RECONSIDERATION DECISION
Before: Laura Goulet
Licence Appeal Tribunal File Number: 21-012594/AABS
Case Name: Kimaney Walters v. Intact Insurance Company
Written Submissions by:
For the Applicant: Olga Poznyakova, Paralegal
For the Respondent: Kevin So, Counsel
OVERVIEW
1On October 11, 2023, the applicant requested reconsideration of the Tribunal’s decision dated September 21, 2023 (“decision”). In the decision, the Tribunal dismissed the application and found the applicant’s injuries are predominantly minor, and that she is not entitled to income replacement benefits (“IRBs”), the treatment and assessment plans in dispute, the costs of preparing OCF-3s and an accounting report, or interest.
2The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). 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 committed a material breach 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; or
c) 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 has requested a reconsideration pursuant to Rule 18.2(a) and (b). The respondent requests that the applicant’s request for reconsideration be dismissed.
4The applicant seeks to vary the decision to find that her injuries warrant treatment outside the Minor Injury Guideline (“MIG”) and that she is entitled to IRBs and the medical benefits in dispute. In the alternative, the applicant seeks an order for rehearing of the matter.
RESULT
5The applicant’s request for reconsideration is dismissed.
PROCEDURAL ISSUES
6In the applicant’s reply, she submits that the Tribunal should not consider the last page of the respondent’s submissions as it amounts to 8 pages rather than 7, as ordered. Further, the applicant argues that the respondent has improperly minimal margins on all sides of the page. The applicant states that she would have to go over her page limit in order to respond to the extra paragraphs. I find that the reconsideration order does not speak to the required margins and the respondent’s submissions amount to 7.5 pages instead of the ordered 7. The applicant had an opportunity to respond to the respondent’s submissions and could have done so in lieu of taking up a paragraph of the reply arguing the page limit. In these circumstances, I will not disregard the last half page of the respondent’s submissions.
ANALYSIS
7The 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.
Rule 18.2(a) - The Tribunal did not act outside its jurisdiction or violate the rules of procedural fairness
8I find that the Tribunal did not violate the rules of procedural fairness for the following reasons.
9The applicant submits that the Tribunal acted outside its jurisdiction by making a “bald conclusion” that even when the respondent agrees that the applicant is entitled to the benefit, the test for that benefit has to be met. I do not agree that the Tribunal acted outside its jurisdiction. Paragraph 44 of the decision clearly sets out the reasons why the Tribunal found that the respondent’s initial agreement to pay IRBs would not entitle the applicant to IRBs without having met the substantial inability test. As pointed out by the respondent in its submissions, the applicant has not cited any binding case law or legislative authority to suggest that an adjudicator must make a finding of entitlement merely because the respondent initially agreed. I agree with the respondent’s submissions.
10The applicant further relies on the decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 103 (“Vavilov”) for the proposition that if reasons do not make it possible to understand the decision-maker’s reasoning on a critical point, the decision is unreasonable. The applicant submits that the decision is confusing and not straightforward when it says that none of the practitioners who provided evidence were the applicant’s treating physicians and then further says that all of the evidence came from treatment providers. I do not agree that the decision is confusing. On a reading of paragraphs 32 and 33, it is clear that the decision states that all the medical evidence in support of the applicant having a psychological impairment as a result of the accident stems from practitioners who assessed the applicant to propose treatment or to determine her eligibility for IRBs, none of whom were her treating physicians.
11The applicant also submits that the Tribunal failed to weigh evidence and provide reasons in relation to her psychological impairment. I disagree.
12At paragraph 32, the Tribunal made a finding that the evidence presented by the treatment providers who assessed the applicant to propose treatment or to determine her eligibility for IRBs was not supported by objective medical evidence from the applicant’s family doctor of over fifteen years. The Tribunal made it clear in the decision at paragraphs 32 and 33 that this was the reason why the applicant failed to prove that she suffered a psychological impairment as a result of the accident. I find the Tribunal did weigh the evidence and provided its reasons for finding the applicant had not met her burden in relation to her psychological impairment.
13The applicant further relies on the Vavilov decision to argue that the Tribunal failed to provide enough information for a review on appeal. She submits that as the hearing was conducted without a court reporter, the issues will have to be reheard. I disagree that the Tribunal failed to provide enough information for a review on appeal. Further, the applicant was provided with the opportunity to bring a court reporter, as set out in paragraph 4 of the Case Conference Report and Order dated October 26, 2022 and chose not to do so.
14For the reasons indicated above, I find that the Tribunal did not act outside its jurisdiction or violate the rules of procedural fairness. The onus is on the applicant to establish grounds for reconsideration. I find the applicant has not met the test for granting a reconsideration under Rule 18.2(a).
Rule 18.2(b) – The Tribunal did not make an error of law such that the Tribunal would likely have reached a different result had the error not been made
15I find that the Tribunal did not make an error of law for the following reasons.
16The applicant argues that the Tribunal mischaracterized and failed to consider evidence about her accident-related psychological symptoms and impairments that met the criteria for a psychological diagnosis, and that the Tribunal’s determination on both the MIG and IRB issues would likely have been different had the Tribunal properly considered the evidence.
