CITATION: Singh v. Wawanesa Mutual Insurance Company, 2022 ONSC 3361
DIVISIONAL COURT FILE NO.: DC-21-573
DATE: 20220607
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone RSJ, Stewart, and D. Edwards JJ.
BETWEEN:
SIEMONA SINGH
Appellant
– and –
WAWANESA MUTUAL INSURANCE COMPANY
Respondent
-and-
LICENCE APPEAL TRIBUNAL
Intervenor
Ashley Frydrych, for the Appellant
Darrell P. March and Paul C. Omeziri, for the Respondent
Douglas Lee, for the Intervenor
HEARD in Toronto (by (videoconference): March 16, 2022
REASONS FOR DECISION
Firestone RSJ.
[1] The Appellant Siemona Singh (“Singh”) appeals from the Licence Appeal Tribunal Reconsideration Decision dated June 29, 2021, and the underlying Hearing Decision dated June 30, 2020, on the basis that she was denied procedural fairness and that errors of law were made.
[2] In her factum, Singh raises three issues to be addressed under the categories of procedural fairness and error of law:
Was production of Dr. Syed’s test records required for procedural fairness?
Did production of some test data mid-hearing make the hearing procedurally fair?
Was Adjudicator Neilson correct in her determination that the Respondent made “best efforts” to produce the insurer examiner’s file?
[3] For the reasons that follow I would dismiss the appeal.
A. Background and Procedural History
[4] On June 4, 2015, Singh was involved in an automobile collision. It is alleged that because of the injuries sustained, Singh has suffered physical and psychological impairments that prevent her from engaging in the essential tasks of her pre-accident occupation or any other occupation for which she is reasonably suited by education, training, or experience. Following the collision, Singh applied for specified Statutory Accident Benefits from the Respondent Wawanesa Mutual Insurance Company (the “insurer”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
[5] Singh subsequently received income replacement benefits (“IRBs”) until their denial effective March 7, 2016, the date of Singh’s second motor vehicle collision. By way of treatment plans dated September 23, 2015 and November 26, 2015, Singh also requested payment of psychological services in the amount of $4,202.07 and chiropractic treatment in the amount of $3,015.29. These treatment plans were denied by the insurer.
[6] In accordance with s. 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, the issue of entitlement to these disputed benefits was brought before the Licence Appeal Tribunal (the “Tribunal” or “LAT”) for determination. In the Hearing Decision dated June 30, 2020, Adjudicator Deborah Neilson (the “Adjudicator”) dismissed the claim for ongoing IRBs, psychological services, and a special award. The claim for chiropractic treatment was allowed. The subsequent reconsideration request was denied by the Adjudicator.
[7] Early in the process, pursuant to s. 44 of the Schedule, Singh attended two in-person insurer examinations with Dr. A. Syed, a psychologist. These assessments were arranged through Makos Health Associates and took place on September 2, 2015 and February 19, 2016. The assessment reports were delivered before the commencement of the hearing.
[8] At these assessments, Dr. Syed administered the same five tests, with validity measures: the Rey 15, the M-FAST, the MCMI-III, the SOPA, and the PSC. Regarding the first assessment, Dr. Syed found that Singh’s scores with respect to validity were impaired/invalid on three of five tests (the Rey 15, M-FAST, and MCMI-III). Regarding the second assessment, Dr. Syed found that Singh’s scores were impaired/invalid with respect to two of the five tests (the M-FAST and MCMI-III).
[9] Following the first assessment, Dr. Syed concluded that there was no objective psychometric evidence to substantiate Singh’s subjective self report of psychological impairment related to the subject motor vehicle collision. Following the second assessment, Dr. Syed again concluded that there was no objective psychometric evidence to substantiate Singh’s self report of psychological impairment arising from the subject collision. Dr. Syed’s opinion was that, based on the psychometric testing, Singh’s subjective reports were not reliable and that her scores were indicative of feigning psychological distress. Accordingly, Dr. Syed could not substantiate Singh’s subjective report of psychological impairment related to the subject collision. Dr. Syed concluded that strictly from a psychological perspective, Singh does not suffer a substantial inability to perform her pre-accident employment.
[10] On September 4, 2018, counsel appeared before Adjudicator Robert Watt. At that time, the previously scheduled hearing dates were vacated given Singh had retained new counsel in June 2018. Adjudicator Watt ordered that both parties were to exchange all documentation requested by the other party, and all documentation that either party will be using at the oral hearing, on or before September 19, 2018.
[11] On February 14, 2019, Singh filed a preliminary motion with the Tribunal for various relief including an order for the production by the insurer of the complete files of their medical witnesses including the file and log notes from the assessment centres. On February 25, 2019, Vice Chair T. Hunter ordered that this was to be produced by March 22, 2019. It was further ordered that the hearing be adjourned to May 27, 29, 30 and 31, 2019.
B. The Hearing Decision
[12] The hearing took place before Adjudicator Neilson between May 27 to 31, as well as the additional required days of July 8 to 10, 2019. At the outset of the hearing, Singh brought a motion to exclude the insurer’s expert witnesses in their entirety on the basis that the insurer had failed to comply with the production order of Vice Chair Hunter, or, in the alternative, that the hearing be adjourned so that the requested information could be produced. Specifically, Dr. Syed’s raw test data had not been produced prior to the commencement of the hearing. The Adjudicator dismissed the motion.
[13] At the motion, Singh argued that she was prejudiced by not having Dr. Syed’s raw test data because her expert, Dr. Harris, was unable to review it and prepare a rebuttal report. At that time, the Adjudicator was willing to grant an accommodation to allow time for Dr. Harris to review the raw test data, once provided to her, in order to address any potential prejudice to Singh. The Adjudicator however was not willing to grant an adjournment of the entire hearing, given that there had been two adjournments already.
[14] The Adjudicator further held that the insurer had made best efforts to comply with the Vice Chair’s order. Three request letters were sent by insurer’s counsel directly to the IE assessment centre. A law clerk with insurer’s counsel also phoned the assessment centre directly. In addition, the insurer, after having received no response from the assessment centre, through whom the assessments were arranged, sent letters directly to the assessors. Except for Dr. Syed, the assessors advised that they did not have any clinical notes and records. Dr. Syed advised she would only produce her raw test data to Singh’s psychologist, Dr. Harris.
[15] In her decision, the Adjudicator confirms that after the hearing began, it was subsequently adjourned partway through in any event for a period of five weeks because more time was needed than initially scheduled. The hearing adjourned on May 31, 2019 and recommenced on July 8, 2019. On June 26, 2019, during that five-week adjournment period, Dr. Syed did send the raw test data and clinical notes to Dr. Harris, who reviewed them.
[16] When the hearing resumed, Singh did not recall Dr. Harris to respond to Dr. Syed’s evidence notwithstanding that leave had been granted to do so. The Adjudicator also noted that Singh did not seek to summons the IE assessment centre, despite knowing since March 22, 2019 that there had been no response to no less than four requests by the insurer for the IE assessment centre files.
[17] The Adjudicator ultimately determined that Singh was not entitled to IRBs from March 7, 2016 onwards. While Singh was substantially unable to engage in the essential tasks of her pre-accident employment as a branch manager for a money lending company, these physical and psychological impairments were not caused by or exacerbated by the subject collision.
[18] In applying the but-for causation test, the Adjudicator found that Singh’s physical and psychological issues arising from her pregnancies and her subsequent 2016 collision were intervening events that broke the chain of causation. The Adjudicator found that Singh was ready to return to work when the second collision occurred. The Appellant had not adduced any cogent evidence that her present physical impairments were caused or exacerbated by the 2015 collision.
[19] Singh’s position that her psychological health deteriorated because of the subject collision was rejected by the Adjudicator who found based on the medical records, that Singh’s psychological health began to deteriorate because of other health conditions.
[20] Regarding the test results, the Adjudicator accepted Dr. Syed’s explanation that she did not provide the MCMI-III test results to Dr. Harris because the test results are determined through a computer program that is subject to a proprietary licence for which Dr. Syed must pay a fee. It was also noted that there was nothing preventing Dr. Harris from paying the fee and running the raw test data, which had been obtained mid-hearing, through the same computer program to obtain the results.
[21] The Adjudicator held that while it was somewhat concerning that Dr. Syed did not bring the results of the MCMI-III test with her to the hearing, the Adjudicator would have reached the same conclusion on the reliability of Singh’s subjective reports in the absence of Dr. Syed’s opinion.
[22] Regarding the claim for psychological counselling, the Adjudicator found the requested services were not reasonably necessary because of the subject collision. The Adjudicator gave more weight to the opinion of Dr. Syed, that Singh’s scores on the validity measures of the psychometric testing were indicative of feigning psychological impairment, compared to the opinion of Dr. Pilowsky, who did not use any validity measures and accepted Singh’s subjective complaints at face value.
[23] The Adjudicator allowed Singh’s claim for chiropractic treatment, finding the treatment was reasonable and necessary for treatment of Singh’s pain complaints arising from the subject collision. The Adjudicator declined to make a special award under O. Reg. 664, finding that the insurer did not unreasonably withhold benefits.
C. The Reconsideration Decision
[24] Singh filed a Request for Reconsideration of the June 30, 2020 Hearing Decision requesting an order that that the Tribunal reconsider the Hearing Decision or alternatively order a new hearing. By way of decision dated June 29, 2021, Adjudicator Neilson dismissed the Reconsideration request. In the Reconsideration request, Singh again stated it was procedurally unfair to have proceeded without her having received the raw test data from Dr. Syed and that an adjournment should have been granted.
[25] The Adjudicator noted that ultimately the hearing ended up being adjourned for five weeks during which time the raw test data was received and reviewed by Dr. Harris. Furthermore, upon the resumption of the hearing, the Adjudicator granted leave to Singh to recall Dr. Harris after Dr. Syed’s testimony was completed to respond to Singh’s concerns about the raw test data, which by that point, had been received and reviewed. Singh was given the opportunity to respond prior to the conclusion of the hearing but chose not to do so.
[26] Singh’s argument that Dr. Harris had advised that she was not comfortable interpreting the data and she was unable to retain another expert on short notice was not accepted by the Adjudicator. The Adjudicator noted that none of this information was submitted to her at the hearing, nor did Singh seek an adjournment when the hearing recommenced on July 8, 2019. The time for addressing this issue was at the hearing, and not at reconsideration.
[27] The Adjudicator rejected the argument that she erred in finding that the insurer made best efforts to comply with the production order and noted that even if she had erred, Dr. Syed’s raw test data was produced prior to Singh’s cross examination of this expert and the exclusion of evidence in its entirety is a drastic and discretionary measure.
[28] The Adjudicator rejected Singh’s argument that she erred in not drawing an adverse inference from Dr. Syed’s failure to bring the MCMI-III test results to the hearing. Dr. Syed was cross examined on the issue and her explanation was accepted by the Adjudicator. The Adjudicator found no error in her assessment of this expert’s credibility. She noted that even if she had drawn an adverse inference, it would not have altered her ultimate determination of the credibility and reliability of Singh’s evidence.
[29] Further, the Adjudicator rejected Singh’s position that the MCMI-III test results, which she stated were obtained after the hearing, were valid as opposed to invalid alleging that Dr. Syed gave false evidence. The Adjudicator noted that Singh had not produced the evidence on which she based these submissions, such as the scoring that she ran on the raw test data, nor had she produced a psychologist report explaining what the scoring meant.
[30] The Adjudicator indicated that Singh’s submissions did not account for her independent finding that Singh was a poor historian, and her subjective reports could not be relied upon, nor did they account for her finding that Singh’s psychological impairments arose after she had started recovering from the subject collision and after she began to experience other health issues. Therefore, even if the MCMI-III test results had shown valid measures, it would not have accounted for the invalid measures on the M-FAST and Rey 15 tests. The Adjudicator would still have found Singh’s psychological impairments were not caused by the subject collision.
D. The Court’s Jurisdiction
[31] This Court has appellate jurisdiction pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “Act”) which provides that an appeal from the Licence Appeal Tribunal relating to a matter under the Insurance Act may be made to the Divisional Court on a question of law only.
[32] Questions of law are questions about what the correct legal test is; questions of fact are questions about what took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests: see Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35
E. Standard of Review
[33] The appellate standard of review applies: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. This appeal is statutorily restricted to questions of law, which are reviewable on a correctness standard: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1.
[34] There is no standard of review applicable to issues of procedural fairness. The court is to determine whether the rules of procedural fairness were adhered to: see London (City of) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2. S.C.R. 817.
F. Positions of the Parties
(1) Procedural Fairness
[35] Singh argues she was denied procedural fairness because the Adjudicator dismissed the motion for an order excluding Dr. Syed’s evidence in its entirety, or in the alternative, that an order was not granted adjourning the hearing so she could review Dr. Syed’s test data in advance of the commencement of the hearing.
[36] Production of the data mid-hearing, six business days before the resumption of the hearing (according to Singh) and non-production of the test results, amounted to trial by ambush and did not allow sufficient time to respond. Singh argues that mid-hearing production prevented Singh from obtaining a responding expert opinion. It was not until receipt of the data that the need to obtain a rebuttal report crystalized.
[37] The insurer argues that there was no procedural unfairness. The raw test data was produced not only prior to the conclusion of the hearing but 12 days (not six) before the hearing recommenced. Notwithstanding this, Singh’s own medical expert declined to interpret the data. No other expert had been retained for that purpose in anticipation of receipt of the raw test data which had been requested. Regardless of when the data was provided, Singh did not have a medical witness who was prepared to interpret it. After the data was received, Singh did not request an adjournment. She also did not recall Dr. Harris despite the Adjudicator granting her permission to do so. The insurer’s underlying expert reports were served prior to the commencement of the hearing.
[38] Regarding Singh’s argument about being deprived of the opportunity to obtain a responding report, pursuant to the Vice Chair’s order, Singh was not permitted to file any further reports or documents after March 22, 2019. Regarding the MCMI-III test results not being available at the hearing, Singh claims she was eventually able to print the data after the hearing but offers no explanation for why this could not have been done prior to the hearing.
(2) Error of Law-Best Efforts
[39] It is agreed between the parties that in determining whether the production order was complied with by the parties, the “best efforts” standard applies. The records of a third-party assessor or clinic are not the insurer’s to turn over.
[40] Singh argues that the Adjudicator erred in law in finding the insurer had made “best efforts” to comply with Vice Chair Hunter’s order to obtain and produce the assessor’s files prior to the March 22, 2019 deadline. Specifically, the insurer never requested the files directly from Dr. Syed prior to the deadline, only sending two letters to the assessment centre requesting “all documents in your possession”. As the assessment centre was not in possession of Dr. Syed’s test data, these letters did not constitute efforts to request and produce the test data. Had the Adjudicator properly found that the insurer did not make best efforts to comply with the production order, the outcome of either Singh’s motion to exclude Dr. Syed’s evidence or the motion for an adjournment would have been different.
[41] The insurer argues that the issue of best efforts is largely a question of fact and certainly not a question law. Singh’s arguments conflict with the Adjudicator’s factual finding that best efforts were made, and the insurer complied with the production orders. Best efforts were made to obtain the information from the assessment centre under whose name the assessment took place and on whose letterhead the report was produced. When that didn’t work, additional and further steps were taken. Given Dr. Syed’s position that she was not permitted to produce her raw test data to anyone except a psychologist, it was not possible for the insurer to obtain the test data directly from her.
G. Governing Principles
(1) The LAT Process
[42] The LAT is an adjudicative body[^1] that receives its powers to hold hearings and perform duties assigned to it by or under any Act or regulation pursuant to s. 3 of the Act. The LAT has control over its own process and is a specialized expert tribunal.
[43] Pursuant to s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the LAT has control over process meaning that it has the power to determine its own procedures and practices. Furthermore, s. 23 empowers the LAT to make orders or give directions that prevent abuse of process. Pursuant to s. 23(2), “[a] tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding”. The LAT also has power to make its own rules establishing procedures for hearings under s. 6 of the Act. The LAT’s process is set out in its Common Rules of Practice & Procedure[^2].
[44] Section 280 of the Insurance Act grants the LAT exclusive jurisdiction over 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. To that extent, s. 280(3) also deprives the Superior Court of jurisdiction—an insured person is precluded from commencing an action for statutory accident benefits in the Superior Court: see Yang v. Co-operators General Insurance Company, 2022 ONCA 178, at para. 4.
[45] Persons affected by the LAT’s decisions may request reconsideration in accordance with r. 18 of the LAT Rules. The LAT’s reconsideration rule is authorized by s. 21.2 of the Statutory Power Procedures Act, which allows a tribunal to review its decision if its rules deal with the matter.
(2) Procedural Fairness
[46] The Court of Appeal in 1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570, 92 O.R.(3d) 374, at para. 24, summarized the factors identified by the Supreme Court in Baker to aid in assessing the degree of procedural protections required as follows:
(a) The nature of the decision being made, and the process followed in making it;
(b) The nature of the statutory schemes and the terms of the statute pursuant to which the body operates;
(c) The importance of the decision to the individual affected;
(d) The legitimate expectations of the person challenging the decision; and
(e) Choices of procedure made by the agency itself.
[47] When considering whether the rules of procedural fairness have been followed, deference is owed to a tribunal’s procedural decisions: Baker, at para. 27; Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116 (Div. Ct.), at para.110
[48] Whether procedural fairness is met is context specific. In Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, at para. 31, the Federal Court of Appeal states: “The guiding principle, therefore, is that the person affected should be afforded the means to present their case fully and fairly, and have a decision made in a fair, impartial, and open process, taking into consideration the statutory, institutional, and social setting of that decision.”
[49] Further, the Divisional Court has also noted that “[a] process is fair or not depending on the degree of procedural protections required and whether they were provided in the circumstances of the case before the court: see Niagara Funeral Alternatives Inc. v. Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966 (Div. Ct.), at para. 26 citing Baker.
(3) Error of Law-Best Efforts
[50] It is an error of law if the Adjudicator, in making the determination regarding whether best efforts were made, applied the wrong test.
[51] In Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415, a single judge of the Divisional Court considered what constitutes “best efforts” when attempting to obtain answers to undertakings. The Court cites the decision in Gheslaghi v. Kassis, 2003 7532 (Ont. S.C.) where, at para. 7, Powers J states in part as follows:
“[B]est efforts” mean just what one would expect the words to mean. The words mean that counsel and his/her client will make a genuine and substantial search for the requested information and /or documentation. The undertaking is not to be taken lightly-a cursory inquiry is not good enough. The word “best” is, of course, the superlative of the adjective “good” (good-better-best) and must be interpreted in that light. If a party and/or counsel is/are not able to discover the subject of the undertaking, he/she/it must be able to satisfy a court that a real and substantial effort has been made to seek out what is being requested by the other party…
[52] In Linamar, at para. 15, the Court refers to Black’s Law Dictionary (9th ed. 2004) which defines best efforts as “…Diligent attempts to carry out an obligation…Best efforts are measured by the measures a reasonable person in the same circumstances and of the same nature as the acting party would take.” At para. 16, the Court in Linamar goes on to state in part: “[T]he cases all indicate that what is a best effort is what a reasonable person would conclude was a best effort to obtain the answers to undertakings based upon the specific facts of any given case and the nature of the undertakings”.
H. Analysis
(1) Procedural Fairness
[53] I find that there that there has not been a denial of procedural fairness. Singh was given a sufficient opportunity to be heard and to prepare, present, and respond to the issues in dispute and the findings that led to her benefits being denied. Procedural fairness does not require that every piece of potential evidence be admitted and considered.
[54] Singh was in receipt of the insurer’s examination reports prior to the commencement of the hearing. This included the two reports from Dr. Syed dated September 2015 and March 2016, both of which referenced the psychometric testing which had been carried out and the conclusions reached based on that testing. This is not a situation where the insurer’s expert reports were served late or not at all. Upon delivery of those reports early in the process, Singh was aware of the case she had to meet in responding to the insurer’s expert opinions and the treating and or expert witness necessary to do so. No restrictions were placed on the experts she could retain.
[55] Dr. Syed’s raw test data was delivered mid-stream prior to the conclusion of the hearing during a five-week adjournment period and before Dr. Harris had testified. Singh and Dr. Harris were in receipt and possession of it for 12 days before the hearing recommenced. The Adjudicator previously ordered that she would allow Singh two weeks to review Dr. Syed’s raw test data before proceeding with her cross-examination of Dr. Syed. As the Adjudicator states in the Reconsideration Decision, “[T]he applicant never advised that two weeks was not enough time. At no time upon reconvening the hearing did the applicant submit that she required more time to prepare for Dr. Syed’s cross-examination”[^3]. In addition, leave was granted to recall Dr. Harris after the testimony of Dr. Syed was completed.
[56] At no time prior to the conclusion of the hearing did Singh advise the Adjudicator that it was necessary to retain another psychologist to interpret the raw test data because Dr. Harris was unable to do so. This concern was not raised at the hearing. Sufficient time was afforded during the hearing process for Singh’s medical witness to address issues related to the raw test data and assist counsel with her cross examination of Dr. Syed.
[57] Singh did cross-examine Dr. Syed on the two tests that were also invalid. Dr. Syed administered five tests at two separate times, and three of the tests were found “invalid”: Rey 15, M-FAST, and MCMI-III. The scores and reports/notes for the first two tests were available to Singh, and Singh’s counsel cross-examined Dr. Syed on the results of these scores and reports. Singh’s counsel focused primarily on what appeared to be a discrepancy between what the scores meant and Dr. Syed’s interpretation of the scores.[^4]
[58] Based on the cross-examination on the tests, and Dr. Syed’s answers on the scores, Singh in oral argument submits that the procedural fairness concerns were really substantiated in the cross-examination of Dr. Syed. Singh argues that on numerous occasions, Dr. Syed was asked questions, provided an answer that was understood to be the truth, and then once presented with her own conflicting evidence, changed her evidence to say something different. Regarding the MCMI-III test scores, Singh argues that without having the test results, she was unable to determine whether Dr. Syed is providing false testimony or accurate testimony.
[59] Here, the crux of the procedural fairness argument seems to be that there may be a discrepancy between the scoring report for the MCMI-III test and a finding of invalidity, as there was for the Rey 15 and M-FAST, which would help establish that Dr. Syed’s evidence is not credible and that she is providing false testimony regarding the test results.
[60] Singh was afforded sufficient opportunity to make her point on the reliability of Dr. Syed’s evidence by emphasizing the “changing” evidence in Dr. Syed’s answers regarding the Rey 15 and M-FAST tests during cross-examination. The possibility that the MCMI-III results would also be inconsistent was raised during cross-examination despite the lack of a report on the scoring. It is difficult to see with any precision how different the questioning would have been from the cross-examination that took place regarding the other tests to challenge Dr. Syed’s credibility for the MCMI-III test. Notwithstanding that the delivery of the raw test data took place mid-hearing during the five-week adjournment period, counsel was able to question Dr. Syed on the MCMI-III test and why she did not bring the report on the data. The position that Dr. Syed’s evidence lacked credibility and reliability was front and centre.
[61] The Adjudicator considered counsel’s submissions regarding the delay in receiving the raw test data and the lack of a report for the scoring of the MCMI-III test. While Singh fairly points out that she asked for this information repeatedly, this alone does not, against the factual backdrop of this case, lead to the conclusion that a key process was denied, especially given there was a five-week adjournment and the Adjudicator’s determination that best efforts were made to obtain the information. The Adjudicator was alive to all these issues and dealt with them appropriately as they arose during the hearing process.
[62] I would therefore not give effect to this ground of appeal.
(2) Error of Law-Best Efforts
[63] The Adjudicator applied the correct test in making the factual determination that best efforts were made to obtain the documents ordered to be produced. She properly considered the nature, type, and number of efforts made in reaching her conclusion.
[64] The insurer’s examinations conducted by Dr. Syed were arranged through and conducted under the name, and at the request of, Makos Health Associates. Each of Dr. Syed’s two examination reports, including the signature page, are on Makos Health Associates letterhead, which bear the name and contact information of the assessment centre. No other contact information is given in the two reports signed by Dr. Singh. In both reports, there was no reason to believe that initial efforts to contact Dr. Syed should be directed anywhere else. Notwithstanding, as indicated above, the letters were sent first to the assessment centre and then to the accessors.
[65] Singh did not raise or address the issue of causation in her factum or directly in oral argument. When questioned, counsel stated that the wrong test was applied, and this was outlined in the Reconsideration Decision. Singh has not established that an error of law as it applies to causation has been made.
[66] I therefore see no error of law raised here that would warrant interference with the decision of the Adjudicator.
I. Disposition
[67] The appeal is dismissed.
[68] Counsel agrees that between the Appellant and Respondent, costs will be ordered in favour of the successful party in the amount of $5,000 all-inclusive. The intervenor does not seek costs nor are costs sought against it. Singh is to pay Wawanesa Mutual Insurance Company costs in the amount of $5,000 all-inclusive.
Firestone RSJ.
I agree _______________________________
Stewart J.
I agree _______________________________
D. Edwards J.
Released: June 7, 2022
CITATION: Singh v. Wawanesa Mutual Insurance Company, 2022 ONSC 3361
DIVISIONAL COURT FILE NO.: DC-21-573
DATE: 20220607
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone RSJ, Stewart, and D. Edwards JJ.
BETWEEN:
SIEMONA SINGH
Appellant
– and –
WAWANESA MUTUAL INSURANCE COMPANY
Respondent
REASONS FOR DECISION
Released: June 7, 2022
[^1]: Tribunals Ontario, “About the LAT” (2015), online: https://tribunalsontario.ca/lat/about-the-lat/.
[^2]: Tribunals Ontario, “Common Rules of Practice & Procedure: Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission” (last updated March 2022), online: https://tribunalsontario.ca/documents/lat-acrb-fsc/LAT-ACRB-FSC-Common-Rules-of-Practice-Procedure.html
[^3]: Reconsideration Decision, at para. 21.
[^4]: LAT Hearing, July 9, 2019, at pp. 202-205 and pp. 228-230.