Pourkhodayar v. The Personal Insurance Company, 2024 ONSC 6019
CITATION: Pourkhodayar v. The Personal Insurance Company, 2024 ONSC 6019
DIVISIONAL COURT FILE NO.: 008/24; 012/24-JR
DATE: 2024-11-01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, R.D. GORDON, R.A. LOCOCO, JJ.
BETWEEN:
Reheleh Pourkhodayar
Appellant/Applicant
– and –
The Personal Insurance Company and License Appeal Tribunal
Respondents
COUNSEL:
Adam R. Little/Karen N. Vigmond, for the Appellant/Applicant
Philippa Samworth/Youeel Ataalla, for the Respondent The Personal Insurance Company
Theresa McGee, for the Respondent License Appeal Tribunal
HEARD at Toronto: October 23, 2024
DECISION ON APPEAL AND JUDICIAL REVIEW
R.D. GORDON J.
Overview
[1] The appellant applied for statutory accident benefits from the respondent insurer. Her application was denied on the basis that she had not been involved in an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule[^1] (the “Schedule”). The denial was maintained by the Licence Appeal Tribunal following a preliminary issue hearing and was upheld on reconsideration. The Tribunal’s decision is the subject of this combined statutory appeal and application for judicial review.
Jurisdiction
[2] This court has jurisdiction over this appeal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. Under s. 11(3) of the Act, appeals are limited to questions of law. This court has jurisdiction over this application for judicial review pursuant to ss. 2(1) and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[3] The appellate standard of review applicable to questions of law was recently summarized in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (Div. Ct.):
The standard of review on appeal limited to questions of law is one of correctness: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; Madore v. Intact Insurance Co, 2023 ONSC 11 (Div. Ct.), at para. 23.
Questions of law are generally questions about whether the correct legal test was applied, or an approach prescribed by statute was follows. In contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 43; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 2 S.C.R. 748, at para. 35.
This court had an opportunity to further expand on what constitutes a question of law on a statutory appeal in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC (Div. Ct.), aff’d 2022 ONCA 446, reversed on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. In that case, Kristjanson J. of this court explained as follows, at para. 28:
[28] On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of the evidence, may give rise to an error of law alone for the purposes of the appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact to not give rise to a question of law. A “misapprehension” of the evidence does not constitute an error of law unless 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. 25 and 29. 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 at paras. 24-25).
[4] On questions of fact or mixed law and fact in an application for judicial review, the standard of review of an administrative tribunal’s decision is reasonableness. Reasonableness is concerned with the existence of justification, transparency, and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[5] In Vavilov, at para. 101, the Supreme Court of Canada held that two types of flaws can render a decision unreasonable: first, a failure of rationality internal to the reasoning process, and second, when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.
Factual Background
[6] On October 10, 2020, the appellant was a passenger in a motor vehicle travelling southbound on Highway 400. Her partner “NM” was driving and her five-year-old daughter was in the back seat. Their vehicle came to be surrounded by a group of several motorcycles weaving in and out of traffic around them. NM became angry with the motorcyclists and tried to get away from them and avoid letting them move in front of his vehicle. The appellant became “really scared” that something was going to happen, and she asked NM to pull the vehicle over. He continued to drive in an agitated state. The appellant began to cry as did the couple’s daughter. The appellant twisted in her seat and put her arm on her daughter’s leg. At one point, a motorcyclist looked into the passenger window of the vehicle, which felt to her like an “altercation”, even though there was no personal contact or any contact whatsoever between any of the motorcycles and the vehicle. The appellant said she felt “trapped” in the vehicle. A minute or two later, NM pulled the vehicle over to the shoulder of the highway.
[7] About five minutes later, the appellant took over driving. As soon as she sat in the driver’s seat, she experienced severe pain in her back. Within 20-25 minutes, she had to pull over because the pain was worsening. She was able to get out of the car and walked around. She felt pins and needles in her legs. NM then resumed driving and took her directly to Sunnybrook Health Sciences Centre, by which time the appellant had lost all sensation in her legs and was unable to walk or exit the vehicle.
[8] The appellant was rendered paraplegic as a result of a spinal cord hemorrhage.
