Sarah Syed v. Security National Insurance Company, 2023 CanLII 62924

Citation: Syed v. Security National Insurance Company, 2023 ONLAT 20-015339/AABS – R

RECONSIDERATION DECISION

Before: Christopher Evans

Licence Appeal Tribunal File Number: 20-015339/AABS

Case Name: Sarah Syed v. Security National Insurance Company

Written Submissions by:

For the Applicant: Imtiaz Hosein, Counsel

For the Respondent: Matthew Nieuwland, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant. It arises out of a decision in which I found that she did not sustain a catastrophic impairment, and was consequently not entitled to medical and rehabilitation benefits, interest, or an award under s. 10 of Regulation 664: Automobile Insurance. In the decision I also awarded the respondent $2,000 in costs.

2The applicant requests reconsideration under Rules 18.2(a) and (b) of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Rules”) on the grounds that I breached my duty of procedural fairness and made errors of fact or law absent which I would have likely reached a different result. She requests that the application be reheard or that my decision be varied to find that she sustained a catastrophic impairment, that a determination be made on whether she is entitled to the benefits in dispute, interest, and an award, and that costs not be awarded against her.

RESULT

3I deny the applicant’s request for reconsideration for the following reasons.

ANALYSIS

4The grounds for reconsideration are limited to those set out in Rule 18.2. Reconsideration is not an opportunity for the requesting party to reargue its case or ask the Tribunal to reweigh the evidence.

1. Breaches of procedural fairness

5The test for reconsideration under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.

6Among other things, the duty of procedural fairness requires me to ensure that the parties have an opportunity to put forward their views and evidence fully and to consider them: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 22.

7The applicant argues that I breached my duty of procedural fairness by:

a. Refusing to order the respondent to produce her updated accident benefits file and updated adjusters’ log notes;

b. Granting the respondent’s motions to exclude a witness and quash the summons of another; and

c. Refusing to recuse myself due to a reasonable apprehension of bias.

8The respondent argues that the decisions were correct and that the applicant’s allegations of bias are unfounded.

a. Refusal to order productions

9I find that I did not breach my duty of procedural fairness by denying the applicant’s motions for productions.

10Two business days before the start of the hearing, the applicant moved for an order requiring the respondent to produce her updated accident benefits file, including adjusters’ log notes. She conceded that she could have brought the motion at least three months earlier. I denied the motion because the applicant failed to bring it at least 10 days in advance of the hearing as required by Rule 15.2. I found that the respondent would be prejudiced by being ordered to produce documents at the last minute.

11The applicant argues that I failed to specify how the respondent would be prejudiced. She argues that the respondent is a sophisticated organization with easy access to her file and could have produced it without delaying the hearing. I do not accept that submission. It does not impugn my finding that the applicant could have brought the motion in compliance with the Rules but failed to do so. My finding that the respondent would be prejudiced was based on the principle that the parties are entitled to prepare for a hearing based on the documents requested and exchanged in advance.

12Over the first week of the hearing, the applicant repeatedly moved for production of the same documents and others. I denied those motions because it was too late to bring a motion for productions mid-hearing. The applicant argues that I inappropriately prioritized “procedural form” over fairness, and failed to consider the relevance of the documents and their importance in eliciting the witnesses’ testimony. I disagree. As the applicant could have brought a motion for productions at least three months in advance of the hearing but failed to do so, she was not deprived of an opportunity to advance her case. Requiring the respondent to produce the documents mid-hearing would have been no less prejudicial. I did not deny the motions because the documents sought were irrelevant or unimportant, but because the motions were brought out of time.

b. Decisions regarding witnesses

13I find that I did not breach my duty of procedural fairness by granting the respondent’s motions to exclude Modesta Sabaliauskiene as a witness and to quash the summons of Susan Maloney.

i. Modesta Sabaliauskiene

14Ms. Sabaliauskiene was an employee of CIRA Health Solutions, the company that arranged the respondent’s independent assessments. Her name was on the header of several letters from CIRA to the applicant beside the fax number used to send them. The letters stated that the respondent had scheduled the assessments and provided the dates, locations, and other administrative details.

15The respondent moved to exclude Ms. Sabaliauskiene as a witness because she had no relevant evidence. The applicant argued that she could provide evidence regarding what functions the respondent delegated to CIRA to arrange the assessments. I found that to the extent Ms. Sabaliauskiene had any evidence on that point, which was far from clear, it would have been repetitious because the applicant was already calling an adjuster and the assessors and could obtain that evidence from them. I granted the motion pursuant to s. 15(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”), which provides that a tribunal may exclude any unduly repetitious evidence.

16The applicant argues that there was no foundation for my finding that she could obtain evidence about the functions delegated to CIRA from the adjuster and the assessors. I disagree. It was evident from the fact that the adjuster was an employee of the respondent, and the fact that the assessors could describe their dealings with CIRA in arranging their assessments. The applicant proceeded to examine the adjuster and the assessors at length on those points.

ii. Susan Maloney

17Ms. Maloney was a former adjuster of the applicant’s accident benefits file. The respondent moved for her summons to be quashed. In the Notice of Motion, it stated that it had recently learned she was on indefinite sick leave, and that she would therefore be unable to attend the hearing. In an email copying the Tribunal, counsel for the applicant took the position that the statements in the Notice of Motion were not facts, and that the respondent must withdraw the motion or provide an affidavit. In response, one of the respondent’s counsel swore an affidavit stating that he was informed by an employee of the respondent and believed it to be true that Ms. Maloney was on indefinite sick leave and unavailable for the hearing.

18At the hearing, the applicant argued that the affidavit was self-serving and could not be accepted as evidence, and that there was therefore no reason to believe that Ms. Maloney could not attend the hearing. The applicant confirmed that she was not asking for the deponent to be removed as counsel.

19I granted the motion to quash Ms. Maloney’s summons. I found that because counsel for the respondent was an officer of the court, it was sufficient to take him on his word that Ms. Maloney was on indefinite sick leave, and that requiring the respondent to provide further evidence would have been unnecessary and an unwarranted intrusion into her privacy. I found that the applicant was not unduly prejudiced by quashing the summons because she had entered the adjusters’ log notes as an exhibit and was calling another adjuster as a witness.

20The applicant argues that I erred in finding Ms. Maloney was on indefinite sick leave because the deponent did not have direct knowledge of that fact. I disagree. Counsel relayed information provided by his client that one of its employees was on leave. I took him on his word as an officer of the court, and not based on hearsay in his affidavit.

21The applicant argues that I erred in finding that being on indefinite medical leave was a valid reason to excuse Ms. Maloney from attending the hearing. I disagree. I found that her medical issues presented a barrier to her attending the hearing. Given that the applicant was not unduly prejudiced by proceeding without her, this was a valid reason for quashing her summons.

c. Refusal to recuse myself

22I find that I did not err in refusing to recuse myself due to a reasonable apprehension of bias.

23The applicant asserted that I must recuse myself after I denied two of her mid-hearing motions for productions. She argued that my decisions on the motions and other issues gave rise to a reasonable apprehension of bias. I made oral rulings denying the requests and addressed them at paragraphs 30-31 of my decision. I found that the basis of the requests was that I had made incorrect decisions, that the applicant had not established those decisions were incorrect, that I denied the motions based on the well-established principle that it is too late to request productions on the eve of or during a hearing, and that it is inappropriate to accuse an adjudicator of bias solely on the basis of an unfavourable decision.

24The test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the tribunal, whether consciously or unconsciously, would not decide fairly: Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394. There is a strong presumption of adjudicative impartiality. The burden lies on the party alleging bias to establish that there are “serious” or “substantial” grounds for such a finding: Wewaykum Indian Band v Canada, 2003 SCC 45 at paras 59, 76.

25The thrust of the applicant’s submissions at the hearing and on reconsideration is that I demonstrated a reasonable apprehension of bias by making unfavourable decisions that she considers to be wrong. This on its own does not rebut the strong presumption of adjudicative impartiality: Applicant v Gore Mutual Insurance Company, 2019 CanLII 101509 (ON LAT), citing Taucar v Human Rights Tribunal of Ontario, 2017 ONSC 2604 (Div Ct) at para 85. In any event, the applicant has not established that any of the impugned decisions were wrong.

26The applicant argues that I demonstrated bias by finding that Ms. Sabaliauskiene’s evidence would have been repetitious without knowing what questions she would have been asked. I disagree. I asked counsel for the applicant what evidence he expected Ms. Sabaliauskiene would give, and made that finding based on what he told me.

