Tarek Nayef v. Aviva Insurance Company of Canada, 2024 CanLII 46907

Citation: Nayef v. Aviva Insurance Company of Canada, 2024 ONLAT 22-001964/AABS - R

RECONSIDERATION DECISION

Before: Trina Morissette

Licence Appeal Tribunal File Number: 22-001964/AABS

Case Name: Tarek Nayef v. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Rayian Nayef, Counsel

For the Respondent: Kevin So, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant in this matter on December 6, 2023. It arises out of a November 17, 2023 decision (“decision”) in which Adjudicator Driesel and I found that the applicant was not entitled to a non-earner benefit (“NEB”) or interest.

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 submits his request for reconsideration based upon Rules 18.2(a) and (b) and seeks to:

i. vary the decision in that the applicant is entitled to the NEB in dispute as well as interest; or

ii. in the alternative, to cancel the decision and order a rehearing on all the matters in dispute.

4The respondent argues the request for reconsideration should be dismissed.

RESULT

5The applicant’s request for reconsideration pursuant to Rule 18.2 is granted.

6Pursuant to Rule 18.4, the decision of November 17, 2023 is confirmed.

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.

8The thrust of the applicant’s submissions under Rule 18.2 is that the Tribunal erred in failing to consider the applicant’s evidence contained in the treating medical providers’ clinical notes and records. He submits that “not a single mention of the applicant’s medical evidence” in the decision “can be pointed to” which “ostensibly” concludes that none of the applicant’s medical evidence was considered. This, he argues, amounts to an error in fact and in law pursuant to Rule 18.2(b) and also a breach of procedural fairness pursuant to Rule 18.2(a). He also submits that there is no discussion of how the evidence was weighed and that this misapprehension of the evidence rises to the level of being an error in law and a breach of procedural fairness.

9The respondent argues the applicant has not shown that any of the Rule 18.2 criteria for reconsideration have been met. It submits that while the applicant seems to argue that the Tribunal failed to consider the medical evidence filed by the applicant, this is not supported by the decision. It also submits that the applicant is attempting to relitigate the weighing of the evidence.

10For the reasons that follow, I agree with the applicant that the decision does not mention the medical evidence put forward by the applicant at the hearing nor does it assign weight to this evidence. I find the applicant has established grounds for reconsideration pursuant to Rule 18.2(a). I agree the reasons provided are inadequate and constitute a material breach of procedural fairness.

Rule 18.2(a) - Material breach of procedural fairness

11I find the Tribunal’s decision constitutes a material breach of procedural fairness for the following reasons.

12In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (“Baker”), the Supreme Court of Canada indicated at paragraph 22 that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” Baker goes on to state that “reasons facilitate meaningful judicial review by shedding light on the rationale for a decision” (at para. 39).

13In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), the Supreme Court explained that a decision-maker’s reasoning may affect both the substantive reasonableness and the procedural fairness of a decision (at para. 81).

14Here, in his reconsideration submissions, the applicant concedes a decision-maker is not obliged to refer to every piece of evidence it considered in making its decision, but he adds that this is the case “so long as medical evidence is considered and then summarized in one’s reasons” (G.I. v. The Guarantee Company of North America, 2021 ONLAT 18-006205/AABS-R at para. 18). The applicant submits that in this decision, there is not a single mention of the applicant’s medical evidence.

15I agree with the applicant. The Tribunal’s reasons are based primarily on the medical evidence put forward by the respondent and the oral evidence provided by the applicant and the applicant’s son. Although the decision alludes to the applicant’s medical evidence at paragraph 22 where it summarizes the applicant’s testimony and states: “[h]is account of the accident remains consistent as reported to assessors and his many doctors”, it does not mention what this evidence is, and does not set out how it weighed the medical evidence in coming to its conclusion.

16As such, I find that the applicant’s grounds for reconsideration have been established on the basis of Rule 18.2(a). The reasons provided in the decision are not adequate and this amounts to a material breach of procedural fairness.

17Having found the applicant successful in his grounds for reconsideration pursuant to Rule 18.2(a), it is not necessary to undertake an analysis under Rule 18.2(b).

