RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 18-011978/AABS
Case Name: Lucia Derenzis v. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant: Peter Murray, Counsel Ashu Ismail, Counsel
For the Respondent: Arthur R. Camporese, Counsel
OVERVIEW
1On July 18, 2023, the applicant requested reconsideration of the Tribunal’s decision dated June 27, 2023 (“decision”).
2In the decision, the Tribunal found that the applicant is not entitled to Income Replacement Benefits (IRBs) that were withheld pending her attendance at insurer’s examinations (IEs), interest, or an award under section 10 of Regulation 664. The Tribunal dismissed the application.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“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 violated the rules 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;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) 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 is seeking a reconsideration pursuant to Rule 18.2(a), (b), and (d). The applicant is seeking to have the decision cancelled, and a new decision issued finding the applicant is entitled to payment of IRBs for the period October 8, 2018 to May 30, 2021 at $400.00 per week, interest, and a section 10 award. In the alternative, the applicant requests the Tribunal order a new hearing of the matter.
5The respondent submits the request for reconsideration should be dismissed.
RESULT
6The applicant's request for reconsideration is dismissed.
PROCEDURAL ISSUES
7On August 25, 2023, the applicant filed reply submissions in relation to her request for reconsideration. The reply submissions included materials that were determined by the Tribunal to be inadmissible by reason of privilege and struck from the record by Motion Order that was released to the parties on September 20, 2023 (“Motion Order”). The following materials were struck from the record:
a. Paragraphs 6, 7, 8, 9, 10, 11, 12, 16, 17, 18 of Ms. Karina Kowal’s August 24, 2023 affidavit that accompanied the applicant’s reply submissions filed on August 25, 2023; and
b. Exhibits 3A, 3B, 3C, 3D, 3E, and 3F to Ms. Kowal’s affidavit of August 24, 2023 that accompanied the applicant’s reply submissions filed on August 25, 2023.
8The Motion Order ordered that the struck materials be withheld from the reconsideration adjudicator and that the Registrar prepare a redacted version of the applicant’s August 25, 2023 reply submissions. In keeping with the Motion Order, I have reviewed a redacted version of the applicant’s August 25, 2023 reply submissions when making this decision.
9On November 6, 2023, the respondent filed a Notice of Motion to strike paragraphs 11, 12, 13, 14, 15 and 16 of the applicant’s reply submissions, including the affidavit of Ms. Kowal sworn August 24, 2023 and exhibits thereto. There is some overlap between the Motion Order and the respondent’s Notice of Motion as some of the paragraphs in the August 24, 2023 affidavit and some of the accompanying exhibits have already been struck (as noted above) and are therefore not before me.
10In its Notice of Motion, the respondent argues that the applicant’s reply submissions improperly raise issues that should have been raised in her request for reconsideration. Specifically, the respondent argues the applicant raised reasonable apprehension of bias for the first time in her reply. It submits that in her initial submissions the applicant states that an “unbiased adjudicator” would have made different findings, but she did not raise reasonable apprehension of bias as a ground for requesting reconsideration until her submissions on reply. It argues that allowing these reply submissions would be unduly prejudicial and procedurally unfair to the responding party. The respondent argues it is entitled to know the basis for the request for reconsideration when it prepares responding submissions.
11The applicant argues the respondent’s motion should be dismissed, and the respondent should be “prohibited from bringing additional motions without prior leave as it is vexatious”. The applicant argues the motion is an abuse of process as it is the third instance in which the respondent has sought the requested relief.
12The applicant also submits the motion lacks merit as the respondent misdirects as to the purpose of the impugned paragraphs, and that it fails to address the timing at which bias allegations ought to be raised. She argues that the law with respect to bias requires it be raised as soon as it is reasonably possible to do so. She argues the only evidence before the Tribunal is the August 24, 2023 affidavit and there is no evidence it could have been meaningfully obtained earlier. The applicant also argues that paragraphs 11-16 of her reply address paragraph 6 of the respondent’s response, and do not split her case.
13I am granting the respondent’s motion.
14I agree with the applicant that the respondent first brought a Notice of Motion requesting this relief on September 15, 2023, before the release of the Tribunal’s September 20, 2023 Motion Order. As noted above, that Motion Order struck some elements of the applicant’s reply and declined to strike the reply submissions in their entirety, deferring to the adjudicator hearing the reconsideration as to the propriety of the reply. On November 6, 2023, after the release of the Motion Order, the respondent renewed its request to strike sections of the applicant’s reply submissions, as well as the affidavit of Ms. Kowal sworn August 24, 2023 and related exhibits. I find there was no abuse of process in filing the November 6, 2023 Notice of Motion. The respondent’s request for relief is now properly before me as the adjudicator hearing the reconsideration request.