27The applicant argues that I failed to note in my written reasons that when she requested that I recuse myself for the second time, it was for more reasons than denying her motion for productions. Namely, I excluded Ms. Sabaliauskiene, quashed Ms. Maloney’s summons, refused to order the adjuster who testified to produce documents, and did not allow the applicant to cross-examine the respondent’s counsel on his affidavit. The applicant argues further that my failure to note those other grounds in my written reasons is itself evidence of bias. I do not accept these submissions. The premise of all the grounds for the request was that I made unfavourable decisions that the applicant considers to be wrong. My oral ruling addressed all those grounds. The fact that I did not enumerate all of them in my written decision does not establish that my ruling was incorrect, and is a far cry from dishonesty, attempting to insulate myself from scrutiny, and incompetence as the applicant claims.

28I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that I decided the application fairly.

Conclusion

29The applicant has not met the test for reconsideration under Rule 18.2(a).

2. Errors of fact and law

30The test for reconsideration under Rule 18.2(b) is whether I made an error of law or fact such that I would likely have reached a different result had I not made the error.

31The applicant argues that I erred in denying her motion to state a case for contempt to the Divisional Court, and in finding that she had not sustained a catastrophic impairment under ss. 3.1(1)7 and 8 (criteria seven and eight) of the Schedule.

32The respondent argues that I did not err in denying the motion or in finding that the applicant had not sustained a catastrophic impairment. It submits that the applicant has not identified any errors of fact or law in my decision, and that reconsideration is not a forum to reargue one’s case or invite the Tribunal to reweigh the evidence.

a. Motion to state a case for contempt

33I did not make an error of fact or law in denying the motion.

34The applicant brought the motion midway through the hearing. She alleged that CIRA, acting as the respondent’s agent, committed the criminal offence of forgery in preparing the independent assessment reports, and that the respondent breached s. 45(5) of the Schedule by failing to provide copies of the independent assessment reports to her within 10 business days of receiving them. I denied the motion because the alleged misbehaviour did not relate to any person’s conduct in the proceeding before the Tribunal, and therefore could not qualify as contempt.

35The applicant states that I did not hear oral submissions on the motion. That is incorrect. Both parties filed written submissions, and the applicant made oral submissions. After a short break, I advised that I did not need to hear from the respondent, then gave my reasons for dismissing the motion. Both parties then made oral submissions on costs.

36The applicant argues that I did not understand what she requested in the motion. Namely, she sought a case for contempt to be stated against both CIRA and the respondent, and an order requiring the respondent to “produce a copy of the recordings made in this hearing pursuant to Rule 13 of the LAT Rules.” This argument does not impugn my finding that the alleged misbehaviour could not qualify as contempt, and therefore does not establish that I made an error of fact or law that would affect the outcome of the motion. In any event, I understood that she alleged both CIRA and the respondent had acted in contempt. As far as I am aware, the respondent did not make recordings of the hearing. The applicant did not allege that it had acted in contempt by doing so without permission, nor was there any reason to believe that it had.

37The applicant argues that my reasons were deficient and do not demonstrate any real analysis that would suggest I heard or properly considered the motion. I disagree. I identified the alleged misbehaviour, explained why it could not constitute contempt, and concluded that there were no grounds for stating a case for contempt to the Divisional Court. The applicant has not established that I made an error of fact or law in doing so.

b. Criterion Seven

38Criterion seven requires the applicant to establish that she sustained physical impairments and a mental or behavioural impairment resulting in a 55% or more whole person impairment (“WPI”) when combined in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”). I found that the applicant’s impairments resulted in a 42% WPI.

39The applicant argues that I erred in assigning WPI ratings for:

i. Impairment of the lumbar spine;

ii. Sleep disorder and disturbance of mental status and integrative functioning;

iii. Treatment burden; and

iv. Mental or behavioural impairment.

40These arguments do not establish that I made an error of fact or law.

i. Impairment of the lumbar spine

41At paragraphs 46-48 of my decision, I assigned a 5% WPI rating for impairment of the lumbar spine. I found that the applicant’s symptoms of pain and numbness were non-verifiable radicular complaints within the meaning of Diagnosis Related Estimate (“DRE”) category II, which corresponds to a 5% WPI, and not objective evidence of radiculopathy within the meaning of DRE category III, which corresponds to a 10% WPI. I did not accept the 8% rating given by Dr. Blitzer, one of the applicant’s experts, who split the difference between the ratings for DRE categories II and III. The applicant argues that I erred in doing so “given the concerns of radiculopathy and the rating given the applicant’s symptoms.” I disagree. I did not find that the applicant had no concerns relating to radiculopathy. I found that she had concerns potentially indicative of radiculopathy which properly fell under DRE category II rather than DRE category III.

ii. Sleep disorder and disturbance of mental status and integrative functioning

42The applicant submitted that she was entitled to WPI ratings under ss. 4.1b and e of the AMA Guides, which apply to sleep disorders and disturbances of mental status and integrative functioning caused by impairments of the cerebrum or forebrain. I did not assign WPI ratings under these sections because the applicant did not allege that she sustained an impairment of her cerebrum or forebrain, nor did the evidence show that she had.

