CITATION: Vespa v. Aviva General Insurance Company, 2022 ONSC 3283
DIVISIONAL COURT FILE NO.: 697/21
DATE: 20220607
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISONAL COURT
McCarthy, Lederer and Davies JJ.
BETWEEN:
KATHLEEN VESPA
Appellant
– and –
AVIVA GENERAL INSURANCE COMPANY
Respondent
Darryl Singer and Nadia Condotta, for the Appellant
Meredith A. Harper and D. Dakota Forster, for the Respondent
HEARD: May 11, 2022
mccarthy j.
The Appeal
[1] The Appellant appeals from two decisions of the Licence Appeal Tribunal (“the Tribunal”): the decision of Adjudicator Cavdar dated August 10, 2020 (“the adjudicator’s decision”); and the decision of Vice-Chair Farlam dated July 22, 2021, dismissing the Appellant’s request for reconsideration (“the reconsideration decision”).
Background
[2] The Appellant sustained injuries in a motor vehicle accident in May 2016. She applied for accident benefits through the Respondent insurer. Over the next two years, the Respondent funded physiotherapy treatment as recommended by the Appellant’s treating health practitioners.
[3] On May 4, 2017, the Appellant submitted a treatment plan to the Respondent claiming the sum of $2,738.00 for chiropractic treatment. Relying on an insurer’s examination by orthopedic surgeon Dr. Abuzgaya (“the IE report”), the Respondent denied the claim on the basis that the proposed treatment plan was neither reasonable nor necessary.
[4] Following the Respondent insurer’s denial, the Appellant was assessed by orthopedic surgeon Dr. Timothy Dwyer. In his report (“the Dwyer report”), the orthopod diagnosed the Appellant with chronic pain and made several recommendations including “chiropractic assessment and treatment.”
[5] The Appellant filed an application to the Tribunal disputing the insurer’s denial of benefits.
Proceedings Before the Tribunal
(a) The Adjudicator’s Decision
[6] Adjudicator Cavdar found that the Applicant had not led sufficient evidence to show that the specific chiropractic treatments listed in the treatment plan were reasonable and necessary to treat the injuries she sustained in the 2016 accident.
(b) The Reconsideration Decision
[7] The request for reconsideration was reviewed under rule 18.2 of the Tribunal’s governing rules. Vice-Chair Farlam dismissed the request for reconsideration on the basis that the Applicant had failed to demonstrate either: (i) an error of law or fact on the part of the adjudicator such that the Tribunal would likely have reached a different result had the error not been made; or (ii) that the adjudicator had acted outside the Tribunal’s jurisdiction or violated the rules of procedural fairness.
Grounds of Appeal
[8] The appeal lies before this court pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G.
[9] Since the appeal is restricted to questions of law, the standard of review is correctness.
[10] There were two grounds of appeal:
(i) That the Tribunal breached its obligation to ensure procedural fairness by failing to consider material evidence before it; and
(ii) That the Tribunal failed to provide sufficient reasons.
The Appellant’s Position
[11] The Appellant contends that the failure of the adjudicator to refer to the Dwyer report constitutes a denial of both procedural fairness and natural justice. It also leaves the adjudicator’s reasons insufficient. This evidence was central to the Appellant’s claim for chiropractic services which were the very subject matter of the treatment plan. The Tribunal should have considered the Dwyer report alongside the IE report. Procedural fairness demanded that the Applicant receive an explanation for the rejection of such important evidence.
[12] The Appellant asserts that these failings demonstrate that the Tribunal was biased against her. In addition, the Appellant contends that the Tribunal issued the reconsideration decision immediately after the Appellant inquired of the Tribunal when it would release its reasons. This serves as evidence of the Tribunal’s bias in favour of the Respondent insurer.
The Respondent’s Position
[13] The Respondent submits that there was no denial of procedural fairness or natural justice. The failure of the adjudicator to assess a portion of the evidence does not constitute grounds for appellate interference.
[14] The Respondent asserts that the adjudicator’s reasons were fulsome: she made ample reference to the Appellant’s injuries and impairments and extensively canvassed the evidence of the Appellant’s treatment providers. The adjudicator considered the appropriate legal question and made a fair determination that the Appellant had failed to demonstrate why the specific treatments outlined in the treatment plan were reasonable and necessary to treat her injuries.
Analysis
[15] The Ontario Court of Appeal has considered the failure of a trier of first instance to refer to portions of evidence in their reasons. In Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 (Ont. C.A.), at paras. 343-344, the Court noted:
The mere absence of any reference to evidence in reasons for judgment does not establish that the trial judge failed to consider that evidence. The appellants must point to something in the trial record, usually in the reasons, which justifies the conclusion that the trial judge failed to consider certain evidence.
When assessing an argument that a trial judge failed to consider relevant evidence, it is helpful to begin with an overview of the reasons provided by the trial judge. If that overview demonstrates a strong command of the trial record and a careful analysis of evidence leading to detailed findings of fact, it will be difficult for an appellant to suggest that the mere failure to refer to a specific piece of evidence demonstrates a failure to consider that evidence. The failure to refer to evidence in the course of careful and detailed reasons for judgment suggests, not that the trial judge ignored that evidence, but rather that she did not regard that evidence as significant.
[16] There is an important distinction between considering evidence and referring to that evidence in reasons. To demand that an adjudicator refer to every shred of evidence in the record in his or her reasons is an impossibly high expectation. Here, there is no basis to conclude that the adjudicator failed to consider the Dwyer report. Nor can it be said that the adjudicator based her conclusion on an absence of evidence or irrelevant considerations. A review of the reasons in their entirety reveal that the adjudicator maintained a firm grasp of the evidentiary record, understood the issues in dispute and the legal question for determination. Moreover, the adjudicator had the benefit of the Appellant’s submissions which referred to the Dwyer report several times.
[17] It is not the function of this court to reweigh and reassess the evidence that was before the adjudicator, nor to speculate or infer why she preferred certain evidence. Nevertheless, the Dwyer report was not without its problems: one, it was written some four months after the treatment plan was submitted yet never once refers to it. Two, the Dwyer report certainly recommends chiropractic treatment but does so without any explanation as to why. Finally, the Dwyer report does not comment on why the course of chiropractic treatment in the treatment plan itself would have been beneficial for the Appellant. The adjudicator’s reliance on the IE report, which squarely addressed but did not support the recommendation for chiropractic assessment and treatment in the treatment plan, was certainly not misplaced.
[18] It follows that there was no procedural unfairness in the adjudicator preferring to rely upon evidence which squarely addressed the question to be determined. Procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.
[19] The adjudicator’s reasons incorporate over 30 paragraphs of analysis of the Appellant’s physiotherapy treatment, the IE report and the medical records of the Appellant’s treating physicians. The reasons were detailed, extensive and more than sufficient.
[20] In the reconsideration decision, the Vice-Chair properly set out the narrow grounds upon which a request for reconsideration can be granted. The Vice-Chair went on to squarely address the Appellant’s concern that the Dwyer report was not considered at first instance. The Vice-Chair dismissed this argument, fairly stating that an adjudicator need not refer to every piece of evidence, submission or precedent raised by a party in submissions. Not doing so did not indicate that such evidence was not considered. The Vice-Chair found the adjudicator’s decision to contain a lengthy and detailed review, consideration and weighing of the medical evidence which amply supported the conclusions reached. I conclude that the Vice-Chair properly considered the Appellant’s request within the parameters of the governing rules and provided sufficient reasons why that request was denied.
[21] Finally, there is nothing to support the Appellant’s contention that the Tribunal demonstrated a bias in favour of the Respondent insurer. It is noteworthy that a significant portion of the adjudicator’s decision addressed the procedural issue of late filed submissions and evidence by the Appellant. The adjudicator ruled in the Appellant’s favour on these procedural issues. There is simply nothing to support the Appellant’s suggestion that her inquiry to the Tribunal concerning the release of reasons resulted in any bias against her. This was a bald and entirely unfounded allegation.
Disposition
[22] For the reasons set out above, I would not give effect to either ground of appeal. The Tribunal’s reasons both at the adjudicator and Vice-Chair level were entirely adequate and sufficient.
[23] There was no procedural unfairness or denial of natural justice. The Tribunal’s treatment of the evidence before it was fulsome, appropriate, and fair.
[24] The appeal is therefore dismissed. As agreed between parties, costs of the appeal should be fixed at $6,000 to the successful side. The Appellant shall therefore pay the Respondent its cost in that amount forthwith.
McCarthy J.
Lederer J.
Davies J.
Released: June 7, 2022
CITATION: Vespa v. Aviva General Insurance , 2022 ONSC 3283
DIVISIONAL COURT FILE NO.: 697/21
DATE: 20220601
ONTARIO
SUPERIOR COURT OF JUSTICE
McCarthy, Lederer and Davies JJ.
BETWEEN:
KATHLEEN VESPA
Appellant
– and –
AVIVA GENERAL INSURANCE COMPANY
Respondent
REASONS FOR JUDGMENT
McCarthy J.
Released: June 7, 2022