[9] The doctors discovered that the appellant had a congenital medical condition called an arteriovenous malformation (“AVM”) in her spine. An AVM is comprised of an abnormal tangle of blood vessels. A subsequent angiogram determined that the AVM was also associated with a suspected aneurysm (bulging of the blood vessel).
[10] A central issue before the Tribunal was whether the hemorrhage was the result of the aneurysm rupturing due to an increase in the appellant’s blood pressure or whether it was a spontaneous rupture of the AVM.
The Definition of Accident
[11] For the purposes of this appeal/application, an “accident” is defined in s. 3(1) of the Schedule as an incident in which the use or operation of an automobile directly causes an impairment. An “impairment” is defined in that same section as “a loss or abnormality of a psychological, physiological or anatomical structure or function”.
[12] In Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 21045 (ON CA), 72 O.R. (3d) 338 (C.A.), the Court of Appeal for Ontario held there to be a two-part test to determine if there has been an accident as defined: (1) The purpose test: Did the incident arise out of the use or operation of an automobile?; and (2) The causation test: Did the use or operation of an automobile directly cause the impairment?
[13] The parties agree and the Tribunal accepted that the purpose test was met in this case. The Tribunal found that the causation test was not met.
[14] The causation test looks to determine whether ordinary and well-known activities associated with the use or operation of an automobile were a direct cause of the claimant’s impairments. For the causation test to be met, there are three questions for consideration: (1) But for the use or operation of the automobile, would the incident have occurred? (2) Was there an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the automobile? (3) Was the use or operation of the motor vehicle a dominant feature of the incident?
Analysis
The “But for” Question
[15] The Tribunal held that the appellant failed to establish that but for the use or operation of the vehicle she would likely not have suffered a rupture and hemorrhage within her spine. Its reasoning is contained at para. 43 of the decision:
We agree with the respondent that, given the reported evolving nature of the applicant’s symptoms over approximately half an hour, culminating in lower limb paraplegia, a spontaneous rupture likely occurred. This evolving nature is not consistent with an aneurysm rupture, which both experts agreed would have an immediate effect. Both experts also agreed that the increase in blood pressure would not necessarily cause a ruptured AVM. Dr. Fazl’s opinion does not account for why the applicant had severe back pain for 30 minutes before “pins and needles” and then paralysis of her legs set in. Further, Dr. Fazl failed to state in his reports that he conducted an in-person assessment of the applicant and he failed to clearly state that he reviewed the angiogram imaging, in addition to the report of the procedure. We question whether he omitted other information. We, therefore, prefer Dr. Shamisa’s opinion. For these reasons, we find that the existence of the AVM was the likely cause of the applicant’s injury.
[16] The appellant argues that the Tribunal’s finding was based on an unreasonable and unfair review of the expert evidence. She says that the Tribunal unreasonably relied upon incorrect and irrelevant facts to discount her expert’s opinion (that of Dr. Fazl) and ignored critical concessions made by the respondent’s expert (Dr. Shamisa).
[17] I agree. The Tribunal’s stated rationale for preferring Dr. Shamisa’s evidence over Dr. Fazl’s was based on three factors: (a) Dr. Fazl did not account for why the appellant had severe back pain for 30 minutes prior to the onset of paraplegia; (b) Dr. Fazl failed to state in his reports that he conducted an in-person assessment of the appellant; and (c) Dr. Fazl failed to clearly state that he reviewed the actual spinal angiogram imaging in addition to the imaging report of the doctor who performed the angiography. As a result of these omissions, the Tribunal questioned whether Dr. Fazl had omitted other information and consequently preferred Dr. Shamisa’s opinion.
[18] On a review of the evidence, Dr. Fazl did, in fact, account for why the appellant had severe back pain for 30 minutes prior to the onset of paraplegia. His evidence was that once blood pressure rises due to a stressful situation it takes 20 to 30 minutes to return to normal and that during those 20-30 minutes, the chance of an aneurysm rupturing is higher. His evidence was that her symptoms having begun with pain and progressed to paralysis over 30 minutes is indicative of there having been “high blood pressure, rupture, aneurysmal dilatation with this malformation, bleeding within the spinal court and paraplegia.” This evidence was not subject to comment by the Tribunal.
