RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
22-007265/AABS
Case Name:
Zachary Scandlan v. Primmum Insurance Company
Written Submissions by:
For the Applicant:
Alicia Stuart, Counsel
For the Respondent:
Jennifer Kiss, Counsel
OVERVIEW
1On April 12, 2024, the applicant requested reconsideration of the Tribunal’s amended decision dated April 10, 2024 (“decision”).
2Stemming from an automobile accident on March 2, 2014, the adjudicator found that the applicant did not sustain a catastrophic impairment under Criterion 8, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Additionally, the adjudicator found the applicant was not entitled to the two medical benefits, nor was he entitled to an award 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 relies on criteria a) and c) in his request for reconsideration. The applicant is asking the Tribunal to “order a rehearing”.
5The respondent opposes the applicant’s request for reconsideration. The respondent is also seeking costs.
RESULT
6The applicant’s request for reconsideration is dismissed.
7The respondent’s request for costs is denied.
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 did not establish a breach of procedural fairness.
10The applicant submitted that the decision does not meaningfully address all the key issues and arguments. Specifically, the applicant claimed that there is no reference to his two days of testimony, nor did the adjudicator meaningfully address the four spheres that underpin the Criterion 8 analysis. Further, there is no reference to the impact that a two-day occupational therapy assessment had on the opinion of the respondent’s psychological assessor, Dr. Lawrence Tuff. Finally, as opposed to addressing the different testing methods of Dr. Tuff and the applicant’s assessor, Dr. Leon Steiner, the adjudicator based his preference for Dr. Tuff’s evidence by finding that he was a better witness. In all, the applicant argued that this procedural unfairness likely changed the outcome of the decision.
11The respondent claimed the applicant’s submissions amount to a request to reweigh the evidence. According to the respondent, the decision provides a clear roadmap for how the adjudicator reached his conclusions, and there is no obligation for a decision-maker to list every piece of evidence. Further, the respondent argued that the applicant failed to provide any case law or evidence to suggest that there is an obligation to reference the four spheres when making a determination about catastrophic impairment under Criterion 8.
12As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), reasons ensure the fairness and legitimacy of administrative decision-making (at paragraph 79, citations removed):
Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power…
13Further, as the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, and then affirmed in Vavilov, the provision of reasons allows decisions to be questioned (at paragraph 39): “Reasons… are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.
14With these considerations in mind, I find that the reasons provided by the adjudicator adequately explain the decision-making process such that the adjudicator’s conclusions are justified and do not appear arbitrary. They also allowed for review during this reconsideration process. Taken together, they demonstrate that the adjudicator engaged with the parties’ arguments and rendered a decision that did not result in a breach of procedural fairness.
15First, I do not find that the decision failed to meaningfully address the four spheres under Criterion 8. In addition to listing the four spheres when summarizing the findings from Dr. Steiner, the adjudicator went on to make several comments that suggested he engaged with the spheres in his analysis. For instance, when describing what he found to be weaknesses in Dr. Steiner’s report, the adjudicator noted at paragraph 21 [emphasis added]: “Dr. Steiner’s analysis lacked consideration of the applicant’s functioning in important settings, such as at school and work.” These references show that the adjudicator recognized that the spheres form the core of Criterion 8. These references also demonstrate that the four spheres formed part of his analytical framework.
16More fundamentally though, it appears the applicant takes issue with the adjudicator’s determinations about the four spheres. It is clear from the reasons that the adjudicator weighed the relative value of Drs. Steiner’s and Tuff’s assessments of Criterion 8, and he, ultimately, preferred the opinion of Dr. Tuff. Relying on Dr. Tuff’s conclusions allowed the adjudicator to, in turn, find that the applicant did not establish a catastrophic impairment. I find the applicant has failed to show that there was a breach of procedural fairness on this point.
17Second, the applicant contends that his testimony was not mentioned in the reasons. Beyond the fact that I do not have a transcript of the applicant’s testimony, I again find that the reasons are an adequate explanation of how the adjudicator reached his conclusions, such that the decision does not appear arbitrary, and a review of the decision could be accomplished.
18Additionally, the adjudicator did reference the value he assigned to the applicant’s own account of his condition when describing his concerns with Dr. Steiner’s report. Specifically, at paragraph 22, the adjudicator described what he found to be the assessor’s undue reliance on the applicant’s self-reporting:
While the applicant may have been sincere in his reporting, and I found that he was, that is not proof that his recollections were accurate or medically relevant/correct, particularly in the face of opposing evidence. Dr. Steiner’s role was to consider all pertinent information, including school reports and employment records, to assess the severity of any impairments that arose from the 2014 accident. He did not do this.
These reasons show the adjudicator placed greater value on the medical evidence versus the applicant’s version of events. Therefore, while these reasons may not explicitly mention the testimony from the hearing, I find they allow the reader to understand the relative value that this kind of evidence played in the adjudicator’s analytical framework.
19Similarly, I do not find that the applicant has demonstrated how an alleged failure to address his arguments about an occupational therapy assessment and the assessors’ testing methods amounted to a breach of procedural fairness. For instance, when discussing his arguments about the occupational therapy assessment, the applicant wrote:
The Decision does not reference any of the significant arguments made on behalf of the Applicant regarding the two-day Occupational Therapy Assessment that was essential to the conclusions drawn by the insurer’s psychological, Dr. Tuff, and relied upon by the Respondent in its denial.
Not only did the applicant’s reconsideration submissions provide no indication of what these arguments were, but—as I found above—the adjudicator’s reasons provide a clear indication of how he reached his conclusions on the key issue of catastrophic impairment. The decision does not appear arbitrary, and a review could be conducted based on the reasons.
20Overall, I find the applicant did not establish a breach of procedural fairness.
Rule 18.2(c) – Evidence Not Before the Tribunal
21I find the applicant did not establish grounds for reconsideration based on evidence that was not before the Tribunal when rendering the decision.
22To find that a party has met the criteria for reconsideration under Rule 18.2(c), the requesting party must establish three elements:
a. There is “evidence that was not before the Tribunal when rendering its decision”;
b. This evidence “could not have been obtained previously by the party now seeking to introduce it”; and,
c. This evidence “would likely have affected the result”.
23The applicant submitted that, during the first day of the hearing, the respondent provided him with addendum reports from Dr. Tuff and its physiatry assessor, Dr. Ben Meikle. There was no notice under s. 44 of the Schedule for the reports (as later admitted in a letter from the respondent dated January 31, 2024). During the hearing, the adjudicator declined to admit the reports. According to the applicant, the failure to consider the addenda meant Dr. Tuff’s alleged change to his earlier opinion was not considered. Specifically, the applicant argued that Dr. Tuff found the applicant’s functional status “required” a re-assessment. Further, the applicant submitted that the adjudicator disallowed him from cross-examining Dr. Tuff on this point. Overall, the applicant argued that, if these catastrophic impairment addenda had been before the Tribunal, they “likely would have affected the outcome of this Hearing”.
24The respondent disagreed, claiming that Dr. Tuff did not change his opinion. He did recommend a re-assessment, but the respondent argued that insurers are not obligated to conduct re-assessments. The respondent then argued that the applicant took no steps to try and introduce the addenda into evidence, e.g., file a motion, request an adjournment, etc. Finally, the respondent submitted that “all additional documents under review in the Addendum Reports were in the possession of the Applicant, prior to the hearing and at the time of the hearing”, such that no new evidence was at play.
25I am not satisfied that the addenda constitute “evidence that was not before the Tribunal when rendering its decision”. These reports existed and were before the Tribunal prior to the release of the decision. The applicant disputed in his reply that he sought to have these reports entered into evidence, due to the timing of receiving these lengthy reports. However, the fact remains that they were put before the Tribunal and the adjudicator decided not to admit this evidence.
26The applicant also argued that he could not have put these reports before the Tribunal at an earlier time, due to the respondent’s actions. Even if I accepted that the addenda “could not have been obtained previously” by the applicant, and the timeline for their exchange meant they were “not before the Tribunal”, I still find the applicant has not shown how they “would likely have affected the result”.
27Of significance, I have not been provided a copy of the addenda. The onus is on the requestor to establish grounds for reconsideration. Without having the evidence at issue, I am left to rely on the applicant’s submissions of what these addenda say.
28Yet, even reviewing the quotation included in the applicant’s reconsideration submissions without the context of the complete report, I still note that this quotation does not confirm there was a change in Dr. Tuff’s earlier opinion. Rather, it appears Dr. Tuff found he needed a re-assessment to comment on the applicant’s condition due to the passage of time, not on account of a newfound finding he had made about the applicant’s impairments [emphasis added]:
The additional documentation suggests that there has been a decline in [the applicant’s] psychological and functional status since the time of my assessment, although there is insufficient documentation in the materials provided to allow me to objectively estimate the current degree of functional and psychological impairment or to render an opinion regarding the possible relationship of that reported decline to the accident.
Given the time that has elapsed, comment on the current level of function would require re- assessment.
It appears the assessor did not conclude that the applicant’s condition had changed. Rather, due to the time since his last assessment, Dr. Tuff conceded that he could only provide an opinion about the applicant’s accident-related condition if he could perform a re-assessment. Put simply, Dr. Tuff could neither confirm nor alter his prior opinion without a re-assessment. By highlighting this part of the addenda, I find the applicant has not demonstrated how admitting the reports or questioning Dr. Tuff on his addendum “would likely have affected the result”.
29In a similar vein, I will note that the applicant further argued the adjudicator’s preference for Dr. Tuff’s opinion was based, in part, on “the thoroughness of the review of the documentation by the experts.” As such, the applicant suggested it was necessary to question Dr. Tuff on the documents he reviewed in the addenda. I do not find this argument is compelling, as the decision not to admit the addenda would have also meant the adjudicator should have disregarded the extent of the documents reviewed in this addendum. Without pointing to a specific place in the decision where the adjudicator incorrectly relied on Dr. Tuff’s review of additional documents, I do not find this submission is compelling.
30I find the applicant did not establish grounds for reconsideration based on the claim that there was evidence not before the Tribunal when rendering the decision.
Costs
31Rule 19.1 states that: “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.”
32The respondent ended its reconsideration submissions by requesting costs. There were no other submissions made in support of this request. With no submissions demonstrating how the applicant allegedly “acted unreasonably, frivolously, vexatiously, or in bad faith”, I find the respondent has not established the high threshold needed for ordering costs under Rule 19.1.
CONCLUSION & ORDER
33The applicant’s request for reconsideration is dismissed.
34The respondent’s request for costs is denied.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 25, 2024