RECONSIDERATION DECISION
Before:
Tyler Moore
Licence Appeal Tribunal File Number:
21-001035/AABS
Case Name:
Amritpal Kaur v. Northbridge General Insurance Company
Written Submissions by:
For the Applicant:
Sandy Williams, Counsel
For the Respondent:
Daniel M Himelfarb, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision dated March 13, 2023, in which I found that the applicant had not sustained a catastrophic impairment under criterion 7 or 8 as a result of the accident.
3The applicant submits that I:
i. Failed to exercise procedural fairness.
ii. Relied on evidence that pre-dated the relevant time frame.
iii. Failed to provide adequate reasons.
iv. Accepted the novel “substitution test” for causation without analysis.
4The applicant is seeking an order:
a Cancelling my order and making a new finding that the applicant does in fact meet the definition of a catastrophic impairment and is therefore entitled to the medical benefits, attendance benefits, interest, and an award outlined in the issues in dispute. In the alternative, the applicant requests a new hearing before a different adjudicator.
RESULT
5The applicant's request for reconsideration is dismissed.
ANALYSIS
6The 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 & Procedure, Version I, (October 2, 2017) as amended (“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 affect 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.
7Reconsideration 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. 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.
8The applicant’s request relies on criteria 18.2 (a) and (b) of the Tribunal’s Common Rules of Practice and Procedure.
Rule 18.2(a)
9I find that the applicant has not established grounds for reconsideration under Rule 18.2(a).
Adjournments
10The applicant submits that I did not grant a long enough adjournment on October 7, 2022, after the applicant’s counsel was attacked by ransomware and lost his preparation materials. Specifically, the applicant argues that a two-day adjournment was insufficient, as she was forced to proceed even though the entirety of her preparation materials had been lost. She argues that this prejudiced her ability to present her best case before the Tribunal. The applicant submits that as there is no standard of review with respect to procedural fairness, she has not had a fair hearing and the decision must be set aside.
11In reply, the respondent submits that pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) the Tribunal controls its own process and has the power to determine its own procedures and practices. Further, the respondent argues that there was no significant period of time where the applicant was without the material before the Tribunal. Upon being notified by the applicant’s representative that his firm’s computer system had been affected by ransomware, the respondent immediately emailed copies of both parties’ hearing briefs to counsel’s personal email address.
12The respondent also submits that the applicant did not explain how a longer adjournment would have impacted the decision, and she failed to indicate how much more time would have been required to achieve procedural fairness. The respondent submits that the applicant had already called most of her witnesses when the ransomware attack happened, and then had months to prepare for the respondent’s witnesses when the hearing resumed in January 2023.
13I find no violation of procedural fairness for the following reasons. The applicant’s adjournment request was granted the morning of October 7th, 2022, after I was advised that her representative’s firm was attacked the night before by ransomware. The hearing was adjourned for five-days between the morning of October 7th and the morning of October 12th, 2022. The adjournment was not specifically referenced in the decision because it was granted.
14I concur with the respondent that when seeking an adjournment on October 7th the applicant did not specify the adjournment length being sought, and she could not confirm if/when the lost documents were expected to be retrieved. As a remedy, the respondent immediately provided the applicant with copies of both parties’ hearing brief materials so she could spend the five-day adjournment period preparing for the remaining witnesses.
15On the morning of October 12, 2022, when the hearing resumed, the applicant’s representative indicated that he was prepared to proceed and called his remaining witnesses. The applicant then had from October 13th, 2022 to January 23, 2023, when the hearing resumed, to prepare for the remaining witnesses.
16I find that the adjournment was granted in accordance with s. 25.0.1 of the SPPA, and that it was within my authority to determine the adjournment length. I find that the applicant has not established that I failed to exercise procedural fairness.
Witness Changes
17On October 12, 2022, the applicant requested that the hearing be adjourned after the respondent disclosed that it would be changing its witness order. For scheduling reasons, the respondent decided to call Dr. Lakshmi Voruganti instead of Ms. Vinita Tandon the following day. The applicant had not prepared for Dr. Voruganti. The adjournment request was dealt with orally and it was denied after hearing the parties’ submissions. I found that Dr. Voruganti was listed on the respondent’s finalized witness list which was exchanged before the hearing started. Dr. Voruganti, Ms. Tandon, and Dr. Paitich all testified at the hearing, it was only that the order of testimony between Dr. Voruganti and Ms. Tandon was altered.
