Ganopolsky v. Security National Insurance Company, 2024 CanLII 106243

Citation: Ganopolsky v. Security National Insurance Company, 2024 ONLAT 23-004180/AABS-R

RECONSIDERATION DECISION

Before: Teresa Walsh

Licence Appeal Tribunal File Number: 23-004180/AABS

Case Name: Milan Ganopolsky v. Security National Insurance Company

Written Submissions by:

For the Applicant: Peter Cimino, Counsel

For the Respondent: Ken Yip, Counsel

OVERVIEW

1On August 6, 2024, the applicant requested reconsideration of the Tribunal’s decision dated July 17, 2024 (the “decision”).

2In the decision, the Tribunal found that the applicant had not sustained a catastrophic (“CAT”) impairment under criterion 7 or 8 as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including the amendments effective June 1, 2016 (the “Schedule”). Further, the Tribunal found that the applicant was not entitled to the attendant care benefits claimed, the cost of the CAT Responding Reports, or interest.

3The grounds 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.

4The applicant seeks reconsideration of the Tribunal’s decision pursuant to Rule 18.2(a). The applicant submits that the Tribunal committed a material breach of procedural fairness by not adjourning the hearing to permit cross-examination of the respondent’s CAT psychiatric assessor, Dr. Sherise Ali.

5The respondent denies that the Tribunal committed a material breach of procedural fairness and submits that the applicant’s reconsideration request should be dismissed.

6The applicant asks, pursuant to Rule 18.4(b) of the Rules, that the decision be set aside and that an Order for a rehearing in respect of all issues outlined in the decision be granted.

RESULT

7The applicant’s request for reconsideration is dismissed.

ANALYSIS

8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(a): Material breach of procedural fairness

9I find the applicant has not established that the Tribunal committed a material breach of fairness pursuant to Rule 18.2(a) in this matter.

10The applicant submits that once it became clear at the outset of the hearing that Dr. Ali would not be attending the hearing to testify, the Tribunal should have disregarded her evidence and struck her report from the record.

11Further, the applicant submits that even though the Tribunal relied on substantial other evidence in support of its conclusions on the CAT determination, Dr. Ali’s “untested evidence” was unfairly relied on to support the Tribunal’s conclusions.

12The applicant argues that the Divisional Court’s procedural fairness findings in Shahin v. Intact Insurance Company, 2024 ONSC 2059 (Div. Ct.) (“Shahin”) are applicable here. Shahin involved a multi-day oral Tribunal hearing where a key issue was whether the applicant had sustained a CAT impairment. The respondent’s final expert witness was examined in-chief but did not re-attend for cross-examination. In its decision, the Tribunal relied on components of the expert’s report and direct evidence to support its conclusions, including that the applicant had not sustained a CAT impairment. The Court found that the Tribunal’s reliance on the untested evidence of the expert breached procedural fairness.

13I find that Shahin is distinguishable on the facts from this matter.

14In particular, from the first day of the hearing in this case, the parties understood that Dr. Ali would not be testifying, either in-chief or by way of cross-examination. Conversely, in Shahin, the parties and the Tribunal expected throughout the hearing, including up to the end of the expert’s examination-in-chief, that he would be cross-examined. For a number of reasons, the cross-examination did not occur, resulting in the Tribunal being faced with “100 pages of untested oral evidence” from the expert. The Court found that this untested oral evidence “infected the Tribunal’s conclusions on the central issues governing its decision,” resulting in procedural unfairness.

15Here, there was no untested oral evidence of Dr. Ali to infect the Tribunal’s conclusion on the CAT determination.

16Also relying upon Shahin, the applicant submits that section 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which permits the Tribunal to “reasonably limit further examination or cross-examination of a witness” in certain circumstances, is not applicable to this case. I agree. This provision is only applicable to a situation where a witness provides oral testimony. Dr. Ali did not provide any oral testimony. At no time during this hearing, or in its decision, did the Tribunal seek to rely on or even raise section 23(2) of the SPPA.

17In denying the applicant’s adjournment request, the Tribunal also held that Dr. Ali’s report would be admitted into evidence under section 15(1)(b) of the SPPA, as a document relevant to the issues in dispute. Section 15(1)(b) of the SPPA provides that a Tribunal “may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence.” As part of this ruling, the parties were permitted to make submissions on the weight to be assigned to Dr. Ali’s report in their closing arguments.

18Both parties made submissions in their closings on the weight to be assigned to Dr. Ali’s report. As noted at paragraph 36 of the decision, because she did not testify, the Tribunal gave less weight to Dr. Ali’s report in its ultimate conclusions.

19I find that the steps taken by the Tribunal on the first day of the hearing – to admit Dr. Ali’s report into evidence under section 15(1)(b) of the SPPA and to allow the parties to make submissions on the weight to be afforded to the report in their closing arguments – were procedurally fair. The applicant knew the case he had to meet and was provided the opportunity to do so. The Tribunal found the applicant’s evidence in support of his case unpersuasive.

20For all of the foregoing reasons, I find that the Tribunal committed no material breach of procedural fairness regarding Dr. Ali’s evidence. As such, I find that the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).

CONCLUSION & ORDER

21The applicant’s request for reconsideration is dismissed.

Teresa Walsh

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal