CITATION: Landa v. The Dominion of Canada General Insurance Company 2024 ONSC 2871

DIVISIONAL COURT FILE NO.: 498/21; 152/22; 396/23; 397/23

DATE: 2024/05/21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Sheard JJ.

BETWEEN:

Marina Landa

Appellant/Applicant

– and –

The Dominion of Canada General Insurance Company and The Licence Appeal Tribunal

Respondents

Marina Landa, on her own behalf

Chris McCormack, for the Respondent, The Dominion of Canada General Insurance Company

Douglas Lee, for the Respondent, The Licence Appeal Tribunal

HEARD at Toronto: April 25, 2024

The Court

Overview

[1] Ms. Landa was involved in an automobile accident on November 6, 2007 and sought benefits pursuant to O. Reg. 403/96: Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “SABS”). Ms. Landa was insured by The Dominion of Canada General Insurance Company (“Dominion”), which denied her certain benefits. On October 23, 2019, she applied to the Licence Appeal Tribunal (“LAT”) for an adjudication on her entitlement to benefits under the SABS.

[2] The LAT made five decisions:

• A preliminary issue decision where the LAT found that several of Ms. Landa’s claims were out of time and the LAT had no jurisdiction,

• A reconsideration decision dismissing Ms. Landa’s request to reconsider the preliminary issue decision,

• A second reconsideration decision initiated at the LAT’s own initiative in which it found that it erred in holding that the LAT had no jurisdiction, but nevertheless determined that an extension of time was not warranted,

• A decision in which the LAT determined that Ms. Landa was not entitled to benefits with respect to the remainder of her claims, and

• A reconsideration decision dismissing Ms. Landa’s request for reconsideration.

[3] Ms. Landa is appealing and seeking judicial review in relation to all five of these decisions. The first appeal and judicial review application is in relation to the three decisions that determined that a number of her claims were out of time (the “Preliminary Issue Decisions”). The second appeal and judicial review application is in relation to the decisions that dealt with the remainder of her claims (collectively, the “Merits Decisions”).

[4] For the reasons that follow, we would dismiss both the appeals and the judicial review applications.

Background

[5] The motor vehicle accident giving rise to Ms. Landa’s claims occurred almost 14 years ago - on November 6, 2007. She applied for statutory accident benefits on March 14, 2008. Ms. Landa was represented by a paralegal when she filed her claim for benefits, and she continued to be represented by that paralegal until May of 2017.

[6] Ms. Landa was self-represented when she filed an application to the LAT on October 23, 2019 and she continues to be self-represented.

Preliminary Issue Decisions

Preliminary Issue Decision

[7] On October 9, 2020, LAT Vice Chair McGee released a decision on the preliminary issue of whether Ms. Landa’s claims for various medical benefits, the cost of examinations and income replacement benefits (“IRBs”) were barred because Ms. Landa failed to commence an application within two years after Dominion’s refusal to pay the amounts claimed, or in the alternative, whether Ms. Landa’s claims were barred because she failed to submit to an insurer’s examination with respect to psychological treatment.

[8] The Vice Chair determined that Ms. Landa was time barred from proceeding with her claims, and it was therefore unnecessary to consider whether she was barred for failing to submit to an insurer’s examination.

[9] The Vice Chair considered whether Dominion issued valid denials to trigger the limitation period. The limitation period begins when an insurer gives a clear and unequivocal denial of a benefit that is accompanied by notice of the two-year period for commencing the dispute resolution process. Ms. Landa argued that the notice was deficient because it did not issue a final denial of some of the benefits she claimed. The Vice Chair found that Dominion issued a clear denial of Ms. Landa’s claims for income replacement benefits, prescription medications, physiotherapy, psychological services, housekeeping services, an in-home assessment, and a neurological assessment.

[10] Finally, the Vice Chair considered whether to extend timelines to extend the limitation period to allow Ms. Landa’s claim to proceed. The Vice Chair relied on the LAT decision of SS v. Certas Home and Auto Insurance Company, 2016 153125 (ON LAT) in holding that the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”), does not allow for an extension of time for a proceeding under the SABS. She therefore determined that she had no jurisdiction to grant an extension of time.

Preliminary Issue Reconsideration Decision #1

[11] In a Reconsideration Decision, dated December 23, 2020, Vice Chair McGee denied Ms. Landa’s request for a reconsideration. Ms. Landa submitted that the LAT acted outside of its jurisdiction by making a determination on matters that were not part of the preliminary issue hearing. She also submitted that the LAT made errors of law by not properly weighing evidence, failing to explain how evidence was weighted and in misconstruing her arguments.

[12] The Vice Chair determined that the Preliminary Issue Decision meaningfully grappled with the key issues and arguments raised by the parties. It considered Ms. Landa’s submissions with respect to the reasons why Dominion’s denials were deficient, her reasons for delayed claims, and her argument that the LAT should extend the limitation period and preserve her claim.

[13] The Preliminary Issue Decision specified the evidence that it relied on, including quoting from Dominion’s denial letters. There was no error in the manner in which the LAT set out its factual findings.

Preliminary Issue Reconsideration Decision #2

[14] Subsequent to the first preliminary decision reconsideration decision, the Divisional Court released a decision that determined that the LAT does have discretion to extend the limitation period under s. 7 of the LATA. On its own initiative, the LAT reconsidered the Preliminary Issue Decision a second time. In its second reconsideration decision, Vice Chair McGee found that she had made an error of law in the Preliminary Issue Decision when she found that the LAT lacked jurisdiction to extend the limitation period in respect of Ms. Landa’s claims.

[15] Despite this legal error, the Vice Chair determined that Ms. Landa had not met the test to be granted an extension of time to bring her claims under the SABS. The Vice Chair found that Ms. Landa did not have a bona fide intention to appeal Dominion’s denial of her claims. Instead, she did not initiate a dispute resolution process because she was unsure that she would be successful and she wished to continue direct negotiations with Dominion. The delays in Ms. Landa’s case were substantial, amounting to more than 9 years in some cases. Granting an extension would cause prejudice to Dominion, because Dominion’s ability to arrange insurer’s examinations and to participate in proceedings before the Tribunal was hindered by significant delays. Finally, Ms. Landa was found to not have met the burden of establishing the merits of the appeal, such that the extension should be granted; there were limited medical reports relating to her entitlement to benefits, and there was likely no merit to her claims.

[16] Ms. Landa therefore failed to show that an extension of the limitation period was justified.

The Merits Decisions

The Merits Decision

[17] On January 24, 2023, Adjudicator Kepman released a decision on the merits of Ms. Landa’s remaining claims that were not barred by the limitation period.

[18] The issues considered by the LAT and the Adjudicator’s determination on each issue were as follows:

• Was Ms. Landa entitled to an IRB at a rate of $400 per week for the period of November 13, 2007 to August 10, 2008?

The Adjudicator found that Ms. Landa was not entitled to an IRB because she failed to provide information requested by Dominion. Ms. Landa was asked to provide personal income tax returns for the years 2006-2008. She provided only notices of assessment for 2006 and 2007. These documents were not sufficient for the purposes of calculating Ms. Landa’s income earned from self-employment. While Ms. Landa was found to have been entitled to an IRB, her failure to provide the information needed to determine the quantum she was entitled to meant that she could not proceed with her application.

• Was Ms. Landa entitled to $29,419 for various expenses?

The Adjudicator found that Ms. Landa had failed to provide Dominion with the necessary information to determine if the disputed treatments were reasonable and necessary. Ms. Landa also failed to show that she had properly transmitted the treatment plans to Dominion, or that Dominion had ever received the necessary treatment plans. She was therefore not entitled to compensation for the various expenses.

• Was Ms. Landa entitled to payment for physiotherapy recommended in a treatment plan by PhysioFlow?

Ms. Landa failed to show that her ongoing complaints of pain were connected to her accident, and had not produced sufficient corroborating and contemporaneous evidence to support her claim.

• Was Ms. Landa entitled to vocational or academic training at an Adult Day School submitted in an expense claim form?

Ms. Landa failed to show that she submitted the proper form to Dominion, as required by the SABS. She therefore did not meet her evidentiary burden to prove that she was entitled to receive vocational training expenses.

• Was Ms. Landa entitled to payment for physiotherapy recommended in a Treatment plan by PhysioActive?

Ms. Landa’s representative emailed Dominion an incomplete form with respect to this particular claim, and it was not submitted in the necessary manner. Ms. Landa was therefore not entitled to payment for this claim since it was never properly received by Dominion.

• Was Ms. Landa entitled to interest on any overdue payments?

Since no benefits were found to be owing, Ms. Landa was not entitled to any interest.

Merits Reconsideration Decision

[19] Adjudicator Kepman released a Reconsideration Decision on April 26, 2023. The request for reconsideration was dismissed.

