RECONSIDERATION DECISION
Before:
Deborah Neilson
Licence Appeal Tribunal File Number:
20-013500/AABS
Case Name:
Elvis Cabral v. Northbridge General Insurance Company
Written Submissions by:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Nicole A Dowling, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant in this matter.
2It arises out of a decision dated February 2, 2023 (“decision”) in which the Tribunal found the applicant did not sustain a catastrophic impairment as a result of injuries he sustained in a February 9, 2016 automobile accident.
3The Applicant submits that the Tribunal made errors of fact and law such that it would have reached a different decision had those errors not been made. The applicant also submits that the tribunal's decision amounts to a violation of his right to procedural fairness.
4The Applicant is seeking an order:
a. Cancelling the Tribunal’s order / decision
b. For a rehearing on all or part of the matter
5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
6The Applicant's request for reconsideration is dismissed.
BACKGROUND
7The applicant suffers from chronic pain and psychological disorders that impair his ability to work and engage in housekeeping, social, and recreational activities. He alleged that these impairments were caused by the 2006 accident. The respondent alleged that these impairments were caused entirely by a previous car accident in 2002, and not the 2006 accident. The Tribunal agreed with the respondent based on the medical records. The Tribunal gave more weight to the medical records after determining that the applicant’s testimony was unreliable.
ANALYSIS
8The 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 criteria in Rule 18 are met.
9Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
10The applicant argues that Rule 18.2(a) and (b) as follows are the grounds that applies to this case:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and
(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.
11More specifically, the applicant submits the following:
a. The Tribunal erred in law as it mischaracterized, overlooked and disregarded evidence in its findings on causation and catastrophic determination.
b. The Tribunal erred in law by disregarding the applicant’s evidence in relation to causation, his activities of daily living, as well as his testimony more broadly in relying on his demonstrably poor memory and by failing to assign more weight to the applicant’s testimony in keeping with the scheme of the Schedule as remedial and consumer protection legislation.
c. The Tribunal violated the rules of procedural fairness by accepting hearsay evidence over the testimony of the applicant, his girlfriend and his expert psychologist when the authors of the documentary hearsay evidence did not testify.
The Tribunal did not mischaracterize, overlook or disregard evidence in making findings of fact
12The applicant relies on P.S.S. Professional Salon Services Inc. v. Saskatchewan (Human Rights Commission), 2007 SKCA 149, which held that it is an error of law for a Tribunal to make a finding of fact on the basis of no evidence or irrelevant evidence. The question of whether the Tribunal disregarded or mischaracterized relevant evidence must be assessed on a reasonableness simpliciter standard, that is, it must be subjected to significant testing. In that case, a finding of fact was made that totally disregarded contradictory evidence material to the findings of fact. While the Tribunal is not bound by the Saskatchewan Court of Appeal, I agree with its reasoning.
13The Tribunal is required to analyze and weigh evidence in order to make findings of fact. However, a finding of fact made in the absence of evidence is an error of law. In this case, the applicant’s testimony and the history he provided to his psychologist, Dr. Pilowsky, contradicted the history set out in his medical records recording his complaints as a result of the accident. If evidence is unreliable, such as testimony from a witness with a poor memory that is not corroborated, it will not be given as much weight as business records prepared contemporaneously. That was the case in this matter.
14The applicant submits that when the Tribunal relied on a medical record of Dr. Bartolucci dated October 23, 2006, it mischaracterized the record. Dr. Bartolucci reported that the applicant’s chronic pain was getting worse, while in the same records he reported that the applicant had a second accident but that he reported no change in his symptoms and no new symptoms. The applicant submits that the Tribunal outright disregarded the comment that the applicant’s chronic pain was getting worse when it made findings of fact that the 2006 accident was not the cause of his present complaints.
15I am unable to find that the Tribunal erred in law as alleged. It provided cogent, coherent reasons for its interpretation of Dr. Bartolucci’s notes that were corroborated by other evidence such as the applicant’s report to three other health practitioners in 2007 that his pain and psychological complaints stemmed from his 2002 accident, not the 2006 accident. The Tribunal’s finding of fact was also corroborated by the lack of evidence, such as the lack of any records showing the applicant received treatment for injuries from the 2006 accident for five years. Accordingly, the Tribunal did not mischaracterise Dr. Bartolucci’s evidence, but weighed the evidence before it to make findings of fact.
16Reconsiderations are not an opportunity to relitigate the matter, which is exactly what the applicant is attempting to do. Accordingly, I find there is no merit to the applicant’s submission that the Tribunal erred in law by mischaracterizing evidence.
The Tribunal did not err in law on the weight it gave to the applicant’s testimony
17The applicant submits that the Tribunal was required to assign more weight to the applicant’s testimony than his medical records because the Schedule is supposed to maximize benefits for a small category of victims who suffer from lasting and very serious health impacts as a result of automobile accidents. The applicant relies on Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (Tomec) in which the Court of Appeal endorsed that the definition of catastrophic impairment is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with the most health needs have access to expanded medical and rehabilitation benefits. The definition of catastrophic impairment is intended to be remedial and inclusive, not restrictive. The Court of Appeal endorsed that the Schedule is remedial and constitutes consumer protection legislation. However, the applicant has not identified any section of the Schedule that was allegedly interpreted by the Tribunal in a manner contrary to Tomec in the decision.
