CITATION: Bagherian v. Aviva Insurance Company, 2022 ONSC 3103
DIVISIONAL COURT FILE NO.: 644/21
DATE: 20220525
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, R. Gordon and Matheson JJ.
BETWEEN:
ALI BARADARAN BAGHERIAN
Appellant
– and –
AVIVA INSURANCE COMPANY
Respondent
Ali Baradaran Bagherian self-represented
Patrick Baker, for the Respondent
HEARD at Toronto (by videoconference): May 19, 2022
Background
[1] The appellant appeals a decision of the Licence Appeal Tribunal dated January 5, 2021. Vice Chair Maedel dismissed his application for income replacement benefits and interest under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) without a hearing because of a finding of abuse of process. The Vice Chair subsequently refused reconsideration of the decision on August 7, 2021.
[2] The appellant was injured in a motor vehicle accident in July 2014. He commenced an application to the Tribunal in July 2017. In a preliminary ruling in July 2018, Vice Chair White refused to dismiss the application pursuant to s. 55(1)2 of the Schedule, finding that the appellant had not failed to attend at an examination required by the insurer (“IE”) pursuant to s. 44. However, the appellant was ordered to attend an IE with a psychologist before his appeal could proceed.
[3] The respondent insurer subsequently brought motions, in 2019 and 2020, to dismiss the application because of the appellant’s subsequent failure to attend an IE with a psychologist. Each time the Tribunal refused to dismiss. In July 2019, Vice Chair Hunter dismissed the motion because the appellant agreed to attend an IE with a psychologist. However, the IE was not completed because of issues of consent raised by the appellant and his threats to complain to the psychologist’s regulatory body.
[4] A second motion to dismiss was determined by Vice Chair Hunter on June 1, 2020. He ordered an IE with a psychologist within 90 days and ordered that the appellant not dispute the terms of the consent form, not threaten action against the psychologist with a regulator until after the assessment was completed, and that he cooperate. The Vice Chair noted that this was the appellant’s final chance to cooperate.
[5] Again, the IE was not completed, and the respondent brought a third motion to dismiss the application. Vice Chair Maedel granted the motion and, pursuant to Rule 3.4 of the Tribunal’s Common Rules of Practice and Procedure, he dismissed the application as an abuse of process. The appellant had made an audio recording when he met with the third psychologist, and he submitted it in his materials for the hearing.
[6] Vice Chair Maedel concluded that the appellant had not been cooperative with respect to providing consent in the appointment with psychologist Dr. Marino, and that the appellant had made threats to complain to the psychologist’s regulatory body or to bring civil proceedings. The Vice Chair concluded that the appellant was trying to frustrate the assessment process. He also stated that the appellant had created barriers to an efficient and fair hearing, expressing a concern that the appellant had created a problem with the reliability of a psychological assessment of his condition at the time of the accident due to the passage of time since the accident.
[7] Vice Chair Maedel heard and rejected the appellant’s request for reconsideration. In his reasons, he stated that both Rule 3.4 and s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) gave him the power to dismiss this application as an abuse of process.
The Appeal
[8] An appeal lies to the Divisional Court from a decision of the Tribunal only on a question of law (see s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G).
[9] The standard of review with respect to questions of law is correctness.
Analysis
[10] The appellant argues that the decisions of Vice Chair Maedel should be set aside because he failed to hear testimony from the third psychologist, Dr. Marino; the same Vice Chair improperly made the reconsideration decision as well as the original decision; and he improperly found an abuse of process.
[11] With respect to the first argument, there was no need for the Tribunal to hear evidence from Dr. Marino. The appellant provided an audio recording of his interactions with Dr. Marino, and the Vice Chair’s reasons demonstrate that he considered the contents carefully.
[12] Second, the appellant submits that there is a reasonable apprehension of bias where a tribunal member who made the original decision carries out the reconsideration of the decision. However, Rule 18.1 of the Tribunal permits this process, and it has been found acceptable by the Divisional Court in Gore Mutual Insurance Company v. Rusk, 2022 ONSC 2893 at para. 50. There is no basis here to find a reasonable apprehension of bias on the part of the Tribunal.
[13] The main issue before this Court is whether the Tribunal erred in law in dismissing the appellant’s application as an abuse of process.
[14] Rule 3.4(a) of the Tribunal’s rules provides that the Tribunal can dismiss an application without a hearing if the proceeding is frivolous, vexatious or commenced in bad faith. The Tribunal stated in the reconsideration decision that while the appellant had not commenced the proceeding in bad faith, he had repeatedly demonstrated a pattern of bad faith conduct because of his repeated failure to submit to psychologists’ examinations.
[15] There was ample evidence in the record to support this conclusion. Pursuant to s. 44(1) of the Schedule the appellant had a positive obligation to attend assessments requested by the insurer that are “reasonably necessary”. Moreover, his failure to cooperate in obtaining an assessment had interfered with the respondent’s ability to participate in the process before the Tribunal. As well, he had caused delay in the timely determination of the matter before the Tribunal.
[16] The appellant has not demonstrated that the Tribunal made any error of law. First, the Tribunal had the legal authority to dismiss his application pursuant to Rule 3.4(a), as well as s. 23(1) of the SPPA. That section provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” The record before the Tribunal amply supported the conclusion that the appellant’s conduct was an abuse of its process. He was given multiple opportunities to complete an IE with a psychologist and each time, he raised issues with the consent form, threatened to report the psychologist to the College, and threatened civil action. The Tribunal concluded that his conduct was frustrating the IE process.
[17] Second, there is no merit to the argument raised in the appellant’s factum that the Tribunal lacked authority to make this order because of the doctrine of res judicata. The decision of Vice Chair White in 2018 that allowed his application to proceed was an interim decision, not a final determination of the issues. Moreover, there had been a significant change of circumstances since her decision.
[18] Finally, the appellant takes issue with the authority of Vice Chair Hunter to order that he not dispute the form of the consent and that he be cooperative. Section 16.1 of the SPPA permits a tribunal to make interim orders, and the conditions imposed by Vice Chair Hunter were reasonable in the circumstances of this case. While the appellant asserts that he has rights under various statutes regulating privacy that led him to question the proposed consent forms, Vice Chair Hunter had the authority to require that the appellant cooperate by signing a consent form for the IE (see Coll v. Roberston, 2020 ONSC 383 at para. 16).
Conclusion
[19] Essentially, the appellant takes issue with Vice Chair Maedel’s findings of fact and the exercise of his discretion. However, he has failed to show any error of law on the part of the Tribunal, as required for a successful appeal pursuant to s. 11(6) of the Licence Appeal Tribunal Act. Accordingly, the appeal is dismissed.
[20] Costs to the respondent are fixed at $3,000.00 payable by the appellant.
Swinton J.
I agree _______________________________
R. Gordon J.
I agree _______________________________
Matheson J.
Released: May 25, 2022
CITATION: Bagherian v. Aviva Insurance Company, 2022 ONSC 3103
DIVISIONAL COURT FILE NO.: 644/21
DATE: 20220525
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, R. Gordon and Matheson JJ.
BETWEEN:
ALI BARADARAN BAGHERIAN
Appellant
– and –
AVIVA INSURANCE COMPANY
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: May 25, 2022