[20] Dominion raised an initial objection to Ms. Landa referring to privileged settlement discussions in her Reconsideration Request. The Adjudicator held that the Tribunal was prohibited from admitting such information into evidence, and excluded it from consideration.

[21] Ms. Landa argued that the LAT acted outside its jurisdiction, and violated the rules of procedural fairness by failing to weigh evidence properly and providing insufficient reasons. The Adjudicator found that the failure to address every argument and piece of evidence raised in arguments, including evidence with respect to Ms. Landa’s entitlement to an IRB, did not amount to an error of procedural fairness. The Merits Decision laid out the reasoning for its findings, and Ms. Landa failed to show sufficient grounds for allowing a Reconsideration.

Standard of Review

[22] There was no dispute about the applicable standards of review. This court’s jurisdiction on appeal from the LAT is confined to questions of law, for which the applicable standard of review is correctness. On the judicial review applications, questions of fact and mixed fact and law are to be reviewed on a standard of reasonableness. For questions involving procedural fairness, including bias, the question is whether the decisions were procedurally fair.

Issues Raised

[23] Ms. Landa’s factum sets out a list of issues, which are summarized below. No distinction is made between the issues for the appeal and the issues for the judicial review application.

1. Did the Tribunal err in its reconsideration decisions by failing to consider the grounds for reconsideration presented by Ms. Landa?

2. Did the Tribunal err in refusing to exercise its jurisdiction, breach procedural fairness or did it act in a manner giving rise to a reasonable apprehension of bias?

3. Did the Tribunal fetter its discretion by using Dominion’s arguments as the reasons for a decision?

4. Did the Tribunal err in not accurately assessing evidence?

5. Did the Tribunal err in failing to consider relevant case law, or the relevant provisions of SABS, or by misapplying legal principles?

6. Did the Tribunal err in failing to extend the limitation period under s. 7 of the LATA?

7. Did Dominion fail to notify Ms. Landa of all the requirements for claiming benefits, and if so, did the LAT err in failing to apply the doctrine of waiver and estoppel?

[24] Rather than addressing the issues as formulated by Ms. Landa, we will examine whether the Preliminary Issue Decisions or the Merits Decisions disclosed an error of law, were unreasonable or were rendered in a manner that breached procedural fairness.

Analysis of Preliminary Issue Decisions

[25] There are two key issues that Ms. Landa raises as errors of law or unreasonableness in the Preliminary Issue Decision and two Reconsideration Decisions.

Issue 1-Was there an error of law or was it unreasonable for the LAT to find that Ms. Landa’s claims were statute barred?

Issue 2-Was there an error of law or was it unreasonable for the LAT to refuse to extend the limitation period that it found applied?

Issue 1-Was there an error of law or was it unreasonable for the LAT to find that Ms. Landa’s claims were statute barred?

[26] Ms. Landa makes the following submissions. She is in agreement that the test in Smith v. Co-operators General Insurance, 2002 SCC 30; [2002] 2 S.C.R. 129 should be applied in determining whether Dominion gave a clear and unequivocal denial of a benefit to start the two year limitation period but argues that Smith was misapplied having asked for more information, or an insurer’s examination, Dominion’s denial was ambiguous and it did not deny the benefit in plain, clear and unequivocal language. A denial of benefits that was not compliant with other provisions of the SABS cannot be a valid denial. She relies on the Supreme Court of Canada’s decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 in support of her argument that the LAT misapplied the test in Smith.

[27] Ms. Landa further submits that the LAT did not examine the documents to determine if there was a clear and unequivocal denial of a benefit but instead, relied only on Dominion’s submissions.

[28] The issue raises a question of mixed fact and law. As such, the applicable standard of review is reasonableness.

[29] In the October 9, 2023 Preliminary Issue Decision the LAT found:

[9] The parties agree that a denial meeting the criteria set out by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co. will trigger the commencement of the limitation period under the Schedule. The limitation period starts when an insurer gives a clear and unequivocal denial of a benefit that is accompanied by notice of the two-year period for commencing the dispute resolution process. The insurer must communicate the denial in clear and straightforward language directed to the unsophisticated person.

[10] A limitation period is triggered with the first valid refusal: see R.R. vs. State Farm Insurance Company 2019 119769 (ON LAT) at para. 13; K.K. vs. Coseco Insurance Company [“K.K.”], 2020 12713 (ON LAT) at para. 21. Subsequent denials, insurer requests for more information, and notices of Insurer’s Examinations (IEs) do not detract from a valid denial or restart the limitation period: see K.K. at para. 18.

