CITATION: Lengyel v. The Licence Appeal Tribunal et al., 2023 ONSC 1623
DIVISIONAL COURT FILE NO.: 652/21
DATE: 20230313
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. Edwards, Ryan Bell, and Leiper, JJ.
BETWEEN:
Self-represented and acting in person, the Appellant
GABRIELLA LENGYEL
Appellant
– and –
Valerie Crystal, for the Respondent, The Licence Appeal Tribunal
THE LICENCE APPEAL TRIBUNAL and CERTAS HOME AND AUTO INSURANCE
Philippa G. Samworth and Ranisha A. Fernando, for the Respondent, Certas Home and Auto Insurance
Respondent
HEARD at Toronto: Tuesday, March 7, 2023
Leiper, J.
PART I: INTRODUCTION
[1] The Appellant, Ms. Lengyel seeks to appeal and judicially review two decisions of the Licence Appeal Tribunal (“LAT”). After being involved in a car accident in 2018, Ms. Lengyel applied for statutory accident benefits.
[2] Adjudicator Craig Mazerolle heard the Respondent, Certas’ motion to stay Ms. Lengyel’s LAT application for statutory accident benefits in writing, on the consent of all parties on March 29, 2021. Certas was asking for a virtual psychiatric insurer examination under s. 44 of the Statutory Accident Benefits Schedule (the “Schedule”) to assess Ms. Lengyel’s entitlement to catastrophic benefits. Adjudicator Mazerolle made the temporary order on July 21, 2021. This is the first order under appeal/judicial review.
[3] Adjudicator Mazerolle found on the evidence before him:
(1) Certas gave Ms. Lengyel proper, timely, and informative notice of the disputed insurer examination;
(2) The insurer examination was reasonably necessary in light of Ms. Lengyel’s extensive pre- and post-accident medical history and her application for a determination of catastrophic impairment based on mental/behavioural concerns;
(3) It would be unfair to require Certas to proceed to a hearing without a chance to have an assessor test Ms. Lengyel’s psychiatric condition, especially given that Ms. Lengyel had previously been assessed by her own psychological expert, Dr. Pilowsky; and
(4) Ms. Lengyel had an obligation to make reasonable efforts to work with Certas to schedule and participate in the virtual assessment.
[4] Adjudicator Mazerolle made a final order on December 14, 2021, dismissing Ms. Lengyel’s LAT Application without a hearing under the authority of s. 3.4(c) of the Common Rules of Practice and Procedure (“LAT Rules”) because Ms. Lengyel refused to attend the psychiatric assessment that was the subject of the interlocutory order.
[5] In making this order, Adjudicator Mazerolle found:
(1) Ms. Lengyel did not produce contemporary and compelling evidence of significant harm that would arise from her participation in the s. 44 insurer examination.
(2) Section 44(1) allows insurers to require insured persons to attend reasonably necessary insurer examinations (“IEs”) – an essential statutory right that allows insurers to better understand the often-evolving medical condition of insured persons. Ms. Lengyel’s failure to comply imperiled Certas’ ability to fairly participate in the proceedings.
(3) After considering each of Ms. Lengyel’s submissions and concerns at the hearing of the motion, the Adjudicator dismissed the application.
[6] Ms. Lengyel challenges these orders on the basis that the decisions were unreasonable, the independent examination process is unreasonable and violates the Canadian Charter of Rights and Freedoms, the Health Professions Procedural Code, the Accessibility for Ontarians with Disabilities Act, the Adjudicative Tribunals Accountability, Governance and Appointments Act, and other legislation. Ms. Lengyel also challenges the process on the basis that it did not allow effective participation, it failed to be fair, open and accessible to all parties whether self- represented or suffering from a catastrophic injury, and it breached the law of the Supreme Court of Canada.
PART II: ISSUES ON THE APPLICATION/APPEAL
The Preliminary Issue: Should a Judicial Review be heard concurrently with the Appeal?
[7] The first and preliminary question is whether this matter should be heard as an appeal and as a judicial review.
[8] Starting with Ms. Lengyel’s appeal rights, I agree with LAT’s submission that s. 11(1) of the Licence Appeal Tribunal Act limits appeals to final orders on questions of law. This is consistent with prior findings of this court: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874. Thus, only the final decision of the LAT is subject to appeal here, and only on questions of law.
