RECONSIDERATION DECISION
Before: Rebecca Hines, Adjudicator
Licence Appeal Tribunal File Number: 20-000264/AABS
Case Name: Hamad Khalaf v. The Dominion of Canada General Insurance Company
Written Submissions by:
For the Applicant: Mark Stoiko, Counsel
For the Respondent: Linda Matthews, Counsel
OVERVIEW
1The applicant has requested a reconsideration of my decision dated February 27, 2023, in which I determined that he did not sustain a catastrophic (“CAT”) impairment as a result of the accident. Ultimately, I determined that the applicant did not establish that the causation test had been met regarding his application for CAT status.
2The applicant argues that I erred in fact and/or law such that I would have reached a different result had the error not been made. In particular, I erred by misapprehending the evidence of Dr. Liu in finding that the doctor recanted his opinion on the applicant’s CAT ratings. Further, he maintains that I improperly exercised my discretion to admit hearsay evidence at the hearing pursuant to s.15 (1) of the Statutory Powers and Procedures Act (“SPPA”) and that this violated his right to procedural fairness.
3The respondent submits that my decision is correct. Further, it submits that the applicant’s reconsideration request is simply an attempt to relitigate the issues which already failed at the hearing.
RESULT
4After reviewing the parties’ submissions, I order that the applicant’s reconsideration request be dismissed.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“Rules”).
6Rule 18.2 states that 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 applicant relies on Rule 18.2 (a) and (b) and argues that I violated his right to procedural fairness and made an error of law or fact that would have resulted in a different decision.
8The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
9The applicant requests that the Tribunal cancel this decision and order a new hearing before another adjudicator.
ANALYSIS
I did not error by admitting hearsay evidence pursuant to s.15(1) of the SPPA
10The applicant submits that I violated his right to procedural fairness in my finding that his testimony about his post-accident health and function was inconsistent with his self-reports in the medical reports of Dr. Dessouki and Dr. Pilowsky. He maintains that Dr. Dessouki was not called to testify at the hearing. Therefore, the contents of the doctor’s report remained untested and are akin to hearsay evidence. Moreover, he asserts that I relied on only the portion of Dr. Pilowsky’s report and testimony that supported my decision and ignored the evidence to the contrary. He argues that my reliance on this evidence in my determination breached his right to procedural fairness. The applicant relies on the Divisional Court’s decision in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 which found that the Landlord and Tenant Board breached the tenant’s right to procedural fairness by relying on hearsay evidence. In that case, while the court acknowledged that administrative tribunals may rely on hearsay evidence, it found that the evidence was not assessed in a reasonable manner.
11The respondent argues that I did not violate the applicant’s right to procedural fairness by considering the reports and evidence of Dr. Dessouki and Dr. Pilowsky in my decision. It argues that the applicant did not oppose these reports being entered into the evidentiary record at the hearing, nor did he argue that they could not be relied upon for the truth of their contents. Furthermore, the applicant was cross-examined on the contents of both of these reports and was given a chance to clarify any deficiencies. The applicant chose not to challenge the content of the reports. Further, Dr. Pilowsky was called to testify about the contents of her reports. The respondent submits that the Divisional Court’s decision in Manikam is distinguishable from the present case because the only evidence relied upon by the adjudicator in support of that decision was hearsay evidence. In this case, the hearsay evidence was one out of numerous factors I considered in rendering my decision. I agree with the respondent.
12First, I do not find that I breached the applicant’s right to procedural fairness by relying on the report of Dr. Dessouki in addressing the inconsistencies in the applicant’s evidence about his post-accident function. I agree with the respondent that the applicant never opposed the admission of Dr. Dessouki’s report at the hearing. It is well established that the purpose of the reconsideration process is not to make new arguments that were never raised at the hearing. That is what the applicant is attempting to do here. In addition, I also agree with the respondent that the applicant was cross-examined on the contents of Dr. Dessouki’s report. Consequently, he was given the opportunity to clarify and address any deficiencies contained in the report about his self-reports about his post-accident function to this doctor. He did not do so.
13Second, I also agree that the decision in Manikram is distinguishable from the present case because in that decision the hearsay evidence was the only evidence the adjudicator relied upon in support of its decision. In the present case, there were numerous inconsistencies in the evidence which I addressed in detail in paragraphs [16] to [25] of my decision. Ultimately, I did not find the applicant’s testimony credible. My reference to the report of Dr. Dessouki and the evidence of Dr. Pilowsky in paragraphs [24] and [25] were just additional examples that supported my conclusion. It is within an adjudicator’s discretion to consider and weigh the evidence. I find that is what I did in the present case and even if I excluded the evidence of Dr. Dessouki and Dr. Pilowsky it would not have resulted in a different outcome. The applicant failed to meet his onus.
14Finally, I will address the applicant’s allegation that I was selective in my analysis of Dr. Pilowsky’s evidence that the applicant’s self-reports were inconsistent with the medical record and that I ignored evidence to the contrary. That is not an accurate summary of what occurred as I note in paragraph [24] of my decision that Dr. Pilowsky’s testimony was not helpful because she did not review the ODSP file and was not aware of the applicant’s pre-accident health and function. This factor was important to my determination in weighing the value of this evidence when causation was at the crux of the dispute. The applicant has not convinced me that I erred by denying him the right of procedural fairness in my analysis of the hearsay evidence. My finding is not based solely on hearsay evidence but on all the evidence placed before the Tribunal. The applicant simply disagrees with my decision, which is not the purpose of the reconsideration process.
I did not error in law in my determination that Dr. Liu recanted his opinion.
15The applicant argues that I erred in law by misapprehending the evidence of Dr. Liu by concluding that the doctor recanted his opinion which was material to my findings of fact. He submits that had this error not been made I would have rendered a different decision, or in the alternative, a rehearing is required to properly consider this evidence. The applicant submits that at most Dr. Liu testified that his opinion was subject to change if the information about the applicant’s pre and post-accident function were confirmed as fact. Further, Dr. Liu did not testify how his opinion would change regarding the applicant’s CAT impairment ratings. Therefore, I erred in characterizing Dr. Liu’s testimony as a recantation. The applicant relies on the decision of the Saskatchewan Court of Appeal in P.S.S. Professional Salon Services Inc. v. Saskatchewan, 2007 SKCA 149, which highlights that a finding of fact is unreasonable when a Tribunal errors in principle by disregarding, overlooking, or mischaracterizing evidence material to its findings of fact.
16The respondent submits that I did not error in my conclusion that Dr. Liu recanted his opinion. Ultimately, I did not find that Dr. Liu provided evidence in support of the applicant’s claim for a CAT designation because the doctor admitted to not being provided with numerous records which he acknowledged would have changed his opinion. Further, the doctor agreed that the applicant’s reports to the 2021 assessors precluded a finding of CAT designation in relation to the accident. The respondent highlighted numerous examples in the transcript of Dr. Liu’s cross-examination where the doctor acknowledged not having reviewed important records, that the records conflicted with the applicant’s self-reports, and that his report was not accurate. Finally, had the doctor had this information it would have changed his opinion. It submits that when the totality of Dr. Liu’s evidence is considered, I did not commit an error in finding that the doctor recanted his opinion.
17The respondent concedes that Dr. Liu testified that if the applicant’s self-reports to Dr. Pilowsky and Dr. Dessouki about his post-accident function were accurate, it would preclude a marked impairment. It submits that even if Dr. Liu recanted his opinion conditionally, it would not result in an alternative decision because I accepted Dr. Liu’s evidence that the applicant’s level of function was much higher than reported to the doctor based on the surveillance and his reports to Dr. Pilowsky and Dr. Dessouki. Therefore, my decision was consistent with Dr. Liu’s evidence and there was no misapprehension of it. I agree with the respondent for the following reasons.
18First, the applicant did not point me to any portion of the transcript of Dr. Liu’s testimony to support the fact that I erred in concluding that the doctor recanted his opinion. The transcript shows that during cross-examination, Dr. Lui was asked whether he had knowledge of the applicant participating in activities such as grocery shopping, driving his kids to school and meeting friends for coffee. Dr. Liu was asked if this would preclude a marked impairment under the spheres of function under Criterion 8 and the doctor’s answer was “yes”. I do not accept the applicant’s proposition that this information would have resulted in Dr. Liu assigning a more severe impairment rating. Throughout the transcript of Dr. Liu’s cross-examination, the doctor acknowledged that he did not review numerous important pre and post-accident clinical notes and records or the ODSP file. As highlighted throughout my decision, the information contained in these records contradicted the applicant’s self-reports about almost every detail of his pre-and post-accident health and function. The applicant’s self-reports were heavily relied upon by Dr. Liu in his assessment. The doctor acknowledged more than once that the information presented to him during cross-examination was important for him to review in assessing whether the applicant was CAT impaired and that his report and opinion was not accurate without this information.
19Second, the applicant had the opportunity to re-examine Dr. Liu in reply and the transcript shows that the applicant’s attempts to get Dr. Liu to maintain his initial opinion failed. Dr. Liu was asked if any pre-existing information that was not provided to him had any profound insight into the applicant’s functional abilities. Dr. Liu responded by saying “Well, in Ms. Matthews’ documentation there was very specific statements on how Mr. Hamad was doing and so, yes, it would affect my opinions on function and ratings.” Further, in conclusion, when Dr. Liu was asked whether his opinion changed under the four spheres and the ratings, the doctor responded by saying:
“So it’s difficult to say with incomplete information to be fair. I have to have the information given to me when the report is generated, and then to be fair I also have to be updated regularly when new information comes. And so I can’t give an accurate opinion without these things.”
20In my view, the above statement does not support the arguments made by the applicant on this reconsideration request. Although, I acknowledge that I could have provided additional examples in my decision in support of my point that Dr. Liu recanted his opinion, it is well established law that written reasons do not need to summarize all of the evidence in support of a decision. I agree with the respondent that when Dr. Liu’s testimony is viewed as a whole and in light of the full record, my conclusion that he recanted his opinion was not a material error of fact. Further, I find I provided sufficient reasons throughout my decision to justify my decision.
21Finally, even if the applicant is correct that I erred in finding that Dr. Liu recanted his opinion on the applicant’s CAT impairment rating, this would not result in an alternative decision. My decision supports the fact that the applicant was not credible and reliable and the pre and post-accident medical records did not support his position that the accident caused his impairments. I also did not find the evidence of his family doctor convincing, nor did I accept Dr. Liu’s opinion that the applicant sustained a CAT impairment as a result of the accident because he did not review important pre and post-accident records, which was a fact admitted to by the doctor. Although my decision could have been clearer on this point, it does not amount to an error that would result in different decision or the right to another hearing before another adjudicator.
22It is common knowledge that the threshold for reconsideration is a high one. The purpose of the reconsideration process is not for the unsuccessful party to relitigate issues that already failed at the hearing. In my view, that is what the applicant has attempted to do in this reconsideration request.
23The applicant has not persuaded me that I erred by misapprehending the evidence or that I denied him the right to procedural fairness by relying on hearsay evidence admitted at the hearing in rendering my decision.
CONCLUSION
24The applicant’s request for reconsideration is dismissed.
Rebecca Hines
Adjudicator
Tribunals Ontario - Licence Appeal Tribunal
Released: June 7, 2023