15I agree with the respondent that paragraphs 11 through 16 in the applicant’s reply and the related affidavit and exhibits are improper. Rule 18.1 requires that the reconsideration request include “all submissions in support of the request which must specify the applicable criteria under Rule 18.2”. The 276 pages of submissions and exhibits provided by the applicant identify a number of arguments in support of her request for reconsideration. These arguments do not include an allegation of bias. Although the applicant references an “unbiased adjudicator” in her submissions, the applicant did not argue bias as a ground for reconsideration until her reply. Accordingly, I find that the applicant’s reply submissions advance arguments that were not made in its initial submissions and which do not comply with Rule 18.1.
16I do not agree with the applicant’s characterization that her submissions were in response to the responding submissions. The applicant had the opportunity to raise the argument of bias as grounds for reconsideration. She did not. The fact that the applicant obtained an affidavit after the request for reconsideration and response had been filed does not negate the fact that Rule 18.1 requires “all submissions in support of the request” be filed and served with the request for reconsideration. Although the applicant argues she could not have made the arguments earlier, there is no evidence before me in support of this position. The applicant did not file a motion requesting the Tribunal’s permission to add new grounds for reconsideration to her request. The applicant simply made these arguments on reply.
17I agree that the respondent is entitled to know the basis of the request for reconsideration before making its response. This is what is provided for in Rule 18.1, and what procedural fairness requires.
18For the reasons set out above, I am striking paragraphs 11 through 16 of the applicant’s reply submissions, the affidavit of Ms. Kowal sworn August 24, 2023, and exhibits thereto. I am striking these materials on the grounds that they go to the bias arguments raised by the applicant on reply.
ANALYSIS
19The 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(d)
20I will first consider the applicant’s arguments under Rule 18.2(d) regarding introducing new evidence as the applicant relies on that evidence in her arguments under Rule 18.2(a) and (b).
21The test under Rule 18.2(d) is that 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. The onus is on the requestor to establish grounds for reconsideration.
22I find the applicant has not established grounds for reconsideration under Rule 18.2(d) for the following reasons.
23The applicant has submitted a series of documents found in Exhibits 6, 7, and 10 through 16 of her reconsideration submissions dated July 18, 2023. The applicant submits that on April 14, 2023, after the hearing and as a result of a summons in Tribunal file number 17-002762/AABS, the respondent’s agent, Rapid Interactive Disability Management Ltd (“RIDM”), produced additional documents. The applicant submits that as a result, she discovered there were emails that had not been disclosed by the respondent, contrary to the Case Conference Report and Order (“CCRO”) dated March 20, 2020.
24The respondent argues that the applicant has not established that this evidence meets the test in Rule 18.2(d). It submits Exhibits 6, 10, 12, 13 and 14 are not new evidence as the applicant either had them, they would have been available to the applicant prior to the hearing, or they would have been available on a motion. It also objects to the characterization of Exhibit 7 as new evidence. It notes that it was referenced in a log note which was available before the hearing, and that the essence of the email is captured in paragraph 76 of the Tribunal’s decision. It submits that Exhibits 11 and 15 have no bearing on the issues before the Tribunal at the initial hearing. It submits that Exhibit 16 contains draft reports, and Dr. Walsh’s final report dated September 13, 2016 was provided to the applicant.
25In support of her argument that this evidence meets the test under Rule 18.2(d), the applicant points to the Tribunal’s finding, at paragraph 121, that the applicant had all relevant documents as a result of numerous PIPEDA access requests. The applicant argues that this finding is not true. She argues that the new evidence demonstrates that the respondent and RIDM conspired not to comply with the Personal Information Protection and Electronic Documents Act, S.C, 2000, c.5 (PIPEDA), and this would have likely affected the outcome of the decision. She also argues the productions contain an email directing RIDM to instruct Dr. Czok to include a comment in her report indicating if the applicant requires a Functional Abilities Evaluation (FAE), which Dr. Czok did not do. The applicant submits that because the Tribunal did not have this email, it came to an erroneous conclusion about whether the FAE was reasonable and necessary.
26The applicant also argues that, based on the productions in 17-002762/AABS, “an unbiased adjudicator” would have appreciated that the respondent failed to comply with section 44 of the Schedule; the dominant purpose of the IE assessments was for litigation, which is an abuse of process; the respondent did not comply with section 44(9)2.ii; and the respondent failed to arrange any assessments in accordance with section 44(5) of the Schedule as the productions show the role of RIDM was not to “schedule” examinations but as an intermediary to obstruct the conduct of assessments.
27I find that the Exhibits referenced by the applicant do not meet the test under Rule 18.2(d). First, the applicant has not shown that they could not have been obtained previously by the applicant. The test is not whether they were obtained previously, but that they could not have been obtained previously. I agree with the respondent that Exhibits 6, 7, 10, 12, 13 and 14 are not new, and the applicant either had the documents, or was aware of their contents prior to the hearing. Exhibits 11 and 15 are not relevant to the issues in dispute in the proceeding. The applicant was provided with a copy of Dr. Walsh’s final report dated September 13, 2016 before the initial hearing, and has not shown how the draft reports in Exhibit 16 meet the test in Rule 18.2(d).
Rule 18.2(b)
28The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. I find the applicant has not established grounds for reconsideration for the following reasons.
Test for providing information and documentation
29The applicant argues the Tribunal erred in law in failing to apply the mandatory requirements set out in the Schedule to the respondent. She argues the Tribunal failed to appreciate there is no requirement to provide an insurer with any documentation, and all that is required under section 44(9)2 is that an insured person provide the person conducting the examination with relevant information and documents. The applicant argues the Tribunal failed to apply the test as to whether there was relevant and necessary information in the respondent’s control. She submits that if the Tribunal had applied the proper test, the Tribunal would have concluded the respondent failed to comply with section 44(9)2. She argues that absent strict compliance with section 44(9)2, the applicant was not required to attend the assessments at any point.
30The respondent argues the applicant did not make submissions on section 44(9)2 at first instance and is advancing a new argument. It also argues the Tribunal did consider section 44(9)1, which contains essentially the same language as section 44(9)2(ii). It argues that the same interpretation and finding would apply to both sections. The respondent notes the applicant’s submissions on section 44(9)2(ii) appear to be the same as made on section 44(9)1 at the hearing, and that the Tribunal has already considered and rejected those submissions.
31I find the applicant has not established grounds for reconsideration. At paragraph 118, the Tribunal addressed the requirements of section 44(9)1 of the Schedule. The Tribunal noted that section requires both the insurer and the insured person to provide the IE assessor with such information and documents that are relevant and necessary for the review of the insured person’s medical condition. The Tribunal noted this is an equal obligation on both parties. It did not find there is an obligation to provide the insurer with documentation. It found there is a requirement that both the insurer and the insured person provide information and documentation to the IE assessor, which is in keeping with the language of the Schedule.
32I agree with the respondent that reconsideration is not an opportunity to make new arguments. Furthermore, sections 44(9)1 and 44(9)2(ii) contain the same language regarding the duty to provide relevant information and documentation to assessors. As in section 44(9)1, section 44(9)2(ii) requires that the insured person and the insurer shall provide such information and documents as are relevant or necessary for the review. Given that this is the language already considered by the Tribunal in its decision, I find that even if the Tribunal erred, such an error would not have likely changed the outcome of the decision.
IE Notices
33The applicant argues that at paragraphs 61 to 71 of the decision, the Tribunal failed to assess whether each of the notices of IEs complied with the Schedule. She submits the Tribunal created a new test of whether the notices complied on a “cumulative basis”. She argues it is necessary to evaluate whether the notice for each assessment meets the requirements of the Schedule. The applicant cites Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 in support of her argument that the Tribunal’s approach constitutes a significant error of law. She also cites B.M. v. Unica Insurance Inc., 2020 CanLII 72512 (ON LAT). The applicant argues that “an unbiased adjudicator for an unbiased Tribunal” would not have taken the approach in the decision.
34The respondent submits that it is clear from the Tribunal’s decision that it reviewed all the notices that were relevant to the determination that the applicant was not entitled to an IRB for the period October 8, 2018 to May 30, 2021. The respondent argues that the Tribunal correctly set out the notice requirements prescribed by section 44(5) of the Schedule and relied on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT). It submits the Tribunal did not err in finding the notices met the requirements of the Schedule.
35I address the references to “unbiased adjudicator” in my analysis of the applicant’s arguments pursuant to Rule 18.2(a) below.
36I find the Tribunal did not err in its assessment of the IE notices. The Tribunal did not create a new test of whether the notices complied on a “cumulative basis”. The Tribunal considered the adequacy of each IE notice and found that each one was compliant with the Schedule.