[19] With respect to Dr. Fazl failing to state in his reports that he conducted an in-person assessment, it is to be noted that the main issue between the parties was whether it was the AVM or the aneurysm that had ruptured. An in-person assessment some years after the event would be unlikely to yield any significant relevant factors. Indeed, Dr. Fazl testified on cross-examination that his opinion was primarily based on his review of the documents and not the in-person assessment. Of note, he was not cross-examined on the specifics of that in-person assessment. In these circumstances, that Dr. Fazl had done an in-person assessment of the appellant was of little consequence and it is difficult to see why it would have impacted the Tribunal’s acceptance of his evidence.
[20] With respect to Dr. Fazl having failed to clearly state in his reports that he reviewed the actual angiogram imaging and not just the imaging report, there was evidence before the Tribunal that he had, on at least three occasions, indicated in his reports that he had reviewed the appellant’s spinal angiogram. In addition, the respondent’s own expert, Dr. Shamisa, acknowledged as much when, in response to a request that he comments on Dr. Fazl’s report that he had “reviewed Mrs. Pourkhodayar’s spinal angiography”, he commented as follows: “I believe that Dr. Fazl is intending to state that he looked at the images himself, in that cases it would be better to see a description of the angio including was the aneurysm on the venous or the arterial side”. The Tribunal’s criticism of Dr. Fazl with respect to this issue was misplaced.
[21] In addition to these difficulties with the Tribunal’s analysis, it did not comment upon what may have been a significant contradiction in Dr. Shamisa’s evidence. The Tribunal appears to have relied on the following testimony he gave:
Q. Okay. I wasn’t clear if your evidence that the back pain and then the paralysis about 25 minutes later, was consistent with an AVM rupture or if it was consistent with an aneurysm rupture.
A. Again, this is very – I mean this just the – from the clinical experience. AVMs tend to be slower. They’re bleeding because there are less pressure so aneurysms I would expect that they would do an immediate damage because they’re higher flow. They are higher pressure. So they accumulate more blood. So I would expect that they’d do the damage and the effect and symptoms right away. I would expect AVMs to do probably what Mrs. – what happened to her over minutes to hours. I think if I have to choose between both, I would say the AVM rupture.
[22] However, the Tribunal failed to address other evidence given by Dr. Shamisa that was supportive of the appellant’s position and Dr. Favi’s opinion. In particular, under cross-examination Dr. Shamisa gave the following evidence:
Q. You know that by the time she arrived as Sunnybrook Hospital, she couldn’t walk and she had to use a wheelchair, right?
A. Yes,
Q. Isn’t this rapid evolution of symptoms entirely consistent with the stressful incident in the car and the associated rise in blood pressure likely causing the rupture and hemorrhage in this case?
A. Again, I mean you’re asking me to give that opinion that’s very fair, unbiased and truthful as much as I can. I think there are – the events happened in succession and most likely, the rupture of the AVM happened and caused the problem. I mean because an accident, stress always happens. I don’t know if this led to higher blood pressure. I can’t say with certainty. That’s what I, you know – that’s what I can say to you, yes. Her blood pressure went…
Q. You can’t say it with certainty?
A. No. Is it possible? It’s possible.
Q. Is it likely? Not certain but likely?
A. It’s likely.
[23] Dr. Shamisa gave two apparently contradictory opinions on one of the most significant issues being determined by the Tribunal. Yet in its decision, the Tribunal did not address that contradiction or explain why it preferred one part of Dr. Shamisa’s opinion over the other.
[24] An application for judicial review is not a “do-over” before this court or a treasure hunt for error. However, in this case, the tribunal was faced with complex evidence from highly qualified experts and chose to prefer the defence expert for reasons that in important respects were misplaced or not borne out by the record. In the circumstances, the analysis of the competing expert opinions was so unsound and that it renders the decision on the “but for” analysis unreasonable.
The “Intervening Cause” Issue
[25] The Tribunal went on to find that even if the appellant was successful on the “but for” test, the stress and high blood pressure she suffered were not a normal incident of the risk created by the use or operation of the automobile, and that the hemorrhage and resulting paraplegia were not reasonably foreseeable risks of the sequence of events involving the motorcyclists. Last, the Tribunal found the action of the motorcyclists to be more akin to an assault – an act that has been found not to constitute an accident when it occurs in the context of the operation of a motor vehicle.
[26] As set out in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the car. This passage acknowledges that persons who participate in the operation of a car assume certain risks created by that use. Those risks include such things as vehicle malfunction, poor road or weather conditions, and, in my view, things like dangerous, aggressive or careless driving. When a passenger in a motor vehicle takes to the road, he or she assumes a risk that the driver of his or her vehicle or other drivers on the road will be careless or aggressive or even dangerous. This is a risk taken on every occasion. It is a risk taken in the normal course. Put yet another way, it is an incident that is not outside the ordinary course of things.
[27] While the appellant was a passenger in the vehicle, the drivers of the motorcycles drove aggressively – perhaps even dangerously. That was a normal risk created by her use of the vehicle. That NM responded by also driving aggressively was also a risk created by her use of the vehicle. It was incorrect for the Tribunal to have found otherwise.
[28] The Tribunal also found that the hemorrhage was not “a normal incident of the risk created by the use or operation of the car”. However, it is not the specific injury or impairment she suffered that is subject to the “normal incident” analysis, but the intervening act.
[29] Finally, the Tribunal determined that the actions of the motorcyclists and NM were intervening acts by equating those actions to an assault and a line of cases that have held that being assaulted is not a normal incident of the risk created by the use or operation of an automobile. I would agree that an assault suffered while operating or using a motor vehicle normally constitutes an intervening act. However, what differentiates assault from negligence or carelessness or even dangerous operation of a vehicle is intent - the intention to cause the claimant harm. In this case there was no evidence of such intent on the part of the motorcyclists or NM and their actions alone do not indicate an intent to harm the appellant. Furthermore, as reasonably conceded by counsel for the respondent, had the actions of the motorcyclists or NM resulted in a physical collision that caused the appellant’s impairment there would have been no denial of benefits.
[30] The Tribunal erred in law in its application of the intervening cause aspect of the causation test.
The “Dominant Feature” Question
[31] The Tribunal held that “the existence of the congenital AVM, and the consensus opinions of the parties’ experts that it (or the associated aneurysm) would eventually rupture, was the dominant feature of the applicant’s injury. The vehicle was ancillary.”
[32] As explained in Davis, at paras. 75-76, the dominant feature question is directed at determining whether the link between the use or operation of the automobile and the resulting impairment was too remote to be called “direct”: see also Greenhalgh, at para. 12. The court also confirmed that there may be more than one direct cause: Davis, at para. 77, citing North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143, 77 C.C.L.I. (5th) 60 (Div. Ct.), at para. 13.
[33] In my view, the Tribunal erred in its finding with respect to this issue. Absent a proper finding that a spontaneous rupture of the AVM was responsible for the appellant’s hemorrhage, that the appellant’s medical condition would eventually result in the hemorrhage she suffered is neither here nor there. If, in fact, the hemorrhage was caused by an increase in blood pressure resulting from the stress of the situation involving the motorcyclists and NM, it occurred earlier than it otherwise would have. It is impossible to say how much earlier. Perhaps a day, perhaps a month, perhaps several years. It would be improper to deny the appellant benefits for a hemorrhage suffered now just because she would suffer that same hemorrhage at an undetermined future date.
Conclusion
[34] The appeal and application for judicial review are granted. The impugned decision is quashed, and this matter is remitted for fresh hearing before a differently constituted tribunal of the LAT. In accordance with the agreement reached by the parties, the respondent shall pay costs to the appellant in the amount of $10,000 all-inclusive.
“R.D. Gordon J.”
I agree: “D.L. Corbett J.”
I agree: “R.A. Lococo J.”
Released: November 1, 2024
CITATION: Pourkhodayar v. The Personal Insurance Company, 2024 ONSC 6019
DIVISIONAL COURT FILE NO.: 008/24; 012/24-JR
DATE: 2024-11-01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, R.D.GORDON, R.A. LOCOCO, JJ.
BETWEEN:
Reheleh Pourkhodayar
Appellant/Applicant
– and –
The Personal Insurance Company and License Appeal Tribunal
Respondents
DECISION ON APPEAL AND JUDICIAL REVIEW
R.D. Gordon J.
Released: November 1, 2024
[^1]: Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.