Williams v. Unifund Assurance Company, 2023 CanLII 1460

Citation: Williams v. Unifund Assurance Company, 2023 ONLAT 20-015158/AABS

RECONSIDERATION DECISION

Before: Tavlin Kaur

Licence Appeal Tribunal File Number: 20-015158/AABS

Case Name: Xaysha Williams v. Unifund Assurance Company

Written Submissions by:

For the Applicant: Antonio Meringolo, Counsel

For the Respondent: Ken Yip, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant. It arises out of a decision dated September 19, 2022 (the “Decision”) where I dismissed the application. I found that the applicant did not demonstrate that the treatment plans were reasonable and necessary, or that interest or an award was payable.

2In her request, the applicant alleges that I made errors of law and fact and that I violated the rules of natural justice and procedural fairness. Moreover, 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 respondent submitted that there is no error of fact or law or a violation of procedural fairness.

RESULT

4The applicant’s request for reconsideration is denied.

ANALYSIS

5The grounds for a request for reconsideration to be allowed 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 (“Rules”). A request for reconsideration will not be granted unless one or more of the 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 would have affected the result;

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;

6Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.

7The applicant requests a reconsideration of my decision pursuant to Rules 18.2(a), (b) and (d). I find that the applicant’s request for reconsideration is an attempt at re-litigating her case, and I reject her assertions that I made significant errors of fact and law or that I violated the rules of natural justice and procedural fairness by ordering the hearing to proceed.

The Tribunal did not err under Rule 18.2(a)

Procedural fairness

8The applicant submits that the Tribunal did not review the applicant’s medical brief CD and yet made findings of fact, including adverse findings of credibility and weight against the applicant’s medical professionals’ evidence especially on causation, that should have been the subject of in-person examination and cross-examination. This amounts to the denial of the applicant’s right to be heard and prejudiced her right to respond.

9The respondent submits that the parties agreed to have the hearing proceed in writing and that no affidavits would be submitted as evidence. The applicant was represented by counsel throughout and had every chance to bring a motion before the hearing to address the method of hearing. To now say that the applicant was somehow deprived of her right to be heard or chance to cross-examine the doctors in question is simply untenable. Moreover, it is within an adjudicator’s purview to consider and weigh the evidence as he or she sees fit. This includes admitting as evidence medical reports without oral testimony from their authors. There were sufficient medical records presented before the hearing adjudicator, whose decision is detailed and supported by reasons.

10For reasons outlined in greater detail later in this reconsideration decision under the subheading of Rule 18.2(b), the applicant did not provide her CNRs from various doctors in the form of the medical brief CD. The Tribunal reviewed the documents that were submitted by the applicant and respondent and found that the treatment plans were not reasonable and necessary. The analysis that was conducted was reasonable based on the evidence before the Tribunal.

11Moreover, I agree with the respondent’s submissions about the applicant’s consent to the hearing format. The applicant was represented by legal counsel and was satisfied to proceed with a hearing in writing or, if no longer satisfied and believed that viva voce evidence was required, could have brought a motion to change the hearing format. The applicant made no such efforts, prior to the written hearing, to address the concerns that she brings now. To raise this argument at the reconsideration stage is disingenuous. As such, I find that there was no violation of procedural fairness.

The Tribunal did not err under Rule 18.2(b)

Errors of fact

12The applicant asserts that she submitted medical evidence which the Tribunal did not consider. In support of her case, she is relying on a letter and certificate of service dated December 22, 2020 which was sent via courier. The letter states the following:

Enclosed, please find a copy of the Certificate of Service, serving the Claimant’s Application by an Injured Person, and E-File Confirmation. Also enclosed and equally served upon Unifund, please find the Service Enclosure Letter dated December 22, 2020, Denial of OCF-18 dated December 8, 2020, submitted by OMEGA Medical, and Document Brief CD, all of which is served pursuant to the Statutory Accident Benefits Schedule and the License [sic] Appeal (LAT) Rules of Practice and Procedure.

13The respondent submits that the applicant has not provided any proof that a “medical brief” exists and that one was sent to the respondent or the Tribunal. It is the respondent’s position that the medical brief is non-existent. There is no index of its contents, no proof of delivery and it is unclear what it contains. The medical brief was not referred to in the hearing submissions.

14In the alternative, the respondent submits that if there was a medical brief, the applicant must have it entered as evidence at the hearing and refer to it in her submissions. The applicant never referred to the medical records. Moreover, the hearing adjudicator cannot be expected to review it in entirety without any pinpoint references or submissions as to why it is relevant. The applicant never once referred to anything other than Dr. Fulton’s report and the OCF-18s in question. The applicant never mentioned the names of Dr. Dhaliwal, Dr. Forbes and Dr. Waraich or the LTD file and the other MVAs/slip and falls.

15I agree with the respondent. First, I note that the cover letter and certificate of service that accompanied the medical brief was submitted on December 22, 2020. This was sent prior to the case conferences, which took place on March 23 and March 31, 2021 respectively before the Tribunal. The Tribunal made various rulings which were outlined in the Case Conference Report and Order (‘CCRO’) that was issued on April 1, 2021.

16Paragraph 32 (iii) of the CCRO states that, “documents previously filed with the application, response, or for the case conference must be resubmitted for the hearing.” [Emphasis added]. The applicant should have resubmitted the evidence along with her submissions as explicitly ordered by the Tribunal in the CCRO. Instead, the documents that were submitted by the applicant on August 13, 2021 for the written hearing consisted of a Neurological Evaluation from Dr. W.A. Fulton dated March 11, 2020, a Certificate of Service for the documents that were sent on December 22, 2020, Chapters 4 (The Nervous System) and 14 (Mental and Behavioral Disorders) from the American Medical Association’s Guides to the Evaluation of Permanent Impairment and a copy of O.A. v. TD Insurance Meloche-Mennox, 2020 CarswellOnt 16680. The evidence brief submitted for the written hearing on August 13, 2021 did not include any other medical records nor any CDs. Nor has the applicant proven that the medical evidence was resubmitted after the case conferences, as expressly required by the CCRO. As such, I considered the evidence that was tendered before me.

17Second, the applicant did not make pinpoint references to any evidence in her submissions. Paragraph 32(i) states that, “Submissions shall make specific reference to the evidence and law by tab and page number. Evidence not so referenced may not be reviewed.” The applicant did not refer to the evidence she wishes to rely on by tab or page number. With respect, this Order reflects the Tribunal’s role as a neutral arbiter, not an advocate for any party. The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing her case.

18By contrast, a party’s argument may be no more than a bald assertion and without evidentiary support. All parties were expressly advised of this requirement in the Order and the consequences for failing to adhere to it. In short, the applicant bore the onus of proof; she failed to do because any evidence that she raises now was not submitted for the written hearing. Based on the evidence that was submitted for the written hearing, the Tribunal made its findings. As such, I find that the Tribunal did not err under Rule 18.2(b) regarding the factual findings it made.

19I also note that the applicant did not submit the impugned evidence along with her reconsideration request, which I will address in my discussion regarding Rule 18.2(d) below.

Causation test

20The applicant asserts that causation did not need to be determined and nor was the assessment properly completed. The applicant submits that the Tribunal failed to explain correctly how the test for causation works and failed to set it out accurately. She also alleges that the Tribunal misstated the test for causation, which led to an incorrect analysis. It is her position that the Tribunal should have conducted an analysis as set out in Clements v. Clements, 2012 SCC 32 (“Clements”). It is her view that if the Tribunal had applied the correct test and analysis for causation, the decision would have likely been different.

21The respondent submits that the Tribunal is not required to reiterate all or part of Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”) and Clements verbatim in the decision. Moreover, the parties agreed that the but-for test applied and did not raise any issues with “apportionment” or “material contribution”. Furthermore, the applicant’s understanding of the causation test is incorrect.

22I find that I applied the correct test. The Divisional Court’s decision in Sabadash specifies that the ‘but-for’ test is the correct test for causation in statutory accident benefits disputes. Sabadash has not been overturned and binds me. The material contribution test is confined to cases where there are multiple actors and it is “impossible” to identify, on a balance of probabilities, which actor caused the injury. That is not the case here. Based on the evidentiary record, I was able to determine whether or not there was causation based on the test set out in Sabadash.

23Furthermore, the applicant did not make submissions regarding which test should be applied. In fact, her submissions are silent regarding Sabadash and Clements. She did not provide an analysis regarding how and why causation was established in her submissions. In contrast, the respondent addressed Sabadash in its submissions. If there was an issue with which test should be applied, the applicant had an opportunity to address this issue in her reply submissions. The applicant did not file reply submissions with the Tribunal. To raise it at this stage is inappropriate. I find that the applicant is trying to introduce new arguments which were not raised at the written hearing. As such, I find that the Tribunal did not err under Rule 18.2(b) regarding causation.

