RECONSIDERATION DECISION
Before: Lindsay Lake, Vice-Chair
Licence Appeal Tribunal File Number: 22-011999/AABS
Case Name: Michael Albanese v. BelairDirect
Written Submissions by:
For the Applicant: Rachel Andres, Counsel Lane Foster, Counsel
For the Respondent: Lori J. Sprott, Counsel Nadia Peles, Counsel
OVERVIEW
1On July 19, 2024, the applicant requested reconsideration of the Tribunal’s decision dated June 28, 2024 (decision). In the decision, the Tribunal found that the applicant did not sustain a catastrophic impairment as defined in s. 3.1(1)8. of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (Schedule) and dismissed the application.
2The 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.
3The applicant submitted that a reconsideration of the decision is warranted in this matter because the Tribunal acted outside its jurisdiction, committed a material breach of procedural fairness, and/or made errors of fact or law such that the Tribunal would likely have reached a different result had the errors not been made.
4The respondent’s position is that the applicant’s request for a reconsideration is an attempt to relitigate the evidence that was before the Tribunal at the original hearing and, therefore, the reconsideration request should be denied.
RESULT
5The applicant’s request for a reconsideration is dismissed.
PROCEDURAL ISSUES – Length of the applicant’s submissions
6In its responding submissions, the respondent requested that pages 11 and 12 of the applicant’s request for reconsideration submissions be disregarded by the Tribunal. According to the respondent, the applicant’s submissions were not double-spaced and, when they are reformatted to be double-spaced, paragraphs 17-20 exceed the 10-page limit for reconsideration submissions as set out in Rule 18.1 of the Rules.
7In reply, the applicant concedes that he exceeded the 10-page submission limit but requests that his full submissions be considered by the Tribunal. The applicant’s position is that the length of his submissions would not prejudice the respondent’s case.
8While parties are expected to comply with the Tribunal’s orders, and the applicant concedes that he did not comply with the required page limits and he did not seek permission to file submissions in excess of the page limits prior to the issue being pointed out by the respondent, I find that the respondent has not demonstrated how it would be prejudiced if I were to consider the totality of the applicant’s reconsideration submissions. In contrast, the applicant would be prejudiced by the exclusion of paragraphs 17-20 of his reconsideration submissions by not being fully able to participate in the reconsideration process. In balancing the prejudice to the parties, the respondent’s request to exclude paragraphs 17-20 of the applicant’s reconsideration submissions is denied.
ANALYSIS
9The 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.
The Tribunal did not commit a material breach of procedural fairness
10I find that the applicant has not proven on a balance of probabilities that the Tribunal committed a material breach of procedural fairness in the decision such that a reconsideration is warranted on this basis.
11The applicant submitted that the Tribunal breached the rules of procedural fairness on two grounds. First, the applicant submitted that the Tribunal failed to provide adequate reasons and, second, that the Tribunal raised issues on its own that resulted in negative findings against the applicant.
12The respondent’s position is that the Tribunal provided adequate reasons in the decision setting out why it arrived at the result that it did. The respondent submitted that while the applicant may not agree with the decision, this does not make the Tribunal’s reasons “inadequate.”
a) The Tribunal provided adequate reasons in the decision
13I find that the applicant did not establish on a balance of probabilities that the Tribunal failed to provide adequate reasons in the decision and, as such, the Tribunal did not commit a material breach of procedural fairness on this basis.
14The applicant submitted that the Tribunal failed to give adequate reasons because:
a) Of the length of the decision;
b) The Tribunal did not consider the applicant’s impairments in all four domains; and
c) The applicant assumed that the decision was authored solely by Adjudicator Mazzilli who, according to the applicant, had only determined two prior decisions concerning the Minor Injury Guideline (MIG).
15The applicant submits that the Tribunal’s reasons with respect to the assessment of impairment levels at paragraphs 12 through 30 of the decision are inadequate, sufficiently intelligible, and are not justified because they were “subjected to a minute analysis.” The applicant submitted that the length of the consideration of criterion 8 was “a mere 32 paragraphs” in the decision, far shorter that the “several decisions from 2020 through 2024” where the average length of a criterion 8 decision was 79 paragraphs according to the applicant. The applicant further maintained that it was reasonable for him to expect “reasons with a higher degree of comprehensiveness commensurate to the importance of a catastrophic determination.”
