RECONSIDERATION DECISION
Before: Brett Todd, Vice-Chair
Licence Appeal Tribunal File Number: 21-003753/AABS
Case Name: Shelby Levesque v. Intact Insurance Company
Written Submissions by:
For the Applicant: Peter Denton, Counsel
For the Respondent: Patricia Dimakos, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant on September 9, 2023. It arises out of a decision dated August 30, 2023 (“decision”) in which the Tribunal found the applicant to be within the Minor Injury Guideline (“MIG”) and that she was not entitled to two treatment plans, nor interest.
2Grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or
c) 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 applicant is seeking reconsideration under Rule 18.2(a) and Rule 18.2(b). Both boxes were checked on the Tribunal Request for Reconsideration Form. The applicant submits that the Tribunal acted outside of its jurisdiction and violated the rules of procedural fairness and made errors of law or fact such that the Tribunal would likely have reached a different result had these errors not been made. She seeks either a rehearing or an order to vary the decision to remove the applicant from the MIG and approve the two treatment plans in dispute.
4In reconsideration submissions, the applicant combines its arguments regarding Rule 18.2(a) and Rule 18.2(b). Below, I list these arguments according to which rule they fall under, using the applicant’s descriptions as guidance.
5The respondent submits that the applicant has no grounds for reconsideration and that the applicant’s submissions are largely an effort to re-litigate this matter. It requests that this reconsideration be dismissed.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7Reconsideration involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position on the matter, disagree with a Tribunal decision, or challenge weight assigned to evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(a): Breach of Procedural Fairness
8I find that the applicant has failed to establish grounds for reconsideration under Rule 18.2(a).
9The applicant submits that the Tribunal committed a number of breaches of procedural fairness in the decision, including the following:
(i) At paragraphs 25-32 of the decision, the Tribunal disputed the chronic pain diagnosis of Dr. Melanie Patrie, family physician, in the absence of a contrasting medical opinion. This resulted in the adjudicator essentially substituting a diagnosis of her own in the resulting decision.
(ii) In a similar fashion as that noted in 9, the Tribunal erred by disputing the chronic pain diagnosis of Dr. Kevin Smith, anesthesiologist, again in the absence of a contrasting medical opinion.
(iii) The Tribunal did not consider the applicant’s reply submissions at all in rendering the decision. This resulted in the adjudicator failing to address a number of key applicant arguments in the decision, including:
a) At paragraph 1 of the written reply, the applicant noted that the respondent exceeded the 15-page limit as set out in the Case Conference Report and Order (“CCRO”) released October 6, 2021 that set this matter down for a hearing.
b) At paragraph 2 of the written reply, the applicant argued that the applicant’s absences from work and workplace accommodations as noted in the clinical notes and records (“CNRs”) of Dr. Patrie indicated that the applicant suffered functional limitations as a result of the accident.
c) At paragraph 3 of the written reply, the applicant wrote that the respondent had erred in submitting that the applicant’s worries and anxieties were not connected to the accident, and cited the CNRs of Dr. Patrie in support of this position.
d) At paragraph 4 of the written reply, the applicant argued that the applicant took progressively fewer and fewer demanding jobs post-accident, substantiating her claim that she suffered functional limitations as a result of the accident.
e) At paragraph 5 of the written reply, the applicant disputed the respondent’s submissions arguing that a chronic pain assessment of Dr. Lionel Marks de Chabris, family physician, should not be relied upon in the resulting decision.
f) At paragraph 10 of the written reply, the applicant wrote that Dr. Michel Gauthier, family physician, should not be relied upon as he is not a chronic pain specialist and did not assess the applicant for chronic pain.
g) At paragraph 11 of the written reply, the applicant submitted that the respondent had ignored the chronic pain diagnosis of Dr. Patrie and the opinions of Lynn Ouellette, physiotherapist, regarding how pre-existing anxiety reinforced chronic pain behaviours and central sensitization.
h) At paragraph 13 of the written reply, the applicant listed a number of inconsistencies with the report of Dr. Gauthier regarding her switching to a less physically demanding job following the accident due to certain movements that exacerbated her pain.
10The respondent submits that the first two points listed above constitute an attempt to re-litigate this matter, and that there is no evidence of the adjudicator’s failure to consider the applicant’s reply submissions. It references the applicant’s “blanket submission” in her reconsideration submissions on this matter, without citing any of the specific examples as listed above that were detailed by the applicant. The respondent also notes that the Tribunal is not required to address every point made in submissions.
11I disagree with the applicant’s argument on all three of the above points.
12First, I find that the Tribunal did not breach the rules of procedural fairness under Rule 18.2(a) when it assigned limited weight to the reports of both Dr. Patrie and Dr. Smith, as noted above in paragraph 9 and (ii). In paragraphs 26-32 of the decision, the adjudicator details her reasons for finding that the applicant’s psychological stressors were not directly related to the accident. All of these reasons are supported with references to the CNRs of Dr. Patrie. In paragraphs 19-20 of the decision, the adjudicator similarly finds the assessment of Dr. Smith to be wanting and contradictory.