Rule 18.4 – Outcome of Reconsideration

18Rule 18.4 provides that upon reconsidering a decision of the Tribunal, the Tribunal may dismiss the request, or, after providing the responding parties with an opportunity to make submissions, confirm, vary or cancel the decision or order, or order a rehearing on all or part of the matter. Having found that the applicant has established grounds for reconsideration, I will now turn to the outcome of the reconsideration.

19For the reasons that follow, I am confirming the decision that the applicant is not entitled to a NEB or related interest.

20The applicant submits that having not mentioned any of his medical evidence in the decision “ostensibly” concludes that none of the applicant’s medical evidence was considered in rendering the decision. In support of this submission, the applicant relies on paragraph 16 of the decision which states:

[16] We agree with the respondent and find that the applicant has not provided evidence to show he meets the disability test for a NEB. He has failed to advance any medical evidence to show that he has any physical or psychological injury resulting in a complete inability to carry out a normal life.

21The applicant also points to paragraph 23 of the decision where the Tribunal states:

His testimony alone was not supportive of the Heath test or his entitlement to a NEB because he could not provide us with any evidence that he could not carry on a normal life after the accident. As we have noted above, he also failed to provide a medical or professional opinion that he suffers a complete inability which may have supported his claim to the NEB.

22In support of this submission, the applicant specifically references what he characterized as the most relevant evidence submitted by way of examination-in-chief of the applicant.

23While I agree that the Tribunal committed a breach of procedural fairness by not mentioning or providing reasons regarding the weight afforded to this evidence, I do not agree that the applicant’s medical evidence was not considered by the Tribunal, as I was on the panel of adjudicators that conducted the hearing and deliberated on the matter.

24That being said, the reasons provided by the panel at first instance were not sufficient. Accordingly, pursuant to Rule 18.4, I will reconsider the applicant’s medical evidence submitted at the hearing and referenced by the parties in their reconsideration submissions. While my reconsideration of the evidence confirms the result from the initial decision, I have provided reasons for why the applicant’s evidence is not compelling to show that he had a physical or psychological injury resulting in a complete inability to carry out a normal life.

The legal test for a NEB

25As set out in the initial decision, section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

26The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391, which generally focuses on comparing the applicant’s pre- and post-accident activities. The burden of proving entitlement to a NEB lies with the applicant.

27In the Tribunal’s initial decision, it found, at paragraph 24, that pursuant to Heath, the applicant failed to demonstrate that he suffers a complete inability to carry on a normal life as a result of the accident. Part of the medical evidence put forward by the applicant at the hearing, and specifically referenced in his reconsideration submissions, does not change that finding. This evidence consists of the following.

1. Consultation report by Dr. Roman D. Jovey (CPM Centres for Pain Management) dated August 30, 2018

28In the applicant’s reconsideration submissions, he states that the consultation report prepared by Dr. Jovey, about a year and a half prior to the accident and submitted as evidence at the hearing, mentioned that the applicant was able to do all his activities of daily living and that he would walk around the block at least once daily before the accident.

29The respondent submits that this report has no bearing on whether the applicant meets the test for the NEB. The applicant makes no submissions on this piece of evidence; he merely cites it. The respondent further submits that the applicant ignores ample medical evidence cited by the Tribunal that suggested the applicant is capable of performing his activities.

30At the hearing, the Tribunal heard that the applicant had a history of medical issues, supported by his medical documentation, including osteoarthritis, COPD, severe sleep apnea, a right knee surgery in 2011, multi-level degenerative disc disease in his spine, and received psychiatric treatment since 2015 for the management of depression and anxiety related to his pain.

31The Tribunal also heard that the applicant was in a prior motor-vehicle accident in 1990. The applicant’s description of the 1990 accident is provided in a report prepared by Dr. Harmanjit Sandhu, pain specialist, who assessed the applicant in October 2019 and which will be discussed further below. Dr. Sandhu stated in his report that the applicant described the accident as: “he was thrown by the impact of the collision and experienced a loss of consciousness of unknown duration and was taken to the emergency department of the local hospital where he was later discharged in stable condition. He has experienced constant neck, low back and right knee pain which he had ‘learned to live with it’.”

32At the hearing, the applicant testified that despite his medical history and the impairments sustained in the 1990 accident, his pain persisted as “tolerable” and, as described in Dr. Sandhu’s report, the applicant “knew his limitations and learned to live with them.” The applicant testified that he managed his health problems and “was totally functional”.

33The applicant submits in his reconsideration request that this is supported by Dr. Jovey’s report prepared a year and a half prior to the accident which concluded the applicant could do all activities of daily living.

34The Heath test requires a comparison of the applicant’s pre- and post-accident activities. In this sense, Dr. Jovey’s report is relevant as is his conclusion that the applicant could do all activities of daily living at this period of time before the subject accident. The analysis in Dr. Jovey’s report, however, must be taken in its full context. On this point, in addition to the submissions put forward by the applicant, Dr. Jovey’s report also states the following:

[The applicant] complains of four main sources of pain:

1. Right shoulder pain. He has had this pain for about a year. It was of gradual onset, which is worse with activity and better with rest. He did see an orthopaedic surgeon for an assessment. He has not had any injections or other specific treatments.

2. Neck and shoulder girdle pain. He has had these since about 1990, when he had a motor vehicle collision. He apparently was changing a tire on the side of a highway and was hit by a car. This pain is worse with twisting his neck, looking up, and better with rest with a support. It is present all the time but gets better and worse with certain activities.

3. Low back pain. He has had low back pain since 1990. This is a constant deep ache with flares of sharp pain when he moves certain ways. He occasionally gets shooting pain down his right leg as far as his toes, accompanied by some tingling.

4. Knee pain. He also complains of bilateral knee pain due to known osteoarthritis. This is worse on the right than his left. This is an achy pain, which is worse with weightbearing and cold weather. It is better with rest and in the warm weather.

Function

He can do all activities of daily living, although sometimes had difficulty getting shirts or sweaters on and off. He tends not to do any shopping or housework and relies on his son to help out. He does use a cane to walk all of the time. He tries to walk around the block at least once daily. He tries to lift some light hand weights at home.

35Also relevant are Dr. Jovey’s clinical notes and records (“CNRs”) dated August 29, 2018, the day prior to the preparation of his report, referenced by the respondent at the hearing, where the applicant responded to questions on his disability level for seven activities on a scale from 0 to 10, “with 0 being no disability and 10 being worst disability.” In six of the seven activities, the applicant rated his disability level at a 10/10 with these activities being Family/Home Responsibilities (chores, errands, favours for family members, etc.); Recreation (hobbies, sports, etc.); Social Activity (parties, theater, concerts, dining out, other social functions, etc.); Occupation (activities that are part of or directly related to job including house wife and volunteering); Sexual Behavior (frequency and quality of sex life); and Life-Support Activities (eating, sleeping, breathing, etc.). In one of the listed activities (Self Care – personal maintenance, independent daily living), the applicant rated his disability level at 9/10.

36During this same visit, the applicant completed a short form survey (SF-12) with the following results:

1. In general would you say your health is: “Poor”

2. Moderate activities such as moving a table, pushing a vacuum cleaner, bowling, or playing golf. “YES, limited a lot”

3. Climbing several flights of stairs. “YES, limited a lot”

4. During the past 4 weeks, how much of the time have you accomplished less than you would have liked as a result of your physical health? “All of the time”

5. During the past 4 weeks, how much of the time were you limited in the kind of work or other regular daily activities you do as a result of your physical health? “All of the time”

6. During the past 4 weeks, how much of the time have you accomplished less than you would have liked to as a result of any emotional problems, such as feeling depressed or anxious? “All of the time”

7. During the past 4 weeks, how much of the time did you not do work or other activities as carefully as usual as a result of any emotional problems, such as feeling depressed or anxious? “Most of the time”

8. During the past 4 weeks, how much did pain interfere with your normal work (including work outside the home and housework)? “Extremely”

9. Have you felt calm & peaceful? “None of the time”

10. Did you have a lot of energy? “None of the time”

11. [No information was provided in the photocopy submitted]

12. Has your physical health or emotional problems interfered with social activities? “All of the time”

37As the applicant argued at the hearing and on reconsideration, Dr. Jovey’s report sets the baseline for his activities of daily living prior to the subject accident.

38I find that this evidence demonstrates that despite the applicant reporting significant disability levels of functioning on the day prior to Dr. Jovey’s consultation report, Dr. Jovey concluded that the applicant was able to undertake his activities of daily living.

2. Clinical notes and records of Dr. Shokr (family physician), of Health Mantra Physiotherapy, and of Collaborative Healthcare Network

39Part of the applicant’s medical evidence put forward at the hearing includes CNRs of the applicant’s family physician and of his physiotherapy and chiropractic treatment providers. I find that, for the following reasons, this evidence is not helpful in the analysis of whether the applicant’s impairments caused him a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

40On reconsideration, the applicant submits that the CNRs of Dr. Shokr dated March 6, 2019 – one day prior to the accident – lists the applicant’s pre-existing health problems but also states that the applicant was appearing well with no abnormalities detected. The CNRs of April 1, 2019 (after the subject accident) mentions the applicant’s knee pain had been flaring lately, and was aggravated by his bending, standing, walking, and use of stairs. The applicant submits that this is the period he was attempting to engage in his normal activities and found himself unable to.

41The respondent submits that the applicant is cherry-picking minimal pieces of evidence from a brief of over 2000 pages that he believed was important. The respondent argues that there is no indication that the Tribunal ignored this evidence, and regarding the specific entries noted above, the term “well appearing” also appears numerous times in the post-accident CNRs of Dr. Shokr which, using the applicant’s own reasoning, suggests he should not be found entitled to the NEB. In response to the CNRs of April 1, 2019, the respondent submitted the note was authored at a time the applicant was receiving a NEB and does not speak to causality or functionality.

42I agree with the respondent that the note of April 1, 2019 and the additional entries by Dr. Shokr referenced by the applicant on reconsideration do not speak to whether the pains experienced by the applicant were caused by the subject accident. As noted in Dr. Jovey’s report above, the impairments noted in the CNRs were apparent several years prior to the accident. In addition, the entry of April 1, 2019 does not speak to function as it pertains to activities and engagement with carrying on a normal life and is not contemporaneous as it was authored 11 months prior to the period for which the applicant sought the NEB (being March 24, 2020 to March 7, 2021).

43In reference to the applicant’s physiotherapy treatment provider’s CNRs, the applicant points to an entry of June 25, 2019 and submits that this note states that, as a result of the accident, the applicant now suffers from increased pain and headaches and this affects his ability to perform his activities of daily living.

44The respondent submits that this entry does not speak to function nor how headaches and increased pain have caused him a complete inability to carry on a normal life. The respondent adds that this note is not contemporaneous with the period of which he seeks to be paid the NEB.

45The actual entry of June 25, 2019 states: “Subjective: Reports had MVA. Truck hit him from side. Now pain at neck, upper back, mid back, lower back and right knee. Also getting tingling and numbness at right hand. Have to use cane. Getting headaches too.” The reports of increased pain and headaches reported in the CNRs is information relayed from the applicant to his treatment provider. Contrary to the applicant’s submission, there is no finding by the provider that the increased pains were caused by the subject accident or that they were affecting the applicant’s ability to perform his activities of daily living.

46Likewise, the CNRs of the applicant’s chiropractor list the various complaints made by the applicant to his treatment provider but do not speak to causality or functionality.

47Therefore, I find that the various CNRs submitted by the applicant as evidence at the hearing, and specifically referenced on reconsideration, are not, on their own, helpful in determining whether the applicant suffered a complete inability to carry on a normal life as a result of the accident.

3. Report from Dr. Harmanjit Sandhu, pain specialist, dated October 9, 2019

48Further to the analysis of Dr. Jovey’s consultation report noted above, the applicant submits Dr. Sandhu’s report supports that, while the applicant had previously experienced neck, lower back, and right knee pain, he had “learned to live with it” and the pain persisted at a “tolerable” level until the accident. After the accident, the pain became unbearable and he began to experience holocranial headaches, nausea, photophobia, and phonophobia as a result, injuries that were non-existent prior to the March 7, 2019 accident.

49Dr. Sandhu’s report is also unhelpful in the analysis of whether the applicant sustained injuries caused by the accident that resulted in a complete inability to carry on a normal life, for the following reasons.

50First, the applicant submits that Dr. Sandhu opines in his report that cold weather, bright lights, and loud sound aggravate the applicant’s pain and that he obtains mild pain relief with rest in a quiet and dark room. However, contrary to the applicant’s submission, Dr. Sandhu did not “opine” that cold weather, bright lights, etc. aggravate the applicant’s pain. This information was reported by the applicant to the assessor.

51Second, the self-reports of the applicant’s pain and headaches do not equate to suffering a complete inability to carry on a normal life. In fact, aside from noting his impression of post-traumatic pain syndrome, Dr. Sandhu makes no objective findings as to functionality. The only mention of “function” is where Dr. Sandhu reports:

I also feel that [the applicant] would be an excellent candidate for treatment with a series of local anesthetic nerve blocks with the goal of breaking his chronic pain cycle, reducing his overall pain burden (and associated need for opioid-based medication) and improving his overall level of function and his overall quality of life.

52This is in contrast to the insurer’s examination reports (physiatry, psychiatry and occupational therapy) that are discussed in the initial decision (at paragraphs 17 to 20) and to which I assign more weight. Each of these reports were prepared following an objective assessment of the applicant’s functionality and all concluded that the applicant did not suffer a complete inability to carry on a normal life.

53Third, the applicant submits that “volunteering with parking and coaching soccer are activities that involve being in direct sunlight and dealing with loud noises, whether that be cars, honking, or children yelling. These aggravated the applicant’s headache pains and prevented him from continuing with these activities.” On this point, I agree with the respondent that the applicant is making submissions which have no basis in evidence. There was no evidence given, aside from the applicant’s own testimony, that volunteering and coaching soccer entailed loud noises and being in direct sunlight to the point that the applicant’s headaches were aggravated resulting in an inability to do these activities.

54The applicant further submits that his medical evidence, including Dr. Sandhu’s report, should be considered in the context of the applicant’s and the applicant’s son’s testimonies as to how the accident affected the applicant’s ability to perform his pre-accident activities of daily living, including doing parking control, coaching soccer, teaching ESL, going for walks, gardening, working on his car, cooking and reading. The applicant argues that, as he reported to Dr. Sandhu, he currently lives with his son, he is able to complete all grooming and showering independently but is assisted by his son with all dressing. All cooking, cleaning and care of his home is performed by his son.

55The testimonies of the applicant and his son raised issues that are discussed at paragraphs 21, 22 and 23 of the decision. For instance, the applicant had reported that his son had to leave school to take care of him, however, the son testified that he moved to Alberta in 2020, a week after the NEB was denied by the insurer. The son also testified that the applicant lives alone but frequently travels back and forth to Alberta to visit with him, evidence supported by the applicant through his testimony.

56The applicant’s son did not testify to the fact that his father now suffers from a complete inability to function and the applicant’s testimony was not compelling on this fact due to the contradictions noted at paragraphs 22 and 23 of the decision.

57Heath requires an assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period of time prior to the accident. The medical and oral evidence led concerning the applicant’s pre-accident activities and the medical evidence submitted following the subject accident was not persuasive in concluding that the applicant suffers a complete inability to carry on a normal life.

58The medical evidence of Dr. Jovey concluded the applicant could do all activities of daily living prior to the accident at a time the applicant reported significant pain in his shoulder, neck, low back and knee – limitations which the applicant noted during the short-form survey to be limiting in his regular daily activities both on a physical and emotional level “all of the time”. The medical evidence submitted following the accident was not persuasive in demonstrating that the physical and psychological limitations experienced by the applicant were distinctive from those experienced before the accident, that they were caused by the accident, and that they prevented the applicant from continuing with his activities of daily living.

59I therefore find that none of the applicant’s medical evidence submitted at the hearing was compelling or helpful in determining the applicant’s entitlement to a NEB.

Summary

60The applicant submits that, had the Tribunal considered and assigned proper weight to the medical evidence put forward at the hearing, it would have likely changed the outcome of the decision.

61For all the reasons mentioned above, I find that the applicant has failed to provide compelling evidence that he suffers a complete inability to carry on a normal life as a result of the accident.

62The applicant has not established entitlement to a NEB or related interest. I am confirming the decision of November 17, 2023 to dismiss the application.

ORDER

63The applicant’s request for reconsideration is granted.

64Pursuant to Rule 18.4, I confirm the Tribunal’s decision dated November 17, 2023. The applicant is not entitled to a NEB, and because the applicant is not entitled to the benefit in dispute, interest is not payable.

Trina Morissette Adjudicator Tribunals Ontario – Licence Appeal Tribunal