[11] As the Ontario Court of Appeal held in Sietzema v. Economical Mutual Insurance Company (2005),2014 ONCA 111, even legally incorrect reasons for a denial will not prevent the commencement of the limitation period. Citing its earlier decision in Turner v. State Farm Mutual Automobile Insurance Co. (2005) the court in Sietzema noted at para. 13,

The purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such a notice.

[12] A denial need not contain specific wording. It must simply communicate that the benefit is not payable: see G.P. and Aviva Insurance Company of Canada, 2017 77379 (ON LAT) at para.27.

[30] The LAT found for each benefit in dispute that Dominion issued a clear and unequivocal denial of payment communicated in straightforward language directed to an unsophisticated (to use the language in the jurisprudence) or lay person. Each denial was accompanied by notice of the two-year period for commencing the dispute resolution process. The denials were found to be Smith-compliant and triggered the two-year limitation period under the Schedule.

[31] The Vice Chair set out in the Preliminary Issue Decision the words used by Dominion in denying each of the claims. For some of the claims, the words used in the letters were indisputably a clear denial. For example, with respect to the claim for the income replacement benefit, Dominion denied the benefit by way of a letter and Explanation of Benefits dated July 21, 2008. The letter stated:

Based on [the IE assessor’s] opinion we have determined your entitlement to receive Income Replacement Benefits has ceased as you no longer meet the criteria to qualify for this benefit. No consideration will be given towards the payment of an Income Replacement Benefit on or after August 11, 2008.

[32] With respect to other benefits claimed, the letters advised Ms. Landa that “a treatment plan is required and upon receipt thereof, the request for funding will be reviewed”, or “we will not fund the Treatment Plan as submitted” or “we will not fund this Treatment and Assessment plan pending the result of the Insurer’s Examination”. Ms. Landa submits that these denials are not clear and unequivocal.

[33] However, the LAT found that these letters were accompanied by a notice of the two year period for commencing the dispute resolution process which was part of a Explanation of Benefits form which clearly set out that the item was not payable. The LAT also relied on its previous jurisprudence that insurer’s requests for more information or a reference to an Insurer’s Examination do not detract from a valid denial or re-start the limitation period.

[34] The rationale given in the caselaw for the limitation period beginning at the first valid refusal to pay a benefit (as opposed to a subsequent refusal) is that otherwise, an insured could continuously extend the limitation period on a specified benefit in perpetuity. (R.R. v. State Farm Insurance Company, supra at para.13; K.K., supra.)

[35] Ms. Landa’s argument would extend a claimant's entitlement to benefits for an indeterminate period of time which has been found to be and is "inconsistent with the Supreme Court of Canada's rationale [set out in M.(K.) v. M.(H.),1992 31 (SCC), [1992] 3 S.C.R. 6] and which underlined the common sense of, and the need for limitation periods." (Haldenby v. Dominion of Canada General Insurance Co. (2001) 2001 16603 (ON CA), 55 O.R. (3d) 470 (C.A.), at para. 36).

[36] The Vice Chair found that Ms. Landa commenced proceedings from six months to almost 10 years outside of the limitation period which highlights the rationale for the rule that the limitation period begins at the first valid refusal to pay a benefit. No conflicting jurisprudence was referred to us which has held that because the insurer asked for additional information, a treatment plan or an insurer’s examination, the limitation period did not start to run.

[37] There is no merit to Ms. Landa’s submissions that the LAT misapplied Smith and that where the insurer asked for more information, its denial was therefore ambiguous and that it did not deny the benefit in plain, clear and unequivocal language.

[38] The Vice Chair’s Preliminary Decision quoted from Dominion’s letters of refusal to Ms. Landa. There is no basis for Ms. Landa’s claim that the LAT did not examine the documents to determine whether there was a clear and unequivocal refusal or relied only on the submissions of Dominion.

[39] The Supreme Court’s decision in Yatar concerned the effect of the reinstatement of income replacement benefits on the validity of the initial denial of benefits and whether the limitation period can only be triggered when they are validly terminated again. There was no reinstatement of benefits in Ms. Landa’s case and apart from Yatar clarifying that a right of appeal on a question of law alone does not, on its own, preclude applications for judicial review, it has no application to Ms. Landa’s case.

[40] In short Ms. Landa has not satisfied her onus of demonstrating to this court that the LAT’s decision that her claims were statute barred was unreasonable.

Issue 2-Was there an error of law or was it unreasonable for the LAT to refuse to extend the limitation period that it found applied?

[41] Ms. Landa submitted that courts are generally reluctant to dismiss a potentially meritorious claim on grounds that do not address its merits. Ms. Landa argued that considering that the SABS is consumer protection legislation, a dispute involving the SABS should be heard on its merits.

[42] Under s. 56 of the 2010 Schedule and s. 51 of the 1996 Schedule, LAT proceedings under the Insurance Act must be commenced within two years of the insurer’s denial of benefits. Section 7 of the LATA provides that the LAT may extend the time for commencing a proceeding where it “is satisfied that there are reasonable grounds for applying for the extension and for granting relief.”

[43] As noted above, at the time that the LAT rendered its October 9, 2020 Preliminary Issue Decision and its December 23, 2020 Reconsideration Decision, the LAT’s case law was divergent on whether s. 7 of the LATA allowed the LAT to extend the limitation period in the Schedule. However, this Court subsequently held in Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 (Div. Ct.) at para. 61 that the LAT has that authority. On its own initiative, the LAT reconsidered the Preliminary Issue Decision a second time.

[44] To determine whether to grant an extension of time under s. 7 of the LATA, the LAT generally considers four factors which it must weigh in order to determine whether the justice of the case requires granting the extension. The four factors are set out by the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492 (Div. Ct.) at paras. 13-17 and 40 (“Manuel”):

1. The existence of a bona fide intention to appeal within the appeal period;

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

[45] The LAT noted that Manuel directs a holistic analysis of these factors, no single factor is determinative, an extension should not be granted unless the “justice of the case” requires it, and the onus is on Ms. Landa to establish that there are reasonable grounds for granting an extension.

[46] The LAT reviewed the submissions of the parties, applied the correct legal test to findings of fact based on documentary evidence, and found that Ms. Landa had not shown that an extension of the limitation period was justified.

[47] In paragraph 27 of the second Preliminary Issue Reconsideration Decision, the LAT inserted a table showing a seven to almost ten-year delay in Ms. Landa applying to the LAT for six of the seven disputed issues. At paragraph 43, the LAT found:

Weighing the four Manuel factors holistically, I find that the applicant has not shown that an extension of the limitation period is justified. The applicant has failed to demonstrate a bona fide intention to appeal within the limitation period. The length of the delay, ranging from six months to almost a decade after the expiry of the limitation period, is substantial, and the prejudice flowing from it readily apparent. This is not a case where the merit of the application is clear and compelling such that granting an extension would be warranted despite every other Manuel factor weighing against an extension. The possibility that there is some merit to some of the claims does not, on its own, justify an extension of time.

[48] The decision not to extend the time is a discretionary one to which this court owes considerable deference. Ms. Landa has not demonstrated an error in principle. There was documentary evidence to support the facts as found, and “it is not the role of the court in this appeal to ‘second-guess’ the weight to be given to the evidence nor to interfere with the inferences drawn from the facts as found.” (Fratarcangeli, at para. 85). Ms. Landa has not established that the reconsideration decision was unreasonable.

Analysis of the Merits Decisions

[49] As set out above, we will examine whether the Merits Decision or the Merits Reconsideration Decision disclosed an error(s) of law, which is the limit of this court’s scope of review on appeals, and whether these decisions were unreasonable which is the nature of the review that may be undertaken by the court on a judicial review application. We will also examine whether the decisions were rendered in a manner that breached procedural fairness.

[50] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 explains that to be reasonable “a decision must be based on reasoning that is both rational and logical” (at para. 102). Reasons are to “be read in light of the record and with “due sensitivity to the administrative regime in which they were given” and should reveal a “rational chain of analysis” (at para. 103).

The Merits Decision

(a) Claim for IRBs

[51] The LAT denied Ms. Landa’s claim for IRBs on the basis that she had failed to provide the information, which had been requested by Dominion pursuant to s. 33 of the SABS.

[52] S. 33(1)1 of the SABs obligates an applicant to provide the insurer with “any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit”. S. 33 (6) provides that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1).

[53] The LAT considered the evidence and the submissions put forth by Ms. Landa that the information she had provided was sufficient to calculate her IRB entitlement and that, if Dominion required more information, it had an obligation to specify what information was required.