16In support of his position, the applicant relied upon several decisions and listed many generalized principles regarding the requirement for adequate reasons. The applicant, however, does not point to any specific portion of the decision that he claims does not provide adequate reasons as a result of the decision length. As acknowledged by the applicant, there is no express requirement for the Tribunal to provide reasons of a certain length. I agree and find that a concise decision does not equate with a failure to gives reasons such that a reconsideration is warranted in this matter based on a material breach of procedural fairness.
17The applicant also claims that there was a material breach of procedural fairness because the Tribunal “made no attempt to grapple with the body of evidence adduced” because it only considered the applicant’s impairments in two of the four domains. The applicant noted that previous Tribunal decisions generally considered the applicant’s impairments in all four domains even if a catastrophic impairment was not found.
18To support this position, the applicant relied upon the Tribunal’s decision in M.L. v. Primmum Insurance Company, 2020 CanLII 80283 (ON LAT) (M.L. v. Primmum). In M.L. v. Primmum, the Tribunal found that the applicant experienced a class 4 impairment in two of the four domains but also found it necessary to discuss the applicant’s impairments in all four domains. At paragraph 57, the Tribunal stated:
Briefly, the Guide’s references to the overlapping aspects of the domains establish that these are not watertight compartments. For instance, in its description of “Concentration, persistence, and pace”, the Guide directs assessors to consider deficiencies in work settings and activities of daily living. Adjudicator Gosio also noted in 16-001226 v. State Farm Mutual Automobile Insurance Company that: “[b]y definition, impairment in adaptation affects the ability to function across all activity levels.” Therefore, important context about the applicant’s capacity to perform her daily activities and adapt to workplace settings can be gleaned from my findings in the other domains.
19The applicant maintains that the Tribunal committed a material breach of procedural fairness because the Tribunal did not discuss the applicant’s impairments in all four domains to determine whether he sustained a catastrophic impairment. According to the applicant, this failure effectively “stymies meaningful appellate review” and is “a procedurally unfair failure to make alternative findings.”
20As discussed in the decision at paragraph 12, to determine whether an insured person is catastrophically impaired under criterion 8, the applicant must prove on a balance of probabilities that they have sustained one extreme impairment (class 5) or three marked (class 4) impairments in the following four spheres of functioning: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace and (4) adaptation (deterioration or decomposition in work or work like settings).
21In the decision, the Tribunal found that the applicant did not demonstrate that he had a class 4 or 5 impairment in the activities of daily living and social functioning domain. As a result, the Tribunal did not consider the applicant’s level of impairment in the remaining two domains.
22I find that the Tribunal did not commit a material breach of procedural fairness by not considering the applicant’s impairments in the remaining two domains. The Tribunal is not bound by the decision in M.L. v. Primmum and the applicant did not point to any binding authority to support his position.
23Further, the Tribunal provided its reasons for why it found that the applicant did not have a class 4 or 5 impairment in two of the domains in the decision. As such, rendering a finding on the applicant’s impairments in the remaining two domains would be immaterial because the applicant still would not meet the criteria for a catastrophic determination under criterion 8. The Tribunal is mandated by Rule 3.1 of the Rules to ensure efficient, proportional, and timely resolutions of the merits of the proceedings before it. The Tribunal is also able to determine its own procedures and practices: s. 25.0.1, Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA). It is well settled that procedural fairness does not require an administrative decision-maker to consider and make findings on all positions raised by a party. This is especially the case when such arguments would have no impact on the outcome of a decision.
24For these reasons, I find that a reconsideration is not warranted based on a material breach of procedural fairness because the Tribunal did not consider the applicant’s impairments in the concentration, persistence and pace and adaptation domains in the decision.
25Finally, the applicant’s submitted that the Tribunal committed a material breach of procedural fairness based on his assertion that the decision was authored solely by Adjudicator Mazzilli who was “likely a co-adjudicator for training” and had only determined two prior MIG decisions prior to rendering his decision in this matter. The applicant further alleged that Adjudicator Lobu “did not participate in the subject decision,” and that perhaps if she had, the applicant “would not now be seeking reconsideration.” The applicant has neither advanced any evidence to support his assertions nor pointed to any binding case law to support his position. Section 4.4(1) of the SPPA provides that if a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or participate in the decision, the remaining member or members may complete the hearing and give a decision. The applicant’s submission that the Tribunal committed a material breach of procedural fairness on this basis is without merit.
26For all these reasons, I find that the applicant has not proven on a balance of probabilities that the Tribunal committed a material breach of procedural fairness based on providing alleged inadequate reasons in the decision such that a reconsideration is warranted on this basis.
b) The Tribunal did not raise issues on its own that resulted in negative findings against the applicant
27I find that the applicant has not proven on a balance of probabilities that the Tribunal committed a breach of procedural fairness by raising issues on its own initiative that resulted in negative findings against the applicant.
