RECONSIDERATION DECISION
Before:
Nadia Mauro
Licence Appeal Tribunal File Number:
22-012685/AABS
Case Name:
Clara MacKinnon-Cabral v. TD General Insurance Company
Written Submissions by:
For the Applicant:
Sabrina L Seibel, Counsel
For the Respondent:
Ryan Bowes, Counsel
OVERVIEW
1On November 26, 2024, the applicant requested reconsideration of the Tribunal’s decision dated November 5, 2024 (“decision”).
2In the decision, I found that the applicant was not entitled to a treatment plan for physiotherapy services, interest, or an award. I also denied the applicant’s motion to exclude s. 44 insurer examination (IE) reports of Dr. Raymond Zabieliaukas, physiatrist, dated November 23, 2017, and Dr. Jamie Rusen, orthopedic surgeon, dated February 28, 2023.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“LAT 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’s request for reconsideration is grounded in Rule 18.2(a) and (b). The applicant seeks an order preventing the respondent from relying on the s. 44 IE report of Dr. Rusen, an order that she is entitled to the physiotherapy services, plus interest, and an order that the respondent is liable to pay an award.
5The respondent opposed the applicant’s request for reconsideration on the basis that there were no errors of fact or law in the decision. The respondent also submitted that the applicant was not prejudiced by the consideration of the respondent's expert reports and was afforded a fair and reasonable chance to respond to same.
RESULT
6The applicant’s request for reconsideration is dismissed.
PROCEDURAL ISSUES
7Rule 18.6 of the LAT Rules state:
“Despite Rule 1.4, this Rule applies to any request for reconsideration of a decision or order issued on or after August 21, 2023, and any review on the Tribunal's own initiative of a decision or order issued on or after August 21, 2023.”
8The applicant incorrectly cited the rules pursuant to the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) (“Common Rules”) as grounds for her reconsideration request. Given that the request was made on November 26, 2024, I find that the LAT Rules apply and will consider same with respect to the test for reconsideration under Rule 18.2 of the LAT Rules.
ANALYSIS
9The 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) – Jurisdiction and material breach of procedural fairness
10The applicant submits that I acted outside of my jurisdiction and committed a material breach of procedural fairness as follows:
a) I acted outside of my jurisdiction by failing to enforce Rule 9.4 which required the respondent to seek the Tribunal’s permission to rely on late documents;
b) I violated the rules of procedural fairness by drawing an adverse inference where the applicant did not reference the late documents in her reply submissions; and
c) I violated procedural fairness by considering the respondent’s submissions with respect to the respondent’s denial letter dated December 6, 2022.
a) Jurisdiction with respect to late documents
11I find that the applicant has not established that I acted outside of my jurisdiction with respect to the late documents.
12The applicant submits that I acted outside of my jurisdiction by failing to enforce Rule 9.4 of the Common Rules, which requires that the respondent seek the Tribunal’s permissions to rely on late documents.
13In this particular case, the applicant brought a motion on March 4, 2024 to be heard at the written hearing to exclude the s. 44 IE reports of Dr. Raymond Zabieliaukas, dated November 23, 2017 and Dr. Jamie Rusen, dated February 28, 2023, at which point I had the jurisdiction to consider whether to allow the documents in under Rule 9.4. Each party had the opportunity to make submissions. The respondent filed its responding motion material March 14, 2024, and the applicant filed reply motion submissions on March 28, 2024.
14As such, the applicant’s motion to exclude the s. 44 reports grounded my jurisdiction to make the decision with respect to same pursuant to Rule 15.2 of the Common Rules.
15Therefore, I find that the applicant has not established that I acted outside of my jurisdiction pursuant to Rule 18.2(a) with respect to my decision to include the respondent’s s. 44 reports.
b) and c) Procedural fairness
16The applicant submits that I committed a material breach of procedural fairness with respect to drawing an adverse inference from the fact that she did not reference the Curriculum Vitae (CVs) of the s. 44 assessor in her reply submissions and for accepting the respondent’s submissions with respect to its denial letter dated December 6, 2022.
17Procedural fairness, however, encompasses the following:
a) Ensuring that parties understand the case they must meet; and
b) Ensuring that the parties have an opportunity to be heard to allow him or her to respond accordingly.
18See the Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at paragraphs 21 to 28.
19The Tribunal’s July 13, 2023 Order identified the issues in dispute between the parties and a written hearing was scheduled. The decision considered the issues in dispute as set out in the July 13, 2023 Order and both parties filed written submissions and evidence which I considered in rendering my decision.
20For these reasons, I find that the applicant had a full opportunity to argue her case pertaining to the issues identified in the July 13, 2023 Order and to respond to the position taken by the respondent. Therefore, I find that I did not commit a material breach of procedural fairness. Further, I find that the applicant’s position that I committed a material breach of procedural fairness with respect to the adverse inference and the denial letter dated December 6, 2022 is more appropriately analyzed under errors of fact and/or law.
Rule 18.2(b) – Errors of fact and/or law
21The applicant submits that I made errors of law and fact in the decision as follows:
a) By expecting the applicant to challenge the expertise of the s. 44 assessors in her reply submissions when it would have been inappropriate to do so;
b) By misapprehending the test under Rule 9.4 and in D.N. v Aviva Insurance 2017 CanLII 85686 (ON LAT) by balancing prejudice to the respondent;
c) By erring with respect to the respondent’s denial letter dated December 6, 2022;
d) By erring with respect to the applicant’s evidence beyond 2017;
e) By not considering the applicant’s family doctor’s recommendation for a physiotherapy assessment;
f) By improperly discounting the report of Dr. Moshiri; and
g) By not finding pain relief is a reasonable and necessary goal of treatment planning.
a) Error of law to challenge expertise of the s. 44 assessors on reply
22I find that the applicant has not established that I made an error of law by expecting the applicant to challenge the expertise of the s. 44 assessors in her reply submissions or that I made an adverse inference where the applicant did not reference late documents in her reply submissions.
23The applicant submits that her opportunity to challenge the expertise of the s. 44 assessors would have been in her submissions that were due to the Tribunal on February 27, 2024. The applicant submits that I erred by drawing an adverse inference from the fact that she did not reference the CVs of the s. 44 assessor in her reply submissions. The applicant relies on the Court of Appeal decision in Allcock Laight & Westwood Ltd v Patten, Bernard and Dynamic Displays Ltd. 1966 CanLII 282 (ON CA), [1967] 1 OR 18 (ONCA) (“Allcock”), to support her position that the purpose of reply submissions is to respond to issues raised in the respondent’s submissions that the applicant could not have reasonably foreseen.
24The primary reason for my denial of the applicant’s motion was not based on this purported adverse inference but rather, as I stated in the decision at paragraph 8, the applicant had been in possession of the expert reports well in advance of the hearing and the qualifications of the respondent’s s. 44 assessors were set out in their reports. As such, I found little prejudice to the applicant in denying her motion.
25While I do not agree with the applicant that I had made an adverse inference in my decision, even if the qualifications were not in the applicant’s possession at the time of the hearing, I find that drawing an adverse inference would not be an error of law. I agree with the respondent that the applicant’s reply submissions were the very forum in which the applicant could have responded to such material. While Allcock stands for the principle that the applicant may not “split her case”, the Supreme Court decision in R. v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466 is clear that the applicant may be allowed to call evidence in rebuttal when the defence has raised some new matter or defence which she could not reasonably have anticipated (para. 16). In the present case, the respondent did not provide the applicant with the CVs until after she filed her initial submissions. As such, because the applicant intended to use the CVs to form her argument at first instance, but was unable to do so because she was not in possession of the CVs until after she filed her submissions, she would have been able to do so in her reply submissions.
26Given the above reasoning, I find that the applicant has not established that I made an error of law by expecting the applicant to challenge the expertise of the s. 44 assessors in her reply submissions or that I made an adverse inference where the applicant did not reference late documents in her reply submissions. As a result, the applicant is not entitled to a reconsideration on this basis under Rule 18.2(b).
b) Balancing prejudice to the respondent
27I find that the applicant has not established that I erred in law by balancing prejudice to the respondent.
28The applicant also submits that I misapprehended the test in Rule 9.4 by including an analysis of prejudice where no mention of prejudice is included in the Rule. The applicant relies on the Tribunal decision in D.N. v Aviva Insurance 2017 CanLII 85686 (ON LAT) where the insurer brought a motion requesting a remedy for the insured’s non-compliance.
29I do not agree with the applicant’s argument that I failed to comment on the respondent’s non-compliance with the “requirement” under Rule 9.4. There is no language of requirement under Rule 9.4 of the Common Rules. Rule 9.4 states:
“If a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.”
30Rule 9.4 does not prescribe the manner in which the respondent is to obtain consent from the Tribunal. Rule 9.4 indicates that a party may not rely on the document or thing, if late. The language is discretionary and does not constitute an outright ban on the inclusion of the document or thing if a party fails to comply with the Rules.
31Rule 9.4 of the Common Rules also does not obligate an adjudicator to make a finding by using any particular test. The inclusion or exclusion of late documents varies from case to case. In all cases, the adjudicator exercises their own discretion.
32Therefore, I find that the applicant has not established that I have erred in law pursuant to Rule 18.2(b).
c) The respondent’s denial letter dated December 8, 2022
33I find that the applicant has not established that I erred in law with respect to the respondent’s denial letter dated December 8, 2022.
34The applicant submits that I made an error of law by accepting the respondent’s submission that its December 6, 2022 denial letter was properly sent when the respondent provided no evidence in support. The applicant argues that in accepting the respondent’s submission, I failed to consider the applicant’s submissions that the letter was not, in fact, received until June 19, 2023.
35The applicant has misconstrued the decision. While I appreciate the applicant submits that I should have considered her submission that the applicant did not receive the denial letter until June 29, 2023, I state at paragraph 29 of the decision that submissions are not evidence. Further, I weighed the evidence of both parties in the decision including, the denial letter dated December 6, 2022, evidenced as Tab 21 of the respondent’s hearing brief, and email correspondence dated June 29, 2023, evidenced as Tab 21, of the applicant’s hearing brief. When weighing the evidence before me, I placed more weight on the evidence of the respondent.
36The reconsideration process is not an opportunity for the applicant to re-litigate her position because she disagrees with my decision, or with the weight assigned to the evidence.
37Therefore, I find that the applicant has not established that I have not erred in law pursuant to Rule 18.2(b) with respect to my decision to weigh in favor of the respondent’s evidence.
d) Error of fact with respect to evidence beyond 2017
38I find that the applicant has not established that I erred in fact with respect to the applicant’s evidence beyond 2017.
39The applicant submits that I misapprehended the medical evidence when I found that “the applicant has not put forward compelling evidence beyond 2017, that would substantiate the need for the proposed physiotherapy treatment in 2022.” The applicant argues this statement is factually incorrect because the medical evidence contained her in submissions states:
i. On April 27, 2020, the applicant reported to Dr. McCallum, her family practitioner, that she experienced being “sore, pain in hip right a bit worse now”;
ii. On December 21, 2021, Dr. McCallum opined that the applicant required a physiotherapy assessment and treatment for bilateral chronic hip pain with bilateral labral tears;
iii. On November 11, 2022, as part of the OCF-18 in dispute, the applicant reported that she continued to have pain with climbing stairs, running, and sleeping;
iv. On February 28, 2023, Dr. Rusen, noted in his report dated February 28, 2023, that the applicant’s pain was relieved with physiotherapy and core strengthening exercises;
v. On February 28, 2023, s. 44 psychological assessor Dr. Moshiri, noted in her report dated February 28, 2023 that “[the applicant] complained of pain in the hips (…) She assigned a rating of 5-7/10 (…) She stated, ‘When I am going to physio regularly, the pain is 3-4/10”; and
vi. On February 28, 2023, Dr. Moshiri diagnosed the applicant with Somatic Symptom Disorder.
40In paragraph 18 of the decision, I do not conclude that there is not any medical evidence beyond 2017. Instead, I stated that there is not any compelling evidence beyond 2017. In fact, at paragraphs 13 through 20 of my decision, I reference the medical evidence summarized by the applicant above and provide my reasonings as to why I did not find it persuasive.
41As I stated at the outset of this reconsideration decision, the test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for the applicant to re-litigate her position because she disagrees with my decision, or with the weight assigned to the evidence.
42Given same, I find that the applicant has not established that I have made an error of fact pursuant to Rule 18.2(b) with respect to her evidence beyond 2017.
e) and f) Recommendation for physiotherapy and the report of Dr. Moshiri
43I find that the applicant has not established that I erred in fact and/or law by not considering the applicant’s family doctor’s recommendation for a physiotherapy assessment and by discounting the report of Dr. Moshiri.
44The applicant submits that there was more evidence before me than simply her self-report of relief of pain with physiotherapy. The applicant references a clinical note and record of Dr. McCallum dated December 21, 2021, where Dr. McCallum found the applicant required a physiotherapy assessment, and Dr. Moshiri’s diagnosis of somatic symptom disorder. The applicant further submits that I improperly afforded little weight to Dr. Moshiri’s report on the basis that she did not opine on physiotherapy. The applicant submits that Dr. Moshiri was given a list of specific questions to answer, and future treatment recommendations were not one of them.
45I provided reasoning with respect to this evidence in paragraphs 18 and 20 of the decision. Again, the reconsideration process is not an opportunity for the applicant to re-litigate her position because she disagrees with my decision, or with the weight assigned to the evidence.
46Here, the applicant’s submissions point to no errors of fact and/or law. Instead, the applicant appears to disagree with my findings which is open for her to do but is not a ground to grant a reconsideration of a decision.
47For all these reasons, I find that the applicant has not established that I have made an error of fact or law pursuant to Rule 18.2(b) with respect to a recommendation for a physiotherapy assessment and the weight of Dr. Moshiri’s report.
g) Pain relief is a reasonable and necessary goal of treatment planning
48I find that the applicant has not established that I erred in law by not considering the applicant’s case law with respect to pain relief being a reasonable and necessary goal of treatment.
49The applicant submits that despite my finding that I was “not satisfied that the applicant’s self-reported relief of pain with physiotherapy is enough to establish the need for the proposed treatment plan”, I failed to consider any of the caselaw the applicant included in her submissions which demonstrate that the Tribunal has held pain relief can be a reasonable and necessary goal of treatment. The applicant submits that I erred by not referring to any of the following decisions: 17-001146 v Aviva Insurance Canada 2017 CanLii 69449 (ON LAT), F.J. v Intact Insurance Company, 2020 CanLII 34495 (ON LAT), Handy v Aviva Insurance Company of Canada, 2022 CanLII 78793 (ON LAT), Premus v Aviva Insurance Canada, 2022 CanLII 84694 (ON LAT), and General Accident Assurance Co.of Canada v. Dominic Violi, 2000 ONFSCDRS 177.
50I am not bound by Tribunal decisions, and I am not required to cite every piece of evidence and authority submitted by the parties in the reasons for my decision. In any event, I did not make a finding that pain relief is not, itself, a reasonable and necessary goal of treatment. Rather, I found that the applicant’s self-reporting of relief of pain with physiotherapy treatment is not enough to support the need for the proposed treatment plan without contemporaneous medical opinion or evidence. Again, the applicant may disagree with my decision, but that is not grounds for reconsideration.
51As such, I find that the applicant has not established that I have made an error of fact or law pursuant to Rule 18.2(b) with respect to the applicant’s self-reporting of pain relief.
Misapprehension of the relevance of the CVs
52I find that the applicant has not established grounds for reconsideration with respect a misapprehension of “the relevance of the CVs to rules of procedural fairness.”
53The applicant also submits that the CVs of the proposed experts are crucial to a fair hearing because they provide a comprehensive overview of the expert’s qualifications, experience, and credibility. The applicant submits that at paragraph 40 of her initial submissions, she noted that s. 44 assessor Dr. Rusen was not qualified to comment on chronic pain and represented himself as an expert in upper extremity and sports injuries. In support of this contention, she cited an internet page about Dr. Rusen. The applicant argues that without his CV, she was unable to provide a greater critique of his expertise. The applicant relies on the Supreme Court case R v Mohan 1994 CanLII 80 (SCC), [1994] SCJ No 36 (SCC), wherein a CV is required to properly qualify an expert.
54I agree with the respondent in that I am unclear of what criteria under Rule 18.2 the applicant is pointing to in this argument. In any event, there is no obligation that the parties produce the CVs of their respective expert witnesses at the Tribunal. Rule 10.2(c) of the Common Rules only requires a party who intends to rely on or refer to evidence of any expert to provide in writing, “the qualifications of that expert witness, referring specifically to the education, training and experience relied upon to qualify the expert.” It has been long accepted by this Tribunal that the summary of qualifications found within the respective expert reports is sufficient to satisfy this Rule. I allude to the expert’s summary of qualifications in paragraph 8 of the decision.
55The respondent also submits that the applicant’s critique ignores Dr. Rusen's stated specialties in orthopedic trauma, but Dr. Rusen's CV indicates education in chronic pain and extensive experience in degenerative and traumatic hip and knee injury, of which directly relates to the applicant's injuries and would not have benefitted the applicant in her argument that Dr. Rusen was unqualified. The respondent further submits that were an error of law made, the submissions on the CVs of the assessors would have proved unhelpful for the applicant's argument that the assessors were unqualified, as per Rule 18.2(b) of the LAT Rules, whereby reconsideration shall only be granted when the Tribunal would likely have reached a different result had the error of law not been made.
56The applicant, in her reply submissions to this reconsideration request, argues that if she had the CVs of Dr. Rusen, it would have been open for the Tribunal to reach a different result on his expertise.
57While I appreciate the applicant makes an attempt at introducing some of the arguments that she would have made critiquing Dr. Rusen’s expertise in her reply reconsideration submissions, even if the applicant were to make these submissions at first instance or in her reply hearing submissions, I would not have found differently. This is because the decision was not entirely based on the opinion of Dr. Rusen. In fact, even if I did not cite the report of Dr. Rusen, my decision would ultimately be the same. As I stated in paragraph 18 and 19 of my decision, I was not satisfied that the applicant’s self-reported relief of pain with physiotherapy was enough to establish the need for the proposed treatment plan. I was also not pointed to compelling medical evidence that suggested the need for physiotherapy around the date of the disputed treatment plan. The applicant bears the onus to prove, on a balance of probabilities, and, in this case, I found the applicant had not met her onus.
58As such, I find that the applicant has not established grounds for reconsideration with respect to her submission that I misapprehended “the relevance of the CVs to rules of procedural fairness.”
CONCLUSION & ORDER
59The applicant’s request for reconsideration is dismissed.
Nadia Mauro
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 13, 2025