[9] For Ms. Lengyel’s request to simultaneously seek judicial review of both the interlocutory and final decisions of the LAT, the LAT submits that Ms. Lengyel must exhaust her appeal rights before embarking on a judicial review. Certas does not oppose her ability to argue both the appeal and judicial review at one proceeding, based on this court’s reasoning in Yatar v TD Insurance Meloche Monnex, 2021 ONSC 2507.[^1] In that decision, the court confirmed that in “exceptional circumstances” the court may decide to hear concurrent applications for judicial review with an appeal.
[10] The Judicial Review Procedure Act, R.S.O 1990, c. J.1, s. 2(1) (the “JRPA”), grants this Court jurisdiction to hear applications for judicial review notwithstanding an applicant’s ability to appeal the same decision.
[11] LAT submits that this court is nevertheless not compelled to undertake judicial review because by their nature such applications are for extraordinary or discretionary relief: see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 70.
[12] Judicial review may be declined in circumstances where permitting review might undermine the statutory appellate scheme: see Worden v. Ontario Municipal Board, 2014 ONSC 7247 at para. 14. This concern is attenuated where the application is for concurrent proceedings on the same record.
[13] I would exercise discretion to hear Ms. Lengyel’s application for judicial review concurrently with the statutory right of appeal based on the nature of the decision which terminated her application for accident benefits, her interests as a self-represented litigant with health issues, and the desirability of reducing duplication of resources by the parties and the administration of justice. The parties have prepared a record and have been directed to be ready with oral submissions on both the appeal and the judicial review. It would be inefficient, unnecessarily costly, and impractical to sever the judicial review at this stage from the appeal.
[14] Ms. Lengyel’s application for judicial review of the interlocutory and final orders made by the LAT shall be heard concurrently with her appeal from the final order of the LAT on questions of law.
Standards of Review
[15] The applicable standard of review on appeal for questions of law and procedural fairness is one of correctness: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at paras. 27-30.
[16] On allegations of procedural fairness in the context of a judicial review I adopt the comments of Sachs, J. in the matter of Khorsand v. Police Services Board 2023 ONSC 1270 at para. 33:
In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, the Supreme Court made the same finding with respect to applications for judicial review that raised issues of procedural fairness. Since Khela Ontario courts have been divided – some having applied the correctness standard of review to issues of procedural fairness and some having held that there is no need for a standard of review analysis when it comes to issues of procedural fairness – a decision is either procedurally fair or it is not. In my view, there is little practical difference between these articulations. A reviewing court does not accord deference to decisions that impact procedural fairness.
[17] On judicial review, the presumptive standard of review on the merits of a decision is reasonableness: Canada v. Vavilov 2019 SCC 65, [2019] 4 SCR 653 at paras. 23-32. I would apply that standard of review to the circumstances here, as none of the features that would displace this standard of review exist in this case.
The Issues on the Appeal and the Application for Judicial Review
[18] On the application for judicial review, the issues are whether the LAT’s decisions of July 21, 2021 and December 14, 2021 were reasonable. On the appeal, the issue is whether the LAT erred in law in making its final order of December 14, 2021 dismissing Ms. Lengyel’s application for accident benefits.
PART III: BACKGROUND
[19] Ms. Lengyel’s application for accident benefits followed a car accident in 2018. She has been previously involved in car accidents in 2011 and 2014 for which she had been deemed catastrophically impaired. In 2019, she was involved in a subsequent motor vehicle accident.
[20] On April 16, 2018, Ms. Lengyel made an application for statutory accident benefits from Certas. She filed a LAT application on September 30, 2019, in which she sought a finding of catastrophic impairment. She listed her medical rehabilitation needs and requested compensation of eighteen billion dollars.
[21] On November 18, 2019, Certas filed a response to Ms. Lengyel’s LAT application. On May 4, 2020, the parties met for a case conference. The matter was adjourned to allow for s. 44
assessments. On May 14, 2020, Vice-Chair Flude concluded that the matter could not proceed until those assessments were completed. Ms. Lengyel’s position was that the LAT should find her “catastrophically impaired” based solely on the materials she had filed, and without resort to an independent assessment. On October 13, 2020, Certas moved for a stay which was dismissed. Certas brought an application to judicially review the dismissal of its application but withdrew that application on August 24, 2021.
[22] On January 15, 2021, Certas brought a motion to dismiss or stay Ms. Lengyel’s LAT application because she had not attended a requested s. 44 insurer examination without a reasonable explanation. Certas obtained the stay order on July 21, 2021.
[23] Certas representatives then wrote to Ms. Lengyel to provide her with information about the planned virtual s. 44 psychiatry assessment scheduled for September 18, 2021, with Dr. Kehinde Adekunle Aladetoyinbo at AssessMed. Certas offered to help Ms. Lengyel with any of the computer technology needed to participate in the assessment.
[24] On August 11, 2021, Ms. Lengyel requested a female assessor. She also gave reasons for why she did not wish to participate in the assessment. On August 19, 2021, Certas representatives advised Ms. Lengyel that they would reschedule the assessment with a female clinician.
[25] On August 31, 2021, Certas representatives wrote to Ms. Lengyel to advise that her s. 44 examination had been rescheduled to September 20, 2021 to be conducted by Dr. Emily Gavett Liu, a female psychiatrist at AssessMed. The information necessary to participate in this examination was provided to Ms. Lengyel in this letter.
[26] On September 13, 2021, an AssessMed administrator wrote to Ms. Lengyel with instructions on how to participate in the virtual assessment on September 20, 2021.
[27] On September 13 and 14, 2021, Ms. Lengyel sent emails to AssessMed, asking to cancel the assessment and asking that AssessMed stop harassing her regarding the psychiatric assessment.
[28] On September 14, 2021, Certas wrote to Ms. Lengyel to remind her of the assessment scheduled for September 20, 2021. On September 16, 17, and 21, 2021, Ms. Lengyel wrote to Certas to say she was not fit to attend any assessment, as it would cause her health to deteriorate.
[29] Ms. Lengyel did not attend the rescheduled s. 44 psychiatry examination on September 20, 2021. On September 28, 2021, Ms. Lengyel wrote to Certas. She asserted that Certas had not accommodated her disability to attend an assessment and repeated that she believed the s. 44 psychiatric assessment was not necessary.
[30] On September 28, 2021, Certas personnel wrote to Ms. Lengyel to advise that since she did not attend at her rescheduled psychiatric medical examination, Certas could not consider her application for catastrophic entitlement. Certas relied on s. 55(1) of the Schedule, which forbids an insured person from applying to the LAT for statutory accident benefits if they fail to comply with a reasonably necessary independent examination.
[31] Certas brought a motion on October 19, 2021 seeking an order to dismiss Ms. Lengyel’s LAT Application based on her refusal to attend her s. 44 psychiatry insurer examination without reasonable explanation. This motion proceeded before Adjudicator Mazerolle via teleconference on November 1, 2021, who ordered a stay on December 14, 2021.
PART IV: ANALYSIS OF THE ISSUES
Did the LAT make an unreasonable decision on July 21, 2021 in staying Ms. Lengyel’s application pending an independent medical assessment?
[32] If the LAT made a decision that was reasonably available to it on the record, its decision is entitled to deference. It is not the role of this court to substitute our views for that of the tribunal or to re-hear the merits of the motion.
[33] Ms. Lengyel submits that the LAT failed to consider relevant constitutional authority, human rights legislation, and other administrative proceedings statutes. She submits that she has been caused emotional distress by the actions of the LAT and its failure to deal with her matter, given that she has been previously found to be catastrophically impaired.
[34] I disagree. The LAT applied the relevant statutory considerations from the Schedule to the motion and the underlying application before him. His findings on the application of the Schedule to the motion were reasonable and available to him under the scheme of the Act and the circumstances of Ms. Lengyel’s matter.
[35] Further, the reasons for decision reveal that the LAT considered Ms. Lengyel’s submissions on the application of other statutes, and her position that she had been caused emotional distress, that her privacy interests had been violated and that prior medical attendances had yielded a sufficient body of medical information that could be used in her application.
[36] The LAT concluded that its jurisdiction did not extend to adjudicating privacy interest or human rights claims; rather as a tribunal of statutory jurisdiction it was limited to adjudicating requests for accident benefits. The LAT then addressed the substance of Ms. Lengyel’s concerns at that time: that she required medical treatment rather than assessment, and any independent assessments should be conducted virtually rather than in-person. It found that further assessments were necessary given that prior assessments had been conducted in the context of prior car accidents. Thus, causation and other contributing factors were reasonably placed in issue in the context of the 2018 car accident which was the underlying cause of the current application.
[37] The LAT accepted the submissions of Ms. Lengyel that despite the difficulties in conducting psychometric testing virtually, Certas could do more to accommodate her desire to only participate virtually and endorsed Certas’ submission that it would work with Lengyel to do that.
[38] Finally, in responding to Ms. Lengyel’s submission that further participation in an assessment would negatively affect her, the LAT noted she had recently (in 2020) participated in
an assessment with Dr. Pilowsky and declined to exempt her from further participation at the instance of Certas in a virtual psychiatric examination.
[39] The LAT provided reasoned, considered reasons for its decision to stay the application for accident benefits. Its findings were available to it on the evidence. I would not interfere with this decision. It was a reasonable decision made after hearing from Ms. Lengyel. The LAT applied the statutory framework within its area of jurisdiction to the circumstances of the application.
Did the LAT make an unreasonable decision on December 14, 2021 in dismissing Ms. Lengyel’s application for accident benefits?
[40] Ms. Lengyel raises similar arguments challenging the decision of the LAT to dismiss her application given her ongoing failure to participate in an independent medical examination. This decision was taken after several efforts were made, including accommodating Ms. Lengyel’s request for a female clinician and arrangements to have the assessment done virtually, as she had requested at the prior motion.
[41] I conclude that the LAT made a reasonable decision and considered carefully Ms. Lengyel’s submissions. The LAT found that there was no reasonable basis for Ms. Lengyel to refuse to participate in the assessment, and that it would be unfair for the application to be adjudicated without access to this information. The LAT described and considered Ms. Lengyel’s various objections to the independent examination, including the impact of the Covid-19 pandemic, the effect of these requests on her health and well-being as well as her rights under constitutional and human rights legislation.
[42] The record before the LAT supported its finding that Certas had made efforts to accommodate Ms. Lengyel in scheduling the independent examination. The LAT found that Ms. Lengyel had made no corresponding efforts to carry out the prior direction of the LAT at the interim motion stage. In doing so, the LAT recognized the struggles for self-represented applicants and was mindful of the prejudice to the applicant of an order terminating her claim. Adjudicator Mazerolle wrote, “For these reasons, I made sure I took my time during the motion hearing to ensure that I understood the applicant’s concerns.”
[43] I would not interfere with the December 14, 2021 decision of the LAT on judicial review. It was a reasonable decision.
The Issue on Appeal: Did the LAT err in law in dismissing Ms. Lengyel’s application for accident benefits?
[44] The LAT applied the applicable legal authority to the question of whether Ms. Lengyel’s application for accident benefits should be dismissed. The Schedule provides for dismissal where an applicant fails to attend for a reasonably necessary independent examination. The LAT directed itself as to both the arguments on Ms. Lengyel’s behalf, but also the seriousness of the decision to be taken, given that it would end her application for entitlement to accident benefits.
[45] There is no error of law in the decision, nor is there any indication that Ms. Lengyel was not accorded procedural fairness in the hearing. The motion was heard virtually, and Ms. Lengyel’s submissions and arguments were understood and considered. The chain of reasoning that led to the result is apparent from the reasons and the findings within those reasons.
[46] I would dismiss the appeal.
PART V: CONCLUSION
[47] I would dismiss the application for judicial review of the decisions of the LAT of July 21, 2021, and December 14, 2021. I would dismiss the appeal from the decision of the LAT of December 14, 2021.
[48] The LAT and Certas do not seek costs of these proceedings. No costs are ordered.
I agree.
I agree.
Leiper J.___
D.L. Edwards, J.
Date of Reasons for Judgment: 13 March 2023 Date of Release: 13 March 2023
Ryan Bell J.
DIVISIONAL COURT FILE NO.: 652/21
DATE: 20230313
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D. L. Edwards, Ryan Bell, Leiper JJ.
BETWEEN:
GABRIELLA LENGYEL
Appellant
-and-
THE LICENCE APPEAL TRIBUNAL and CERTAS HOME AND AUTO INSURANCE
Respondent
REASONS FOR JUDGMENT
Leiper J.
Date of Reasons for Judgment: 13 March 2023 Date of Release: 13 March 2023
[^1]: After the matter was argued but before these reasons were completed, the Supreme Court of Canada granted leave to appeal on March 9, 2023: Ummugulsum Yatar v. TD Insurance Meloche Monnex, et al., 2023 17178 (SCC).