28The applicant submitted that a reconsideration of the decision is warranted because the Tribunal relied upon evidence in its decision that neither party referred to and/or that the applicant was not given an opportunity to address. In support of his position, the applicant relied upon the Divisional Court’s decision in Shahin v. Intact Insurance Company, 2024 ONSC 2059 (Shahin). The applicant submitted that Shahin stands for the principle that procedural fairness is violated if a tribunal relies on evidence neither party referred to and/or that the applicant was not given an opportunity to address.
29I find that the applicant’s interpretation of Shahin is oversimplified. At paragraph 28 in Shahin, the Divisional Court found that the Tribunal violated procedural fairness in making negative findings about the applicant’s credibility and in impeaching the applicant’s testimony using excerpts from medical records that the applicant was never question on. Therefore, a material breach of procedural fairness, according to the decision in Shahin, requires not only a finding that the Tribunal relied upon evidence that the applicant was not questioned on, but also a finding regarding the applicant’s credibility or an impeachment of their testimony based on such evidence.
30Moreover, the court in Shahin placed emphasis on the adjudicators’ statement at the outset of the hearing that “any document not referred to by pinpoint reference during oral arguments will not be reviewed” (paragraph 23). The court went on to find that, despite this statement, the Tribunal breached procedural fairness because it relied upon numerous documents that neither party had referred to nor were admitted into evidence despite the documents being included in their hearing briefs.
31In this matter, the applicant submits that the following evidence was relied upon by the Tribunal in arriving at its decision, but that the applicant was never asked about:
a) Paragraph 19: The applicant submits that he was not questioned about his current financial position, his financial obligations to his son, how much money he spent on substances, or about the frequency of his cannabis use. The applicant also submitted that he was not asked about “purchasing cars and homes for the purposes of renovating, retrofitting, and reselling” at the hearing;
b) Paragraph 20: The applicant submitted that a March 16, 2018 clinical note by Dr. Mallin was not put to him during his testimony. This clinical note stated that the applicant complained of poor sleep, a query was made if he had sleep apnea, and that he was referred to a sleep study prior to the accident. The applicant also submitted that he was not questioned about sleep apnea during his testimony, or regarding Dr. Sivasubramanian’s opinion that sleep apnea was a physical, not a mental condition; and
c) Paragraph 27: The applicant submitted that he was not questioned about his relationship with his ex-partner’s spouse, his one-year post-accident relationship, and, while the applicant testified that he ate McDonald’s daily, he was not questioned about how he obtained his food that may or may not have required interactions with staff.
32The respondent disagreed that the Tribunal raised new issues or evidence in its decision. Rather, the respondent submitted that the applicant is disagreeing with how the Tribunal weighed the evidence (or lack thereof) that was either filed as an exhibit or addressed in testimony at the hearing.
33I find that the decision is distinguishable from Shahin for two reasons. First, the panel hearing this matter did not make the same statement about the requirement for pinpoint references that was made in Shahin, namely that any document not referred to by pinpoint reference during oral arguments will not be reviewed. Second, the Tribunal did not make negative findings about the applicant’s credibility and did not impeach the applicant’s testimony based on any of the alleged evidence that was not put to the applicant in his testimony.
