Sistermans v. CAA Insurance Company
Licence Appeal Tribunal File Number: 22-006102/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Connor Sistermans
Applicant
and
CAA Insurance Company
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: Ashu Ismail, Counsel Joseph Campisi, Counsel
For the Respondent: William G Woodward, Counsel Jacqueline Fortner, Counsel
HEARD: By review of the record and transcripts of the January 8 – 11, 2024 videoconference hearing
OVERVIEW
1Connor Sistermans, the applicant, was involved in an automobile accident on July 22, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, CAA Insurance Company, and he applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Following a videoconference hearing held from January 8–11, 2024, and after informing the parties that the adjudicator who heard the matter would be unable to provide a decision, the Tribunal issued a motion order on May 22, 2024. In short, the Tribunal ordered a new adjudicator to render a decision based on “the existing record (i.e., the recording and/or transcript of the hearing, if available, and all records that were made exhibits at the hearing)”. On June 11, 2024, the respondent provided the Tribunal with a copy of the transcripts from the hearing.
ISSUES
3The present application is the applicant’s second with the Tribunal. The first application (File #: 16-003084/AABS) was withdrawn following a settlement between the parties. This settlement agreement was signed by the applicant on November 24, 2016. The parties now dispute whether the applicant had the capacity to sign this agreement. The preliminary issue in dispute is:
i. Is the applicant barred from a hearing for the substantive issues because the applicant executed a full-and-final settlement disclosure notice in November 2016, per Tribunal file number 16-003084/AABS and concerning the same accident in this application?
4The substantive issues in dispute are:
i. Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from November 16, 2021, to date and ongoing?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find the settlement agreement reached on November 24, 2016 is not invalidated on account of the applicant’s alleged incapacity. The application is barred from proceeding to a hearing, pursuant to s. 9.1(8) of Reg. 664.
ANALYSIS
6I am satisfied that the applicant has not established that he lacked the capacity needed to sign the settlement agreement on November 24, 2016. As such, the settlement is not invalidated due to incapacity.
7Section 2(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, states: “A person who is eighteen years of age or more is presumed to be capable of entering into a contract.” Section 9.1(8) of Automobile Insurance, R.R.O. 1990, Reg. 664 then states that no person may apply to the Tribunal for dispute resolution “with respect to benefits that were the subject of a settlement”.
8The applicant mainly supports his claim of incapacity by citing a report from Dr. Alina Kaminska (dated September 27, 2021) that found he lacked capacity at the time he signed the settlement agreement. In short, he submits that this report demonstrates he was incapable of directing counsel in November 2016, and that he did not understand the consequences of agreeing to the settlement. The applicant further highlights the disparity between the settlement amount versus the possible funding available through a designation of catastrophic impairment. Finally, the applicant points to difficulties he had in and around this period (including dropping out of university and the need for regular help from his family) as proof of his incapacity.
9The respondent opposes the applicant’s position, instead relying on his high school and university records to show he was able to achieve academic success during the period in and around November 2016. According to the respondent, these results, when paired with the cognitive test scores found by Dr. Kelly Benn (report dated January 21, 2016), together undermine the applicant’s position on incapacity. Further, the respondent emphasizes the report from its assessor, Dr. Paul Ferner (dated June 16, 2023), to provide additional support for its position. Finally, the respondent notes that the question before the Tribunal is not whether the settlement agreement was beneficial to the applicant, but rather whether he understood what he was signing.
10For the following reasons, I find the applicant has not rebutted the presumption of capacity from s. 2(1) of the Substitute Decisions Act. As such, he has not established that he did not possess the capacity to enter into the settlement agreement on November 24, 2016.
Academic Records
11First, a key factor in my conclusion are the academic records from the period around November 2016. I find the applicant’s high school report cards and university transcripts for this period show he was able to understand and engage with course materials—a strong suggestion that he had the capacity to instruct counsel and understand the consequences of entering into the settlement agreement.
12In his high school report cards, the applicant is consistently described as a student who demonstrated an adequate level of understanding and comprehension in his classes. For instance, in his April 23, 2015 report card, the teacher for “English, University” wrote he “shows considerable understanding of critical lenses, close readings and overall analysis. He usually offers strong ideas in both his written and oral work…” Then, in his June 29, 2015 report card, the teacher for a marketing course wrote he “demonstrates some knowledge and understanding of marketing terminology and concepts… uses creative thinking with some effectiveness.” Finally, for the November 9, 2016 report card, the teacher for “Mathematics and Data Management, University” wrote he “has demonstrated good understanding of the probability and statistics concepts studied this semester”. The applicant received a final grade of 90 in this mathematics and data management class, with the median grade being 80.
13I then note that the applicant’s ability to complete three university-level courses in the “2016/2017 Fall/Winter” term provides further support for his capacity to understand and process information during the relevant period. In fact, he received an “A” in one of the three classes.
14I do note that he eventually dropped out of university not once, but twice, and—though he completed three courses—he had initially signed up for five. However, despite these challenges, I still find the ability to finish three university-level courses further demonstrates his ability to understand information during the relevant period.
15The applicant argued that his academic performance was only possible with the help of significant support from his family. The applicant also had accommodations, and he dropped out of extra-curricular activities to help him complete his studies. I accept that this assistance and accommodations were available to the applicant, but they do not challenge my overall findings about his academic performance. Rather, the comments and marks he received show that his classroom discussions were also evaluated by the instructors. In sum, his grades show he was able to understand course materials for the purpose of both writing exams and participating in classroom discussions.
16Another argument raised by the applicant is that his academic performance was seriously and negatively impacted by the accident. For instance, his mother testified that the applicant was once considered a gifted student. I do not find the records establish any significant, negative impact on his academics, such that the applicant can be said to have lacked the capacity to understand a settlement agreement and its consequences. Rather, again, the records show a student who was capable of participating in classroom discussions and engaging with course materials at both the high school and university level.
Cognitive Testing
17Second, I find the cognitive testing completed by Dr. Benn in September 2015 and by the occupational therapist, Robin Kadanoff, in July 2016 together provide compelling support for finding the applicant has not established he lacked capacity in November 2016.
18To start, Dr. Benn concluded that the applicant’s cognitive test scores were largely average, e.g., “overall intellectual ability” was in the average range for his age; “auditory-verbal and language abilities generally fell within the average range”; “speed of information processing” was found to be average, etc. There were some areas that fell below average, e.g., “reading comprehension” was in the “low average range”. However, overall, Dr. Benn’s scores showed the applicant possessed largely average cognitive abilities.
19Then, during the testing with Robin Kadanoff in July 2016—a few months prior to signing the settlement agreement—the applicant was again assessed for skills like executive functioning, memory, etc. (report dated July 18, 2016). All the applicant’s scores fell within at least one standard deviation above or below the average. In fact, some of his scores were above this one standard deviation mark, e.g., temporal awareness, abstract reasoning, foresight for safety, etc.
20In response to these test scores, the applicant contends that capacity assessments require looking beyond cognitive abilities to see how a person’s emotional state may impact capacity. Specifically, as detailed by his treating psychotherapist, Lynda Whittick, the applicant was under immense stress during the period when he signed the settlement. He also required assistance from his family with basic tasks, including meal preparation, prompts for self-care, etc. The applicant also cites the evidence of Dr. John Thornton, psychiatrist, who diagnosed him with General Anxiety Disorder, Major Mood Disorder, Subtle Brain Injury, among other diagnoses (report dated July 20, 2020). According to the applicant, these factors must be accounted for.
21I accept that the capacity to understand and process information and instruct counsel may be impacted by one’s psychological and emotional state. However, similar to my findings about his academic performance, I do not see any significant, negative results in the test scores that would suggest the applicant’s emotional difficulties and need for assistance impacted his ability to understand and process information. I am not satisfied that the applicant has demonstrated that his stress and emotional dysregulation had any significant impact on his ability to perform tasks like information processing and abstract reasoning, such that he lacked capacity in November 2016.
22I do recognize that the applicant’s assessor, Dr. Kaminska, testified that cognitive testing is performed in an artificial, controlled setting. However, the largely average scores from this testing mirror the academic success demonstrated by his high school report cards and university transcripts. Therefore, while this testing may have been completed in an artificial setting, the applicant’s scores are corroborated by the grades he received in the real-world context of high school and university.
