Court File and Parties

CITATION: Cura v. Aviva Insurance Canada, 2021 ONSC 2290

DIVISIONAL COURT FILE NO.: DC-20-000417-00JR

DATE: 2021-03-26

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

EDWARDS RSJ, PENNY and KURKE JJ.

BETWEEN:

LATIFE CURA Applicant

– and –

AVIVA INSURANCE CANADA and LICENCE APPEAL TRIBUNAL Respondents

COUNSEL:

Imtiaz Hosein, Ashu Ismail and Peter Murray, for the Applicant

Frank Benedetto, Todd McCarthy and J.-C. Rioux, for the Respondent Aviva Insurance Canada

D. Lee, for Respondent Licence Appeal Tribunal

HEARD: March 3, 2021

REASONS FOR JUDGMENT

M.L. Edwards, RSJ:

Overview

[1] Litigants, whether they are before an arbitrator or a trial judge must, absent exceptional circumstances, proceed with their litigation to its ultimate conclusion before anyone aggrieved with an interim ruling or order initiates an appeal or an application for judicial review. There is good reason for this proposition. Numerous decisions are made by arbitrators and trial judges during the course of a hearing. Many of these decisions the parties may not agree with. Litigation in general would come to a grinding halt if an aggrieved litigant sought redress in a higher court every time he or she lost an argument during a trial or arbitration. This application for judicial review should serve as a reminder to heed this basic direction.

The Facts

[2] On July 13, 2016, the applicant was involved in a motor vehicle accident as a result of which it is alleged she suffered various injuries. The extent of those injuries are in dispute. The applicant submitted an application to the respondent, her insurer, on July 21, 2016 for accident benefits.

[3] The respondent determined on the basis of the medical information provided that the applicant’s injuries fell within what are described as the Minor Injury Guidelines. On September 3, 2018, the applicant’s family doctor executed an application for determination of catastrophic impairment, indicating that the applicant had sustained a catastrophic impairment as a result of the accident. The respondent denied the application.

[4] The respondent informed the applicant by letter dated September 19, 2018 that it would require the applicant to attend insurer’s examinations (“IEs”) under s. 44 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“the SABS”) to assist in determining whether the impairment was catastrophic. On October 30, 2018, the respondent advised the applicant that it would be setting up the IEs and advised of three assessments scheduled in December of 2018 with a physiatrist, a psychiatrist and an occupational therapist.

[5] The applicant was further advised by the respondent, by letter dated October 30, 2018, that the assessment facility was CanAssess. The applicant was provided with the name of a contact person at CanAssess, together with her phone number.

[6] Between November 1, 2018 and early December 2018, there was correspondence and emails between counsel for the applicant and the respondent dealing with various issues relating to the applicant’s claim for statutory accident benefits. At no time during the course of this correspondence was any concern raised by counsel for the applicant with respect to the applicant attending the scheduled IEs. In fact, the applicant attended the assessments on the proposed dates.

[7] Prior to the dates of the IEs in December 2018, neither the applicant nor her counsel complained about the type of assessments nor the manner in which the assessments were to take place.

[8] It was not until January 18, 2019 that the applicant, through her counsel, wrote to the respondent and revoked her consent to allow CanAssess access to her personal information.

[9] Subsequent to the applicant’s revocation of her consent, correspondence took place between counsel for the applicant and the respondent. While the applicant attended all three assessments with regulated health practitioners, she took the position that her consent did not extend to anyone with CanAssess. In essence, the applicant suggested that persons at CanAssess would be writing the assessment reports and opining on the issue of whether or not she was catastrophically impaired. The applicant, through her counsel, sought information about the role of CanAssess in numerous letters. The applicant was advised that CanAssess is a vendor and not an agent for the respondent. CanAssess is, in effect, a subcontractor which administers for the insurer the booking, conduct and post-assessment reporting by the regulated health practitioners retained to conduct the IEs. The retainer of service providers like CanAssess (which is registered as such) is authorized under the Insurance Act, R.S.O. 1990, c. I.8, ss. 288.1 and 288.8.

[10] Despite efforts to satisfy the applicant about the role of CanAssess, the respondent tried to resolve the issue raised by the applicant by forwarding a letter dated October 23, 2019 which enclosed a new consent form explaining the role of CanAssess in the assessment process.

[11] Further efforts were made by the respondent to explain the role of CanAssess. Despite those efforts the matter then ended up before the Licence Appeal Tribunal which had to deal with a number of issues, including the revocation by the applicant of her consent to the release of the IE reports.

The Legislative Framework

[12] The Licence Appeal Tribunal (“the LAT”), is an adjudicative tribunal which has exclusive jurisdiction under s. 280(1) of the Insurance Act to resolve any disputes “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”.

[13] An insured person, pursuant to s. 280(3) of the Insurance Act, is precluded from commencing any court proceedings with respect to a dispute which comes before the LAT, other than an appeal or an application for judicial review. Any appeal of a decision of the LAT may only be appealed to this court on a question of law: s. 11(6) of the Licence Appeal Tribunal Act (the Act).

[14] The determination of whether a person is catastrophically impaired is determined by the application of criteria set forth in s. 3.1 of the SABS.

[15] While the determination of whether someone meets the definition of having suffered a catastrophic impairment involves the consideration of medical opinions, the test itself is a legal test not a medical test. See Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571.

[16] Pursuant to s. 44 of the SABS, an insurer is entitled to require that an insured attend a medical examination with a regulated health professional or someone who has expertise in vocational rehabilitation. Section 44(5) establishes the procedure which an insurer must follow in order to have an insured attend an IE.

[17] Section 55 of the SABS provides that an insured cannot apply to the LAT in circumstances where the insured, having been provided with the appropriate notice, fails to attend an examination under s. 44.

The Decision of the LAT at Issue

[18] After a series of what might be described as production-type motions, the respondent brought a motion to stay the proceeding before the LAT based on the applicant’s conduct in refusing to provide her consent to the release of the IE reports, arguing that such conduct was the equivalent of the applicant refusing to attend an IE.

[19] The LAT, after hearing preliminary submissions, asked the parties to file written submissions on the issue of whether the LAT should stay the hearing pending the applicant’s compliance with the IEs. Written submissions were filed, and on May 29, 2020 the LAT issued a preliminary decision, the essence of which was as follows:

1. The respondent’s notices of examination complied with s. 44 of the SABS;

2. The production of an examination report was part of the examination process under s. 44; and

3. The applicant’s revocation of her consent that prevented the respondent from obtaining the reports related to her examinations was tantamount to failing to participate in the examination process.

[20] Having made these determinations the LAT, relying on s. 55(2) and (3), stayed the application until the applicant consented to the release of her IEs through CanAssess.

[21] Upon receipt of the LAT’s preliminary decision, the applicant asked the LAT to reconsider its preliminary decision. The reconsideration request was denied on the basis of Rule 18 of the LAT which stipulates that a reconsideration is only available for a decision that “finally disposes of an appeal”. The preliminary decision was not a decision that finally disposed of an appeal and as such the reconsideration request was denied.

[22] Rather than proceeding with her application and providing her consent to the release of the IE reports, the applicant applied to this court for judicial review of the LAT decision. The applicant did not appeal to this court under s. 11(6) of the Act, which may have allowed her to appeal to this court on any question of law.

The Prematurity Issue

[23] Having sought judicial review of the preliminary decision of the LAT on her compliance with s. 44, the applicant filed her application, together with her factum, and framed the issues as follows:

1. Was the LAT decision unreasonable in finding the applicant non-compliant with s. 44 of the SABS and therefore finding s. 55(1) of the SABS applicable;

2. In the alternative, was the LAT unreasonable for failing to consider the submissions and evidence concerning the applicant’s inability to give valid consent pursuant to PIPEDA when it issued its conditional order; and

3. In the further alternative, was the LAT’s conditional order to stay the LAT proceeding until the applicant consents to CanAssess’s participation in the IE process unreasonable because it is in violation of s. 8 of the Canadian Charter of Rights and Freedoms (“the Charter”).

[24] Both the respondent and the LAT have filed factums responding to the applicant’s factum. The LAT took no position on the merits of the substantive dispute between the parties as the issue was still before the LAT. However, the LAT did take the position that the application was premature and that this court must be satisfied that there are exceptional circumstances warranting intervention. The LAT raised other issues, but in our view none is necessary to dispose of this application.

The Position of the Parties on the Prematurity Issue

[25] At the commencement of argument this court raised the issue of prematurity with counsel and heard submissions from the LAT as well as counsel for the applicant and the respondent.

[26] The essence of the oral argument presented to this court by counsel for the applicant, as it relates to the prematurity issue, was an argument based on the suggestion that the applicant’s consent to the s. 44 IEs had been “coerced”, and that she simply could not consent as it impacted on her Charter rights as well as any rights that she had under PIPEDA. Counsel suggested that the coercion of the applicant’s consent and its impact on her Charter rights and rights under PIPEDA constitute an exceptional circumstance warranting this court’s intervention by way of judicial review.

[27] Counsel for the respondent supported the position advanced by the LAT that this court should not entertain an application for judicial review as it was premature.

Analysis

[28] Counsel for the applicant suggests that the applicant could not consent to the IEs as any such consent would be coerced, which would violate her rights under the Charter and PIPEDA.

[29] At the time that the applicant attended the IEs in December 2018, she was represented by counsel. Presumably, at that time counsel was in a position to consider his position with respect to any advice that he might deem appropriate as it related to the question of so-called coercion. The applicant’s attendance at the IEs without objection by her counsel negates any argument about coercion. We see no merit to this argument whatsoever.

[30] It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete. This principle is well understood and reflected in the decision of the Court of Appeal in Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, where the Court of Appeal adopted the rationale for this principle set forth by Stratas J.A. in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, as follows:

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a review in court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.

[31] While the principle reflected above applies to the facts of this case, it may also turn out that the applicant will prevail before the LAT with arguments concerning the independence of the CanAssess IEs. A full evidentiary record subject to rigorous cross-examination may support the applicant’s position or it may not.

[32] The adjudicator tasked with hearing the application before the LAT will be in the best position to determine whether the reports prepared by the assessors called by the Respondent were “ghostwritten” or whether they were the work product of independent medical specialists. The role of the adjudicator in making that determination is no different than that of a trial judge who has to decide whether to qualify an expert to provide expert opinion evidence. In that qualifying phase a trial judge is always alert to issues of bias and independence. Regardless of the trial judge’s decision in that regard, counsel do not immediately come to court on appeal respecting any particular decision of the trial judge. Rather, an aggrieved litigant who wants to dispute a ruling of this kind waits until the end of a trial and then, and only then, considers his or her position with respect to an appeal of the final result, including of decisions made during the trial.

[33] And, indeed, another factor tells against the circumstances of this case as “exceptional”. Counsel for the Applicant has previously sought to influence the process of how IEs and defence medical assessments are conducted by bringing these issues before the LAT and the Superior Court; see, e.g., RT v. Coseco Insurance, 2019 ONLAT 76974, 18-006654 v Royal Sun Alliance Insurance, 2019 ONLAT 34605, L.C. v. Aviva Insurance Canada, 2020 ONLAT 18-008289, D’Eon v. Hosseini, 2020 ONSC 7500.

[34] A review of these decisions makes clear that counsel’s attempts to put up roadblocks to prevent medical examinations otherwise compliant with s. 44 from taking place as mandated have been unsuccessful. The proper place to raise any issue about the independence of a medical assessment is before the ultimate trier of fact. If there is any air of reality to the suggestion that counsel or the insurer or a CanAssess ghostwriter improperly influenced an expert witness, cross-examination before the trier of fact is the means to expose it, rather than premature applications such as the one before this court.

[35] There are no exceptional circumstances which would warrant this court permitting this application for judicial review to proceed.

Conclusion

[36] For the reasons set forth above the application is dismissed.

[37] The LAT did not seek costs. The respondent is awarded costs by agreement which are fixed in the amount of $7500, all inclusive.

M.L. Edwards, RSJ.

I agree _______________________________

Penny J.

I agree _______________________________

Alexander D. Kurke J.

Released: March 26, 2021

DIVISIONAL COURT FILE NO.: DC-20-000417-00JR

DATE: 20210326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

EDWARDS RSJ, PENNY and KURKE JJ.

BETWEEN:

LATIFE CURA Applicant

– and –

AVIVA INSURANCE CANADA and LICENCE APPEAL TRIBUNAL Respondents

REASONS FOR JUDGMENT

Released: March 26, 2021