CITATION: Achaia-Shiwram v. Intact Insurance Co., 2024 ONSC 5479
DIVISIONAL COURT FILE NO.: 429/23
DATE: 20241008
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Matheson and Sheard JJ.
BETWEEN:
NOREEN ACHAIA-SHIWRAM
Appellant
– and –
INTACT INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL
Respondents
Mohamed Elbassiouni, for the Appellant
Mahroze A. Khan and Joseph Lin, for the Respondent Intact
Douglas Lee and Olivia Filetti, for the Respondent Tribunal
HEARD at Toronto: September 26, 2024
REASONS FOR JUDGMENT
R. A. LOCOCO J.
I. Introduction
[1] The appellant Noreen Achaia-Shiwram appeals the decision of the respondent Licence Appeal Tribunal dated March 23, 2023 (the “Merits Decision”), reported at 2023 23622 (Ont. LAT). At issue is the appellant’s entitlement to no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”), following a motor vehicle accident involving the appellant.
[2] Before the Tribunal, the appellant argued that she sustained a catastrophic psychological impairment as a result of the accident, entitling her to an income replacement benefit and other amounts from the respondent Intact Insurance Company, her accident insurer. In the Merits Decision, the Tribunal found that the appellant (i) did not suffer a catastrophic impairment as a result of the accident, and (ii) was not entitled to an income replacement benefit or other amounts from Intact.
[3] The Divisional Court has jurisdiction to hear an appeal from a Tribunal decision under the Schedule, but only on a question of law. Among other things, the appellant submits that the Tribunal made extricable errors of law in the Merits Decision by making findings of fact or mixed fact and law relating to the causation and the appellant’s psychological impairment based on (i) no or irrelevant evidence, or (ii) wrong or misapprehended legal principles. The appellant asks the court to set aside the Merits Decision and remit the matter to the Tribunal for reconsideration.
[4] For the reasons below, I would dismiss the appeal.
II. Background
[5] On October 16, 2015, the appellant was involved in an automobile accident, when her vehicle was struck from behind by another vehicle. She was taken by ambulance to the hospital, complaining of injuries to her head, neck, back and shoulders. She was prescribed pain medication and was discharged the same day. She followed up with her family doctor, who referred her for physiotherapy: Merits Decision, para. 12.
[6] In November 2015, the appellant made an application to Intact Insurance Company (“Intact”), her accident insurer, for no-fault accident benefits pursuant to the Schedule.
[7] Following the accident, the appellant returned to her employment as a tax analyst with the Ontario government, where she had worked for approximately 30 years: Merits Decision, at para. 19. She maintained that after the accident, she worked on modified duties “in that she was allowed to work from home two-days a week and went into the office three days a week … [and] was provided with an ergonomic desk that allowed her to sit and stand”: Merits Decision, at para. 38.
[8] In January 2018, the appellant suffered an injury to her right knee while playing volleyball. After that injury, she returned to work until April 4, 2018, when she stopped working: Merits Decision, at paras. 38-39.
[9] The appellant maintained that she was unable to continue working by reason of psychological impairment caused by the 2015 motor vehicle accident. She claimed an income replacement benefit (“IRB”) from Intact from April 2018 on the basis that as a result of the accident she suffered “a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience”: see Schedule, ss. 6(1), 6(2)(b); Merits Decision, at paras. 37-38.
[10] In August 2021, the appellant made an application to Intact under s. 45 of the Schedule for a determination that her accident-related impairments constituted a catastrophic (CAT) impairment under the Schedule. In support of the application, the appellant provided medical and other evidence (including reports of health professionals who examined the appellant, as contemplated by s. 25 of the Schedule) to support her claim that she suffered a psychological impairment as a result of the accident that met the definition of a CAT impairment. At the relevant time, s. 3(2)(f) of the Schedule provided that, subject to certain exceptions, a CAT impairment caused by an accident is “an 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) or class 5 impairment (extreme impairment) due to mental or behavioural disorder”: see Merits Decision, at para. 14, which refers to the impairment guidance of the American Medical Association (“AMA”) as the “Guides”.
[11] In response to the appellant’s applications, Intact required her to be examined by health professionals under s. 44 of the Schedule (referred to as an “insurer examination” or “IE”). Intact considered the resulting IE reports, together with the appellant’s evidence (including s. 25 reports from health professionals) and determined that her accident-related impairments did not meet the definition of a CAT impairment. Intact also denied the appellant’s entitlement to an IRB or other amounts from Intact: Merits Decision, at para. 1.
[12] Following Intact’s decision, the appellant made an application to the Tribunal under s. 280 of the Insurance Act, R.S.O. 1990, c. I.8 to resolve the parties’ dispute relating to her entitlement to accident benefits. Under s. 280, the Tribunal has exclusive jurisdiction “with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”: see Insurance Act, ss. 280(1), 280(3). The matter proceeded to a six-day hearing by video conference, which occurred in November 2022.
[13] On March 23, 2023, the Tribunal released the Merits Decision, dismissing the appellant’s application. The Tribunal found that the appellant did not sustain a CAT impairment as a result of the accident and was not entitled to an IRB or other amount from Intact. Among other things, the Tribunal found, at para. 20, that the 2015 motor vehicle accident was not “a necessary cause of the psychological impairment the applicant puts forth as the basis for her CAT application and her claim for an IRB.” The Tribunal also found that “the volleyball injury in January 2018 to be an intervening act which resulted in the applicant’s inability to work”: Merits Decision, at para. 39.
[14] Subsequent to the Merits Decision, the Tribunal dismissed the appellant’s request for reconsideration of the Merits Decision on the basis that the reconsideration request was not filed within the 21-day deadline under the Tribunal’s rules of procedure.[^1] The Tribunal also denied the appellant’s subsequent motion to reconsider the dismissal of the reconsideration request and declined to extend the time to file the reconsideration request.
[15] In the appellant’s Notice of Appeal to the Divisional Court, she appealed the Merits Decision, and also challenged the subsequent Tribunal decisions relating to the dismissal of the appellant’s request for reconsideration.
[16] By agreement between the parties reported to the Court at the outset of the oral argument, the appeal was limited to challenging the Merits Decision. In those circumstances and given our conclusions below, it is not necessary to address the Tribunal’s subsequent decisions relating to the appellant’s reconsideration request.
III. Jurisdiction and standard of review
[17] The Divisional Court has jurisdiction to hear an appeal from a Tribunal decision under the Schedule, but only on a question of law: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”), ss. 11(1), 11(6). The appellate standards of review apply, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 2 S.C.R. 653, at para. 37.
[18] The standard of review is correctness for questions of law, including legal principles readily extricable from questions of mixed fact and law: Housen, at paras. 8, 26-37.
[19] There are limited circumstances in which findings of fact, or the adjudicator’s assessment of evidence, may give rise to an extricable error of law: see Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337 (Div. Ct), at para. 28, aff’d 2022 ONCA 446, rev’d on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. However, a misapprehension of or failure to appreciate the evidence may constitute an error of law if the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 29, citing R. v Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, at p. 295. It is an error of law to make a finding of fact for which there is no supporting evidence: J.M.H, at para. 25, citing R. v. Schuldt, 1985 20 (SCC), [1985] 2 S.C.R. 592, at p. 604. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52, 93 C.C.L.I. (5th) 228, at paras. 24-25.
[20] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36.
IV. Issues for determination
[21] The appellant submits that in the Merits Decision, the Tribunal erred in law as follows:
a. The Tribunal erred in making findings of fact on a material point – that the accident was not a necessary cause of the appellant’s impairment – based solely on no evidence, irrelevant evidence, or an irrational inference;
b. The Tribunal erred in allowing for apportionment of causation due to the appellant’s pre-existing injuries caused by an unrelated accident; and
c. The Tribunal erred in finding that the January 2018 volleyball injury was an intervening event that broke the chain of causation.
[22] As explained below, I have concluded that the Tribunal did not make any errors of law.
A. The Tribunal did not err by finding, based on no or irrelevant evidence, that the accident was not a necessary cause of the appellant’s psychological impairment
[23] The appellant submits that the Tribunal erred in law by making findings of fact on a material point – that the accident was not a necessary cause of the appellant’s impairment – based solely on no evidence, irrelevant evidence, or an irrational inference: see Yatar (Div. Ct.), at para. 28, relying on Johannson, at paras. 24-25.
[24] The appellant agrees that the Tribunal correctly articulated the applicable legal test for causation in accident benefits cases as being the “but for” test, as confirmed by this court in Sabadash v. State Farm Mutual Insurance Co., 2019 ONSC 1121, 89 C.C.L.I. (5th) 238 (Div. Ct.). In the Merits Decision, at para. 22, the Tribunal correctly stated:
To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause.
[25] The Tribunal then went on to find as follows:
As per my reasons below, I find that the accident was not a necessary cause of the applicant’s psychological impairment and resulting functional limitations which forms the basis for her application for a CAT determination or her dispute involving her entitlement to an IRB.
[26] While not challenging the Tribunal’s statement of the legal principle, the appellant submits that the Tribunal misapprehended the causation test by making a key finding of fact – that the appellant’s psychological impairment was not caused by the accident – in a complete absence of medical evidence to support that finding. The appellant submits that psychological reports introduced by both the appellant and Intact confirmed that the appellant’s psychological impairment was caused by the accident but disagreed as to the severity of the impairment. The appellant also suggests that it was incumbent on the Tribunal to address the impairment’s severity in order to determine whether the impairment met the requirements for a CAT mental or behavioural impairment as set out in the AMA’s Guides that are incorporated by reference into the Schedule: see Merits Decision, para. 14. As well, the appellant challenges statements in the Merits Decision that there were “significant gaps” (or similar language) in the appellant’s employment history before the Tribunal. The appellant submits that she in fact provided all the records she obtained from her employer: see Merits Decision, at paras. 20, 31, 38.
[27] I disagree that the appellant has identified any errors on questions of law, including legal principles readily extricable from questions of fact or mixed fact and law. The errors that the appellant alleges are in substance challenges to the sufficiency or weight of evidence supporting findings of fact or relate to questions of mixed fact and law that involve the application of correct legal principles to the facts. In each case, the alleged errors do not give rise to readily extricable questions of law. In these circumstances, the Divisional Court has no jurisdiction to interfere with the Tribunal’s findings: LATA, s. 11(6); Yatar (Div. Ct.), at paras. 28-29.
[28] With respect to causation, I agree with Intact that the Tribunal did not err in its analysis in reaching the conclusion that the appellant did not sustain a CAT impairment as a result of the accident. It is clear from the Merits Decision, at paras. 20-35, that the Tribunal considered the accident’s impact on the appellant’s psychological state based on evidence that included both the s. 25 and s. 44 (IE) medical reports provided by the parties. Despite questioning the reliability of the appellant’s evidence of impairment, the Tribunal considered the evidence of her functioning before and after the accident and concluded that the appellant had not met her onus of establishing that that the accident was a necessary cause of her psychological impairment. I see no error in the Tribunal’s analysis, and certainly nothing that amounts to an error of law.
[29] As well, in the Merits Decision, at paras. 14-19, the Tribunal set out in detail the criteria for a CAT impairment due to mental or behavioural impairment and then carefully reviewed the medical and other evidence before the Tribunal. The evidence included the CAT IE report of Dr. Longhorn-Geddes, in which the medical examiner “questioned whether the accident was the cause of the applicant’s current psychological condition because she continued to work for two and [a] half years following the accident as a tax analyst”: Merits Decision, at para. 19. The Tribunal, at para. 20, also referred to other evidence it considered, finding that there were “significant gaps in both the applicant’s post-accident employment history and the medical evidence which remain unexplained.” In doing so, the Tribunal provided its assessment of the shortcomings in the evidence the appellant advanced to support her positions. Contrary to the appellant’s submission, the Tribunal’s analysis does not show that there was a complete lack of evidence (or that the Tribunal relied on irrelevant evidence) to support its conclusions.
[30] I also disagree that the Tribunal erred in not making a specific finding as to the severity of the appellant’s psychological impairment. Such a finding would be required to determine that the appellant’s impairment was a CAT impairment according to the criteria in the AMA Guides. However, given the Tribunal’s finding that the appellant had not established that her psychological impairment was as a result of the 2015 accident, it was unnecessary to make a specific finding as to whether her impairment qualified as a CAT impairment under the AMA Guides. The Tribunal’s omission to provide an alternative basis for its decision on entitlement did not give rise to an error of law.
B. The Tribunal did not err by allowing for apportionment of causation due to pre-existing injuries
[31] In Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689, at para. 95, the Court of Appeal for Ontario stated:
There is no indication in the [Schedule] of a legislative intent that an insurer's liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured's preexisting injuries caused by an unrelated accident. The [Schedule] simply states, in clear and unambiguous language, that an insurer "shall pay an insured person who sustains an impairment as a result of an accident" medical, rehabilitation and attendant care benefits (ss. 14(1), 15(1) and 16(1))5”. [Emphasis added]
[32] The appellant submits that in reaching the conclusion that the appellant did not sustain a CAT impairment as a result of the accident, the Tribunal incorrectly allowed for a discount for apportionment of causation due to pre-existing injuries caused by an unrelated accident, contrary to the principle enunciated in Monks. I do not agree.
[33] When determining the issue of whether the 2015 accident caused the appellant’s impairments, the Tribunal considered several factors, including the appellant’s pre-accident medical history and (as discussed further below) the appellant’s subsequent injury from playing volleyball in January 2018. The appellant’s pre-accident medical history included “a 2012 accident which resulted in chronic back and neck pain … and [resulting] functional limitations”, as well as “osteoarthritis” and “some pre-existing psychological issues in the year prior to the accident as a result of menopause”: Merits Decision, at para. 21.
[34] In the Merits Decision, at para. 25, in assessing the reliability of the appellant’s testimony, the Tribunal found that “the medical evidence supports that there were inconsistencies in the [appellant’s] testimony about both her pre- and post-accident function”, which called into question the appellant’s position that her psychological impairment was as a result of the accident. At para. 26, the Tribunal also found the appellant’s evidence “about some of her post-accident limitations to be unreliable when compared to the medical record” before the Tribunal, including evidence in relation to her functionality after her volleyball injury. These are findings of fact that the Tribunal made in reaching the conclusion that the appellant did not meet her legal burden to establish causation. I see no extricable error of law.
C. The Tribunal did not err by finding that the volleyball injury was an intervening event
[35] The appellant submits that the Tribunal erred in finding that the appellant’s January 2018 volleyball injury was an intervening act that resulted in the appellant’s inability to work: Merits Decision, at paras. 32-33, 39. The appellant says that the Tribunal did not explain how the incident broke the chain of causation that severed the link between cause and effect.
[36] I see no merit in this submission. In the Merits Decision, at paras. 32-33, the Tribunal referred to the medical and other evidence it considered to justify the conclusion that the January 2018 volleyball injury, rather than the 2015 accident, was responsible for the appellant’s inability to work. I see no basis for interfering with the Tribunal’s conclusion. Contrary to the appellant’s submissions, the Tribunal’s explanation does not disclose any extricable error of law.
V. Disposition
[37] For the above reasons, I would dismiss the appeal, with costs in agreed amount of $6,000, payable by the appellant to Intact. As the parties agreed, I would not award costs for or against the Tribunal.
[38] At the end of oral argument, the applicant asked the court to consider granting leave to bring a judicial review application if the appeal was unsuccessful. Such an application would be over a year late and the request for leave was not the subject of a proper motion. In the circumstances, and in the absence of Intact’s consent (which was not provided), I would not be prepared to grant the requested leave.
___________________________ Lococo J.
I agree: ___________________________ Matheson J.
I agree: ___________________________ Sheard J.
Date: October 8, 2024
CITATION: Achaia-Shiwram v. Intact Insurance Co., 2024 ONSC 5479
DIVISIONAL COURT FILE NO.: 429/23
DATE: 20241008
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Matheson and Sheard JJ.
BETWEEN:
NOREEN ACHAIA-SHIWRAM
Appellant
– and –
INTACT INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL
Respondents
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Date: October 8, 2024
[^1]: See r. 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) under the Insurance Act.