18I am unable to find that Tomec assists the applicant. That is because the paragraphs that the applicant relies on from Tomec dealt with statutory interpretation, not how to assess the weight to be given to evidence.
19The applicant has not provided any authority that the Tribunal is required to give more weight to an insured person’s testimony, when it is contradicted by documentary evidence created contemporaneously with the event, because the Schedule is consumer protection legislation and catastrophic impairment determination is intended to expand the benefits available for the few who need them. The Tribunal provided cogent reasons for why it found the documentary evidence was more reliable than the applicant’s testimony, the testimony of his girlfriend and his psychologist, Dr. Pilowsky. It was because the documentary evidence was more reliable that the Tribunal gave it more weight. This is not an error of law. Accordingly, I am unable to find the Tribunal erred in assessing the evidence. The applicant has not established grounds for reconsideration with respect to the weighing of evidence.
The applicant’s procedural fairness rights were not violated
20The applicant submits that it was procedurally unfair of the Tribunal to give more weight to hearsay evidence than to his testimony and that of his witnesses. He relies on a decision of the Ontario High Court of Justice , that dealt with the admission of hearsay evidence in Court, Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al., 1977 CanLII 1184 (ON SC) (Setak Computer). This decision does not aid the applicant. Especially given that Setak Computer endorsed the following from the Supreme Court of Canada decision of Ares v. Venner 1970 CanLII 5 (SCC), [1970] SCR 608:
Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.
21Setak Computer held that this principle applies not only to hospital records, but records made in a similar fashion. I find that this would include physician’s clinical notes.
22Contrary to the applicant’s submissions, s.15(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”) allows the Tribunal to consider hearsay evidence. Further, the hearsay evidence the applicant takes issue with are clinical notes and records, which would be admissible in a court under an exception to hearsay rule on the basis they were prepared contemporaneously with the event as endorsed by Ares v. Venner.
23The applicant relies on Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 (ON Div. Ct.) (Manikam v. TCHC) for the proposition that s.15(1) of the SPPA still has to be exercised in a procedurally fair manner. I agree with that finding. Manikam v. TCHC overturned a Tribunal decision where police officer’s notes taken after the fact that included a signed statement from the applicant’s boyfriend were given more weight than the testimony of the applicant and her witness. The boyfriend was not called as a witness, depriving the applicant of an opportunity to cross examine him. The applicant presented good reason for doubting the reliability of the boyfriend’s statement and for why his testimony should have been tested. Accordingly, the Divisional Court set aside the Tribunal decision.
24The applicant submits that the Tribunal violated his procedural fairness rights by relying on Dr. Bartolucci's records when Dr. Bartolucci was not called as a witness. I disagree. It was the applicant who introduced Dr. Bartolucci’s records as an exhibit. There is no indication that the applicant made efforts to have Dr. Bartolucci appear as a witness or that he required Dr. Bartolucci’s attendance at the hearing for cross-examination on his clinical notes and records. The applicant knew that causation was in issue, yet chose not to call any witness with knowledge of his medical condition both before and after the 2006 accident. Instead he filed his medical records, as he had a right to do. It makes no sense for the applicant to now claim that the Tribunal erred in law by giving weight to medical records that he filed as an exhibit just because he chose not to call the physician who authored those records to testify at the hearing. Further, the applicant has provided no reason why Dr. Bartolucci’s records are not reliable or are less reliable than the applicant’s memory of events.
25The applicant also submits that the Tribunal violated his right to procedural fairness by relying on the reports of three medical examiners in 2007 as corroboration that the applicant’s symptoms and complaints did not change after the 2006 accident without identifying the examiners. However, those assessors and their reports were identified in footnote 12 at paragraph 59(2) of the decision as Exhibit 37, report of Dr. Perry Tepperman, physiatrist, dated May 11, 2007; Exhibit 38 report of Dr. Lorne A. Switzman, psychologist, dated June 15, 2007; and Exhibit 39 report of Dr. Adrian Upton, neurologist, dated September 30, 2009. Further, the applicant was aware that the respondent intended to rely on these reports. If the applicant took any issue with the reliability of the reports, he could have asked the respondent to make the authors available for cross examination or, at the very least, served and filed a notice under Rule 10.3 of an intention to challenge the statements made by the applicant recorded in those reports. However, the applicant did none of the above.
26The applicant also submits that the Tribunal erred by mischaracterising Dr. Bartolucci’s note as contradicting Dr. Kumbhare’s report. He submits the error stems from the Tribunal’s comparison between two physicians with different specialties. Dr. Bartolucci is a psychiatrist and Dr. Kumbhare is a physiatrist. I am unable to find a record of what the applicant said to either physician about the nature of his complaints from the 2002 accident versus his 2006 accident would be different because of the physician’s specialty. There is no evidence to support this submission.
27There was a mechanism in place for the applicant to test the hearsay evidence he relied on and that the respondent relied on, but the applicant chose not to do so. He has provided no reason as to why he chose not to rely on those procedures. Nor is it the Tribunal’s responsibility to have the applicant test his own evidence. Accordingly, I find no merit to the applicant’s submission that he was deprived of procedural fairness.
CONCLUSION
28For the reasons noted above, I deny the applicant's request for reconsideration. The applicant’s request for reconsideration is dismissed.
Deborah Neilson
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 19, 2023