34Additionally, I do not agree with the applicant that the evidence relied upon by the Tribunal as set out above at paragraph 31 was not put to the applicant. For example:
a) In terms of his current financial position, the applicant was asked about his living situation and responded by stating he rented an apartment that was paid for by his mother at the time of the hearing (Transcript, February 27, 2024, page 3);
b) Further, aside from investing an initial amount of $10,000.00 for his son in cryptocurrency, the applicant testified that he “just blew” his entire inheritance of $100,000.00 from his late father “on stupid stuff” (Transcript, February 27, 2024, pages 66-67 and 194). His mother also testified that the applicant was “awful with money,” and that his inheritance was “gone” (Transcript, February 26, 2024, page 67);
c) The applicant was asked by his counsel about his substance use after the accident at several different points in time (Transcript, February 27, 2024, pages 47-50). The applicant also testified that he lies about his substance use because he was “very embarrassed about it” (Transcript, February 27, 2024, page 3);
d) When he sold his house in Grand Valley, Ontario, because he could not afford the taxes, the applicant was asked what else he was spending money on at that time “other than contractors,” to which he replied, “I’m spending money on drugs” (Transcript, February 27, 2024, page 52);
e) The applicant was asked about his hobbies before the accident which included buying cars, cleaning them, completing maintenance on them, and selling them for profit (Transcript, February 27, 2024, page 35);
f) The applicant discussed the various renovations that he completed on a home that needed a “full reno” that he was living in (Transcript, February 27, 2024, pages 28-30);
g) While I agree with the applicant that the March 16, 2018 clinical note by Dr. Mallin or any questions regarding sleep apnea were not specifically put to the applicant during his testimony, the March 16, 2018 clinical note was entered as a hearing exhibit on agreement by the parties (Tab 43 of the Joint Document Brief). Additionally, an August 31, 2017 clinical note and record (CNR) of Dr. Mallin was put the applicant in cross-examination that noted that the applicant had sleep difficulties prior to the accident (Transcript, February 27, 2024, page 101);
h) I also agree that the applicant was not questioned about Dr. Sivasubramanian’s opinion that sleep apnea was a physical, not a mental condition. The applicant, however, has not provided any evidence that he would be qualified to comment on Dr. Sivasubramanian’s opinion such that this evidence should have been put to the applicant during his testimony;
i) The applicant was questioned on cross-examination about his relationship with his ex-partner’s spouse. The applicant testified that he gets along well with this person and stated that he can “talk to him as well” (Transcript, February 27, 2024, page 114);
j) The applicant was asked about how his irritability affects his relationship with people and he responded by noting that he had a dating relationship after the accident but that “it was for all the wrong reasons” (Transcript, February 27, 2024, page 61); and
k) The applicant was asked about obtaining food from McDonald’s to which he stated, “I go out.” His counsel then asked, “…how often do you eat a [sic] McDonald’s” to which the applicant responded, “To be honest, I’d say once a day” (Transcript, February 27, 2024, page 55).
35Therefore, I find that the Tribunal did not commit a material breach of procedural fairness as it did not make negative findings about the applicant’s credibility and did not impeach the applicant’s testimony. I also find that much of the evidence that the applicant alleged was not put to him during his testimony was put to him, and that there was sufficient evidence before the Tribunal to make the findings of fact that it did in paragraphs 19, 20, and 27 of the decision.
The Tribunal did not error in fact and/or law
36I find that the applicant has not proven on a balance of probabilities that the Tribunal erred in fact or in law in the decision such that a reconsideration is warranted on this basis.
37The applicant submitted that the Tribunal made several errors of fact and/or law such that the Tribunal would likely have reached a different result had the errors not been made. Specifically, the applicant submitted that the Tribunal erred by:
a) Misapprehending the evidence of Dr. Sivasubramanian; and
b) Misapprehending the evidence with respect to the assessment of the four domains.
a) Dr. Sivasubramanian’s evidence
38I find that the Tribunal did not err regarding Dr. Sivasubramanian’s evidence.
39The applicant submitted that the Tribunal erred by preferring Dr. Sivasubramanian’s September 8, 2023 report, which was based on a “one-time assessment that did not include testing or collateral interviews,” without explanation. Despite making this submission, the applicant did not point to any portion of the decision where the Tribunal made this determination.
40In any event, the applicant further submitted that Dr. Sivasubramanian applied the wrong causation test which “resulted in reducing his finding of marked impairment under concentration, persistence, and pace, and adaptation to moderate.” The applicant also submitted that Dr. Sivasubramanian testified at the hearing that the applicant sustained a marked impairment under the concentration, persistence, and pace and adaptation domains if he were to “ignore” the causation test that he used.
41I find that the applicant has failed to prove on a balance of probabilities that the Tribunal erred regarding Dr. Sivasubramanian’s evidence because the Tribunal made no findings regarding the applicant’s impairment levels in the concentration, persistence, and pace and adaptation domains. Therefore, regardless of Dr. Sivasubramanian’s testimony and the causation test that he used, it cannot be said that the Tribunal made an error as alleged by the applicant. As a result, a reconsideration is not warranted on this basis.
b) Evidence concerning the four domains
42I find that the applicant did not prove on a balance of probabilities that the Tribunal erred regarding the evidence concerning the four domains.
43The applicant first submitted that the Tribunal erred in the decision at paragraph 17 by finding that the applicant’s “lack of motivation has decreased his functional ability,” but then went onto to find that, “This is not indicative of a significant impediment of useful function.” The applicant alleges that the Tribunal did not provide an explanation as to why this finding was made “against abundant evidence that ‘squarely contradicts’ it.”