17The applicant argues that the Tribunal inferred that the applicant did not have a psychological impairment because the family doctor’s notes do not mention mental health issues. The respondent submits that the applicant has the onus to prove the existence of her injuries by submitting convincing medical evidence which includes objective medical evidence aside from treatment providers who prepared treatment plans and assessments in relation to the issues in dispute in the hearing.
18I agree with the respondent. In this case, there was no supporting evidence of any psychological impairment in relation to the accident in the notes of the applicant’s family doctor of fifteen years. Further, as noted at paragraph 32 of the decision, the family doctor completed a Functional Abilities Form two years post-accident where he crossed off the “Psychological / Emotional” section of the form. As noted above, there was no other objective medical evidence in support of a psychological impairment as a result of the accident. For these reasons, I found that the applicant had not met her onus of proving that she has a psychological impairment as a result of the accident. I see no error in the decision.
19The applicant cites various prior Tribunal decisions throughout her submissions, suggesting that the Tribunal should take a similar stance. These decisions are not binding on the Tribunal, and more importantly the facts in these cases are not similar to the ones in this case. As such, I find these decisions do not establish an error of law.
20The applicant submits that the Tribunal misapprehended key evidence by finding the evidence of the Functional Abilities Form completed by the family doctor to be compelling, and by failing to discuss the formal diagnoses provided by Dr. Sirota and Dr. Kershner. As pointed out by the respondent in its submissions, weighing evidence is an intrinsic function of an administrative tribunal. Further, the Ontario Court of Appeal in Clifford v. Ontario (Attorney General), 2009 ONCA 670, 98 O.R. (3d) 210 at para. 29 makes it clear that in the context of administrative law, it is unnecessary for the tribunal to refer to every piece of evidence in the process of arriving at the decision, as long as the basis of the decision is explained and the explanation is logically linked to the decision. In this case, Dr. Kershner and Dr. Sirota both prepared reports in preparation for the hearing and in relation to issues in dispute at the hearing. Although their reports were not specifically referenced, they were considered by the Tribunal and generally referenced in the decision at paragraphs 32 and 33 when the Tribunal discussed treatment providers who prepared treatment plans and assessments in relation to the issues in dispute in the hearing. I see no error of law.
21The applicant submits that the Tribunal applied the wrong test by finding that clinical notes and records from the applicant’s health care provider are required to demonstrate that the applicant sought treatment for accident-related psychological concerns. Further, the applicant submits that a diagnosis in a report by a psychologist and psychiatrist should be sufficient to remove the applicant from the MIG. I find that the Tribunal did not cite this as a specific test, but only made reference to this fact in paragraph 33 to demonstrate how the applicant failed to meet her onus. The decision is based on the Tribunal’s finding that there is insufficient independent medical evidence to support the applicant’s argument that she suffered a psychological impairment as a result of the subject accident. I see no error of law and no grounds for reconsideration.
22The applicant further submits that the Tribunal imposed a burden of proof that was higher than the standard of “on a balance of probabilities.” The applicant relies on Saadati v. Moorhead, 2017 SCC 28, [2017] S.C.J. No. 28 which sets out that expert evidence can assist in determining whether psychological injury exists, but where a psychiatric diagnosis not available, a trier of fact can find on other evidence that the claimant has proven the occurrence of mental injury on a balance of probabilities. As such, the applicant asserts that when a diagnosis has been made by a psychiatrist it must be accepted by the trier of fact that the applicant has proven on a balance of probabilities that the mental injury has been sustained.
23I disagree. It is the function of the trier of fact to assess and weigh the evidence, taking into consideration all of the circumstances. The applicant makes reference to “contemporaneous medical documentation” filed by treating physicians, however, as noted above, the treatment providers referenced prepared these reports to address the issues in dispute at the hearing. In this case, the diagnoses provided were given less weight by the Tribunal as they were provided by doctors who prepared reports to address the issues in dispute in the hearing, and not sufficiently corroborated by objective medical evidence.
24The applicant submits that the Tribunal’s failure to consider the psychological evidence of Dr. Sirota and Dr. Kershner in reaching a determination on the issue of IRBs is an error of law. The applicant relies on the decision of Lamba v. Mitchell, 2021 ONSC 8011 at para. 22 where the court sets out that an appellate court is only entitled to intervene where failing to refer to evidence gives rise to a reasonable belief that the trier of fact must have forgotten, ignored or misconceived the evidence in a way that affected the conclusion. I see no error in the decision. At paragraphs 37 to 43, the Tribunal set out its reasons for denying IRBs. Having found that the applicant had not proven that a psychological impairment resulted from the subject accident, the Tribunal did not need to further analyze how a psychological impairment would have affected her claim to IRBs.
25For the reasons set out above, I find the Tribunal did not make an error of law such that the Tribunal would likely have reached a different result had the error not been made. The onus is on the applicant to establish grounds for reconsideration. I find the applicant has not met the test for granting a reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
26For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Laura Goulet
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 14, 2023