Court File and Parties
CITATION: Cabral v. Northbridge General Insurance, 2024 ONSC 6057
DIVISIONAL COURT FILE NO.: 217/23
DATE: 20241104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Trimble, Mew JJ.
BETWEEN:
ELVIS CABRAL Appellant
– and –
NORTHBRIDGE GENERAL INSURANCE COMPANY Respondent
Mark Stoiko, for the Appellant
Nicole Dowling, for the Respondent
HEARD at Hamilton by videoconference: October 31, 2024
REASONS FOR JUDGMENT
BACKHOUSE J.
Overview
[1] The Appellant appeals the June 19, 2023 Decision of Adjudicator Deborah Neilson of the License Appeal Tribunal (the “LAT”), which was released on June 19, 2023 (the “Reconsideration Decision”). The Reconsideration Decision did not alter the Initial Decision released on February 2, 2023.
[2] The Appellant seeks that the Reconsideration Decision be set aside, and two orders be made – that causation and catastrophic impairment are both satisfied. In the alternative, the Appellant seeks an order that the dispute be sent back to the LAT for a rehearing before a different adjudicator.
[3] The Appellant acknowledges that the correct legal test was applied both with respect to catastrophic impairment and causation. Instead, the Appellant argues that the LAT reached the wrong conclusion on the appropriate legal test. This is not a question of law but one of mixed fact and law.
[4] Section 11(6) of the Licence Appeal Tribunal Act, 1999, S.O.1999, c.12, Sched. G (“LATA”) provides that an appeal from a LAT decision, made pursuant to the Insurance Act, R.S.O. 1990, c.1.8, can only be made on a question of law.
[5] For the reasons set out below, I would dismiss the appeal.
Background
[6] The Appellant was in a motor vehicle accident in 2002, in which he suffered a concussion and numerous physical ongoing ailments. The Appellant had ceased working and received accident benefits in respect of the 2002 MVA.
[7] In a 2006, MVA, the Appellant was the front-seat passenger of a taxi that collided with an oncoming trailer when the van towing it turned left. The Appellant suffers from chronic pain and psychological disorders that impair his ability to work and engage in housekeeping, social and recreational activities. He alleges that these impairments were caused by the 2006 accident. The Respondent alleges that these impairments were caused entirely by the previous car accident in 2002 and not the 2006 accident.
[8] The Appellant applied for benefits under the Statutory Accident Benefits Schedule, O.Reg.403/96 (the “SABS”), pursuant to the Insurance Act. The Appellant was denied certain benefits by the Respondent and submitted an application to the LAT. The Appellant sought a determination that he sustained a catastrophic impairment on the basis of a mental or behavioural disorder under s. 2(1.2) (g) of the SABS.
[9] Determination of catastrophic impairment went to a hearing. In the Initial Decision released February 2, 2023, the LAT determined that the Appellant’s function did not meet the test of “marked impairments”, necessary to establish catastrophic impairment.
[10] Although it was not necessary to assess causation, given that the Appellant’s impairments did not meet the ‘threshold’ test of catastrophic impairment, the LAT nonetheless engaged in the appropriate causation analysis, concluding that it was not met per Sabadash v. State Farm et al, 2019 ONSC 1121 (Div. Ct.).
[11] The Appellant sought reconsideration of the Initial Decision pursuant to s.18.2 of the SLASTO Common Rules of Practice and Procedure[^1], on the basis that the LAT both violated the rules of procedural fairness and made significant errors of law or fact.
[12] The Appellant, in their request for reconsideration, advanced the same arguments with respect to the test for catastrophic impairment. They did not touch on the test for causation. In its Reconsideration Decision released June 19, 2023, the LAT denied the request for reconsideration and concluded that the LAT did not mischaracterize, overlook or disregard evidence – nor did they err in law or violate principles of procedural fairness.
Jurisdiction
[13] 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 (the “LATA”). Pursuant to s. 11(3) of the LATA, an appeal may be made on a question of law only.[^2]
[14] Per Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, at para. 28, issues of fact may become an error of law where:
“The adjudicator ignored items of evidence that the law required him or her to consider in making the decision”;
The adjudicator made an “error in law or legal principle during the fact-finding exercise”; or
The adjudicator made “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”.
Standard of Review
[15] 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, 2002 SCC 29, at paras. 27 and 30, the standard of review on questions of procedural fairness in the context of a statutory appeal is correctness.
[16] On an appeal restricted to a question of law, the Appellant’s submission that the standard of review for a question of mixed fact and law is reasonableness is incorrect.
Issues
Issue #1: Did the Tribunal err in law, by disregarding, overlooking, or mischaracterizing evidence?
Issue #2: Did the Tribunal err in law by violating the rules of procedural fairness?
Issue #3: Is the within appeal available to the Appellant?
Analysis
Issue #1 The Tribunal did not err in law, by disregarding, overlooking, or mischaracterizing evidence
[17] The Appellant submits that the LAT placed insufficient weight on, improperly considered, and/or ignored the evidence of the Appellant, his girlfriend, Ms. Youmans, Dr. Pilowsky, and Dr. Cekan – all of which supported the position that the Appellant satisfied the test for catastrophic impairment and causation.
[18] The Appellant submits that the following pertinent evidence was ignored by the LAT:
Evidence of Dr. Cekan: reference to the Appellant’s fibromyalgia following the relevant MVA; acknowledgment that the Appellant’s musculo-skeletal pain complaints could be associated with prior MVA’s (i.e., 2002); agreement that the Appellant’s myofascial pain was exacerbated following the relevant MVA; the referral to a chronic pain clinic; and references to the Appellant’s anxiety.
Appellant’s Evidence: Between 2002 and 2006 the Appellant’s ability to do housekeeping was “a lot worse”; the Appellant’s neck injuries became worse following the 2006 accident; the 2006 MVA immediately aggravated the Appellant’s neck and back pain; and the Appellant’s pain symptoms changed following the 2006 MVA.
Dr. Pilowsky’s evidence: The physical/psychological conditions of the Appellant, as resulting from the 2002 MVA, and exacerbated by the 2006 MVA; the Appellant’s symptoms of pain, emotional distress, emotional tension, and nervousness as greatly aggravated by the 2006 MVA; the Appellant’s inability to contribute to the upkeep of his home, participate in activities, and find motivation for self-care, following the 2006 MVA; the Appellant’s compromised functionality in each sphere of his life as a result of the 2006 MVA; and the consequences of his 2006 injuries.
Evidence of Jennifer Youmans (the Appellant’s girlfriend): Not a day goes by that the Appellant does not complain about his pain; he has a lot of anxiety; the Appellant avoids tasks like cutting the grass due to fear of pain; he has changed forever following the 2006 MVA; the Appellant has a very grim social life due to pain, irritation, anxiety, and panic attacks; he is very sad, has a sense of helplessness and cannot do what he should be able to, he also experiences suicidal ideations.
[19] The Appellant made the same arguments in his Reconsideration application. In dismissing the Appellant’s arguments and finding that the Initial Decision did not mischaracterize, overlook or disregard evidence in making findings of fact, the LAT stated at paragraph 13 of the Reconsideration Decision:
The Tribunal is required to analyze and weigh evidence in order to make findings of fact. However, a finding of fact made in the absence of evidence is an error of law. In this case, the applicant’s testimony and the history he provided to his psychologist, Dr. Pilowsky, contradicted the history set out in his medical records recording his complaints as a result of the accident. If evidence is unreliable, such as testimony from a witness with a poor memory that is not corroborated, it will not be given as much weight as business records prepared contemporaneously. That was the case in this matter.
[20] The LAT in its Reconsideration Decision considered and dismissed the Appellant’s argument that the evidence of Dr. Bartolucci that the Appellant’s chronic pain was getting worse was ignored in the Initial Decision. The LAT noted in the Reconsideration Decision that in the same records where Dr. Bartolucci recorded that the Appellant’s chronic pain was getting worse, Dr. Bartolucci reported that the Appellant had a second accident but that he reported no change in his symptoms and no new symptoms which was consistent with the Appellant's report to three other health practitioners in 2007 that his pain and psychological complaints stemmed from his 2002 accident, not his 2006 accident. The Reconsideration Decision noted that the interpretation in the Initial Decision was also corroborated by the lack of evidence such as the lack of any records showing that the Appellant received treatment over a five year period.