37Specifically, at paragraph 62, the Tribunal set out the applicable legislation and legal principles as set out in M.B. v. Aviva. At paragraph 63, the Tribunal reviewed the notice of March 3, 2017 and found it complied with the notice requirements. At paragraph 65, the Tribunal reviewed the notices from October and November 2017 and found they were compliant. At paragraph 66, the Tribunal reviewed the June 13, 2018 notice and found it was compliant. In so doing, the Tribunal referenced the contents of the notice, and the fact the applicant had also received notices in March, October and November 2017, as well as June 27, 2018 correspondence from the respondent’s adjuster. At paragraph 67, the Tribunal reviewed the notice dated September 13, 2018 and found it was compliant. At paragraph 68, the Tribunal reviewed the September 24, 2018 notices for a couple of the rescheduled IE assessments. It found these notices complied with the Schedule. At paragraph 69, the Tribunal reviewed the October 1, 2018 notice and found it was compliant. In so doing, it noted the sufficiency of an IE notice is apparent on its face. The Tribunal considered and rejected the applicant’s argument that the notice was deficient “because of testimony provided years later”.
38At paragraph 71, the Tribunal noted that “[a]nother reason the applicant objected to the notices appears to be that the respondent did not just accept the medical documents and reports obtained by the applicant as evidence that she meets the test for post-104 week IRBs and catastrophic impairment determination”. In considering the applicant’s objection, the Tribunal noted that there is no requirement in the Schedule for the respondent to provide the specific type of medical reasons the applicant’s representative was seeking. It was in this context that the Tribunal referenced the “information provided in the cumulative IE notices” as satisfying the respondent’s obligations. In other words, after reviewing each notice and finding that each notice complied with the Schedule, the Tribunal stated that the information provided in the cumulative IE notices satisfied the respondent’s obligations.
39In sum, I find that while the Tribunal looked at the notices in the context of all the information provided to the applicant, it nonetheless reviewed each notice individually and found each one to be compliant with the Schedule. I see no error in the Tribunal’s analysis. It reviewed the notices and determined that the respondent had satisfied its obligations. The Tribunal gave comprehensive and detailed reasons for its findings.
40Accordingly, I find the applicant has not established grounds for reconsideration with respect to the IE notices.
Errors of Fact
41The applicant argues that the Tribunal made errors of fact that constitute errors of law because they were made without supporting evidence. She argues that some of the errors of fact made by the Tribunal constitute errors of law. She does not identify which alleged error(s) of fact constitute error(s) of law.
PIPEDA Requests
42The applicant argues the Tribunal erred in fact in determining that making a PIPEDA access request meant that the applicant had received all documents. The applicant submits this is a conclusion unsupported by any evidence of compliance with the requests. The applicant submits that the new evidence it argues meets the test under Rule 18.2(d) demonstrates that the Tribunal’s finding is incorrect. She submits the new evidence shows the respondent directed its agent RIDM not to comply with PIPEDA, and did not allow assessors to comply with the Tribunal’s production order dated March 20, 2020.
43The respondent submits that the Tribunal actually found that the applicant had “all relevant documents” based on her submissions and evidence. It submits that the Tribunal’s finding was supported by the evidentiary records. It also argues that this is not a material fact, and any error would not have resulted in a different outcome.
44I find that at paragraph 121, the Tribunal noted that the applicant had legal representation, had demonstrated she was capable of making numerous PIPEDA requests and therefore had “all the relevant documents” for the purposes of providing them to the IE assessors. The Tribunal was not making a finding of compliance with the PIPEDA request, it was noting that the applicant had demonstrated her ability, through her legal representation, to submit relevant documentation to the IE assessors. I see no error of fact in the Tribunal’s finding, with or without the evidence the applicant sought to introduce under Rule 18.2(d). Furthermore, I find that even if the Tribunal had erred, this would not likely have changed the outcome of the decision. In its decision, the Tribunal determined that whether or not medical records were disclosed as part of a PIPEDA request did not merit a special award.
45The applicant has not established grounds for reconsideration with respect to the PIPEDA requests.
Functional Capacity Examination
46The applicant argues the Tribunal erred in fact in finding that a functional capacity examination is “reasonable and necessary”. She specifically points to paragraph 75 of the decision where the Tribunal acknowledged that Dr. Sivasubramanian, psychologist, found the applicant met the criteria for IRBs based on his psychological assessment. The applicant also points to the evidence of Dr. Karabatsos, and new evidence she sought to introduce under Rule 18.2(d) that Dr. Czok, physiatrist, was asked to note in her report if a functional capacity assessment was required and chose not to do so. The applicant argues the evidence points to a functional capacity examination not being necessary for the respondent to determine entitlement to IRBs, and it was an error of fact to make such a finding. She further argues the Tribunal engaged in speculation in the decision that was based on an assumption that is counter to the facts.