43The applicant argues that I erred in “rigidly” requiring that a sleep disorder rating can only be given due to impairments of the cerebrum or forebrain. That requirement is set out in section 4.1b of the AMA Guides. The applicant does not argue that I misinterpreted that section or explain how, such as by referring me to the text of the AMA Guides.

44The applicant argues that I disregarded numerous medical documents showing that she suffered neurological injuries. She does not identify any evidence that was put before me, but states that a keyword search of the parties’ hearing briefs for “brain” or “concussion” yields thousands of entries. The hearing briefs are not evidence, and it is not my role to comb through them on my own initiative to decide a claim that the applicant did not make.

45At paragraph 75 of my decision, I noted that based on their review of medical records not in evidence, Dr. Blitzer believed that the applicant had sustained a concussion and Dr. Kiraly, the applicant’s expert psychiatrist, opined that she possibly suffered from a mild neurocognitive disorder due to a traumatic brain injury and multiple etiologies. The applicant argues that I failed to specify which documents Dr. Blitzer and Dr. Kiraly relied on that were not in evidence. That is not an error of fact or law. In any event, the documents are noted in their reports. There was no need to list them in my decision.

46The applicant suffers from headaches and wears glasses and earplugs because she has difficulty focusing her eyes and is sensitive to light and noise. She argues that I erred in not finding that this was proof of a neurological injury. I disagree. She did not claim that she sustained such an injury or refer me to any evidence showing that it was the cause of those impairments. I assigned a WPI rating for her headaches and sensitivity to light and noise under a different section of the AMA Guides at paragraphs 54-70 of my decision.

iii. Treatment burden

47Dr. Blitzer assigned a 3% WPI rating for “treatment burden,” meaning the time and effort that obtaining treatment takes from living one’s life. I found that the AMA Guides do not provide that a WPI rating may be assigned for treatment burden.

48The applicant argues that I falsely stated that Dr. Blitzer did not identify the applicant’s treatment burden or the ways a WPI rating for the effect of treatment can be given under the AMA Guides, and that I failed to specify how Dr. Blitzer did not assign a WPI rating in a way permitted by the AMA Guides. This characterization of my reasons is simply not true, as can be seen at paragraphs 82-87 of my decision.

iv. Mental or behavioural impairment

49I assigned a 20% WPI rating under the Psychiatric Impairment Rating Scale (“PIRS”) for impairment due to a mental or behavioural disorder. At paragraphs 96-97 of my decision, I considered whether the applicant was entitled to a score of two, three, or four in the domain of interpersonal relationships:

i. A score of two (mild impairment) applies where a person’s existing relationships are strained, there are tension and arguments with the person’s partner and close family members, and there is loss of some friendships;

ii. A score of three (moderate impairment) applies where previously established relationships are severely strained, as evidenced by periods of separation or domestic violence; and

iii. A score of four (severe impairment) requires that the person be unable to form or sustain long-term relationships, and pre-existing relationships, such as those with the person’s partner or close friends, are ended.

50I assigned a score of two. I found that the applicant’s relationships with her partner and family were strained and she had lost some but not all friendships, that there was no evidence of the severe relationship strain required for a score of three, and that her pre-existing relationships had not ended as required for a score of four.

51The applicant argues that I failed to consider important evidence, namely the expert occupational therapists’ reports (including the information provided her husband and the assessors’ observations of her interactions with her mother), the “testimony of the relevant witnesses,” the evidence of the applicant’s interactions with her friends, husband, and the public, her gagging, her need for earplugs and glasses, and the conditions in which she needs to work. This argument does not establish that I erred in assigning a score of two. I considered all the evidence she lists. None of it shows that she meets the tests for a score of three or four. It was not necessary for me to list each granular piece of evidence that I considered and its source.

c. Criterion Eight

52Criterion eight requires the applicant to establish that she sustained a mental or behavioural disorder resulting in a class four (marked) impairment in three or more areas of function that precludes useful functioning, or a class five (extreme) impairment in one or more areas of function that precludes useful functioning. The four areas of function are set out in chapter 14 of the 4th edition of the AMA Guides.

53It was common ground that the applicant suffered a mental or behavioural disorder resulting in class four (marked) impairments in two areas of function—(1) adaptation and (2) concentration, persistence, and pace—and a class three (moderate) impairment in the activities of daily living area of function. At issue was whether she suffered from a class four (marked) impairment in social functioning. I found that she did not.

54The applicant’s alleged errors fall in two categories: (1) misinterpreting the definition of social functioning in the AMA Guides, and (2) failing to consider or give weight to evidence showing that she suffers from a class four (marked) impairment.

55These arguments do not establish that I made an error of fact or law.

i. Misinterpretation of the AMA Guides

56At paragraph 112 of my decision, I found that the applicant was not significantly impeded in her capacity to interact appropriately, communicate effectively, and get along with others, which is the focus of social functioning. At paragraphs 113-114, I found that the applicant’s impairments relating to social situations were primarily associated with the other areas of function. Her vulnerability to being overwhelmed in social situations fell under the adaptation domain, and to some extent the concentration, persistence, and pace domain. Her limited participation in social and recreational activities largely fell under the activities of daily living domain.

57The applicant argues that my interpretation of the AMA Guides effectively makes it impossible for a person to have class four (marked) impairments in three areas of function because of the overlap between them. I disagree that I erred in interpreting the AMA Guides. I noted at paragraphs 109-110 of my decision that the ability to socialize overlaps with all four areas of function, but that social functioning is specifically concerned with the ability to interact appropriately, communicate effectively, and get along with others. The applicant has not established that I misinterpreted the AMA Guides in making that finding.

58The applicant argues that the AMA Guides state that avoidance of interpersonal relationships and social isolation are impairments of social functioning. I disagree. As noted at paragraph 109 of my decision, the AMA Guides state that these behaviours may demonstrate impaired social functioning, but do not state that they are impairments of social functioning in themselves. At paragraph 114, I found that the applicant lacked motivation to socialize and tended to withdraw and self-isolate, but not because she was significantly impeded in her ability to interact appropriately, communicate effectively, and get along with others.

59The applicant argues that I discounted her issues relating to her avoidance of interpersonal relationships and her social isolation. That is incorrect. I did not find that those issues were insignificant, but that they related to the activities of daily living domain.

60The AMA Guides state that when assessing the severity of an impairment in the social functioning domain, one must consider the number of aspects in which social functioning is impaired and the overall degree of interference with a particular aspect or combination of aspects. The applicant argues that I erred in not finding that the phrase “overall degree of interference” implies that social functioning includes the amount of social interaction. The text does not support that meaning. The phrase quoted by the applicant concerns how to assess the severity of an impairment, not the scope of what constitutes social functioning.

ii. Failure to consider or give weight to evidence

61The applicant lists evidence that I did not mention or that I “explained away,” including that she gags uncontrollably, she rarely leaves her home, she cannot go to movies or go out her with husband’s friends, she has not driven since the accident and relies on others to drive her, she has been unable to volunteer due to fatigue and headaches, she can be emotional and argumentative and need breaks when interacting with her husband and friends, and she needs earplugs and glasses due to her light and noise sensitivities and vision problems. This argument does not establish that I made an error of fact in my assessment of the applicant’s social functioning. I considered all the evidence she lists. I addressed the evidence relating to her difficulties interacting with others at paragraphs 112 -113 of my decision. The other evidence relates to the other areas of function and criterion seven.

62The applicant argues that I failed to acknowledge that Dr. Tuff based his conclusions regarding social functioning largely on the report of Mr. Kaplan, the respondent’s expert occupational therapist, who had little to no understanding of that issue. This argument does not establish that I made an error of fact in my findings regarding the applicant’s social functioning. I did not make those findings solely based on Mr. Kaplan’s and Dr. Tuff’s reports, and the applicant has not identified any information I took from those reports that was incorrect.

63I found at paragraph 112 of my decision that the applicant can be irritable and that this puts a strain on her relationships with her partner, her family, and her friends, but those relationships have endured, and there were no indicators of significantly impeded function within the meaning of the AMA Guides such as altercations. The applicant asserts that this was an unreasonable basis for finding that she is not markedly impaired but does not explain why.

64At paragraph 112 of my decision, I noted that the assessors all observed that the applicant interacted with them appropriately. The applicant asserts that this is incorrect but does not refer to any evidence in support of that claim.

Conclusion

65The applicant has not met the test for reconsideration under Rule 18.2(b).

ORDER

66The applicant’s request for reconsideration is dismissed.

Christopher Evans

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal