CITATION: Kumar v. Aviva General Insurance Company, 2024 ONSC 5882
DIVISIONAL COURT FILE NO.: 399/23
DATE: 20241028
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, McCarthy, Myers, JJ.
BETWEEN:
Vinod Kumar
C. Schneider, Counsel for the Appellant/Applicant
Appellant/Applicant
- and -
AVIVA GENERAL INSURANCE COMPANY
J. Cosentino, Counsel for the Respondent Aviva General Insurance Company
Respondent
- and -
LICENCE APPEAL TRIBUNAL
M. Kellythorne and G. Koleoglu, Counsel for the Respondent Licence Appeal Tribunal
Respondent
HEARD in Toronto October 3, 2024
REASONS FOR DECISION
MCCARTHY J.
Introduction
[1] The Appellant both appeals and seeks judicial review of the decisions of the Licence Appeal Tribunal (“LAT” or “Tribunal”) which had the combined effect of denying him entitlement to income replacement benefits (“IRBs”) at the adjudication stage (“the decision”) and denying him an extension of time to apply for a reconsideration (“the reconsideration”) of the decision.
Background
[2] The Appellant was injured while a passenger in a transit bus on September 13, 2018. As a result of his injuries, he sought income replacement benefits (“IRBs”) from his insurer, the respondent Aviva under the Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10 (“SABS”).
[3] IRBs were paid to the Appellant until January 13, 2021, when they were terminated following insurer examinations conducted under the SABS.
[4] The Appellant disputed the termination by applying to the Licence Appeal Tribunal – Automobile Benefits Services (“LAT”).
[5] In a decision dated February 24, 2023, Adjudicator Janet Rowsell (“the adjudicator”) determined that the Appellant was not entitled to continuing IRBs as he had not satisfied his onus to prove that he suffered from a complete inability to engage in any employment for which he was reasonably suited by education, training, or experience (“the any occupation test”).
[6] The Appellant filed a notice of motion on April 25, 2023, requesting that the LAT extend the timeframe for him to file a reconsideration request. The LAT denied the motion in an order dated May 10, 2023.
[7] The Appellant brought a second motion seeking an extension of the timeframe for requesting reconsideration. On June 1, 2023, his motion was denied.
[8] The Appellant then filed a request for reconsideration of the June 1, 2023, decision. The LAT denied the Appellant’s request stating that it was improper to seek an extension of time through a reconsideration request after his motions seeking the same relief were twice denied.
Court’s Jurisdiction
[9] This court has jurisdiction over the statutory appeal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“the Act”). Pursuant to s. 11(3) of the Act, an appeal may be made on a question of law only.
[10] Regarding the judicial review application, this court has jurisdiction pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[11] With respect to the statutory appeal, appellate standards of review apply. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Pursuant to Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 27 and 30, the standard of review for questions of procedural fairness in the context of a statutory appeal is correctness.
[12] The appellant also seeks judicial review on matters of fact and mixed fact and law. According to the recent Supreme Court of Canada decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, the presumptive standard of review is reasonableness for all questions on a judicial review application.
The LAT Decisions for Review
[13] I have determined that it is in the interests of justice and expediency that this court should consider the merits of the appeal from the decision of the adjudicator of first instance (“the decision”) rather than considering whether the Tribunal erred in law or engaged in procedural unfairness by denying the extension for a request for reconsideration.
The Grounds for the Appeal and Judicial Review
[14] The Appellant contends that the adjudicator erred in law and that her decision was unreasonable. At the invitation of the court, counsel for the Appellant detailed his grounds in oral argument as follows:
The adjudicator permitted the Respondent’s expert psychologist, Dr Seigel, to testify out of order on the first day of the hearing.
The adjudicator failed to mention the evidence of Mr. Kumar’s spouse which was crucial to the issue of the Appellant’s impairments and disability.
The adjudicator permitted the Respondent’s experts to give testimony beyond the four corners of their reports, particularly on the role the motor vehicle accident played in the Appellant’s T11 fracture.
The adjudicator unfairly limited the ability of the Appellant’s counsel to cross-examine the Respondent’s experts Dr. Siegel and Dr. Auguste.
The adjudicator unreasonably found no nexus between the Appellant’s injuries and his inability to work despite the evidence of the Appellant’s spouse, his experts, and the participant medical practitioners.
The adjudicator gave weight to an outdated kinesiology report of R. Bullard which was not relied upon by either party.
The adjudicator was unfairly critical of the Appellant’s expert Dr. Wong based on one line in his report.
The adjudicator erred in law by ruling that the Appellant required vocational evidence to qualify for the “any occupation” IRBs.
The adjudicator unfairly concluded that the Appellant’s reporting of information to the psychologist Dr. Waxer was less reliable because translation from Hindi to English was provided by the Appellant’ spouse rather than by an independent interpreter. Taken together with the adjudicator’s treatment of other evidence as outlined above, there was a reasonable apprehension of bias on the part of the adjudicator.
Discussion
[15] I would not give effect to the appeal for the following reasons:
It was neither an error of law nor procedurally unfair to permit Dr. Siegel to give evidence on the first day of the hearing. The adjudicator had three days within which to hear all the evidence. Accommodations for the schedules of experts, especially medical practitioners, are commonplace, considerate, and practical. A tribunal has the discretion and indeed the obligation to control and manage the process before it. There is no evidence that the adjudicator gave more weight to the evidence of Dr. Siegel because she heard this expert out of turn.
There was no error in law in the adjudicator’s failure to mention the evidence of the Appellant’s spouse. The evidence was received, not excluded, and the adjudicator did not misapprehend it. Decision makers do not have to refer to all parts of the evidence. The spouse’s evidence was non-medical and was limited to observation. It was entirely open to the adjudicator to consider that evidence inconsequential to the “any occupation test”.
It was not an error to permit Dr. Auguste to comment upon the connection between the motor vehicle accident and the T11 condition found on imaging. Dr. Auguste had opined on causation at pages 5 and 6 of her September 15, 2020, report. She arrived at that opinion after a review of the clinical musculoligamentous, osseous, and neurologic evidence. A more specific opinion on the T11 condition was well within the scope of the overarching opinion expressed in her report.
I am not persuaded that the adjudicator unfairly limited cross-examination of the two experts Dr. Siegel and Dr. Auguste. The adjudicator had the authority and the obligation to control the proceedings before her. She allowed only limited cross-examination of these experts on records that they did not have in their possession when they examined the Appellant and when they formed their opinions. The adjudicator was understandably concerned with these experts straying outside their respective areas of expertise. The experts admitted that they did not review the reports and records. The adjudicator reasonably held that the Appellant’s counsel could refer to this frailty in his submissions.
The adjudicator made findings of fact on the “any occupation test”. She stated and applied the correct legal test, reviewed, and weighed the evidence, and concluded that the Appellant had failed to meet his onus to prove entitlement to the IRB under that test. This was a pure finding of fact. It is not the function of this court to reweigh the evidence or substitute its findings for that of the adjudicator.
The adjudicator was entitled to rely on the evidence of the kinesiologist. Not only did Mr. Bullard oversee the Appellant’s Functional Capacity Evaluation, but that evidence was also in the materials before the adjudicator. Mr. Bullard’s summaries and clinical commentary were referenced in the reports of both Dr. Auguste and Dr. Siegel.
The adjudicator was not unfairly critical of the physiatrist Dr. Wong. At paragraph 20 of the decision, she summarized his expert opinion before proceeding to explain why she placed limited weight on it. Dr. Wong’s causation opinion had failed to consider documented pre-existing chronic back pain. The adjudicator noted that Dr. Wong had not been called upon to address this inconsistency. The adjudicator preferred the causation opinion of Dr. Auguste, a finding that she was entitled to make on the evidence.
The adjudicator did not apply the wrong legal test for “any occupation”. She clearly identified the legal test and expounded upon it at paragraph 10 of the decision. At paragraph 18 of the decision, the adjudicator noted that the “applicant advanced negligible vocational evidence addressing his education, training and experience and the applicant’s submission of a complete inability to pursue any employment or self-employment for which he is reasonably suited by education, training or experience, was not supported by evidence.” This finding was open to the adjudicator on the evidence, or on the lack of evidence. The adjudicator’s subsequent comment about the requirement to provide vocational evidence was not a statement of law, but reflected the evidentiary burden imposed by the “any occupation test” which the Appellant failed to satisfy. This was a pure finding of fact and, in any event, was not unreasonable.
There is an insufficient basis to detect any bias on the part of the adjudicator. Reasonable apprehension of bias is a high bar. The adjudicator explained why she assigned less weight to the opinion of Dr. Waxer than to that of Dr. Seigel. This included concerns about reliability of translation by a family member and inconsistency of information. This was a finding open to the adjudicator to make. Translation from one language to another by a party interested in the outcome of the hearing is never ideal. Taken together with the inconsistency of information provided to the assessor, the adjudicator reasonably considered Dr. Waxer’s opinion to be of less value than that of his counterpart.
[16] In summary, there was no error of law on the part of the adjudicator. The decision was reasonable. There is no basis for finding any reasonable apprehension of bias.
[17] With respect to the application for judicial review, the decision was a reasonable one. To the extent that the Appellant raises factual arguments, none of those arguments rise to the level of showing the exceptional circumstances required to set aside a tribunal’s findings of fact: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at paras. 125-126.
Disposition
[18] For the foregoing reasons, the appeal is dismissed, and judicial review is denied.
[19] The Appellant shall pay costs to the Respondent Aviva on a partial indemnity basis in the amount of $9,713.37. Those costs are fixed and payable within 60 days.
“McCarthy, J.”
I agree “Sachs, J.”
I agree “Myers, J.”
Released: October 28, 2024
CITATION: Kumar v. Aviva General Insurance Company, 2024 ONSC 5882
DIVISIONAL COURT FILE NO.: 399/23
DATE: 20241028
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, McCarthy, Myers, JJ.
BETWEEN:
VINOD KUMAR
Applicant
- and –
AVIVA GENERAL INSURANCE COMPANY
Respondent
- and –
LICENCE APPEAL TRIBUNAL
Respondent
REASONS FOR DECISION
MCCARTHY, J
Released: October 28, 2024