RECONSIDERATION DECISION
Before: Bernard Trottier
Licence Appeal Tribunal File Number: 22-011907/AABS
Case Name: Yaadavi Uthayakumar v. Intact Insurance Company
Written Submissions by:
For the Applicant: David S. Wilson, Counsel
For the Respondent: O. Itse Ezomo, Counsel
OVERVIEW
1On July 30, 2024, the applicant requested reconsideration of the Tribunal’s decision dated July 9, 2024 (“decision”).
2In the decision, I, among other things:
(a) Denied the applicant’s motion to exclude four insurer’s examination (“IE”) reports regarding whether the applicant was entitled to post-104-week income replacement benefits (“IRBs”) from the hearing evidence; and
(b) Found that the applicant was entitled to a neurological assessment plus interest, but not to post-104-week IRBs, attendant care benefits, the remainder of the disputed treatment plans, or an award.
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 submits that I committed a material breach of procedural fairness and/or made errors of fact and law such that I would have likely reached a different decision had the errors not been made. She seeks an order finding that the four IE reports should have been excluded from the hearing, that she meets the test of eligibility for post-104-week IRBs as set out in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) and that she is therefore entitled to continuance of her IRBs.
5The respondent submits that the request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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 four IE reports
8I find that while I did err in law, I likely would not have reached a different result had the error not been made. I also find that I did not commit a material breach of procedural fairness in denying the applicant’s motion to exclude four IE reports from the hearing evidence.
Error in law
9The applicant submits that in denying her motion to exclude the four IE reports, which I rendered orally at the outset of the hearing, I used an incorrect interpretation of s. 44(5)(a) of the Schedule. Section 44(5)(a) states that a valid Notice of Examination must set out “the medical and any other reasons for the examination.” The applicant submits that in my oral decision I said, “medical or any other reasons” when I should have said, “medical and any other reasons.” The applicant argues that, as a result, I erred in law in my oral decision and therefore the request for reconsideration should be granted under Rule 18.2(b).
10The applicant alleges further that in my oral decision to deny her motion to exclude the four IE reports from the hearing evidence, I focused specifically on the “any other reasons” portion of s. 44(5)(a) rather than the medical reasons for the request for the IEs. The applicant argues that had this error not been made, I would have reached a different result and that the request for reconsideration meets the threshold for reconsideration under Rule 18.2(b).
11In stating “or” rather than “and” during my oral reasons regarding the medical and other reasons, I erred in law.
I would not likely have reached a different result had the error not been made
12In my consideration of both the written and oral submissions, my focus was on whether the collective correspondence of the respondent provided medical reasons for the examinations. The applicant submitted that the medical and other reasons must be contained within a single correspondence regarding its Notice of Examination. My decision rested on whether medical and other reasons could be contained within more than one correspondence, whether it constituted sufficient notice under s. 44(5) of the Schedule, and whether the reasons for requesting further IEs were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the request for the IEs.
13Regarding the question of whether collective correspondence is sufficient under the Schedule, I found the Tribunal’s decision in Da Silva v. Wawanesa Mutual Insurance Company, 2023 CanLII 1450 (ON LAT) (Da Silva) persuasive since it addressed the question of whether medical and other reasons could be contained within more than one correspondence, in a case most analogous to the present one. In Da Silva, the Tribunal found that notices were sufficient in two pieces of correspondence separated by 20 days. In the present case, the time separation between the two correspondences is three days. The applicant argues that the medical and other reasons must be found in a single correspondence. These submissions do not establish that I would have likely come to a different result had the error in law not been made. Instead, the applicant appears to disagree with my findings, which is open for her to do, but it is not grounds to grant a reconsideration of a decision.
14Turning to whether medical reasons for the IEs were provided by the respondent, I noted in my decision that the respondent, in its correspondence of March 25, 2022, requested further medical information to determine the applicant’s eligibility for further IRBs and for medical benefits. I found that the request for medical information and the stated reasons, namely the two-year mark for eligibility for IRBs, were clear. I found that the subsequent request for IEs on March 28, 2022, when combined with the correspondence of March 25, 2022, was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the request for the IEs.
15Since the focus on my analysis of the motion submissions was whether the collective correspondence included medical reasons for the request for IEs, and whether the correspondence was clear and sufficient, I would not have reached a different result had my error in law not been made. Therefore, the request does not meet the threshold for reconsideration under Rule 18.2(b).
No material breach of procedural fairness
16The applicant submits that in focusing on “any other reasons” rather than on the medical reasons, I acted in a manner that was procedurally unfair and therefore the request for reconsideration should also be granted under Rule 18.2(a).
17As indicated previously, I did not limit my analysis of the sufficiency of the IE notices on “any other reasons”. I find that, in this regard, I did not commit a breach of material fairness that would provide grounds for reconsideration under Rule 18.2(a).
18The applicant submits further that I did not provide reasons in my decision as to why I relied upon the decision in Da Silva rather than the case relied upon by the applicant of B.M v. Unica Insurance Inc., 2020 CanLII 72512 (ON LAT) (B.M.). The applicant submits that my lack of commentary on B.M. constitutes a breach of procedural fairness. I found Da Silva more relevant since it addressed whether disparate correspondences close in time were clear and sufficient under the Schedule. In the case of B.M., the time separation between the respondent’s stated medical reasons and the notice of the IE was more than six months.
19The Tribunal is not required to comment on every piece of evidence or authority relied upon by a party to a dispute, as described in MacMillian v. Toronto Transit Commission, 2024 CanLII 10530 (ON LAT). I note that both parties provided several authorities in their written submissions on the Motion to exclude the IE reports. It is the responsibility of the Tribunal to rely on those it deems most relevant to the specifics of the case before it. In reviewing the written and oral motion submissions, and the authorities provided, I relied on those that most specifically addressed the questions being raised by the parties in the present case. In doing so, I did not commit a breach of material fairness that would provide grounds for reconsideration under Rule 18.2(a).
Denial of request for reconsideration under Rule 18.2(b) and Rule 18.2(a)
20The applicant is relying on a misstatement I made during the oral hearing to posit that I breached Rule 18.2(b). In this I made an error in law.
21However, I disagree with the applicant that I applied an incorrect understanding of the test under s. 44(5)(a) of the Schedule in allowing the IEs reports into the hearing evidence. I find that I would not have reached a different result had the error not been made. As such, I did not breach Rule 18.2(b).
22I find that I did not commit a material breach of procedural fairness in focusing on “any other reasons” and in not commenting on the applicant’s authorities in my written decision. As such, I did not breach Rule 18.2(a).
23For the reasons stated above, I dismiss the applicant’s request for reconsideration to exclude the four IE reports from the hearing evidence.
Post-104-week IRBs: The Tribunal did not err in fact or law
24I find that I did not make an error of fact or law such that I would have likely reached a different decision had the error not been made regarding post-104-week IRBs.
25The applicant submits that I made several errors in assessing the evidence before me and, therefore, I erred in my conclusion in deciding that the applicant was not entitled to post-104-week IRBs. Specifically, the applicant submits that I made the following errors of fact in my decision:
a) That I did not properly weigh the opinion of Dr. Kanagaratnam which was that the applicant’s accident-related impairments resulted in a complete inability to engage in any employment/self-employment for which she would otherwise be suited by means of education, training, or experience;
b) That I did not properly weigh the opinion of Dr. Basile which was that the applicant had both physical and cognitive impairments that would prevent her from working except to the small extent that she was working at the time of his assessment, or in any other type of employment;
c) That I provided too much weight to the opinion of Dr. Syed which was that the applicant’s psychological injuries no longer presented functional limitations; and
d) That I made incorrect inferences from the August 23, 2023 and August 27, 2023 surveillance of the applicant, namely that the applicant was capable of working, on a part-time basis, for durations that resembled what she worked pre-accident.
26I find that the applicant’s submissions for reconsideration do not point to any errors, but instead propose a re-weighing of the evidence that was fully available, and which I considered in its entirety at the time of the hearing. It was open to me to arrive at the conclusions I did on the face of the evidence submitted. Re-weighing the evidence is not the task in a request for reconsideration.
27In her reply submissions, the applicant submits that there was no basis for the finding at paragraph 81 of the decision that the surveillance evidence presented at the hearing strongly suggested that the applicant was capable of working hours similar to those she worked pre-accident. The applicant posits that this finding was likely “fatal” to the applicant’s claim for post-104-week IRBs. In the decision, however, I found that the surveillance evidence, combined with my findings on the orthopaedic, neurological, and psychological evidence at paragraphs 76, 77 and 78, led me to conclude that the applicant did not meet the test for post-104-week IRBs on a balance of probabilities. Therefore, my weighing of the surveillance evidence was not made in isolation of the other considerable evidence before me.
28For these reasons, the applicant’s request for reconsideration under Rule 18.2(b), that I made errors of fact in my decision, is dismissed.
CONCLUSION & ORDER
29The applicant’s request for reconsideration is dismissed.
Bernard Trottier Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: December 9, 2024