44I find that the applicant’s submissions do not point to any errors, but instead propose a re-weighing of the evidence. Re-weighing the evidence is not the task on a request for reconsideration. I also disagree that the Tribunal provided “no explanation” regarding this finding and that it was open to the Tribunal to arrive at the conclusions it did on the face of the evidence submitted. In arriving at this finding, the Tribunal considered the applicant’s testimony and two assessment reports.
45Second, the applicant submitted that the following evidence was “blatantly ignored” by the Tribunal:
a) The applicant submitted that “throughout the evidence, including testimonies at the hearing,” it was indicated that before the accident, the applicant enjoyed “dirt biking, ATVing, seadooing, modifying cars, going to car shows, doing home renovations, and generally lived an active lifestyle.” The applicant submitted that the applicant had not resumed these activities after the accident;
b) The consistent evidence of the applicant’s sleep difficulties being the result of anxiety, stress, nightmares, overthinking, and rumination, and that the Tribunal “irrationally inferred, based on irrelevant evidence that the Applicant’s sleep impairments are due to possible sleep apnea;” and
c) The fact that the applicant traveled to Florida in March 2023, while all but one of the assessments were conducted prior to the Florida trip. The applicant submitted that the Tribunal erred because it “irrationally inferred that because [the applicant] travelled to Florida somewhat independently, he overstated his driving and travelling symptoms.”
46I find the applicant has again not pointed to any error but is rather proposing a re-weighing of the evidence. As explained above, a re-weighing of the evidence is not the task on a request for reconsideration. Also, the applicant initially alleged in his reconsideration submissions that he was not questioned about purchasing cars and home renovations but later submitted that such evidence was found throughout “testimonies at the hearing.” I find the applicant’s submissions regarding this evidence contradictory.
47Third, the applicant submitted that the Tribunal erred in the assessment of the applicant’s social functioning. Specifically, the applicant submitted that the Tribunal erred by stating, “the applicant testified that he had over 20 friends and that on occasion they used to come by his house after work and hangout.” The applicant maintained this was not the applicant’s evidence. The applicant, however, has not accurately quoted this passage from the decision.
48Paragraph 26 of the decision states, “the applicant testified that he had over twenty friends prior to the accident and that on occasion they used to come by his house after work and hang out.” This is consistent with the applicant’s testimony (Transcript, February 27, 2024, page 39). Therefore, I do not agree with the applicant’s submissions that the Tribunal failed to maintain “a firm grasp of the evidentiary record” and I find that there was no error made on this basis.
49Fourth, the applicant submitted that the Tribunal erred in finding that there was “no evidence” that the applicant did not have the ability to get along with others or that he does not engage appropriately in the community. The applicant submitted that impaired social functioning can also be demonstrated through avoidance and isolation and, as a result, the Tribunal “misunderstood the legal issue and did not apply the correct factors,” and ignored evidence. I disagree.
50The Tribunal reviewed the evidence of the applicant’s social life and relationships post-accident including the applicant’s own testimony that he had no social life post-accident as he felt ashamed and did not have much to offer (the decision, para. 26). I again find that the applicant is not pointing to any errors but instead is requesting a re-weighing of the evidence as he does not agree with the Tribunal’s findings. Disagreeing with the Tribunal’s factual findings is not a ground to grant a reconsideration of a decision.
51Finally, the applicant alleged that the Tribunal erred in finding that “Dr. Gavett-Lui’s assessment was inconsistent with the Applicant’s presentation at the hearing and discounted the impairment level of his activities of daily living and social functioning.” The applicant alleged that in assessing the applicant’s conduct at the virtual hearing that the Tribunal ignored the fact that the hearing was adversarial and that question turn-taking was in no way synonymous with topic initiation or maintenance. The applicant also alleged that the virtual hearing format also reduced stress and pressures for the applicant.
52I find that the applicant is not pointing to any errors but again is requesting a re-weighing of the evidence and supporting his submissions with journal articles and decisions that were not before the Tribunal when rendering its decision at first instance. A reconsideration is not an opportunity for parties to correct the shortcomings of their submissions and evidence once highlighted by the Tribunal as parties are required put their best foot forward when first called upon to do so.
53For all of these reasons, I find that the applicant has not proven on a balance of probabilities that the Tribunal erred in fact or in law in the decision and his reconsideration request is not warranted on this basis.
CONCLUSION & ORDER
54The applicant’s request for a reconsideration is dismissed.
Lindsay Lake Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: November 14, 2024