ONSC 6268
DIVISIONAL COURT FILE NO.: 175/18 DATE: 20191028
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Leitch, Sachs and D.L. Corbett JJ.
BETWEEN:
MERCY FORDJOUR
Ashu Ismail, for the Appellant
Appellant
– and –
ROYAL AND SUN ALLIANCE INSURANCE COMPANY OF CANADA
Anju Sharma, for the Respondent, Royal and Sun Alliance Insurance Company of Canada
Respondent
– and –
SAFETY, LICENCING APPEALS AND STANDARDS TRIBUNALS ONTARIO
Trevor Guy, for the Respondent, Safety, Licencing Appeals and Standards Tribunals Ontario
Respondent
HEARD at Toronto: October 28, 2019
D.L. Corbett J. (Orally)
[1] Mercy Fordjour appeals the dismissal of her claim for statutory accident benefits by the Licencing Appeal Tribunal (“LAT”).
[2] Our jurisdiction is confined to questions of law.
[3] The appellant raises several issues, but we find it necessary to address only two issues to decide this appeal.
[4] Ms. Fordjour’s family physician, Dr. Saito, was a central witness in Ms. Fordjour’s case. At the hearing, the Adjudicator ruled that Dr. Saito could not give opinion evidence. This ruling was wrong: see: Westerhof v. Gee Estate, 2015 ONCA 206. This ruling undermined the Adjudicator’s assessment of Dr. Saito’s evidence and led the Adjudicator to disallow admissible evidence: it infected the fact-finding process.
[5] On reconsideration, LAT found that this error was corrected when the Adjudicator was persuaded that Westerhof would ground opinion evidence from Dr. Saito. This conclusion is unreasonable. Evidence had been excluded on the basis of an erroneous ruling and the Adjudicator did not reopen the evidence to hear the opinion evidence from Dr. Saito.
[6] Dr. Saito’s evidence was crucial to Ms. Fordjour’s case. The Adjudicator discounted the weight of evidence from treating physicians including Dr. Saito, because it was based on self-reports from the claimant, an allegedly unreliable witness. This point was never put to Dr. Saito and so Dr. Saito did not have a chance to explain his opinion in light of his patient’s alleged unreliability.
[7] This first issue itself is sufficient to dispose of this appeal.
[8] There is a second issue however. The Adjudicator did not assess the causation issue properly. Causation is an important issue in a case like this one, with pre-existing conditions and a claimant now allegedly suffering from chronic pain and depression.
[9] On reconsideration, LAT concluded that the causation analysis was “implied”. We find that this conclusion is unreasonable. Crucial factual findings were not made on the causation issue. The test for causation (set out in this court’s decision in Sabadash v. State Farm, 2019 ONSC 1121) and an analytical approach to applying that test (such as that set out in the Court of Appeal’s decision in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391) were not stated. Nor is there a basis to infer that the proper test and analysis were applied.
[10] Reasons are not to be subjected to a minute analysis, but in this case the failure of the reasons renders them insufficient. We cannot be satisfied that the proper test was applied or that the factual findings were made to support the decision.
[11] The appeal is allowed. The decisions below are set aside and the case is remitted back to LAT for a new hearing before a different adjudicator.
[12] As agreed by the parties, Ms. Fordjour shall be paid costs of $11,000 inclusive of HST for fees plus disbursements payable by the respondent insurance company. There will be no costs for or against LAT.
Leitch J.
[13] I have endorsed the Appeal Book as follows: “The application is allowed for oral reasons given. Costs to the appellant fixed at $11,000 as agreed plus disbursements.”
___________________________ D.L. Corbett J.
I agree
Leitch J.
I agree
Sachs J.
Date of Oral Reasons for Judgment: October 28, 2019
Date of Release: October 31, 2019
ONSC 6268
DIVISIONAL COURT FILE NO.: 175/18 DATE: 20191028
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Leitch, Sachs and D.L. Corbett JJ.
BETWEEN:
MERCY FORDJOUR
Appellant
– and –
ROYAL AND SUN ALLIANCE INSURANCE COMPANY OF CANADA
Respondent
– and –
SAFETY, LICENCING APPEALS AND STANDARDS TRIBUNALS ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
D.L. CORBETT J.
Date of Oral Reasons for Judgment: October 28, 2019
Date of Release: October 31, 2019```