Citation and Court Information

CITATION: Kaloczi v. Wawanesa Mutual Insurance Company, 2024 ONSC 5665

DIVISIONAL COURT FILE NO.: 018/23

DATE: 20241022

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Mary Kaloczi, Appellant

AND:

Wawanesa MUTUAL insurance company, Respondent

BEFORE: Sachs, McCarthy and Myers, J.J.

COUNSEL: Aron Zaltz, for the Appellant

Nicole Dowling and Jason Goodman, for the Respondent

HEARD at Toronto: October 2, 2024

REASONS ON APPEAL

McCarthy J:

[1] Mary Kaloczi appeals from a decision of the Licence Appeal Tribunal (“LAT” or “Tribunal”) which found that the Appellant did not sustain a catastrophic impairment (“CAT” impairment) as a result of a motor vehicle accident (“the MVA”) which occurred on October 30, 2016.

[2] For the reasons which follow, I would dismiss the appeal.

Background

[3] Following the MVA, the Appellant applied for no-fault accident benefits under her policy of automobile insurance with the Respondent Wawanesa Mutual Insurance Company (“Wawanesa”).

[4] Nearly four years later, the Appellant applied to Wawanesa for a declaration that her mental and behavioral impairments arising from the MVA met the definition of catastrophic impairment (“the CAT claim”) as defined in s. 3.1(1)(8) of the Statutory Accident Benefits Schedule – Effective September 1, 2012 (the “SABS”).

The LAT

[5] Wawanesa denied the Appellant’s CAT claim. The Appellant applied to the LAT for a determination of the issue. Following a hearing, Adjudicator Sandra Driesel (“the adjudicator”) concluded that the Appellant had failed to establish that she sustained a catastrophic impairment as a result of the MVA. The adjudicator determined that: a) the Appellant had failed to prove that she suffered a marked impairment (class 4) in at least three of the four spheres of functioning related to mental and behavioural impairments; and b) that the Appellant had failed to demonstrate that the MVA was a necessary cause bringing about her psychological or behavioral impairments.

[6] The Appellant then sought a reconsideration of the adjudicator’s decision. On August 25, 2023, the LAT denied her request for reconsideration concluding that there had been no error in the adjudicator’s findings on the CAT impairment.

Jurisdiction

[7] Pursuant to s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, an appeal from a decision of the Tribunal lies to this court on a question of law only.

Standard of Review

[8] The standard of review for statutory appeals on questions of law is governed by Housen v. Nikolaisen, 2002 SCC 33, [2022] 2 S.C.R. 235. The applicable standard of review for the appeal is correctness.

The Appellant’s Position

[9] The Appellant contends that the adjudicator misapplied the “but for” legal test for causation and therefore committed an error of law. Specifically, the adjudicator raised the standard of necessary causation to that of sole, primary, or sufficient causation. She did this by failing to explain how the other cited causes of the Appellant’s psychological and behavioural impairments (criminal charges and a subsequent MVA) factored into the Appellant’s present condition. Moreover, the adjudicator placed undue weight on the delayed onset and reporting of the Appellant’s psychological and behavioural complaints. Finally, and most troubling, the adjudicator simply ignored the causation findings of CAT assessors Dr. Naidoo (retained by the Appellant) and Dr. Rosenblatt (retained by Wawanesa), both of whom either opined or conceded that the MVA was the cause of her psychological and behavioural impairments.

The Respondent’s Position

[10] The Respondent argues that the proper legal test was cited and applied to the facts. The conclusions reached were based upon factual findings which cannot form the subject of an appeal. The adjudicator thoroughly and fairly considered the evidence and gave ample and cogent reasons for its two decisions.

The “But For” Test

[11] This court has confirmed that the “but for” test is the correct test to be used in determining causation in accident benefits cases: see Sabadash v. State Farm et al, 2019 ONSC 1121. In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, the Supreme Court described that test as follows:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

Discussion

[12] As stated previously, this Court’s jurisdiction on appeal is limited to questions of law. During oral argument, counsel for the Appellant was pressed on whether his submissions fall outside the permitted scope of appeal by virtue of raising questions of fact or mixed fact and law. Relying on Yatar v. TD Insurance Meloche Monnex, SCC 2024 8, counsel suggested that if these questions are determined to be factual in nature, then an appropriate course would be to proceed by way of judicial review. This would allow the court to consider questions of fact on a reasonableness standard.

[13] It was not open for counsel to suggest this course of action this late in the proceeding. The practice relating to concurrent judicial reviews and appeals requires parties to bring both proceedings together. A motion must also be brought for the two proceedings to be heard together with a single appeal book/application record and factum: Yatar v. TD Insurance Meloche Monnex, 2024 ONCA 446, at paras. 55-56, rev’d on other grounds 2024 SCC 8; see also Humberplex Developments Inc. v. Ontario (Attorney General), 2024 ONSC 2335, at para. 88; Shearer v. Oz, 2024 ONSC 1723, at para. 30.

[14] Moreover, even if the Appellant had followed the correct procedure for pursuing both an appeal and judicial review, there is no basis to interfere with the adjudicator’s factual findings. As I explain below, her conclusions regarding the CAT impairment and its cause were carefully considered and grounded in the evidence before her.

i) CAT impairment

[15] There is simply no basis to disturb the factual finding that the Appellant did not meet the threshold for a CAT impairment under section 3.1(1), Criterion 8 of the SABS. The adjudicator carefully considered the evidence pertaining to the relevant spheres of functioning (activities of daily living; social functioning; and adaption in a work-like setting) and concluded that the Appellant had not proven that her level of function was compatible with a finding that she had a marked impairment in those three spheres.

[16] Along the way, the adjudicator considered:

• the competing findings of the CAT assessors on the level of impairment,

• the Appellant’s pre-MVA functioning, her employment and disability status along with the uncertainty surrounding the nature of the benefits she was receiving at the time of MVA,

• the Appellant’s post-MVA care of the children,

• the Appellant’s apparent ability to handle all demands of driving,

• the Appellant’s post-MVA trip to Hawaii and the curious fact that her unsettling experience with a panic attack was never mentioned to Dr. Zakzanis or Dr. Naidoo,

• the Appellant’s evidence about personal care and toileting and how she failed to mention the assistance provided by her husband to either of the Occupational Therapist or Dr. Zakzanis,

• the Appellant’s inconsistent reporting to treatment providers about criminal charges,

• the delayed onset of, and the failure to report, any of the Appellant’s psychological and behavioral complaints before 2019

• the complete absence of any treatment or referral for treatment for psychological or behavourial issues for many years

• the dubious evidence offered by the Appellant about internet blogs depicting her active and hardworking lifestyle. The Appellant’s denial of having any psychological issues to Dr. MacKay in 2017 and that doctor’s note that the Appellant had “no cognitive difficulties” and that “psychological functioning is good”

[17] The Adjudicator’s treatment of the evidence was extensive. Her reasons were logical, transparent, adequate, and amply supported by the evidence that she accepted. There is no basis to disturb her finding that the Appellant failed to establish that she suffered from a catastrophic impairment.

ii) Causation

[18] The adjudicator’s application of the “but for” test was entirely correct. In applying the test, it was open to the adjudicator to consider other factors playing a role in the Appellant’s condition and to afford them appropriate weight. The ultimate determination that the MVA was not a necessary cause of the Appellant’s psychological and behavioral condition was fact driven. The adjudicator specifically relied on evidence which showed that the Appellant had not consistently reported all aspects of her life (both pre and post MVA) to the various assessors.

[19] It was not an error in law for the adjudicator to place weight on the absence of any reporting of psychological and behavioral complaints or the failure of the Appellant to seek treatment for the alleged impairments for years after the MVA.

[20] Nor was it an error in law to consider what other intervening stressors and events might be playing a part in the Appellant’s condition.

[21] Finally, it did not constitute an error in law for the adjudicator not to have accepted the causation opinions of the two CAT assessors. Her extensive review of the two CAT reports demonstrates that she was alive to the evidence of the two experts. An adjudicator is not required to comment upon each and every piece of evidence before her. The causation test under the SABS is a legal, not a medical one.

[22] Counsel for the Appellant was particularly critical of that portion of the adjudicator’s reasons at paragraph 50 of the decision where she concluded, “…given the other factors noted in the evidence, I do not find that the 2016 MVA was necessary to bring about her current psychological or behavioural impairments.” Counsel suggested that this represented an unreasonable and erroneous application of the “but for” test because the adjudicator failed to explain how these other “factors” contributed to her present impairments.

[23] I disagree. A fair reading of the reasons as a whole makes it abundantly clear that, having considered all of the evidence, the adjudicator was not persuaded that the 2016 MVA was a necessary cause of the Appellant’s present condition. It was the Appellant’s onus to meet, and she failed to do so. This was a factual finding made within the context of a properly applied legal test. It is not the function of this court to reweigh the evidence or substitute its own views of the evidence for that of the adjudicator below.

[24] There was no error of law and there is no basis to interfere with the decision of the LAT.

[25] Even if the adjudicator misapplied the “but for” test, the result would have been the same since regardless of the cause of her condition, the Appellant did not satisfy the three-criterion necessary for a finding of CAT impairment.

The Reconsideration Decision

[26] There was no error in law in the reconsideration decision. The adjudicator properly considered the grounds for the request and the narrow Rule 18.2 grounds for reconsideration and determined that the “but for” test had been properly set out and applied in the reasons. The adjudicator also reviewed the finding that the applicant had not sustained a catastrophic impairment. She found no error of law or fact such that a different result would have been reached if the error had not been made. I would dismiss that aspect of the appeal.

Disposition

[27] For the foregoing reasons, the Appeal is dismissed.

[28] The Appellant shall pay to the Respondent Wawanesa its costs of the appeal on a partial indemnity basis fixed and payable forthwith in the sought after amount of $8,000.

McCarthy J.

I agree “Sachs J.”

I agree “Myers J.”

Released: October 22, 2024