Court File and Parties

CITATION: Laljee v. Aviva General Insurance Company, 2024 ONSC 2577

DIVISIONAL COURT FILE NO.: 675/23

DATE: 20240503

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DILSHAD (DEE) LALJEE, Appellant

AND:

AVIVA GENERAL INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL, Respondents

BEFORE: Lococo, Matheson and Mew JJ.

COUNSEL: Self-Represented Appellant

Jason Frost, for Aviva General Insurance Company

Morgana Kellythorne, for Licence Appeal Tribunal

HEARD: 30 April 2024, in Toronto (in writing)

ENDORSEMENT

[1] The appellant, Dilshad (Dee) Laljee, seeks to appeal a merits decision dated 31 July 2023 (Laljee v. Aviva Insurance Canada, 2023 107284 (ONLAT)) and a subsequent reconsideration decision, dated 16 November 2023 (Laljee v. Aviva Insurance Canada, 2023 72606 (ONLAT)), made by Adjudicator Kate Grieves (the “Adjudicator”) of the Licence Appeal Tribunal (“LAT” or “Tribunal”), who found that the appellant was not catastrophically impaired as a result of a 2009 car accident.

[2] In its decision, the LAT further found that the appellant was not entitled to the treatment plans she had claimed, that a limitation period applied to some of her claims, and that she had not demonstrated that certain disputed treatments were reasonable and necessary.

[3] The appeal was heard in writing, at the appellant’s request, to accommodate a disability.

[4] The appellant was involved in an automobile accident on 27 August 2009, when the vehicle she was driving hit another vehicle while she was reversing out of a parking space. She asserts that she sustained injuries resulting in catastrophic impairment. She applied to the respondent insurance company, Aviva, for benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 403/96 (“SABS”). The respondent denied the appellant’s claim for benefits, and as a result, she applied to the LAT for a resolution of the dispute.

[5] In its initial decision the LAT found that the appellant had not sustained a catastrophic impairment as defined by the SABS. Given this, the LAT also determined that she was not entitled to case management services, nor to the treatments or assessments that she sought in relation to her injuries. The LAT also determined that the limitation period to dispute the respondent’s denial of certain benefits had elapsed.

[6] In coming to its conclusions, the LAT assessed the appellant’s pre-accident medical history. The Adjudicator determined that the appellant’s pre-accident psychological impairments had not been sufficiently considered by her assessor (Dr. Gnam) in his catastrophic assessment report, in which he had determined that the appellant did suffer injuries as a result of the accident.

[7] In particular, the Adjudicator concluded that Dr. Gnam had not had the benefit of reviewing the appellant’s pre-accident psychiatric reports, he did not know the appellant’s true work history, he was not aware of other relevant pre-accident incidents, nor was he told that she had been living in temporary accommodations for approximately a year prior to the accident. Taken together, these gaps in the information provided to Dr. Gnam resulted in him misapprehending the Appellant’s pre-accident state. Consequently, the adjudicator preferred other medical evidence provided to the Tribunal to that provided by Dr. Gnam’s report.

[8] On her application for reconsideration of the Tribunal’s decision, the appellant alleged violations of procedural fairness and that the initial decision contained errors of fact. The Adjudicator addressed each of these concerns in turn, finding that there was no procedural unfairness as the appellant had access to the documents she claimed to be missing, and that the allegedly illegible handwritten notes of one of her family doctors were sufficiently legible to allow the Adjudicator to summarise them and the notes of her other family doctor were largely in typed legible electronic form. The transcript of an examination under oath, which the appellant claimed not to have been provided with, had in fact been provided to her multiple times and was contained in the respondent’s document brief.

[9] In addition, the Adjudicator found that there were no substantial errors in fact that would warrant granting the reconsideration request. The Adjudicator had relied on documents in the record to make her decision, including accident and doctors’ reports which referenced the appellant’s medical history and the status of relationships with her family and friends. The Adjudicator reiterated that a reconsideration was not an opportunity for the appellant to re-argue her case.

This Appeal

[10] Pursuant to s. 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G an appeal to this court from a decision of the LAT may be made on a question of law only.

[11] Questions of law, which include issues of procedural fairness, are reviewable on a correctness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 36-37.

[12] Many of the issues raised by the appellant raise errors of fact, which the Divisional Court does not have jurisdiction to review on appeal. Others repeat the submissions made in support of the reconsideration request. That said, the following potential issues can be distilled from the appellant’s materials:

a. Was the appellant denied procedural fairness at the LAT?

b. Did the LAT err in its application of the test for catastrophic impairment?

c. Were any errors of law raised made by the LAT?

[13] Aviva raises an objection to the panel’s considering elements of the appellant’s written reply submissions, which are said to include new arguments and additional evidence on issues not raised in the responding materials.

Discussion and Conclusions

[14] The appellant takes the position that she was denied procedural fairness because Aviva “did not disclose materials vital to the [appellant] when all issues were being adjudicated by the LAT”. More specifically, the appellant alleges that despite requesting copies of a deposition transcript, which was “vital to [the Appellant’s] appeal”, she was not provided with those transcripts.

[15] The appellant also takes issue with the fact that some of the doctor’s notes relied on by the LAT were illegible. This is the same argument that the appellant made before the LAT on her request for reconsideration.

[16] There is no merit to any of the allegations of procedural unfairness. Beyond the bald statement that materials were not disclosed, the appellant does not identify those materials. With respect to the transcript, as the Adjudicator made clear, it was available to the appellant. As for the medical records, most of them were typed or otherwise legible. To the extent that there were records which the appellant was unable to read, a request could have been made to have them transcribed, but no such request was forthcoming.

[17] The appellant’s submissions in relation to the application of the test for catastrophic impairment are almost exclusively based on findings of fact that were made by the Adjudicator, to which she applied the test set out in the SABS. While the appellant did provide medical opinions supporting her claim for catastrophic impairment status, the Adjudicator, having considered and weighed the evidence presented, accepted – as she was entitled to - the findings, conclusions and opinions presented by the respondent’s experts.

[18] The LAT’s underlying findings of fact and mixed fact and law can only be interfered with if they give rise to an error in law.

[19] We find that no error of law was made by the Tribunal. Rather, there was ample evidence to support the Adjudicator’s finding that the appellant suffered from significant pre-existing psychological conditions before the accident and that she did not suffer any impairments as a result of the subject car accident. The LAT decision was supported by the evidence and is not reviewable on appeal, given the standard of review.

[20] In coming to this conclusion, we have taken into account all of the submissions and materials put forward by the appellant, including those to which Aviva objects.

Disposition

[21] The appeal is dismissed.

[22] No claim for costs has been made and none are awarded.

Lococo J.

Matheson J.

Mew J.

Date: 3 May 2024