18The applicant submits that the respondent had previously advised on October 7, 2022 that it would be calling Ms. Tandon and Dr. Bruce Paitich as witnesses on October 13th. The change to the witness schedule was made without notice and after the respondent was advised that the applicant’s complete work product to prepare for the hearing had been lost. The applicant submits that I weighed expediency more favourably than fairness in denying her adjournment request on October 12th.
19The respondent submits that there is no evidence that I changed the order of witnesses, or that the alleged change impacted my decision on any of the issues in dispute. Further, the respondent submits that the applicant refused to confirm what witnesses she would be calling and in what order, both prior to and throughout the hearing, and that she did not provide the schedule of her witnesses until the night before the hearing began. It submits that this resulted in prejudice to the respondent, who was unable to confirm testimony dates with its experts. That resulted in the request to call Dr. Voruganti to testify out of order on October 13, 2022.
20I concur with the respondent and find that the applicant was aware that Dr. Voruganti could be testifying well in advance October 12th. The applicant should have been prepared for this witness before the respondent requested a minor change to the witness order. The applicant also had the evening of October 12th to prepare for Dr. Voruganti’s testimony the following day. Finally, I cannot fault the respondent for making a minor change to its witness schedule when the applicant adjusted its own witness schedule throughout the hearing.
21I find that this was a scheduling change, made entirely by the respondent, that the applicant was not happy with. It does not constitute a violation of procedural fairness.
Adequacy of reasons in the decision
22The applicant submits that I failed to provide adequate reasons and meaningful analysis in my decision. Specifically, she claims that I made bald declarations and failed to comment on witnesses and experts, leading to my failure to exercise procedural fairness in the decision.
23The respondent submits that an adjudicator is not required to include every argument, statutory provision, decision, or other detail in a decision, provided that the decision allowed a reviewing court to understand why a decision was made and whether it was within the range of acceptable outcomes. The respondent further submits that it is well settled that an adjudicator’s choice not to refer to every argument or piece of evidence offered by the parties does not constitute a violation of procedural fairness.
24In essence, the applicant is arguing that I violated procedural fairness by failing to properly consider and weigh her evidence. However, I considered the totality of evidence before me in rendering my decision. I referenced the extensive medical record, including clinical notes and records of the applicant’s treating physicians and specialists. That analysis can be found from paragraphs [14] to [42] of the decision. As the respondent pointed out, I am not bound to refer to every argument or piece of evidence submitted by the parties in the course of making my decision.
25In conclusion, dissatisfaction with the weight the Tribunal accords to evidence or how such evidence is referenced or not referenced in a decision is not a basis for reconsideration. I find that the applicant has not demonstrated that I failed to exercise procedural fairness in how I addressed and analyzed the evidence in my decision.
Did I improperly rely on evidence outside of the relevant time period, including surveillance?
26The applicant submits that I improperly relied on surveillance evidence from the fall of 2018, which pre-dated the OCF-19 that was completed in January 2021 and took place before the two-year CAT permanency threshold. She further submits that I improperly considered surveillance footage from September-October 2018 in reaching my decision, even though only the surveillance notes were entered into evidence, and they were not put to the applicant.
27The respondent submits that I was tasked with determining whether the applicant was CAT impaired at the time of the hearing, and that the applicant has cited no authority in support of her position that I must limit my consideration of evidence regarding psychological claims to the period concurrent with the date of the OCF-19. Further, the respondent submits that I am entitled to, and should, base my decision on the totality of evidence before me, and make a determination based on the applicant’s status at the time of the hearing.
28I find that the surveillance was just one piece of evidence that I considered in arriving at my decision. In addition to the surveillance, I considered the applicant’s testimony, her post-accident academic performance and college graduation, witness and assessor evidence and testimony, as well as the CAT assessment reports. My assessment was based on a global assessment of the applicant from the time of the accident to the time of the hearing and a determination was made as to whether or not she was CAT impaired at the time of the hearing.
29I find that I was able to come to a better, more informed decision by considering surveillance evidence from 2018. It showed the applicant socializing and grocery shopping independently. Again though, I also considered the applicant’s admissions of her abilities to do these things, her post-accident academic performance and college graduation, witness evidence, and the CAT assessment reports spanning January 2021 to spring 2022.
30As noted by the respondent, the 2018 surveillance formed part of the respondent’s initial hearing brief. Only the surveillance from 2021 and 2022 contained in the supplementary brief was excluded from consideration. While I agree that the surveillance video was not put to the applicant, she was asked by the respondent whether, in September 2018, she engaged in walking short distances without a cane, went grocery shopping alone, and walked around the store choosing items. The applicant answered yes to each of those questions.
31Correspondingly, I find that the applicant has not established grounds for reconsideration under Rule 18.2(a). I appropriately weighed the evidence, made findings of fact, and provided sufficient reasons for concluding that the applicant was not CAT impaired as a result of the accident at the time of the hearing.
Rule 18.2(b)
32I find that I did not improperly rely on the “substitution test” for causation without proper analysis.
Did I improperly rely on the novel “substitution test” for causation without proper analysis?
33The applicant submits that I accepted Dr. Voruganti’s evidence without questioning his methodology, analysis, or his novel causation test. She argues that I improperly relied on Dr. Voruganti’s “proximate cause” analysis. Specifically, that I erred in accepting Dr. Voruganti’s statement that “it is doubtful that Ms. Kaur’s emotional problems could be defined as a direct result of the accident as opposed to an indirect consequence of the socioeconomic problems that followed,” as the “proximate cause” analysis has been rejected in favour of the “but for” test. Further, the applicant argues that Dr. Voruganti is not a lawyer, but a clinician, and that he should have considered all sources of psychiatric impairment.
34The respondent submits that the question should be whether I applied the correct “but for” test for causation, not that I preferred the “proximate cause” analysis of Dr. Voruganti.
35I agree that Dr. Voruganti applied a novel causation test before rendering his opinion. His “substitution test” for causation involved performing a legal interpretation of the term “directly” as used in the Schedule. Rather than applying the “but for” test, Dr. Voruganti preferred his “substitution test,” which changed variables one at a time and examined the consequences.
36However, I do not agree that I preferred Dr. Vorunganti’s “proximate cause” test over the “but for” test in my decision. On the contrary, I did apply the correct test, which is the “but for” or “direct cause” test. At no point in my decision did I unduly rely on the novel causation test of Dr. Voruganti, nor did I state that the accident had to be the sole cause of the applicant’s psychological issues.
37For example, paragraphs [12] and [24] of my decision set out the criterion I relied upon for CAT determination according to the Guides. Specifically, in paragraph [12] I note that “the applicant must prove that it is more likely than not that because of the accident she suffers from mental/behavioural impairments.” In paragraph [24] I note that “the applicant must prove that it is more likely than not that the impairments she suffered because of the accident have resulted in at least three class 4 impairments”. As these examples demonstrate, I relied on the “but for” test in assessing causation.
38In addition, Dr. Voruganti’s testimony and report was only one component of the evidence that I considered in assessing CAT under criterion 8. Specifically, I discussed Dr. Voruganti’s evidence in paragraph [35] of the decision in assessing the applicant’s post-accident function in concentration, persistence, and pace. I considered Dr. Voruganti’s evidence related to the applicant’s function at the time of his assessment and made a finding that “while it is agreed that the applicant had some impairments in concentration, persistence, and pace, they were because of her physical pain and non-medical circumstances.” I made a finding that impairments in this domain were not due to a mental or behavioural disorder.
39To summarize, it was not a matter of preferring Dr. Voruganti’s opinion over Dr. Kirali’s on the grounds that Dr. Voruganti applied a secondary “substitution test” in confirming that the accident was not the direct cause of the applicant’s complaints. I applied the direct causation test in coming to my conclusion and did not indicate that the accident had to be the sole cause. Therefore, I see no error of fact or law pursuant to Rule 18.2(b) that would warrant the applicant’s request for reconsideration. The fact that I came to a different conclusion than the applicant wished after reviewing the evidence is not grounds for reconsideration.
CONCLUSION
40For the reasons noted above, I deny the applicant's request for reconsideration. Her request for reconsideration is dismissed.
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 11, 2023