23The applicant then argues that the report from Dr. Benn establishes the need for academic accommodations, and it should be interpreted as support for a finding of incapacity. I do not agree. When seen alongside the applicant’s academic records and the assessment from Robin Kadanoff, I find Dr. Benn’s cognitive testing provides compelling support for the conclusion that the applicant had the capacity needed to sign the settlement agreement in November 2016. I do not find that her recommendations for academic accommodations challenge this finding.
Capacity Assessments
24Turning to the reports from the parties’ capacity assessors, I find that neither report provides significant assistance for my determination. The capacity dispute arose after the settlement agreement was signed. Both parties obtained their assessments years after the event. As such, both assessments are retrospective in nature. In the present case, I have the benefit of contemporaneous accounts of the applicant’s cognitive abilities and functional limits during the relevant period. Together, the academic records and test scores paint a comprehensive picture of the applicant’s abilities in and around November 2016, so I do not find it is necessary to place significant weight on the capacity reports from 2021 and 2023.
25Further, while I accept that Dr. Kaminska’s finding of incapacity was based, in part, on these same contemporaneous records, I take issue with the line of reasoning that allowed her to reach this conclusion. Specifically, in finding the applicant “lacked the mental and cognitive capacity to fully appreciate the impact of any decisions” related to his “financial affairs”, the assessor opined:
The impression is that while signing the settlement offer of his AB claim, [the applicant] likely possessed sufficient intellectual abilities to understand the information related to the amount offered and its value. However, due to his cognitive/executive and behavioural dyscontrol, he likely had diminished ability to process and comprehend the information, distinguish between the relevant and irrelevant issues, and appreciate the consequences and effects of his decision. He also probably lacked an appreciation of the nature of the proceedings.
[The applicant] probably lacked insight and judgement to consider the significance of his symptoms and the risk of poor recovery, as well as the consequences of such poor recovery in terms of his future needs and the risk of foregoing any available or potential funds above and beyond the amount offered in the settlement.
Beyond the speculative nature of the opinion and the average cognitive test scores relied upon to help reach this finding, I note that the focus on the settlement amount raises questions about the weight I should assign this report.
26Much like the applicant’s submissions involving the value of the settlement versus the funding he could have obtained from a catastrophic impairment designation, I find Dr. Kaminska’s line of reasoning focuses on questions that are not at the heart of the issue before me. The issue before me is not whether the agreement was advantageous to the applicant. Rather, I must determine if the applicant had the capacity to instruct counsel and understand the consequences of agreeing to the settlement. Reviewing his academic records and cognitive test scores, I can conclude he has not established a lack of capacity. The value of the settlement may have some limited bearing on this question, but—by finding that the totality of the evidence before me establishes that he understood the consequences of agreeing to this amount and terms—the capacity inquiry is complete.
Applicant’s Other Arguments
27Turning to his other arguments, the applicant claimed structural and individual bias, citing the frequency that the adjudicator assigned to the videoconference hearing had been assigned to his law firm’s cases. As noted above, the adjudicator who conducted the videoconference hearing cannot issue a decision in this case. I, therefore, find any concerns about individual bias are moot. Then, on the question of structural bias, I note that the threshold for establishing a reasonable apprehension of bias is a high one. Yet, in reviewing the arguments made during the videoconference hearing, I find that the applicant's assertion of structural bias has not been substantiated in a way that would meet this high burden.
28The applicant also took issue with several procedural orders that had been made prior to and during the videoconference hearing, including a denial of the applicant’s request for a production order and the decision to exclude a report from Dr. Lynn Lightfoot (dated December 1, 2023). The applicant did not provide a compelling account during the videoconference hearing of how this denied production order impacted his ability to rebut the presumption of capacity. Then, while the applicant may claim Dr. Lightfoot’s findings from her December 2023 report would have shed light on his capacity in November 2016, I find the retrospective nature of the report raises similar issues to those I identified about the capacity assessments above. I do not find that the admission of this report would have likely impacted my findings.
ORDER
29The settlement agreement reached on November 24, 2016 is not invalidated on account of the applicant’s alleged incapacity.
30The applicant is barred from proceeding to a hearing on the substantive issues in the application, pursuant to s. 9.1(8) of Reg. 664.
31The application is dismissed.
Released: October 25, 2024
Craig Mazerolle
Vice-Chair