47I see no error in paragraph 75 of the decision. The Tribunal undertook a comprehensive analysis of whether the number and type of IEs were excessive and unreasonable and concluded they were not. The Tribunal’s reasons at paragraph 75 are part of that analysis. It did not engage in speculation or make assumptions counter to the facts. I find that the Tribunal’s reasons are clear and cogent and provide the reasons why it found the functional capacity assessment was reasonably necessary.
48In support of her argument, the applicant also points to evidence which I have already found does not meet the test in Rule 18.2(d). Even if the evidence did meet the first part of the test in Rule 18.2(d), I find the fact that Dr. Czok did not comment on whether a functional capacity assessment was needed would not likely change the Tribunal’s finding that it was. I find the applicant is asking the Tribunal to reweigh the evidence and has not established grounds for reconsideration.
Rule 18.2(a)
49The applicant also seeks reconsideration under Rule 18.2(a). The test in Rule 18.2(a) is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
50I find the applicant has not satisfied the legal test for a reasonable apprehension of bias for the following reasons.
51While the applicant refers to the fact an “unbiased adjudicator at an unbiased Tribunal” would have made different findings than the adjudicator in this case, she did not argue bias in the submissions that accompanied her request for reconsideration. As noted above, it is only on reply that the applicant argues bias as grounds for reconsideration. These reply submissions are subject to my procedural order as outlined above, and several of the exhibits upon which the applicant relies are also the subject of the Tribunal’s September 20, 2023 Motion Order and are therefore not before me. I have considered only the references to bias in the applicant’s reconsideration request, not the new argument made on reply.
52The test for whether a reasonable apprehension of bias, as set out by the Supreme Court of Canada, is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394.
53In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45 at para. 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging actual or a reasonable apprehension of bias must establish the presence of serious and substantial grounds. Because bias allegations call into question the personal integrity of the adjudicator and the integrity of the administration of justice, establishing bias requires cogent evidence. Suspicion or conjecture is not enough: R v. S(RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 117. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: Ontario Provincial Police v. MacDonald, 2009 ONCA 805.
54I find that the applicant in this case has not met her onus to demonstrate a reasonable apprehension of bias. She has not cleared the high threshold for rebutting the strong presumption of impartiality. The applicant has simply referenced what an “unbiased adjudicator” would find, thereby implying the adjudicator who made the initial decision is biased. The applicant has not established the alleged facts that underlie the implied allegation of bias. She has not substantiated her argument. I find no reasonable apprehension of bias on the part of the adjudicator.
55The applicant’s remaining arguments under Rule 18.2(a) essentially repeat the arguments made under Rule 18.2(b) and (d) with respect to PIPEDA requests and the need for IE assessments. I have already addressed the applicant’s arguments with respect to the PIPEDA requests. The applicant also argues the Tribunal made a mistake of fact at paragraph 63 as to the reasons for the assessments. She argues none of the assessments mentioned massage therapy or physiotherapy for determining IRBs. She argues the Tribunal placed the onus of proving it was possible for an occupational therapist to complete a FAE on the applicant. The applicant also argues that without any evidence of the need for a physical examination, and in direct conflict with the evidence, the Tribunal made a finding that an orthopaedic assessment was reasonable and necessary.
56The respondent submits that the Tribunal did not make a mistake of fact at paragraph 63. It submits the March 2017 notices reference the applicant’s physiotherapy and massage therapy treatments and also mention the need for assessments to determine entitlement to IRBs. The respondent also submits the Tribunal did not impose a reverse onus on the applicant by accepting the evidence of Ms. Sampaio and Ms. Greco that none of the occupational therapists at their clinics have the same experience of Ms. Ross, who was qualified to conduct FAEs and vocational assessments. The respondent submits the applicant is asking the Tribunal to reweigh the evidence.
57I find the applicant’s arguments do not establish grounds for reconsideration under Rule 18.2(a). The applicant’s submissions appear to take issue with the Tribunal’s findings of fact and weighing of the evidence, and do not raise any jurisdictional issues or violations of procedural fairness.
58For the reasons set out above, I find that the applicant has not established grounds for reconsideration under Rule 18.2(a).
CONCLUSION & ORDER
59The applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 16, 2024