[54] The LAT considered Ms. Landa’s submissions that: the information she provided to Dominion was sufficient; her 2007 and 2008 tax information was not then available; what Dominion asked her to provide was unreasonable; Dominion did not tell her documents were not received until 2017; Dominion did not comply with s. 33; and, she was forced to hire an accountant to prepare a report based on financial disclosure that she had previously provided to Dominion.

[55] At paras. 33 to 42 of the Merits Decision, the LAT explained why it did not accept Ms. Landa’s submissions. In these paragraphs, the LAT made factual findings based on the record before it, that did not support Ms. Landa’s submissions. For example, it found that Dominion had made several requests for her 2006, 2007, and 2008 income tax returns, which were not provided until 2015.

[56] The LAT considered Ms. Landa’s submissions and explained why it concluded that Dominion needed the information it requested. Based on the record before it, the LAT found that Ms. Landa had failed to provide the financial documents requested by Dominion, specifically rejecting her assertion that she had provided the requested documents to her legal representative or directly to Dominion, which assertion it found was not supported by the evidence.

[57] Ms. Landa submits that the LAT should have evaluated “all alternatives” and chosen the “least harsh option, considering the consumer protection scheme”, which would have been to delay, rather than to deny, payment. Ms. Landa offers no case law to support her submissions, which run counter to the clear wording in the SABs.

[58] To the extent that the LAT’s determination of Ms. Landa’s IRB claims involve a question of fact or mixed fact and law, they are not subject to appeal.

[59] The LAT’s findings of fact were supported by the evidence and, as noted above, it is not the role of this court to re-weigh the evidence.

[60] Applying the principles set out in Vavilov, Ms. Landa’s judicial review must fail. The LAT considered the legal arguments raised by Ms. Landa and we see no unreasonableness in the LAT’s reasoning or its conclusion that: Dominion’s requests for financial information were reasonable; Dominion was entitled to the information under the SABs; and, Dominion was justified in denying the IRBs, given that Ms. Landa failed to provide the requested information until 2015.

(b) Expense Claims totalling $29,419

[61] Dominion refused to reimburse Ms. Landa the $29,419 she claimed for various expenses, (listed at paragraph 53 of the Merits Decision), including prescriptions totalling $23,648.71, other treatments, and consultations.

[62] The LAT considered Ms. Landa’s submissions that the expenses claimed were prescribed or recommended and were reasonable and necessary and that Dominion’s denials of her claims were “deficient”.

[63] The LAT denied Ms. Landa’s claims on the basis that she had failed to meet “her evidentiary burden to show that she had complied with the” SABs, which provided, among other things, that, except for expenses for services provided on an emergency basis, an insurer is not liable to pay any expense related to medical or rehabilitation benefits incurred before the insured has submitted a treatment plan.

[64] The LAT noted that under the applicable Financial Services Commission of Ontario Health Claims for Auto Insurance Guideline - Superintendent’s Guideline No. 07/07 (“FSCO Guidelines”), treatment plans had to be sent to the Central Processing Agency (“CPA”) using the Health Claims for Auto Insurance (“HCAI”) system.

[65] Ms. Landa submitted that her requests submitted on an OCF-6 form were sufficient and she was unaware that Dominion required her to use an OCF-18. The LAT rejected those submissions, finding on the evidence before it, that Dominion had advised Ms. Landa on “several occasions” that treatment plans in excess of $250 required an OCF-18. In addition, the LAT found that the detail required in an OCF-18 was necessary for Dominion to determine if the disputed treatments were reasonable and necessary.

[66] In dismissing Ms. Landa’s claims, the LAT noted that even if she had used the correct OCF-18 form, “the heart of the matter” was whether the forms had been sent to Dominion. On the record before it, it was open to the LAT to find, which it did, that Ms. Landa had failed to produce evidence that her treatment plans had been properly submitted, or had ever been received by Dominion, and that Ms. Landa had failed to provide a reasonable explanation for why she did not do so (Merits Decision, at para. 65).

[67] The LAT’s determination of Ms. Landa’s claim under this heading involves questions of fact, or mixed fact and law, which are not subject to appeal.

[68] Respecting her claim that the decision was unreasonable, we disagree. The LAT explained why it did not accept Ms. Landa’s submissions that she could use either an OCF-6 or an OCF-18. Its determination was based on its interpretation of requirements under the applicable SABSs (i.e., the 1996 and 2010 Schedules). The LAT is owed deference in the interpretation of its own statutes, and we see nothing unreasonable in that interpretation, nor in the LAT’s conclusion that compliance with the SABs was a requirement that had to be met.

(c) Physiotherapy Claims for $1,624, dated September 11, 2017

[69] The LAT denied Ms. Landa’s claim for $1,624 in physiotherapy expenses on the basis that, although she had submitted an OCF-18 form, she failed to show that the osteopathic and massage treatment was “reasonable and necessary”. In reaching that conclusion, the LAT noted that none of Ms. Landa’s doctors opined that this treatment was connected to or was reasonable or necessary as a result of her accident-related injuries.

[70] The LAT found in the Merits Decision that, having failed to provide “substantial, corroborating and contemporaneous evidence” (para. 71), Ms. Landa had not met her evidentiary burden to show that the pain for which she sought treatment, was connected to the accident. The LAT’s determination under this heading involves a question of mixed fact and law, which is not subject to appeal.

[71] Respecting her claim for judicial review, Ms. Landa asserts that the LAT decision was procedurally unfair and unreasonable in that the LAT failed to: consider the onus on Dominion, in respect of a valid denial; examine the notice for validity; or to examine if Dominion followed appropriate steps in determining her claim. We do not accept those submissions.

[72] The Merits Decision contains six paragraphs in which the LAT considered these same submissions (paras. 66 -71). The LAT reviewed Ms. Landa’s medical history, contained in the evidence of five doctors, and gave careful consideration to the evidence of a sixth doctor, Dr. Kwok, who treated Ms. Landa.

[73] It is not the role of this court to second-guess the LAT’s decision, which was based on rational and logical reasoning after giving full and detailed consideration of the evidence and the applicable law. We see no basis to interfere with the LAT’s decision of this claim.

(d) Claim for $8,714.67 for Vocational or Academic Training

[74] Ms. Landa’s claim under this heading was denied by the LAT. At paragraphs 72 to 75, the LAT explained that it rejected Ms. Landa’s claim on the basis that she had failed to submit an OCF-18 using the HCAI system, as required.

[75] Again, the appeal under this heading involves a question of mixed fact and law, which is not subject to appeal.

[76] We repeat and adopt our comments, above, respecting the reasonableness of the LAT’s determination on how OCF forms had to be submitted.

[77] Ms. Landa also submits that the doctrine of waiver applies, and that the LAT failed to consider the position taken by Dominion in settlement discussions.

[78] We see no merit to these submissions, which run counter to accepted jurisprudence respecting the confidentiality of without prejudice or settlement discussions.

(e) Claim for $2,847.50 for Physiotherapy

[79] With respect this claim, Ms. Landa’s evidence before the LAT was that her treatment- provider had completed an OCF-18, which was sent to Dominion, who failed to deny it properly and, therefore, must pay it.

[80] Dominion’s position was that Ms. Landa’s legal representative did not use the HCAI system but, instead, emailed Dominion an incomplete, and unsigned, “draft” OCF-18.

[81] The LAT considered and rejected Ms. Landa’s submission that the FSCO Guidelines did not apply, and that Dominion was obliged to reply to an OCF-18, even if incomplete. The LAT noted Ms. Landa’s submissions that the FSCO Guidelines did not apply to be “novel” but not supported by the legislation, nor case law. In her proceedings before this court, Ms. Landa has not provided case law that challenges the LAT’s determination. Separately, consistent with its reasons throughout, the LAT found that under the applicable SABs and the FSCO Guidelines, an OCF-18 had to be submitted via HCAI, failing which, it could not be considered “received” by Dominion.

[82] The LAT also considered, and rejected, Ms. Landa’s arguments on the basis that she had failed to provide evidence to show that she, her former legal representative, or her service provider had received approval or confirmation of receipt of the disputed OCF-18 form, or that any of them followed up with Dominion between 2017 and October 2019, the date Ms. Landa filed her application with the LAT.

[83] The LAT’s determination of this claim was based on a finding of mixed fact and law, which is not subject to appeal. We find also that the LAT’s denial was reasonable, given its factual findings and its interpretation of the governing statutory provisions.

(f) Claim for Interest

[84] Given the LAT’s dismissal of Ms. Landa’s claims, there was no basis to award interest. The LAT did not err in law in this determination, which was reasonable, given its findings on each claim.

The Merits Reconsideration Decision

[85] Ms. Landa requested a reconsideration of the Merits Decision. She sought a rehearing of her claims in their entirety and sought to rely on new evidence. In denying her request, the LAT set out the test that Ms. Landa had to meet under Rule 18 of the Tribunal’s Common Rules of Practice and Procedure at paragraph 9:

The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration under Rule 18.2 will not be granted unless one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

[86] The LAT began its analysis by considering Ms. Landa’s request to refer to and rely on settlement communications between the parties. The LAT considered whether the evidence was relevant and whether, as it pertained to settlement discussions, privilege applied.

[87] The LAT found that this evidence was inadmissible pursuant to s. 15(2)(a) of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 which reads:

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege

under the law of evidence.

[88] We see no error of law in the LAT’s interpretation of s.15(2)(a).

[89] The LAT also considered Ms. Landa’s request that it conduct further investigation and request more evidence. In rejecting those submissions, the LAT followed SSZ v Certas Direct Insurance Company, 2020 34439 (ON LAT), and concluded that its role did not include investigation and requesting further evidence.

[90] At paragraph 21, the LAT considered Ms. Landa’s submission that in the Merits Decision the LAT “violated the rules of procedural fairness by not weighing evidence properly and without sufficient commentaries and reasons. [noting that] [T]he applicant disagreed with how much of the evidence in her substantive hearing was weighed and the findings of fact that the Tribunal made.”

[91] Ms. Landa has raised similar grounds before this court, and we see no error in law or principle in the LAT’s determination of this issue.

[92] Citing P.P. v. Wawanesa Mutual Insurance Company, 2021 60480 (ON LAT), the LAT noted, at para. 23, that a tribunal “does not have to refer to every argument or piece of evidence cited by a party”. It also noted that a reconsideration hearing was not intended to allow parties to reargue their positions. Rather, the applicant “must convincingly show” that the Tribunal violated the rules of procedure or natural justice. In our view, the LAT was correct in its interpretation of the applicable law and legal principles.

[93] The LAT concluded that while Ms. Landa disagreed with the Merits Decision, she had not established that the test for a reconsideration of the Merits Decision was met.

[94] The LAT concluded that Ms. Landa was relying on the same case law, was seeking to repeat and reargue the “substantive position” and submissions she had made to the LAT on the Merits hearing. The LAT acknowledged that there may have been “small, administrative or typography errors in the Merits Decision” but that there had been no error of fact or law that would lead to a different outcome.

[95] We see no error of law in the analysis undertaken by the LAT in the Merits Reconsideration Decision. It correctly considered and applied the applicable law and procedural Rules. We also see no procedural unfairness to Ms. Landa: the LAT considered her submissions and provided a clear, well-reasoned, and logical decision, which was reasonable in the result.

Bias

[96] Ms. Landa alleged reasonable apprehension of bias. She did so on the basis that the LAT member who conducted two case conferences was previously affiliated with the law firm representing Dominion and on the basis that the LAT decisions were reconsidered by the same member who made the original decisions.

[97] There is a strong presumption that an administrative decision maker is impartial. The burden is on the party alleging bias and the grounds for making the allegation must be “substantial” (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259).

[98] According to LAT’s Code of Conduct, during the first two years of their appointment, members must not determine any matter involving a firm where they worked immediately prior to that appointment. The LAT member who conducted the case conferences in question was appointed to the LAT on January 24, 2018. The case conferences were conducted on April 6, 2020 and May 4, 2020 – more than two years after her appointment. Furthermore, she did not determine any substantive issues at the case conferences. In view of this, Ms. Landa has failed to meet her burden of establishing a reasonable apprehension of bias against the member who presided over the case conferences.

[99] This court has held on numerous occasions that the fact that a request for reconsideration is heard by the same member who made the original decision does not give rise to a reasonable apprehension of bias and is not procedurally unfair (see for example Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 (Div. Ct.) at paras. 18-22).

Disposition:

[100] For the reasons set out, the appeals and the applications for judicial review are dismissed. As the successful party, Dominion is entitled to its costs of this proceeding. It filed a Bill of Costs requesting $12,470.75 by way of partial indemnity costs. In view of Ms. Landa’s circumstances, we fix its costs at $7500.00, all inclusive. The LAT did not seek costs.

Sachs J.

Backhouse J.

Sheard J.

Released: May 21, 2024

DIVISIONAL COURT FILE NO.: 498/21; 152/22; 396/23; 397/23

DATE: 2024/05/21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse, Sheard, JJ.

BETWEEN:

Miranda Landa

-and-

The Dominion of Canada General Insurance Company

-and-

Licence Appeal Tribunal

REASONS FOR JUDGMENT

Released: May 21, 2024