not addressed in my decision at first instance.
43In addressing A.S.'s allegations of error of law, I reiterate here that, being an insured person through the spouse not personally involved in accident path only gives her access to benefits in relation to psychological impairments.
44As it pertains to her allegations of an error of fact, A.S. submits that I failed to consider the consumer protection mandate of the framework. I find that the consumer protection mandate of the Schedule cannot override the actual framework itself. Both the decision at first instance and my finding on reconsideration confirm that a spouse "insured person" is only entitled to psychological benefits, not physical, having not been directly involved in the accident.
45For the reasons set out above, I find A.S. has not established grounds for reconsideration and see no reason to alter my finding at first instance that A.S. was not involved in an accident. She suffered physical injuries that arose over time in the care of her husband, as noted at paragraph 17 of my decision. These physical injuries are not contemplated by s. 3(1) of the Schedule for an individual who was not involved in an accident.
CONCLUSION
46A.S.'s request for reconsideration is dismissed.
Derek Grant Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: December 7, 2023