RECONSIDERATION DECISION
Before:
Tyler Moore, Vice-Chair
Licence Appeal Tribunal File Number:
21-002254/AABS
Case Name:
[S.P] v. Economical Insurance Company
Written Submissions by:
For the Applicant:
Joseph Obagi, Counsel
For the Respondent:
Martin Forget, Counsel
BACKGROUND
[ 1 ] This request for reconsideration was filed by the applicant. It arises out of a decision dated June 28, 2023 (“decision”) in which I found that the applicant was entitled to a treatment plan for psychological treatment and supervised aquatherapy, but that she was not entitled to payment for home modifications/rent, additional attendant care benefits, the cost of a four wheeled scooter or power lift chair, occupational therapy services, social work treatment, interest, or an award.
[ 2 ] The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (“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.
[ 3 ] Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence.
[ 4 ] The applicant is seeking a reconsideration pursuant to Rule 18.2(a), (b), (c), and (d). The applicant submits that I acted outside of my jurisdiction and violated the rules of procedural fairness, that I made errors of fact or law such that I would likely have reached a different result had the error not been made, that I heard false evidence from a witness or party which was discovered only after the hearing and likely affected the result, and that there is evidence that was not before me when rendering my decision which could not have been obtained previously by the applicant and would likely have affected the result.
[ 5 ] Specifically, the applicant requests that I vary my decision and order that she is entitled to:
a. $6,000.00 of attendant care benefits from March 17, 2021 to date;
b. $5,403.00 for a four wheeled scooter and $874.61 for a power lift chair;
c. home modifications as per the recommendations contained in Mr. Scott Puddicombe’s report, along with $36,200.00 for 12 months of rent;
d. $6,484.20 and $6,108.90 for occupational therapy services that were both proposed on April 20, 2021;
e. $4,230.00 for social work treatment proposed on December 23, 2021;
f. $2,200.00 for an occupational therapy assessment proposed on May 9, 2022;
g. interest related to the reasonable and necessary plans; and
h. a special award.
[ 6 ] In the alternative, the applicant requests that the decision be set aside, and a new hearing ordered.
RESULT
[ 7 ] The applicant's request for reconsideration is dismissed.
ANALYSIS
Did I act outside of my jurisdiction or violate the rules of procedural fairness?
[ 8 ] I find that I did not act outside of my jurisdiction or violate the rules of procedural fairness. The applicant has not established grounds for the reconsideration of these issues under Rule 18.2(a).
[ 9 ] The applicant submits that I:
a. Proceeded to vary the agreed upon joint 20-day videoconference hearing to separate hearings and ordered that the application be allotted only five hearing days, without advance notice to the parties;
b. Ordered that Ms. MacKinnon’s reports could be admitted for consideration without regard for the applicant’s request that she be called for cross-examination; and
c. Ordered that the file of Dynamic Functional Solutions not be provided to the applicant and that the documents could not be admitted for consideration. As a result, the applicant was denied the opportunity to rebut and test prejudicial evidence, which I ultimately relied upon in my decision.
[ 10 ] The respondent submits that at the outset of the hearing, there was extensive discussion between me and counsel regarding the witnesses to be called by each party to determine the length of time required for the hearing. The respondent also submits that after I suggested the two matters should be heard as two separate hearings as they involved two different applicants, different counsel, different issues in dispute, different experts, and mostly different witnesses, that I indicated that separate hearings was the best way of proceeding in order to render a fair and just decision. This was followed by giving counsel the opportunity to make submissions.
[ 11 ] The respondent also submits that the only argument the applicant made opposing the separation of the hearings was that the applicant’s mother, Ms. [T], would have to testify twice, and she had limited ability to testify.
[ 12 ] As outlined in paragraphs [4] to [9] of my decision, several considerations were factored into deciding to separate the two hearings and determining the length of each hearing. No formal requests had been made to the Tribunal to accommodate Ms. [T], and the hearing length was determined based on the issues in dispute and the number of witnesses. The applicant submitted at the outset that only three witnesses were intended to be called – Ms.[B] or Ms. [VH], Ms. [T], and Ms. Dennis. In fact, the applicant agreed that the hearing would not take more than five days in total. Even after the applicant’s witness list changed during the hearing to include additional witnesses, the applicant did not raise the issue that she required more time to present her case.
[ 13 ] I relied on section 25.0.1 of the Statutory Powers Procedure Act and Rule 3.2 of the Tribunal’s Common Rules of Practice and Procedure to ensure efficiency, proportionality, and a timely resolution of the merits of the proceedings. I see no violation of procedural fairness in my decision to order a separate hearing where the applicant was provided with notice of my intention to do so and the applicant was given the opportunity to make submissions, ultimately agreeing that the hearing only required five days instead of the 20 days allotted.
[ 14 ] In paragraphs [15] to [17] of my decision, I addressed the issue of Ms. MacKinnon being present for cross-examination after her reports were admitted. The applicant could have summonsed Ms. MacKinnon to have her present for cross-examination prior to the hearing, as the applicant had her reports in their possession for months prior to the hearing start date and knew that the respondent would be relying on them. I see no violation of procedural fairness in my treatment of these reports and this witness.
[ 15 ] The Dynamic Functional Solutions file was discussed orally at the hearing, and reasons were provided both orally and addressed in paragraphs [15] to [17] of my decision. The authorization for the respondent to request the file was not signed by the applicant until March 28, 2023, less than three weeks prior to the start of the hearing, and well after the production deadline. The respondent submitted that any records it received from Dynamic Functional Solutions were provided to the applicant as soon as they were received. Part-way through the hearing, however, the applicant requested an order for the production of all Dynamic Functional Solutions records and submitted that the only way for her to confirm that the opinions contained in Ms. MacKinnon’s reports were those of Ms. MacKinnon and not Dynamic Functional Solutions was a full production of records.
[ 16 ] The applicant attempted to use a summons for Ms. Florentin-Radzio, manager at Dynamic Functional Solutions, as a means to obtain that document disclosure by summonsing her to attend the hearing as a witness and produce the requested file at the hearing. I allowed the late change in witnesses and Ms. Florentin-Radzio provided testimony with regards to all of the Dynamic Functional Solutions records that she had access to as a manager pertaining to the applicant and Ms. MacKinnon’s reports. Ms. Florentin-Radzio referred to Ms. Mackinnon’s emails and draft reports and read them aloud at the hearing. I was satisfied with Ms. Florentin-Radzio’s testimony that resolved the question of inconsistencies in Ms. MacKinnon’s reports after hearing evidence about the contents of the applicant’s Dynamic Functional Solutions file.
[ 17 ] Ms. Florentin-Radzio’s testimony and evidence confirmed that Dynamic Functional Solutions was not involved in any implied modifications of Ms. MacKinnon’s reports. Reference to this can be found at paragraph [55] of my decision.
[ 18 ] As a result, the applicant’s request for reconsideration because I acted outside of my jurisdiction or violated the rules of procedural fairness is dismissed.
Did I make an error of law or fact such that I would likely have reached a different result had the error not been made?
[ 19 ] 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. The applicant has not established grounds for reconsideration of these issues under Rule 18.2(b).
[ 20 ] The applicant submits that I:
a. Placed a perverse amount of weight on the report of Ms. Knight, when I ought to have known that its contents were unreliable and there was more reliable evidence before me that should have been preferred in making findings of fact;
b. Failed to consider the essential evidence of Ms.[L-F], the only witness who was familiar with both the applicant’s pre- and post-accident function;
c. Erred in relying on Ms. MacKinnon’s evidence, which was shown to be inconsistent with her previous reports, and has now been shown to be unreliable given the findings against her by her professional colleges in Quebec and Ontario; and
d. Failed to consider the essential evidence of the applicant’s inability to negotiate stairs.
[ 21 ] The respondent submits that the applicant’s argument that I should have weighed Ms. [L-F]’s evidence against Ms. Knight’s assessment is a clear request for me to reweigh the evidence already heard and considered. I agree with the respondent’s submission. Both Ms.[L-F]’s testimony and Ms. Knight’s report were considered in my overall assessment of the applicant’s entitlement to the benefits in dispute, and that assessment can be found from paragraphs [33] to [35] of the decision. Again, the reconsideration process is not an invitation to reweigh the evidence.
[ 22 ] The respondent also submits that the inconsistency in Ms. MacKinnon’s reports no longer exists after Ms. Florentino-Radzio’s testimony and explanation for the discrepancy.
[ 23 ] Paragraphs [15] to [17], [54] to [55], and paragraph [60] of my decision reference the considerations that were made with respect to Ms. MacKinnon’s reports and Ms. Florentino-Radzio’s clarification that the opinions contained in Ms. MacKinnon’s reports were solely Ms. MacKinnon’s with no evidence to suggest otherwise. I find that I made no error of fact or law. Furthermore, as noted above, Ms. MacKinnon’s reports were but one consideration in the overall assessment of the applicant and the result.
[ 24 ] With respect to the applicant’s submission that I failed to consider evidence of the applicant’s inability to negotiate stairs, I agree with the respondent’s submission that the applicant’s claim for home modifications and rent was not based on her inability to negotiate stairs, but rather her reliance on a walker for mobility as a result of the accident. My consideration and assessment of Mr. Puddicombe’s report can be found at paragraphs [47] and [89] of the decision. Mr. Puddicombe made recommendations based on Ms. Dennis’ evaluation, and he identified areas in the applicant’s residence that required modification for walker accessibility. I find that Mr. Puddicombe’s report, which was the basis for the applicant’s home modification and rent claims, made no indication that his proposal was based on the fact that the applicant could not negotiate going up and down the stairs leading to her second-floor bedroom after the accident. As such, I disagree that I failed to consider essential evidence.
[ 25 ] For these reasons, the applicant’s request for reconsideration pursuant to Rule 18.2(b) is dismissed.
Did I hear false evidence from a party or witness, which was discovered only after the hearing and likely affected the result?
[ 26 ] I find that I did not hear false evidence from a party or witness, which was discovered only after the hearing and likely affected the result. The applicant has not established grounds for reconsideration of these issues under Rule 18.2(c).
[ 27 ] The applicant submits that after the hearing, she discovered that in 2017 Ms. MacKinnon pled guilty and was found guilty of multiple counts of breaching the Quebec College of Occupational Therapists code of ethics and received a fine, reprimands, and a suspension. The applicant also submits that at the time of Ms. MacKinnon’s assessment and reports, the College of Occupational Therapists of Ontario was unaware of these findings. The applicant submits that on January 27, 2023, Ms. MacKinnon was referred to the Discipline Committee of the College of Occupational Therapists of Ontario for failing to declare the findings of misconduct, and on May 31, 2023, Ms. MacKinnon resigned from the College of Occupational Therapists of Ontario.
[ 28 ] Ms. MacKinnon’s assessment reports indicate that she was in good standing with the College of Occupational Therapists of Ontario and Quebec at that time. The applicant’s reference to a March 2017 disciplinary finding by the College of Occupational Therapists of Quebec was publicly available through the College website prior to the hearing.
[ 29 ] I find that the applicant’s submissions fail to demonstrate how I heard false evidence from Ms. MacKinnon. As noted above, Ms. MacKinnon was in good standing with the College of Occupational Therapists of Ontario at the time of the hearing and the time of her reports. Ms. Florentino-Radzio confirmed that Ms. MacKinnon was qualified to give an opinion as an occupational therapist. I also find that Ms. MacKinnon’s disciplinary findings in Quebec in 2017 are not relevant to the applicant’s entitlement to benefits and do not warrant the exclusion of her evidence. Ms. MacKinnon was not prohibited from practicing in Ontario or Quebec, even while under investigation by the College. She was also in good standing with the College of Occupational Therapists of Ontario until she resigned in May 2023.
[ 30 ] Regardless, Ms. MacKinnon’s evidence was but one consideration in my overall assessment of the applicant’s entitlement to benefits and as such her evidence alone would not likely have affected the decision outcome result. For these reasons, the applicant’s request for reconsideration pursuant to Rule 18.2(c) is dismissed.
Is there evidence that was not before me when rendering my decision, could not have been obtained previously by the applicant now seeking to introduce it, and would likely have affected the result?
[ 31 ] I find that there is no evidence that was not before me when rendering my decision that could not have been obtained previously by the applicant, that would likely have affected the result. The applicant has not established grounds for reconsideration of these issues under Rule 18.2(d).
[ 32 ] The applicant submits that on June 9, 2023, Dr. Dost, a neurologist retained by the respondent, concluded that the applicant “is experiencing a pain-induced exacerbation of her pre-existing cerebral palsy now requiring a walker.” The applicant submits that this evidence could not have been obtained previously by the applicant because it is the respondent’s expert evidence, and that the evidence would have affected the result because I found that the applicant’s accident-related injuries did not result in a continuous reliance on a walker, which the applicant submits is contrary to the findings of Dr. Dost.
[ 33 ] The respondent submits that Dr. Dost’s opinion regarding the applicant’s deterioration in function was based on the applicant’s self-report and the report of Ms. [B], which I already determined to be inaccurate and unreliable. In addition, the respondent submits that Dr. Dost did not review the surveillance footage which showed the applicant ambulating without a walker on multiple occasions. This meets the first part of the test.
[ 34 ] However, after reviewing Dr. Dost’s report, I am satisfied that the report would likely not have affected the decision result. As noted by the respondent, I found both the applicant’s and Ms. [B]’s self-report to be unreliable and inaccurate, which Dr. Dost relied on in making his findings. Dr. Dost did not have the benefit of reviewing any surveillance material. As such, Dr. Dost’s report would have been given similar weight to the opinions of Dr. Rosenblat, Dr. Izenberg, and Dr. Chang, which I gave little weight to because they also relied on the unreliable self-report of the applicant and Ms. [B]. That assessment can be found at paragraphs [42] to [45] of my decision.
[ 35 ] Accordingly, I find that Dr. Dost’s report, which was not before me and could not have been previously obtained by the applicant, would not likely have affected the result. The applicant’s request for reconsideration pursuant to Rule 18.2(d) is denied.
CONCLUSION
[ 36 ] For the reasons noted above, I dismiss the applicant's request for reconsideration.
___________________
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 13, 2023