[21] The Initial Decision gave reasons for why it found that Dr. Pilowsky’s report provided limited assistance. It found that the report did not clearly explain what differentiates a marked from a moderate impairment or why the Appellant’s impairments qualify as one rather than the other. It also placed less weight on Dr. Pilowsky’s opinion because the doctor largely relied on the Appellant’s self-reported impairments in the interview component of her assessment and she did not review his pre-accident records.
[22] The LAT is required to analyze and weigh evidence in order to make findings of fact. That is what it did. It provided cogent, coherent reasons.
[23] The Appellant relies on Rumak v. Personal Insurance Company of Canada, 2004 CarswellOnt 4140 as support for the submission that it is an error of law to ignore cogent medical evidence. As noted above, the LAT did not ignore relevant evidence. Challenges to the sufficiency or weight of evidence supporting a finding of fact does not give rise to a question of law. Neither does a misapprehension of evidence.
[24] The Tribunal did not err in law by disregarding, overlooking, or mischaracterizing evidence.
Issue #2: The Tribunal did not err in law by violating the rules of procedural fairness
[25] The Appellant asserts that the LAT erred in law by violating the principles of procedural fairness when preferring “hearsay evidence” (his medical records) over the testimony of several witnesses.
[26] It has been long-established that medical records made contemporaneously by someone having personal knowledge of the matters being recorded and under a duty to make the entry or record should be received as evidence as prima facie proof of the facts stated therein, subject to a party wishing to challenge the accuracy of the records or entries from doing so: Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608. In this case the Appellant filed the medical records he objects to the LAT relying upon. Moreover, the LAT is able to admit any evidence relevant to the subject matter of a hearing: Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 at s.15(1). Manikam.v. Toronto Community Housing Corp., 2019 ONSC 2083 relied upon by the Appellant, is also highly distinguishable. In the Appellant’s case, the medical records were considered along with the other evidence. The Reconsideration Decision considered the hearsay argument in detail including the inapplicability of Manikam and found no error in relying on the medical records.
[27] There was no error in relying on the Appellant’s medical records. There is no issue of procedural unfairness.
[28] As per Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 at para. 28, affirmed by the Court of Appeal at 2022 ONCA 446 and the Supreme Court at 2024 SCC 8, appeals under s.11(6) of the LATA can only be brought on questions of law. Further, in Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716 (Div. Court), at para. 17, no appeal was available under s.11(6) of the LATA, where the appellant had argued that the adjudicator applied the test incorrectly to the facts as found. This constituted an error of mixed fact and law. Only where an adjudicator has applied an incorrect legal test would an appeal be available.
[29] The Appellant relies on Rumak v. Personal Insurance Company of Canada, 2004 CarswellOnt 4140 in support of the submission that it is an error of law to ignore cogent medical evidence. As noted above, the LAT did not ignore medical evidence. To the contrary, where it did not accept medical evidence it gave cogent reasons for doing so.
[30] The Appellant acknowledges that the LAT correctly identified the test for causation and catastrophic impairment. Instead, the Appellant argues that the LAT reached the wrong conclusion on the appropriate legal test. This is not a question of law but one of mixed fact and law.
Conclusion
[31] The appeal is dismissed.
Costs
[32] The Appellant shall pay the Respondent as the successful party costs in the agreed upon amount of $8,000.
____________________________________
Backhouse J.
I agree ____________________________________
Trimble J.
I agree____________________________________
Mew J.
Released: November 4, 2024
CITATION: Cabral v. Northbridge General Insurance, 2024 ONSC 6057
DIVISIONAL COURT FILE NO.: 217/23
DATE: 20241104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Trimble, Mew JJ.
BETWEEN:
ELVIS CABRAL Appellant
– and –
NORTHBRIDGE GENERAL INSURANCE COMPANY Respondent
REASONS FOR DECISION
BACKHOUSE J.
Date: November 4, 2024
[^1]: SLASTO Common Rules of Practice and Procedure, s.18.2.
[^2]: As of August 21, 2023, a new set of rules applies to proceedings at the LAT. However, all of the LAT decisions relevant to this proceeding occurred before that date.