Court File and Parties

CITATION: Hamad v. Dominion of Canada General Insurance Company, 2024 ONSC 3324

DIVISIONAL COURT FILE NO.: DC-23-00000213

DATE: 2024-06-12

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KHALAF HAMAD, Appellant AND: Dominion OF CANADA GENERAL INSURANCE COMPANY, Respondent

BEFORE: Sachs, Hebner and Davies JJ.

COUNSEL: Mark Stoiko, for the Appellant Linda Matthews and Saro Setrankian, for the Respondent Theresa McGee, for the Licence Appeal Tribunal

HEARD at Hamilton: June 3, 2024

Endorsement

A. Overview

[1] Mr. Hamad was in a motor vehicle accident in October 2016. He applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABS”), claiming he was catastrophically impaired. The Licence Appeal Tribunal rejected Mr. Hamad’s claim. The Tribunal found that Mr. Hamad had not proven that he sustained a catastrophic impairment as a result of that accident.

[2] Mr. Hamad asked the Tribunal to reconsider its decision. On the reconsideration, the Tribunal upheld its decision.

[3] Mr. Hamad now appeals the Tribunal decisions. Mr. Hamad made three arguments on appeal. First, he argued that the Tribunal overlooked, mischaracterized, unfairly rejected and gave insufficient weight to all the evidence he adduced at the hearing in support of his claim. Second, he argued the Tribunal improperly admitted and relied on hearsay evidence. Third, he argued the Tribunal misapplied the legal test for causation.

[4] Decisions of the Tribunal can only be appealed on a question of law: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched G., s. 11. Many of the issues raised by Mr. Hamad are not legal errors. However, the Supreme Court of Canada recently ruled that a statutory right of appeal limited to questions of law does not preclude an individual from seeking judicial review of a decision of the Tribunal on other issues: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, at para. 3.

[5] After the decision in Yatar was released, Mr. Hamad filed a supplementary factum in which he argued the Tribunal made errors of fact and mixed fact and law. An appellant who wants to raise new issues based on the Supreme Court of Canada’s decision in Yatar should bring a motion to extend the time within which to file a Notice of Application to Divisional Court for Judicial Review and to join the Judicial Review Application with the Appeal. Filing a motion for leave to add a Judicial Review application to an existing appeal will ensure the parties are given proper notice of and adequate time to respond to the new issues.

[6] We exercised our discretion to allow Mr. Hamad to argue the errors of fact and errors of mixed fact and law articulated in his supplementary factum even though he did not seek leave to file a Notice of Application for Judicial Review. We did so because counsel for both Respondents said they were prepared to address the issues raised in Mr. Hamad’s supplementary factum. We, therefore, permitted Mr. Hamad to argue the new issues to avoid delay and to ensure the effective use of judicial resources. To be clear, however, other appellants should not expect the court to adopt a similarly informal approach in other cases that fall in the transition period post-Yatar.

[7] We would not give effect to any of Mr. Hamad’s grounds of appeal.

B. Tribunal’s treatment of the evidence in support of Mr. Hamad’s claim

[8] Mr. Hamad argued the Tribunal disregarded, overlooked or mischaracterized the evidence he presented and gave insufficient weight to the evidence that supported his position. Broadly speaking, Mr. Hamad argued that the Tribunal:

a. incorrectly found that his expert, Dr. Liu, recanted his opinion that Mr. Hamad suffered catastrophic impairment as a result of the accident; and

b. improperly discredited his evidence and his daughter’s evidence.

[9] Dominion Insurance argued that the Tribunal made no error in finding Dr. Liu recanted his opinion that Mr. Hamad suffered catastrophic injury as a result of the 2016 accident. Dominion Insurance argued that once the Tribunal found that Dr. Liu recanted his opinion, Mr. Hamad’s claim could not succeed because there was no other opinion evidence to support his claim.

[10] The SABS establishes several ways in which a claimant can establish they suffered catastrophic impairment as a result of a motor vehicle accident. Mr. Hamad argued that he suffered a catastrophic impairment because of a mental or behavioural disorder: SABS, s. 3.1(1)8. As the claimant, the onus was on Mr. Hamad to establish he suffered a catastrophic impairment. Section 3.1(1)8 of the SABS defines a catastrophic impairment based on a mental or behavioural disorder as follows:

…[A]n impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.

[11] The American Medical Association’s Guides to the Evaluation of Permanent Impairment provides a framework for assessing impairment and specifies who is qualified to give opinion evidence about permanent impairment. Because s. 3.1(1)8 of the SABS incorporates the American Medical Association’s Guides by reference, a claimant must adduce expert evidence from a qualified assessor to meet the test for catastrophic impairment.

[12] Dr. Liu was an American Medical Association certified assessor. He assessed Mr. Hamad and prepared a report. Dr. Liu also testified at the hearing. In its reasons, the Tribunal reviewed Dr. Liu’s evidence in detail. However, the Tribunal did not accept Dr. Liu’s opinion that Mr. Hamad suffered a marked impairment in all four spheres of functioning for two reasons. First, the Tribunal rejected Dr. Liu’s opinion because Dr. Liu did not consider important information about Mr. Hamad’s condition before and after the accident. Second, the Tribunal found Dr. Liu recanted his original opinion on causation. Mr. Hamad argues the Tribunal erred in making both findings. We disagree.

[13] A few months before Mr. Hamad’s accident in 2016, he applied to the Ontario Disabilities Support Program (“ODSP”) for benefits. In his application, which Mr. Hamad signed, he described physical and psychological problems that were preventing him from working. Mr. Hamad said he experienced anxiety, depression, lack of focus, sleep disruption and nightmares, exhaustion, incontinence and general pain. He wrote that his joint pain is so bad that sometimes he cannot get out of bed. These are all symptoms Mr. Hamad testified started after the 2016 accident. In his ODSP application, Mr. Hamad wrote, “My daughter is tasked with much of my care.” He also wrote that his family had to care for him “in all aspects of life.” Mr. Hamad testified that his family did not start helping with his care until after the accident.

[14] Dr. Liu did not have a copy of Mr. Hamad’s ODSP application when he conducted his assessment of the impact of the accident on Mr. Hamad. In cross-examination, Dr. Liu agreed that the information in the ODSP application about Mr. Hamad’s physical and psychological condition before the accident was very relevant to his assessment of Mr. Hamad’s impairment.

[15] Dr. Liu was also not given a copy of a psychological report prepared by Dr. Pilowski in January 2022 after Mr. Hamad had another motor vehicle accident. In that report, Dr. Piloswki wrote that before the second accident in 2021, Mr. Hamad “was starting to engage in more activities, as he started to do grocery shopping, dropping off and picking up his children from school, and saw friends approximately every couple of months for coffee.” In other words, Dr. Piloswki found that Mr. Hamad had suffered physical and psychological injury from the 2016 accident but was improving by the time of the second accident.

[16] Dr. Liu agreed in cross-examination that these comments about Mr. Hamad’s condition after the 2016 accident (which was the subject matter of the Tribunal hearing) but before the second accident in 2021 were relevant to his assessment of whether Mr. Hamad’s impairment was caused by the 2016 accident.

[17] It was reasonable for the Tribunal to find that Dr. Liu’s initial opinion about the cause of Mr. Hamad’s impairment was undermined by the fact that he did not have highly relevant information about Mr. Hamad’s condition before and after the 2016 accident. The Tribunal did not place undue weight on these weaknesses in Dr. Liu’s opinion.

[18] It was also reasonable for the Tribunal to find that Dr. Liu recanted his opinion on causation. Mr. Hamad is correct that Dr. Liu did not unequivocally recant his opinion. However, by the end of re-examination, Dr. Liu had distanced himself from his earlier opinion. Dr. Liu said in re-examination that it was “difficult to say” whether his opinion would have been the same if he had Mr. Hamad’s ODSP application and Dr. Pilowski’s 2022 assessment when he prepared his report. Dr. Liu was asked if the information he had been shown in those two documents would change his assessment of Mr. Hamad’s degree of impairment and the cause of his impairment. Dr. Liu testified that he thought the 2016 accident was still a cause of some impairment but that it was “difficult to say” if his opinion would be the same if he had had complete information. It was reasonable for the Tribunal to characterize this as a recantation by Dr. Liu.

[19] Once the Tribunal rejected Dr. Liu’s opinion, there was no other expert opinion evidence to support Mr. Hamad’s claim. The Tribunal, therefore, made no error in rejecting his claim.

[20] Nonetheless, Mr. Hamad also argues the Tribunal improperly rejected his evidence and the evidence of his daughter. We disagree.

[21] The Tribunal was required to assess the credibility of Mr. Hamad’s evidence and the evidence of his daughter. There was nothing improper or unfair about the Tribunal finding that Mr. Hamad’s evidence was contradicted by his own statements on his ODSP application and by his own statements to Dr. Pilowski during the 2022 assessment. There was also nothing improper or unfair about the Tribunal using the surveillance to assess Mr. Hamad’s credibility. The Tribunal did not give undue weight to the evidence that contradicted Mr. Hamad and made no error in finding that he was not a credible witness.

[22] The Tribunal also made no error in rejecting the evidence of Mr. Hamad’s daughter as untruthful. It was open to the Tribunal to find that her evidence was also contradicted by the surveillance evidence and by Mr. Hamad’s statements in his ODSP application.

[23] We, therefore, find the Tribunal made no legal error in its treatment of the evidence. Nor did the Tribunal unreasonably or unfairly overlook or discredit the evidence tendered by Mr. Hamad. The Tribunal’s credibility findings were reasonable and there is no basis for this court to interfere with those findings.

C. Tribunal’s use of hearsay evidence

[24] Mr. Hamad argues the Tribunal improperly relied on medical records from a doctor who did not testify at the hearing for the truth of their contents to undermine Mr. Hamad’s evidence. This argument cannot succeed for two reasons. First, hearsay evidence is admissible in a hearing before the Tribunal: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s 15(1). Second, Mr. Hamad did not argue that the medical records should only be admitted for a limited, non-hearsay purpose when they were tendered during the cross-examination of Mr. Hamad. If a party to a hearing before the Licence Appeal Tribunal is concerned about the admissibility or use that can be made of hearsay evidence, that party must raise their concern at the hearing, not on appeal: Sutton v. Patterson and Morrow, 2021 ONSC 1403, 154 O.R. (3d) 622 (Div. Ct.), at paras. 44 and 46.

D. Tribunal’s application of the legal test for causation

[25] Finally, Mr. Hamad argues the Tribunal failed to properly apply the correct test for causation. We have already found that the Tribunal made no error in rejecting Dr. Liu’s opinion about the extent and cause of Mr. Hamad’s impairment. Having made those findings, it follows that Mr. Hamad had not met his onus of proving he was catastrophically impaired by the 2016 accident. The Tribunal articulated the correct legal test and made no error in finding that Mr. Hamad had not met that test.

E. Conclusion and costs

[26] Mr. Hamad’s appeal is dismissed.

[27] In accordance with the agreement between the parties, Mr. Hamad is ordered to $12,500 in costs (inclusive of HST and disbursements) to Dominion Insurance.

Sachs J.

Hebner J.

Davies J.

Date: June 12, 2024