Vivekanantham v. Certas Home and Auto Insurance Company, 2024 CanLII 18085

Citation: Vivekanantham v. Certas Home and Auto Insurance Company, 2024 ONLAT 21-005665/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan

Licence Appeal Tribunal File Number: 21-005665/AABS

Case Name: Kavitha Vivekanantham v. Certas Home and Auto Insurance Company

Written Submissions by:

For the Applicant: Doug Q. Wright, Counsel Aryeh Samuel, Counsel

For the Respondent: Bruce Chambers, Counsel

OVERVIEW

1On November 14, 2023, the applicant requested reconsideration of the Tribunal’s decision dated October 24, 2023 (“decision”).

2This request arises outs of a decision in which the Tribunal found the applicant was not catastrophically impaired, not entitled to attendant care benefits, treatment plans, interest, or an award under Section 10 of Regulation 664.

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 has indicated that she is requesting a reconsideration pursuant to Rule 18.2(a) and (b). She submits that the Tribunal failed to provide adequate reasons, which is a breach of the principles of natural justice and procedural fairness under Rule 18.2(a). While it is not clear from the applicant’s submissions, she appears to also be arguing that inadequate reasons are an error of law pursuant to Rule 18.2(b). She is seeking a new hearing with a different adjudicator.

5The respondent argues that the applicant’s request should be denied, and the Tribunal’s decision should be confirmed.

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.

8As the applicant’s submissions are not clear about whether she is making arguments under Rule 18.2(a) and/or (b), I will address both.

9I find the applicant has not established grounds for reconsideration under Rule 18.2(a) or (b) with respect to the adequacy of the Tribunal’s reasons.

10The applicant’s position is that the Tribunal’s reasons are inadequate. In support of her position, she cites a number of factors including: the content and length of the analysis of catastrophic impairment, the failure to mention key facts that she believes would indicate that the Adjudicator understood the factual context for the decision, the number of witnesses the applicant called, the lack of reference to the applicant’s and her family members’ testimony, lack of findings of credibility, failure to reference motions brought by the applicant to exclude evidence, failure to recognize deficiencies in expert evidence, and lack of reasons for preferring the respondent’s evidence.

11The applicant argues that knowing the reasons why a result was reached is an integral part of the duty of fairness. The applicant cites Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), J.D. v. Intact, 2022 CanLII 84682 (ONLAT), Kanareitsev v. TTC Insurance Company, 2008 CanLII 26262 (ON SCDC). Relying on Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ON SCDC) the applicant submits that the reasons must address the major points in issue and that it is not sufficient to summarize the parties’ positions and baldly state conclusions. The reasoning process followed must be set out and reflect consideration of the main relevant factors. She relies on Lawson v. Lawson, 2006 CanLII 26573 (CA) for the principle that while the reasons do not have to be perfect or lengthy, they must be sufficient for the parties, the general public and an appellate court to know whether the applicable legal principles and evidence were properly considered.

12Adequacy of reasons in the context of administrative tribunals was addressed by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). For an administrative decision-maker’s analysis to meet the standards articulated in Vavilov, it must meaningfully grapple with key issues and arguments raised by the parties and demonstrate that the decision-maker was alert and sensitive to the matter before them.

13Notably, there is no requirement that a tribunal comments on every piece of evidence or authority relied upon by a party to a dispute, or that it addresses every submission in its reasons for decision. While the applicant refers to the Tribunal’s failure to cite witness testimony it heard at the hearing as grounds for reconsideration, as the Supreme Court of Canada held in Vavilov at para 128:

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para 25) or to “make an explicit finding on each constituent element, however, subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice.

14As the applicant makes reconsideration arguments about the adequacy and correctness of the Tribunal’s reasons in relation to catastrophic impairment, attendant care benefits, and a special award, I will address each of these in turn.