Reasonable and necessary

24The applicant submits that the Tribunal did not apply the appropriate test in determining whether the treatment plans were reasonable and necessary. Rather, the Tribunal instead engaged in an analysis to determine whether the applicant’s claimed impairments were caused by the 2014 and 2016 accidents. The applicant submits “that analysis is several steps too far forward in addressing the ultimate issue of catastrophic impairment and causation. The issue before the Tribunal is whether the two OCF-18’s are reasonable and necessary.”

25The respondent submits that the applicant’s arguments are misguided. In order to be entitled to any medical benefits, one must show that the same is reasonable and necessary “as a result of the accident.” By finding the subject accidents did not cause the applicant’s impairments, the Tribunal correctly came to the conclusion that the applicant is not entitled to the treatment plans. There was no need to address whether the same was “reasonable and necessary”. In any event, the Tribunal did make a finding that the treatment plans were not reasonable.

26I do not agree with the applicant’s position. Where there is an issue with causation, the Tribunal must first determine that before engaging in an analysis regarding whether a treatment plan is reasonable and necessary. Causation was raised by the respondent and had to be addressed. From paragraphs 13 to 49, I considered whether her impairments stemmed from the subject accidents and whether the treatment plans were reasonable and necessary. I provided extensive and coherent reasons as to why I was not persuaded by the applicant’s position. I did not find that the impairments were as a result of the accident. The onus was on the applicant to prove that the treatment plans were reasonable and necessary. In the absence of evidence, I found that they were not proven. As such, I find that the Tribunal did not err under Rule 18.2(b) regarding whether the treatment plans are reasonable and necessary.

Section 25(1)5 of the Schedule

27The applicant submits that the Tribunal misinterpreted the section 25(1)(5) which obligates the insurer to pay for s. 45 assessments. The Tribunal did not engage in an analysis specific to each assessment and denied them. It is the applicant’s position that misinterpreting the mandatory language pursuant to s. 25(1)(5) and s. 45 amounts to a significant error of law such that had the error not occurred, the Tribunal would likely have reached a different result.

28The respondent submits that the applicant is incorrect. The respondent submits that in order for an expense to be payable under section 25, it must be incurred “as a result of the accident.” The respondent submits that the applicant is misguided in suggesting that section 25 somehow escapes the causation requirement because it does not say that the expenses must be incurred “as a result of the accident”. While that phrase does not appear in s. 25, the respondent submits that a close review of the substance of s. 25 reveals that the causation requirement is a necessary undercurrent of a s. 25 assessment.

29In my view, the applicant is relying on sections 45 and 25(1)5 of the Schedule to argue that the assessments are payable. However, these sections must be read in conjunction. Section 45(1) states that “an insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.” [Emphasis added]

30Section 25(1)5 states that the insurer shall pay “reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.”

31The applicant bears the onus of proving on a balance of probabilities that each item in a treatment and assessment plan is reasonable and necessary for the purpose of applying for a CAT determination under s. 45. The language of s. 45 necessarily incorporates the element that the impairment was caused by the accident.

32In this particular case, I found that the impairments were not caused by the subject accidents. Therefore, the respondent is not required to pay for the assessments because the impairments did not stem from the subject accidents. There has to be a connection to the accident. In my view, where causation is at issue, it must be established before determining whether the assessment is reasonable and necessary.

33The applicant is relying on Applicant v. Allstate Insurance, 2019 CanLII 101614 where the Tribunal agreed with the reasoning in Henderson that found that there is no room for ambiguity-the insurer shall pay the reasonable expenses of a CAT assessment. This case is distinguishable because causation was not at issue as it was in the facts before me.

34In my view, causation must be established first. Then the analysis shifts to whether the treatment plans are reasonable and necessary. I do not agree with the applicant’s position because it would create significant policy implications. Based on the applicant’s logic, any insured person would be able to make a claim for a CAT assessment regardless of the cause of the impairments—especially impairments that have no genesis in a car accident. Rather, an impairment’s causation to a car accident is a necessary precondition.

35In any event, I noted that the Tribunal considered whether the treatment plans were reasonable and necessary based on the evidence before it and determined that the treatment plans were not. As such, I find that there is no error under Rule 18.2(b).

The Tribunal did not err under Rule 18.2(d)

36I have reviewed the applicant’s submissions and find that there is no clear argument advanced with respect to there being new evidence that could not have reasonably been obtained earlier and would have affected the result. The submissions address medical evidence that was previously obtained and not submitted with the submissions for the written hearing. The applicant has not submitted any new evidence that would affect the result. I find that the applicant has failed to demonstrate that there is new evidence that could not have been reasonably obtained earlier and would have affected the result.

ORDER

37For the reasons noted above, I dismiss the applicant's request for reconsideration.

Tavlin Kaur

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal