Citation: McMillan v. Intact Insurance Company, 2025 ONLAT 23-000459/AABS-R

RECONSIDERATION DECISION

Before:

Michael Beauchesne

Licence Appeal Tribunal File Number:

23-000459/AABS

Case Name:

Cherraine McMillan v. Intact Insurance Company

Written Submissions by:

For the Applicant:

Slavko Ristich, Counsel

For the Respondent:

Carman Lee, Counsel

OVERVIEW

1On October 25, 2024, the applicant requested reconsideration of the Tribunal’s decision dated October 8, 2024 (the “decision”).

2In the decision, the Tribunal found the applicant did not sustain a catastrophic impairment under criterion 8 as a result of the accident. The Tribunal also determined the applicant was not entitled to attendant care benefits (“ACB”), nor the disputed treatment plans or interest. No award was ordered, and the application was dismissed.

3For context, the applicant argued that although her psychological functioning was impaired prior to the accident, she had been making good progress in the several months leading up to the accident. The applicant claimed the accident exacerbated her symptoms and worsened her impairments to the point of being catastrophic and requiring attendant care. During the proceeding, the applicant sought the exclusion of the respondent’s section 44 Insurer’s Examination (“IE”) reports and addendums. The applicant also requested an adverse inference be applied because the clinical notes and records of the respondent’s IE experts had been intentionally destroyed.

4The 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.

5In this case, the applicant is seeking a reconsideration under Rule 18.2(b). The applicant’s position is that the Tribunal made several errors of law and/or fact, such that the Tribunal would likely have reached a different result had the error not been made.

6The applicant requests the Tribunal reconsider its order that she has not sustained a catastrophic impairment and is not entitled to an ACB, an award, or interest. The applicant also requests the Tribunal reconsider its denial of the applicant’s motion to exclude the original and addendum section 44 catastrophic reports obtained by the respondent.

7The respondent asks that the applicant’s reconsideration request be dismissed.

RESULT

8The applicant’s request for reconsideration is dismissed.

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.

10For this matter, the applicant says the Tribunal’s errors of fact and/or law include:

a. Applying the “but-for” test to determine whether the applicant suffered catastrophic injuries when it should have used the “material contribution” test;

b. Incorrectly interpreting the Schedule, which led to a denial of attendant care benefits and, in turn, an award per section 10 of Regulation 664;

c. Incorrectly applying the facts of the case in its analysis of catastrophic impairment determination; and

d. Failing to apply an adverse inference to the intentional destruction of evidence ordered produced by the Tribunal.

Did the Tribunal make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made?

The Tribunal applied the correct causation test

11I find the Tribunal did not err in its use of the “but for” test to assess causation.

12The applicant submits the Tribunal erred in law when determining whether she sustained a catastrophic impairment by applying the but-for test instead of the material contribution test. The applicant relies on Thiruchelvam v RBC General Insurance, 2022 ONSC 554 [Div. Ct] (“Thiruchelvam”) to show the “material contribution” test should have been applied in her matter because her case involves a significant pre-accident history.

13The respondent argues that the applicant did not raise the material contribution test at the hearing and therefore cannot raise it for reconsideration. The respondent asserts that jurisprudence on causation establishes “but for” as the primary test for causation, and that material contribution is reserved for special circumstances that do not apply in this case. The respondent relies on Resurfice Corp. v Hanke, 2007 SCC 7 [Div. Ct] (“Resurfice”) to affirm the “but for” test as the correct approach for accident benefits claims.

14The respondent adds that Thiruchelvam is distinguished from this matter because it involves two-pre-existing accidents a week apart from one another. The respondent explains that the Court preferred the material contribution test in Thiruchelvam because it was impossible to prove causation between the three accidents using the but-for test, and because of the claimant’s inability to testify about his impairments due to injuries from the accidents. The respondent reasons that these factors do not apply to this matter, and that the evidence presented at the hearing allowed the Tribunal to compare the applicant’s pre- and post-accident condition in the context of the “but for” test.

15I find the applicant’s reconsideration request submissions and reply fail to confirm she challenged the use of the “but for” test, or raised Thiruchelvam to challenge causation, at the hearing. While the applicant is not required to produce a hearing transcript to support a reconsideration request, the applicant has not filed one in this matter, and I find her reconsideration request submissions are unsupported by evidence that demonstrates she challenged the test for causation. While I accept the applicant included Thiruchelvam in the authority brief she filed with the Tribunal on March 13, 2024, I disagree it was raised at the hearing to argue the applicability of the material contribution test. As I am not pointed to evidence that shows material contribution was argued at first instance, I find this to be a new argument that is not the proper basis for a reconsideration request.