Catastrophic Impairment

15The applicant submits the reasons for the Tribunal’s determination that the applicant is not catastrophically impaired are inadequate. She advances several arguments which I have summarized as follows:

• The Tribunal failed to understand that anything of consequence occurred between the date of the accident and February 18, 2022. The Tribunal seemingly ignored expert evidence about the progression of psychological impairments that resulted in a catastrophic impairment.
• The Tribunal failed to mention the applicant’s age, work history, accident-related problems, relationship breakdown, income replacement benefit (“IRB”) payments, and CPP pension. The applicant submits the reasons do not demonstrate that the Adjudicator understood the factual context for the decision.
• The decision does not make specific reference to the applicant’s witnesses, including the testimony of the applicant and her family members. It does not comment on findings of credibility. It gives the impression the Tribunal made the decision without consideration of oral evidence.
• The Tribunal relied on the report of Dr. Sivasubramanian without acknowledging the applicant’s motion to exclude Dr. Sivasubramanian’s evidence because he did not attend the hearing in response to a summons. The Tribunal did not address alleged deficiencies in Dr. Sivasubramanian’s report.
• The decision reads as if the applicant only presented the opinion of Dr. Parekh as evidence on the issue of catastrophic impairment.
• The Tribunal erred in its assessment of Dr. Parekh’s report at paragraph 19. The Tribunal did not identify an inconsistency in Dr. Parekh’s report, despite referring to an inconsistency in its reasons. It did not explain how this may have influenced its view of Dr. Parekh’s evidence. With respect to the social sphere, the Tribunal only commented on Dr. Parekh’s report, as opposed to his testimony.
• At paragraph 20, the Tribunal erred in its assessment of the evidence and baldly stated conclusions with respect to the applicant’s level of function.
• With respect to the sphere of adaptation, the Tribunal failed to make a finding, which is required for the purposes of any appeal or review. It was not sufficient to say the rating in the sphere of adaptation would not change the result of the decision.

16I disagree. I find the Tribunal’s reasons demonstrate that it meaningfully grappled with key issues and arguments and that it was alert and sensitive to the matter before it. Although the reasons do not address the evidence and submissions that the applicant feels are important to her case, disagreement over the importance of evidence and submissions is not a basis for reconsideration.

17The Tribunal's analysis of catastrophic impairment, found in paragraphs 12 to 25 of the decision, is adequate. It reveals no error of fact or law and no material breach of procedural fairness. At paragraph 12, the Tribunal set out its finding that the applicant had not met her onus to demonstrate, on a balance of probabilities, that she sustained a catastrophic impairment under criterion 8, as a result of the accident. At paragraphs 13 and 14, the Tribunal set out the legal test, with reference to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th Edition, 1993. The Tribunal noted that the onus is on the applicant, and that catastrophic impairment is a legal test which requires consideration of medical evidence. At paragraphs 15 and 16, the Tribunal summarized the opinions of Dr. Parekh and Dr. Sivasubramanian. At paragraph 17, it noted that the parties agreed the applicant does not suffer from a marked impairment in concentration, persistence and pace.

18The Tribunal considered Dr. Parekh’s assessment with respect to activities of daily living at paragraph 19. It summarized Dr. Parekh’s assessment of the applicant, including the areas where the applicant reported she was independent in functioning and those areas where she reported being dependent on her daughter. It noted Dr. Parekh had reviewed the report of the occupational therapist. It set out key findings from the occupational therapy assessment. The Tribunal then stated that it found that Dr. Parekh’s conclusion that the applicant’s functioning was class 4 failed to consider her ability to do some useful functioning, as had been noted in his own report.

19At paragraph 20, the Tribunal set out its reasons for preferring Dr. Sivasubramanian’s opinion. The Tribunal found that a Class 3 rating was in line with the evidence of the applicant’s ability to achieve some useful functioning. At paragraph 21, the Tribunal set out its reasons for giving more weight to Dr. Sivasubramanian’s report, noting the “inconsistency” in Dr. Parekh’s report in light of the applicant’s level of functioning.

20Read in context, I find the Tribunal’s finding on this point is clear and well-reasoned. The Tribunal accepted both expert reports into evidence. It gave less weight to Dr. Parekh’s opinion because it found he did not consider the applicant’s useful functioning as identified in his own assessment report, which the Tribunal found to be an inconsistency. The Tribunal preferred Dr. Sivasubramanian’s opinion because it found it was more consistent with the evidence of the applicant’s ability to function.

21At paragraphs 22 and 23, the Tribunal considered Dr. Parekh’s report and finding that the applicant suffers a class 4 impairment in social functioning. The Tribunal set out its reasons for finding the applicant’s impairment level is consistent with some, but not all, useful functioning. In so doing, the Tribunal referenced the fact the applicant reported having attended two weddings, travelled to Sri Lanka, visited family, goes to temple on special occasions, continues to have close family relationships and is active on social media.

22At paragraph 24, the Tribunal found that the applicant had not satisfied the requirements for a catastrophic impairment designation under Criterion 8 based on its assessment of the other spheres of functioning. It noted that neither party had assessed the applicant with a marked impairment (level 5) in the area of adaption, and therefore the applicant had not met her onus to establish she is catastrophically impaired. Having considered the applicable legal principles and evidence, the Tribunal had reached its conclusion. There is no requirement for the Tribunal to make a finding on a question that is not determinative of the outcome.

23As noted above, the Tribunal is not required to cite every piece of evidence, authority or submission in its decision. I find that the Tribunal identified what it viewed as the key considerations, submissions and evidence of relevance to the determination of catastrophic impairment, and addressed them in clear, cogent, and internally consistent reasons.

Attendant Care Benefit

24I find the applicant has not established grounds for reconsideration with respect to attendant care benefits for the following reasons.

25The applicant submits that the reasons for the Tribunal’s determination with respect to attendant care do not refer to the oral evidence given at the hearing, and that the reasons suggest the Tribunal only relied on expert reports. She argues that the reasons do not explain why the Tribunal preferred the report of respondent’s expert, Ms. Birbrager. She submits that the Tribunal states a conclusion without reasons. She also argues that the reasons provided for not agreeing with the assessment of Ms. Poon fail to account for the unpredictable nature of the applicant’s “good days and bad days”. The applicant submits that the reasons for determining that attendant care was not incurred ignore the fact the applicant was kept in the Minor Injury Guideline (MIG) until September 13, 2022 and therefore was unable to incur attendant care until this date. She also argues that the reasons do not address section 3(8) of the Schedule, which she relied on at the initial hearing.

26The Tribunal’s reasons with respect to attendant care benefits are set out at paragraphs 26 to 36. They are adequate and reveal no error of law or material breach of procedural fairness. At paragraph 26, the Tribunal found the applicant had not met her evidentiary burden in relation to attendant care benefits. At paragraph 27, the Tribunal set out the legal test. At paragraphs 28 to 31 the Tribunal set out amount being claimed by the applicant, the non-catastrophic limit for attendant care benefits in the Schedule, and summarized the report of the applicant’s expert, Ms. Poon, occupational therapist. The Tribunal noted, at paragraph 29, that there were contradictions in Ms. Poon’s report of the applicant’s capabilities which Ms. Poon explained because the applicant has “good days” and “bad days”. The Tribunal also noted that the applicant had testified that her “good” and “bad” days are influenced by pain injections. It found that the estimate for attendant care assistance recommended by Ms. Poon did not consider that the applicant did not require attendant every day. The Tribunal noted at paragraph 30 that the respondent’s expert, Ms. Birbrager, occupational therapist, concluded that the applicant did not require attendant care. The Tribunal concluded at paragraph 31 that having considered the occupational therapists’ reports, it was not persuaded that the applicant is entitled to attendant care benefits.

27While the applicant argues the reasons do not explain why the Tribunal preferred the respondent’s expert report, I do not agree that this is grounds for reconsideration. It is the applicant’s onus to demonstrate entitlement to the benefit claimed. The Tribunal set out the reasons why, based on the legal test and the evidence before it, it was not persuaded that the applicant was entitled to attendant care benefits.

28The applicant also argues that the reasons suggest that the Tribunal only considered expert reports, not oral testimony. While there is no requirement to cite oral testimony, I note that the Tribunal refers, at paragraph 29, to the applicant’s testimony with respect to her medical injections for pain. While I agree that the Tribunal does not refer to the oral testimony of the parties’ experts and instead references their reports, this does not render the reasons inadequate, it is not an error, and therefore it is not grounds for reconsideration.

29With respect to the applicant’s argument that the Tribunal failed to consider section 3(8) in its decision, I agree with the applicant that the Tribunal did not address section 3(8). I do not, however, find that this is grounds for reconsideration for the following reasons.

30At paragraph 32, the Tribunal noted that even if it found the applicant was entitled to attendant care benefits, she would not be able to recoup expenses that were not incurred. At paragraphs 33 to 36, the Tribunal set out the relevant legal test and why it found the applicant the expenses were not incurred, and therefore the applicant was not entitled to attendant care benefits.

31On reconsideration, the applicant argues the Tribunal ignored the fact that the respondent kept the applicant in the MIG until September 13, 2022. The applicant argues that she was unable to incur the benefits because she was kept in the MIG.

32Section 3(8) provides the Tribunal with the authority to deem expenses to have been incurred if it finds that the expenses were not incurred because the respondent unreasonably delayed or withheld payment. The onus is on the applicant to demonstrate that she is entitled to the underlying benefits claimed.

33As noted above, Rule 18.2(b) sets out a two-part test that the requestor must meet. The first part of the test is that there the Tribunal made an error of law or fact. The second part of the test is that the error is such that the Tribunal would likely have reached a different result had the error not been made. In this case, I find the applicant has not established an error of law or fact for two reasons. First, she has not submitted any evidence on reconsideration, such as a transcript, that demonstrates what submissions were made at the initial hearing. Second, at the initial hearing the applicant failed to establish that she required attendant care assistance. Section 3(8) does not authorize the Tribunal to deem an attendant care expense incurred if there is no underlying benefit. Therefore, I find the Tribunal did not err in not considering entitlement under section 3(8).

34Furthermore, I find that even if the Tribunal did err, the applicant has not established that such an error would likely have changed the outcome of the case. As the applicant had not established entitlement to the attendant care benefits, the failure to consider her submissions pursuant to section 3(8) would not likely have changed the outcome of the decision.

35Finally, as the Tribunal had established the applicant was not entitled to the attendant care benefits, it was not a material breach of fairness to not include a reference to section 3(8) in its reasons.

36For the reasons set out above, I see no error and no material breach of procedural fairness with respect to the Tribunal’s denial of attendant care benefits.

Award

37I also find the applicant has not established grounds for reconsideration with respect to an award under section 10 of Regulation 664.

38The applicant submits that there was never any agreement that the respondent could avoid a special award by removing the applicant from the MIG and reinstating IRBs late in the day. The applicant submits that the respondent reinstated IRB benefits and paid arrears on the advice of counsel. She submits that this took place in January 2023. The applicant submits that her counsel made submissions about these issues in relation to the special award at the hearing.

39While it is not clear from her reconsideration submissions, it appears that in addition to disagreeing with the outcome, the applicant is arguing that the Tribunal made an error of fact or law with respect to the award. The applicant submits that:

The decision is wrong in the sense that simply because [the Adjudicator] did not find any entitlement to benefits that there is no entitlement to a special award. This ignores the issue with IRBs, the MIG, and the fact that the Applicant was prevented from incurring attendant care.

40Section 10 of Regulation 664 provides that, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award up a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, with interest. The power to make such an award is discretionary.

41At paragraph 40, the Tribunal found that as the applicant was not entitled to the benefits in dispute, there was no basis for an award. I see no error in this finding. As set out above, the Tribunal found the applicant was not entitled to attendant care benefits, and the issues of MIG and IRB were not before the Tribunal at the hearing. The applicant submits she made arguments about the section 10 award at the hearing. This means that the Tribunal heard the applicant’s arguments and made its decision that there was no basis for an award. I find the applicant is attempting to re-argue her case, which is not grounds for reconsideration.

42For the reasons set out above, I find that the applicant has not met her onus to establish grounds for reconsideration. She has not shown that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness. She has not identified an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

CONCLUSION & ORDER

43The applicant’s request for reconsideration is dismissed.

E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal