CITATION: C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978
DIVISIONAL COURT FILE NO.: DC-20-140
DATE: 20221021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C., Swinton, and McCarthy JJ.
BETWEEN:
C.P.
Appellant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
R. Gratsias, for the Appellant
R. Brown Greer, for the Respondent
HEARD at Toronto (by videoconference): October 12, 2022
REASONS FOR DECISION
MCCARTHY J.
The Nature of the Appeal
[1] The Appellant appeals to this court from two decisions rendered by the Licence Appeal Tribunal (“LAT”) on both a question of law and for a declaration that he was denied procedural fairness and natural justice. Those decisions are a decision of Adjudicator S.F. Mather dated March 27, 2018 (“the Adjudicator’s Decision”) and the reconsideration decision of Vice-Chair Marzinotto dated February 18, 2020 (“the Reconsideration Decision”) which denied reconsideration.
Background
[2] The Appellant was involved in a motor vehicle accident on October 30, 2014. After applying for statutory accident benefits through the Respondent insurer, he received income replacement benefits (“IRBs”) on a lump-sum basis for the period of November 8, 2014, to June 3, 2015. The insurer then terminated the IRBs on the basis of an insurer examination (“IE”) which found that the Applicant did not suffer an impairment as a result of the accident that resulted in a substantial inability to perform the essential tasks of his self-employment as a metallic paint sprayer.
[3] The Appellant disputed that termination by applying to the LAT for a determination of entitlement to, and reinstatement of, the IRB.
Grounds for Appeal
[4] The grounds for appeal boil down to three issues:
i) Did the Adjudicator correctly interpret the LAT rules regarding expert witnesses?
ii) Did the Adjudicator correctly interpret the entitlement provisions in the Statutory Accident Benefits Schedule (“SABS”)?
iii) Did the process in the LAT proceedings breach the requirements of procedural fairness and natural justice?
Jurisdiction and Standard of Review
[5] This court has jurisdiction to hear the appeal, but only on questions of law: see subss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. A denial of procedural fairness or natural justice is an error of law.
[6] The standard of review on an appeal of a question of law is correctness: see Canada (Minister of Employment and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. Regarding procedural fairness, there is no standard of review. Either a procedure is fair and is in conformity with the principles of natural justice, or it is not: see Intercounty Tennis v. Human Rights Tribunal of Ontario, 2020 ONSC 1632, at para. 46 and Swingler and Yoga v. Shapiro, 2021 ONSC 738, at para. 7.
[7] For the reasons that follow, I would dismiss the appeal.
Expert Reports
[8] Rule 10 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) (“LAT rules”), reads as follows:
10.1 For the purpose of these Rules, an expert witness is a person who is qualified to provide professional, scientific, or technical information and opinion based on special knowledge through education, training or experience in respect of the matters on which he or she will testify.
10.2 A party who intends to rely on or refer to the evidence of an expert witness shall provide every other party with the following information in writing:
[…] (b) A signed statement from the expert, in the Tribunal’s required form, acknowledging his or her duty to:
(i) Provide opinion evidence that is fair, objective, and non-partisan;
(ii) Provide opinion evidence that is related to matters within his/her area of expertise; and
(iii) Provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue;
10.4 A party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal.
[9] Rule 3 of the LAT rules reads as follows:
3.1 These Rules will be liberally interpreted and applied, and they may be varied or applied on the Tribunal’s own initiative, or at the request of a party, to:
(a) Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative; and
(b) Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
[10] There was no error of law and no denial of procedural fairness in the LAT’s treatment of expert reports, or in its application and interpretation of the LAT rules.
[11] An administrative body should enjoy a wide degree of latitude in how it interprets and applies the rules which are specifically designed to govern the proceedings before it.
[12] There is simply no basis to interfere with the Adjudicator’s decision to allow the insurer’s expert reports into evidence. The Adjudicator fully comprehended the procedural issue raised by the insurer’s failure to serve and file expert forms in accordance with rule 10.2(b). The Adjudicator properly considered rules 10.2 and 10.4 and exercised her discretion to admit the reports under rule 3. In doing so, she considered the entire history of disclosure, production, and the timing of the objection to the admission of the reports. The Adjudicator elected to treat the absence of expert forms as a matter for weight. She was entirely within her rights to do so.
[13] In the Reconsideration Decision, the Vice-Chair reviewed the Adjudicator’s decision and found that she had given due consideration to the Appellant’s challenge to the reports and had properly exercised her discretion to admit the reports and give them due weight. The Vice-Chair concluded that the Adjudicator’s reasons for allowing the reports into evidence were well stated; that decision ensured that the process was fair, proportionate, efficient, and allowed for the matter to be heard on the merits.
[14] Indeed, the record confirms that the Appellant was provided with all the Respondent’s expert reports during the insurer’s handling of the file. The reports were referred to in the Respondent’s case conference brief and again provided to the Appellant as part of the litigation process. The Appellant did not object to the absence of expert report forms in a timely manner; he declined to bring a motion for production of those forms prior to the hearing.
[15] It was well within the Arbitrators’ discretionary powers and gate-keeper function to allow the reports into evidence and to consider the absence of an expert form as going to weight only.
[16] There was no denial of procedural fairness or error in law committed by either the Adjudicator or the Vice-Chair.
Entitlement to IRBs
[17] Sections 5 and 6 of the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 (“SABS”) set out the “pre-104 week” and “post 104 week” test of disability to establish entitlement to IRBs:
Eligibility Criteria
(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
The insured person,
i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, […]
Period of benefit
- (1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.
(2) The insurer is not required to pay an income replacement benefit, […] (b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.
[18] The Appellant argues that the Adjudicator failed to articulate the modern principle of statutory interpretation, which made her decision ultra vires. There is no merit to this argument. There is no question that administrative tribunals should interpret legislation having regard to the modern principle of statutory interpretation (Vavilov at para. 120). However, as the Supreme Court stated in Vavilov (at para. 119), “Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case.” In the present case, the Appellant has failed to show that the Adjudicator erred in the interpretation of any relevant provision of the SABs.
[19] The Adjudicator’s treatment of the entitlement to IRBs was entirely fair and supported by the language of s. 5 of the SABs. She considered and weighed all the relevant medical evidence, including clinical notes and records of the treating doctors, and arrived at the conclusion that the Appellant had failed to establish any entitlement to IRBs under s. 5 of the SABs after June 3, 2015. Her factual findings that the Appellant had failed to establish an impairment which prevented him from engaging in the essential tasks of a self-employed metallic painter were grounded in the evidence. In particular, the Adjudicator rejected the Appellant’s affidavit as self-serving and lacking in credibility; she gave little weight to a functional assessment which pre-dated the period in dispute; she gave considerable weight to the findings of a physical medicine and rehabilitation doctor who was a referral from the Appellant’s family doctor and who found no impairment in the Appellant; and she afforded little to no weight to Dr. Pruzanski’s opinion of “total body pain syndrome” on the basis that it contained inaccurate reporting of pre-accident drug use and the post-accident prescription history.
[20] The Appellant’s contention that, by her selective treatment of the medical evidence, the Adjudicator somehow lost jurisdiction is without foundation. Weighing evidence and assessing credibility is what adjudicators do. As the Supreme Court of Canada stated in Vavilov, at para. 125:
It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” […]
[21] There was no loss of jurisdiction here; just a thorough and critical review of the evidence, clear findings of fact and the application of those facts to the test for eligibility for the benefit in question.
[22] There was no legal error in the Adjudicator’s treatment of the “pre-104 week” or “post 104 week” test of disability. It is true that the Appellant did qualify for IRBs for a period of time post-accident (October 31, 2014 to June 3, 2015). The issue for the Adjudicator’s determination was ongoing entitlement after the latter date. The Adjudicator’s conclusion was that the Appellant had failed to establish that he sustained any impairment which resulted in him being substantially unable to perform the essential tasks of his employment or left him with a complete inability to engage in any employment or self-employment for which he was reasonably suited by education, training or experience (see para. 15 of the Adjudicator’s decision). Those findings were based on the evidence which the Adjudicator accepted. The Adjudicator’s reasons on the post-104-week benefit are found at paragraphs 43 and 44 of her decision. They are understandably brief; if the Appellant had failed to establish entitlement under the “own occupation” test, then it followed logically and inexorably that, on the same evidentiary record, he could hardly qualify for the benefit under the more stringent disability test (“the any occupation test”) which would apply after the first 104 weeks of accident-related disability.
[23] I see no error in the Adjudicator’s application of the law to the facts as she found them.
[24] In the Reconsideration Decision, the Vice-Chair was faced with the Appellant’s argument that the Adjudicator had made a significant error in law: in requiring the Appellant to prove his psychiatric/mental injury on a scientific and positive psychiatric illness level; and in failing to draw an adverse inference against the Respondent for failing to produce an affidavit or a report responding to the Appellant’s chronic pain report. A third ground for reconsideration was that the Adjudicator had made findings based on the misapprehension of the evidence.
[25] The Vice-Chair carefully analyzed the Adjudicator’s decision and found that not only had the latter extensively reviewed the evidence, but the Adjudicator had also provided ample reasons why the Appellant was not entitled to the benefit. The Vice-Chair considered the case law presented by the Appellant and determined that it was of no assistance to the Appellant. The Vice-Chair correctly stated that the onus is always on the applicant to prove entitlement to the benefits sought.
[26] The Vice-Chair carefully considered the Adjudicator’s treatment of the evidence and was not persuaded that there had been any misapprehension of the evidence.
[27] There was no misstatement of the law, no loss of jurisdiction and no misapprehension of the evidence by either the Adjudicator or the Vice-Chair.
Denial of Procedural Fairness and Natural Justice
[28] There was no denial of procedural fairness or natural justice at either level of the Tribunal.
[29] The reasons of both the Adjudicator and the Vice-Chair were open, transparent, and fulsome.
[30] The assertion that the Appellant was denied natural justice because of the scheduling of the hearing is without foundation. The claim was processed and managed within the parameters of the LAT’s own rules. The procedure included a rule 20 case conference at which time disclosure was canvassed and the issues in dispute identified. The Appellant was made well aware that the Respondent was relying on its expert reports. The Appellant must have appreciated that the expert forms were missing yet did nothing to object to the reports going into evidence or request that expert forms be completed until the eve of the hearing.
[31] The Appellant has failed to establish that he was denied procedural fairness or natural justice at either the Adjudication or the Reconsideration level.
Disposition
[32] For the foregoing reasons, the appeal is dismissed with costs payable by the Appellant to the Respondent fixed in the amount of $3,000 as agreed. Those costs are payable within 30 days of today’s date.
McCarthy J.
I agree _______________________________
Swinton J.
I agree _______________________________
McWatt A.C J.
Released: October 21, 2022
CITATION: C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978
DIVISIONAL COURT FILE NO.: DC-20-140
DATE: 20221021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C., Swinton, and McCarthy JJ.
BETWEEN:
C.P.
Appellant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
REASONS FOR DECISION
McCarthy J.
Released: October 21, 2022