16The following parts of the decision support my finding that material contribution was not argued at first instance: (1) at paragraph 26 of the decision where the respondent raised causation as a central issue to the dispute and asserted the accident was not a necessary cause of the applicant’s impairments, which is a clear reference to the “but for” test; (2) at paragraph 57 of the decision, where the Tribunal applies the “but for” test “as raised by the respondent, and finds the evidence did not establish the accident as a necessary cause of the applicant’s impairments, given that her symptomology and functional impairments pre- and post-accident were not distinguishable; and (3) the decision makes no reference to material contribution arguments raised by the applicant or contemplate material contribution as a substitute for the “but for” test.

17Given that the applicant’s material causation arguments are improperly before the Tribunal, I decline to consider them further.

The ACB analysis undertaken by the Tribunal complies with the Schedule

18I find no error in the Tribunal’s application of law to the applicant’s ACB claim and, by extension, her award claim.

19The applicant submits the Tribunal erred in law when contemplating past ACB. She specifies that the Tribunal failed to consider the Schedule as a whole and asserts the Tribunal should have applied sections 3(8) and 42(6) as part of its analysis. The applicant explains that section 19(1) of the Schedule is moot because the respondent had an obligation to pay the ACB once the Form 1 was received regardless of entitlement, and that this benefit need not be incurred to trigger payment because the Tribunal can deem it incurred.

20For section 3(8) specifically, the applicant argues she presented ample evidence to show the respondent had wrongly kept the applicant in the MIG for more than three years and, therefore, unreasonably withheld the applicant’s ACB entitlement. The applicant reasons that it is not logical to expect her to incur $3,500.00 of monthly attendant care for three years and relies on Belair Insurance Company Inc. v. David McMichael, 2006 ONFSCDRS 42 to show an insurer should not be allowed to deny a benefit and require an insured person to assume the financial risk of incurring it with no recourse against the insurer. The applicant goes on to say that the Tribunal’s decision did not rely on a single case to distinguish this authority, and that the Tribunal offered only that Belair was no longer applicable because it was decided prior to 2010.

21For section 42(6) specifically, the applicant argues that ACBs are a statutory right under the Schedule and that an insurer must pay the benefit even if it disagrees with the Form 1 assessment.

22With regard to her award claim, the applicant submits she proved entitlement to an ACB and is therefore entitled to an award with interest.

23The respondent argues that section 3(8) of the Schedule does not apply because the Tribunal found the respondent did not unreasonably withhold or delay payment of an ACB. The respondent does not address the applicant’s section 42(6) argument in its submissions, nor the applicant’s position on her award claim.

24I will first address Belair. I find that the applicant’s reliance on this authority is a new argument that was not made at first instance. The applicant did not point to where the Tribunal, in its decision, contemplates Belair. As well, Belair does not appear in the authority brief filed for the hearing by the applicant on March 13, 2024. Parties to a dispute are expected to put their best foot forward when first called to do so, and I decline to consider Belair because the reconsideration process is not an avenue for advancing new arguments.

25I agree the decision is silent on sections 3(8) and 42(6) of the Schedule. However, as mentioned earlier, the applicant’s reconsideration request is hampered by the lack of a hearing transcript, and I find her reconsideration request submissions are unsupported by evidence that demonstrates she made arguments pertaining to sections 3(8) and 42(6) at the hearing.

26Indeed, the applicant’s reconsideration request submissions and reply stop short of confirming she raised her arguments on these aspects of the Schedule at the hearing. For example, at paragraph 17 of her reconsideration request submissions, she indicates: “The Tribunal could have, and ought to have applied s. 3(8) of the Schedule when considering past Attendant Care expenses.” Additionally, the applicant’s authority brief includes just one case that was not raised during the hearing to support arguments on sections 3(8) or 42(6) of the Schedule.

27Therefore, I decline to further consider the applicant’s arguments on the applicability of sections 3(8) and 42(6) of the Schedule to her ACB claim because, as earlier indicated, a reconsideration is not an avenue to advance new arguments or make new requests that a party could, but did not, make before the Tribunal during the hearing of the matter.

28Pertaining to the award claim, I find the applicant is re-litigating this issue. She has not raised an error of law or fact in the decision that would give rise to reconsideration. The applicant’s award claim is tethered to her ACB. As the Tribunal determined, on the merits, that she was not entitled to an ACB, the respondent cannot have unreasonably withheld or delayed payment of an ACB. This is made out at paragraph 77 of the decision.

The Tribunal correctly applied the facts of the case in its analysis of catastrophic determination

29The applicant’s arguments that pertain to exacerbation are an attempt to re-litigate her case, which is beyond the scope of a reconsideration request.

30The applicant’s reconsideration request submissions argue that the Tribunal made a factual error in its determination that the accident did not exacerbate the applicant’s medical condition. The applicant adds that the Tribunal misapplied the law by putting less reliance and little weight on her experts’ reports because they did not include a “greater discussion” of the applicant’s Canada Pension Plan (“CPP”) disability file completed “more than three years pre-accident.” As such, the applicant reasons that the Tribunal ought to have examined whether the accident exacerbated her pre-existing medical conditions and gave rise to “marked impairments” as the law requires.

31Specifically in terms of exacerbating her symptoms, the applicant says the Tribunal erred by failing to weigh diagnoses of post-traumatic stress disorder (“PTSD”) offered by Drs. Sharma, Gerber, and Steiner after the accident.

32The respondent’s reconsideration submissions do not directly address the applicant’s position on the Tribunal’s catastrophic impairment finding.

33The applicant has not raised an error of fact or law with how the Tribunal weighed the applicant’s CPP evidence versus the reports of her experts. As earlier mentioned, 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, which is what the applicant has done here. I find the Tribunal carefully and thoughtfully weighed the applicant’s CPP disability file in its decision. Paragraph 30 of the decision notes that the applicant’s CPP application was filed with Service Canada just seven months before the accident on July 25, 2018. The applicant acknowledges this at paragraph 40 of her reconsideration request submissions, where she notes: “…the adjudicators referenced the Applicant’s CPP Disability Application that was filed on or around July 2018, several months before the accident.” The medical information in the file—which does span several years between 2016 and 2018—is analyzed at paragraphs 31 and 32 of the decision, and shows ongoing mental health issues that progressively worsened throughout this period in contrast to witness testimony at the hearing.

34The applicant also asserts that the Tribunal failed to analyze whether the accident exacerbated her symptomology. I disagree. While the Tribunal acknowledges the applicant’s testimony about worsening physical and emotional issues after the accident at paragraph 42, it finds the applicant failed to point to a contemporaneous medical opinion of a treating physician that supported a worsening mental health condition post-accident. At paragraph 45, the Tribunal addresses the applicant’s cognitive functioning in this context. At paragraph 46, the Tribunal contemplates medication changes as an indicator of a worsening condition. At paragraphs 50 and 51, the Tribunal grapples with whether conclusions offered by Dr. Gerber amounted to new or worsened functional impairments.

35The Tribunal also contemplates PTSD disorder as an exacerbation of the applicant’s symptoms at paragraph 52 of the decision. I find the Tribunal did not err in fact or law by failing to weigh the opinions of Drs. Sharma and Gerber in this regard. At paragraph 49 of the decision, the Tribunal explains that Dr. Gerber’s report—and accordingly his diagnoses—was given less weight because it relied on the applicant’s self-report to inform her psychiatric history without contemplating extensive pre-accident medical records, and notwithstanding a medical history remarkable for psychological impairments that continued unabated despite treatment interventions for at least three years pre-accident. In my view, the applicant is trying to have it both ways by invoking the opinions of Dr. Sharma, which are documented in a report she steadfastly maintains should never have been admitted into evidence and merits no weight because its conclusions cannot be verified with raw data. In any event, Dr. Sharma’s opinion (i.e., that the applicant does not meet the diagnostic criteria for PTSD) mirrors that of Dr. Gerber and does not support the applicant’s catastrophic impairment claim.

36I do, however, accept the decision does not mention the PTSD diagnosis offered by Dr. Steiner in November 2019. By extension, and insofar only as Dr. Steiner’s report is concerned, paragraph 52 of the decision is incorrect in saying that the applicant “… failed to substantiate that she reported her symptoms—nightmares, flashbacks, nausea, sleep disturbances, and more frequent headaches—to any of her treating or assessing physicians up to her assessment with Dr. Gerber some four years and seven months after her accident.”

37However, I find that had the Tribunal considered Dr. Steiner’s PTSD diagnosis and its associated symptomology, it is unlikely that the Tribunal would have reached a different result. This is because Dr. Steiner’s PTSD diagnosis does not establish the applicant was catastrophically impaired owing to a behavioural or mental disorder as a result of the accident. In fact, paragraph 23 of the decision indicates that Dr. Gerber—who performed the applicant’s catastrophic impairment determination—confirmed the applicant did not meet the full diagnostic criteria for PTSD at the time of his examination in November 2023. In addition, paragraph 52 of the decision indicates the applicant provided little corroborating evidence of ongoing PTSD symptomology up to her assessment with Dr. Gerber. For example, the applicant complained of sleep difficulties to Dr. Steiner, but paragraphs 32 and 43 of the decision note she was sleeping a lot (i.e., all the time) both before and after the accident according to her CPP disability file and the testimony of her sister. As such, the probative value of Dr. Steiner’s PTSD diagnosis as evidence of catastrophic impairment is low.

38The applicant’s follow-up to her exacerbation arguments (i.e., that the decision suggests the accident improved her condition despite what was written in the decision about her pre-accident health) is unsupported. At paragraph 57 of the decision, the Tribunal concurs that the applicant’s post-accident functionality is impaired to at least a moderate degree. This does not support the applicant’s position—articulated at paragraph 39 of her reconsideration request submissions—that the Tribunal “opined (the applicant’s) impairment ratings across all four spheres were ‘moderate’…”

The Tribunal did not err in deciding to admit the respondent’s expert evidence without applying an adverse inference

39I find no legal error in the Tribunal’s decision to admit the respondent’s expert evidence without applying an adverse inference. I also find the Tribunal made no error of law by inviting parties to argue how much weight should be afforded to the respondent’s expert evidence.

40For context, at the outset of the hearing, the applicant sought the exclusion of the respondent’s section 44 Insurer’s Examination (“IE”) reports and addendums. The basis for the applicant’s request was that the respondent did not comply with the CCRO to produce these documents no later than 60 calendar days from the case conference. The applicant requested an adverse inference be applied because she maintained that the clinical notes and records of the respondent’s IE experts, including raw testing data, had been intentionally destroyed—ostensibly because it did not support the conclusions of the IE assessors as articulated in their final reports and addendums.

41The Tribunal admitted the IE reports and addendums into the hearing evidence because they were presumptively relevant. However, since the raw data and accompanying records had not been produced as ordered, the Tribunal invited the parties to make submissions on the weight to be afforded to this evidence in their closing submissions.

42The applicant submits that the law for evidence spoilation “is clear,” and that the Tribunal erred by allowing the respondent’s catastrophic reports and addendums to be admitted into the proceeding. The applicant also argues that admitting evidence without consequence (i.e., applying an adverse inference) is an error, asserting that the Tribunal acknowledged the respondent had no explanation for destroying evidence, but nevertheless decided to admit the section 44 assessments and addendums on the basis that these documents were “key evidence.” The applicant goes on to characterize the Tribunal’s comment that such reports were “key evidence” as an error of fact because the Tribunal did not reference the respondent’s expert reports and addendums in the decision, nor use them as the basis for denying her catastrophic impairment application. The applicant therefore reasons that allowing these reports into the proceedings was extremely prejudicial to her because she was deprived of the opportunity to test the evidence relied upon by the respondent.

43The respondent argues that the applicant’s reconsideration request submissions are the same as those presented in her motion hearing submissions and therefore serve only to re-litigate the motion. The respondent adds that the applicant has not pointed to any errors in the Tribunal’s reasoning or rationale pertaining to her motion.

44In her reply, the applicant relies on Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 [Div. Ct] (“Vivekanantham”). She does so to support her position that the Tribunal should have struck the respondent’s evidence and, because it did not do so, the Tribunal made a legal error in determining the parties could argue the weight to be given to the reports.

45I will first address the applicant’s motion to exclude evidence.

46I find the applicant has not proven on a balance of probabilities that the Tribunal erred in law as it pertains to the applicant’s motion to exclude evidence. While the applicant’s reconsideration request submissions state that “the law for the spoilation of evidence is clear,” the applicant did not point me to the legal reference or authority she relies on regarding spoilation. It is not until the applicant’s reply that she pinpoints a legal reference (i.e., Vivekanantham).

47On the face of it, the applicant’s introduction of Vivekanantham in her reply would appear to be procedurally unfair to the respondent because it was deprived of an opportunity to make submissions on this authority. However, it bears mention that Vivekanantham was released by the Divisional Court on November 12, 2024, which is after the applicant had filed her reconsideration request in October 2024. In addition, any potential prejudice to the respondent in considering Vivekanantham is mitigated by my finding, explained below, that Vivekanantham does not apply to this matter.

48In Vivekanantham, the Court found that the Tribunal relied on an expert report without considering what weight to give to this evidence in light of the expert’s failure to appear and be cross-examined, as well as his failure to file an acknowledgment of expert’s duty form as procedurally required. The Court determined that once it was clear the expert was not going to appear at the hearing to be cross-examined, the Tribunal should have refused to admit his report.