13I see no breaches of procedural fairness in how the adjudicator assessed these medical reports and assigned them weight in the decision. Further, despite the applicant’s assertions to the contrary in reconsideration submissions, an adjudicator is not obligated to accept an applicant’s medical opinion or report in the absence of a contrasting one provided by the respondent. Finding issue with a medical report is well within the purview of an adjudicator, even without a directly contrasting medical report.
14Also, it is the applicant’s burden to demonstrate that removal from the MIG is warranted and that treatment plans are reasonable and necessary. Requiring a respondent to provide contrasting medical reports could reverse the onus onto the respondent.
15Second, I find that the Tribunal did not commit a material breach of procedural fairness with regard to the reply submissions as detailed above in paragraph 9(a)-(h), pursuant to Rule 18.2(a). Although the applicant points out in her reconsideration submissions that the Tribunal did not reference the original reply submissions in the text of the decision, this does not necessarily mean that the reply was not considered by the adjudicator.
16I rely on decisions from the Supreme Court of Canada and the Divisional Court for support. For example, in Housen v. Nikolaisen, 2002 SCC 33, at paragraph 46, the Supreme Court held that a “decision-maker” is presumed to have reviewed the full record, absent proof to the contrary. The Ontario Divisional Court affirmed this in Sajid v. Certas, 2022 ONSC 2071 at paragraph 31. Further, as noted at paragraph 39 of Housen and referenced at paragraph 69 of Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116, a decision-maker’s failure to discuss a relevant factor—such as those listed above in 9(a)-(h)—is insufficient to warrant reconsideration, unless there is a reasoned belief that the original adjudicator has forgotten, ignored, or misconceived the evidence in a way that affected the conclusion.
17The applicant has failed to adduce satisfactory evidence proving that the adjudicator did not review the full record, nor to support a reasoned belief that the adjudicator had forgotten, ignored, or misconceived evidence. While the applicant is correct that the decision does not include mention of the issues noted in her reconsideration request, this is not proof that the decision-maker did not consider reply submissions. The adjudicator was not obligated to reference all of the examples provided by the applicant listed above in 9(a)-(h). As the Supreme Court stated in Housen, the “failure to discuss a relevant factor in depth, or even at all” is not a sufficient basis to order a reconsideration.
18Lastly, even though I agree with the applicant’s assertion that the adjudicator failed to reference the issue raised in reply submissions about the excessive length of the respondent’s written submissions, this does not constitute a material breach of procedural fairness on its own. In reconsideration submissions, the applicant has only noted that the adjudicator did not mention this issue in the decision. The applicant has not provided an argument or evidence demonstrating specifically how this omission led to a material breach of procedural fairness that affected the substantive nature of the decision. Again, I rely on Housen and note that this is an insufficient basis on which to order a reconsideration.
19Accordingly, the applicant’s request for reconsideration under Rule 18.2(a) is dismissed.
Rule 18.2(b): Errors of Law or Fact
20I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
21The applicant submits that the Tribunal made multiple errors of law or fact in the decision. These are:
(i) At paragraph 14, the Tribunal erred in law in holding that the applicant must prove that a chronic pain diagnosis is not caused by soft-tissue injuries sustained in the accident.
(ii) At paragraph 20, the Tribunal erred in finding that the applicant was not experiencing functional limitations as a result of the accident, despite the report of Dr. Smith, which noted a number of functional limitations.
(iii) At paragraph 17, the Tribunal erred by taking issue with the subjective reporting of the applicant in the report of Dr. Smith.
(iv) At paragraph 22, the Tribunal erred by holding that Dr. Marks de Chabris did not correlate the applicant’s chronic pain and fibromyalgia with the subject accident.
22The respondent again submits that a reconsideration is not warranted and that the above points raised by the applicant amount to an attempt to re-litigate this matter. It argues that the adjudicator assessed the evidence before the Tribunal and provided it the weight that she deemed appropriate in her decision.
23I am not persuaded by the applicant’s argument that the Tribunal made any errors in law or fact such that the Tribunal would likely have reached a different result had the error not been made. Items addressed above in 21-(iv) are all re-litigation attempts that take issue with the adjudicator’s findings in the decision, and do not address errors that warrant reconsideration under Rule 18.2(b).
24I agree with the applicant’s argument that the adjudicator made an error in paragraph 14 of her decision when she wrote that “the onus is on the applicant to prove that a chronic pain diagnosis is not caused by soft tissue injuries sustained in the accident to warrant the removal from the MIG.” This is a misinterpretation or misstatement of how chronic pain relates to the MIG. It is well established that chronic pain falls outside of the definition of a minor injury in s. 3(1) of the Schedule and therefore warrants removal from the MIG in and of itself. There is no associated requirement that chronic pain must be demonstrated to not be caused by soft-tissue injuries that would fall within the minor injury definition.
25Regardless, I do not find that this error justifies reconsideration under Rule 18.2(b), due to the provision that such a reconsideration shall only be granted when it is likely that the Tribunal would have reached a different result had such an error not been made. That, in my view, is not the case here. The adjudicator catalogues a number of reasons supporting her finding that the applicant does not suffer from chronic pain at paragraphs 16-24 of the decision, none of which are dependent on the error in paragraph 14.
26For the preceding reasons, I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
ORDER
27The applicant’s request for reconsideration is dismissed.
Brett Todd
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: February 13, 2024