49In my view, Vivekanantham is distinguishable from this matter because both parties, of their own volition and consent, jointly proposed to waive the direct and cross-examinations of the respondent’s expert witnesses as well as the oral testimony of the applicant’s expert who performed her catastrophic impairment determination. While not documented in the decision, the parties, prior to the Tribunal hearing evidence on the merits, indicated they were content to proceed by entering these expert reports into evidence without supporting testimony, and pointing therein to support their arguments.

50I turn now to the applicant’s position on adverse inference.

51I find the applicant’s reconsideration request submissions on adverse inference are an attempt to re-litigate its motion because adverse inference goes to weight, which is not an error. The Tribunal addressed the applicant’s motion at paragraphs five through 10 of the decision. At paragraph 10(i), the Tribunal applied LAT Rule 9.3 and determined the respondent could rely on the section 44 reports and addendums because they were the respondent’s key evidence concerning the issues in dispute and were therefore presumptively relevant. The Tribunal also found that the section 44 reports had already been disclosed to the applicant prior to the case conference. As well, the Tribunal allowed the respondent to rely on its February 2024 section 44 addendums because it accepted the respondent’s explanation for the late disclosures (i.e., that they were a response to a section 25 report received just a couple of months earlier in November 2023).

52The applicant’s position on adverse inference is heavily tied to its unsupported assertion that the raw data and records of the section 44 assessors were intentionally destroyed because they were incompatible with the final reports. I find the applicant’s contention—that the Tribunal acknowledged the respondent had no explanation for destroying evidence—is at odds with pages four and five of the decision as cited by the applicant. Rather, at paragraph 10(i) of the decision (which straddles pages four and five), the Tribunal recognized the broader concern raised by the applicant about overall non-compliance with the CCRO (i.e., not producing raw data) and invited the parties to make closing submissions on weight. The Tribunal does not acknowledge the evidence was destroyed; only that it was not produced. I find this is well distinguished from the applicant’s interpretation and I do not see any error in how the Tribunal applied the facts or law to the applicant’s request that an adverse inference be applied.

53In fact, throughout the hearing and her reconsideration request submissions, the applicant inconsistently positions her arguments on the raw data. At times, she articulates the respondent’s destruction of evidence as a finding of fact when it is mere speculation and inference. For example, at paragraph eight of the applicant’s reconsideration request submissions, she indicates: “…it was determined on the eve of the hearing that those records had been destroyed…” Similarly, at paragraph six, the applicant notes “… a repeated and seemingly intentional violation of the Order which resulted in the destruction of crucial evidence …”. At paragraph 11 of the applicant’s reconsideration request submissions, she again refers to a “willful destruction of evidence on the eve of a hearing.” These statements mirror the applicant’s position at the hearing, as indicated at paragraph nine of the decision, for example.

54In contrast, at paragraph nine of the decision, the applicant goes on to acknowledge she had never received an explanation (i.e., destroyed, lost, or otherwise) as to why the ordered clinical notes and records were not available. This was repeated at paragraph 4 of the applicant’s reply, where she notes: “As of the date of this reply, they (the respondent) have not proffered a single explanation of what has happened to those records.”

55In any event, the applicant acknowledges at paragraph 48 of her reconsideration request submissions, that the section 44 reports did not bear on the Tribunal’s decision: “However, in the written decision, the Adjudicators did not reference these reports once, nor did they form any basis for the denial of the catastrophic impairment application.” I find this is consistent with paragraph 58 of the decision, where the Tribunal indicates it was not necessary to address the applicant’s position on the weight afforded the respondent’s evidence because the applicant’s own evidence did not meet her onus to prove catastrophic impairment. It follows then, that weighing whether to apply an adverse inference to the respondent’s evidence is unnecessary because the section 44 reports did not form the basis for the decision taken by the Tribunal. In my view, this does not support the applicant’s position that allowing the respondent’s expert reports into the proceedings was extremely prejudicial to her case.

56Turning then to the applicant’s error-of-fact arguments on “key evidence,” I disagree the Tribunal erred by determining, at paragraph 10(i) of the decision, that the section 44 IE reports and addendums formed the respondent’s key evidence on the issues in dispute, inclusive of catastrophic impairment. The applicant argues this could not be “key evidence” because, as earlier mentioned, the Tribunal “…did not reference these reports once, nor did they form any basis for the denial of the catastrophic impairment application.” However, this was a motion-related finding made in the context of LAT Rule 9.3, which deals with failures to comply with production orders. In my view, a finding that the respondent’s evidence is presumptively relevant because it forms the basis of its arguments—and should therefore be admitted to the hearing—is immaterial to how weight is later assigned to that evidence when the Tribunal undertakes its analysis of the facts.

CONCLUSION & ORDER

57The applicant’s request for reconsideration is dismissed.

Michael Beauchesne

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal