CITATION: Hordo v. CAA Insurance Company, 2024 ONSC 6064

DIVISIONAL COURT FILE NO.: 172/23 DATE: 20241206

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Jarvis, Sachs, and Matheson JJ.

BETWEEN:

DIANA HORDO and MICHAEL HORDO

Self-Represented Appellants

Appellants

– and –

CAA INSURANCE COMPANY

Peter Kazdan, for the Respondent

Respondent

HEARD at Toronto: October 29, 2024

Jarvis J.:

[1] This is an appeal from a Licence Appeal Tribunal (“LAT”) Reconsideration Decision of Vice Chair Moore dated January 13, 2023. That decision upheld a LAT decision dated September 12, 2022, of Vice Chair Moore and Adjudicator Reilly that dismissed the appellants’ claims for certain benefits under the Statutory Accidents Benefits Schedule-Effective September 1, 2020, O. Reg. 34/10 (the “SABS”) made under the Insurance Act, R.S.O., c. 1. The appellants are spouses.

[2] For the reasons which follow, the appeal is dismissed.

Background facts

[3] The appellants were injured in an automobile accident on May 6, 2019. They sought accident benefits from their insurer pursuant to the SABS. The insurer denied the appellants’ claims for non-earner and housekeeping/home maintenance benefits. The appellants applied to the LAT. On September 12, 2022, the LAT found that the appellants were not entitled to the benefits claimed, including interest, a special award and costs (the “LAT Decision”). They requested a reconsideration of the LAT Decision. That request was denied on January 13, 2023 (the “Reconsideration Decision”). The appellants appealed.

[4] Pursuant to Orders made by Leiper J. on November 30, 2023, and Corbett J. on February 12, 2024, the appeal is restricted to the Reconsideration Decision and an allegation raised in the appellants’ Amended Notice of Appeal involving a reasonable apprehension of bias.

The LAT Decision

[5] The appellants made a claim for non-earner benefits because they were ineligible for income replacement benefits. They claimed that they were retired and not actively employed. The panel relied on Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which held (at para. 50) that to qualify for a non-earner benefit an insured had to establish that their accident injuries were so significant as to continuously prevent them from engaging in substantially all the activities in which they had engaged before the accident. The panel concluded that both appellants’ evidence provided little insight about their pre-accident activities.

[6] In finding that the appellants were not entitled to non-earner benefits the panel found that Mr. Hordo (a retired lawyer) was able to prepare for, and argue, a motion in-person before the Ontario Superior Court in an unrelated matter about eighteen months after the accident in November 2019 (thus supporting a level of recovery), that the medical evidence on which Mr. Hordo relied did not support a finding that he was unable to carry on a normal life as a result of his injuries, that video surveillance showed Mr. Hordo carrying on daily activity without any appearance of distress and that he was deemed medically fit to pilot an airplane. As for Ms. Hordo, medical evidence from her dentist and chiropractor indicated, respectively, that she did not suffer from a substantial inability to engage in all the activities in which she was ordinarily engaged before the accident or difficulty performing regular activities of daily living because of the accident. Ms. Hordo participated with her spouse in the Superior Court proceeding and was also video-surveilled engaging in regular daily living activities without any apparent distress. Discrepancies in the appellants’ evidence about their pre-accident employment also called into question their credibility.

[7] The appellants made a claim for housekeeping/home maintenance benefits, which are payable to a person who is determined to be catastrophically impaired (“CAT”) unless that person purchased the benefit separately from an insurer. It was undisputed that the appellants’ injuries were not CAT. While the appellants argued that they had purchased optional housekeeping/home maintenance benefits, the LAT found that their policy with CAA showed no additional coverage or premium paid for such benefits. The appellants claimed that they should have been covered through a transitional policy, but the LAT found that such coverage wasn’t available to them under the SABS and that there was no evidence of incurred costs. A service contract for housekeeping services was signed with a company that was not a housekeeping and home maintenance service provider. Mr. Hordo was the sole director of the company.

[8] The panel found that the appellants repeatedly failed to attend medical examinations without any reasonable excuse and to provide requested medical information in a timely manner. They also failed to attend scheduled examinations under oath and did not notify the respondent that they were incapable of doing so because of their physical, mental or psychological condition.

[9] Thus, the panel found that the insurer had the right to suspend their benefits.

[10] The panel found that there were five disputed treatment plans that were approved after the appellants were removed from the Minor Injury Guidelines (“MIG”). The panel found that the appellants were put in the MIG because of the evidence from their chiropractor that their injuries were minor in nature. They were removed from the MIG when they provided medical evidence to justify that removal. The LAT found that the approved treatment plans were no longer an issue in dispute.

[11] The panel found that the appellants were not entitled to interest on any overdue benefit payments as no benefits were payable. The panel also found that the appellants were not entitled to a special award as no benefits were payable and that in order to attract an award “the insurer’s conduct must be excessive, imprudent, stubborn, inflexible unyielding or immoderate.”

[12] The appellants made a claim for costs based on allegations of bad faith and privacy breaches. The panel found that the appellants had “not met the very high threshold for entitlement to costs.” The panel also found that the respondent was entitled to a $500 costs award because the appellants misrepresented their availability for two of the scheduled hearing days. Mr. Hordo had represented that he had a medical procedure that prevented his attendance. In fact, the appellants were participating in a court proceeding with another member of the Divisional Court on the day in question.

The Reconsideration Decision

[13] A request for reconsideration will not be granted unless one or more of the criteria contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”). These include: (a) the tribunal acting outside its jurisdiction or violating the rules of procedural fairness; (b) the tribunal making an error of law or fact such that the tribunal would likely have reached a different result but for the error; (c) the tribunal heard false evidence which was only discovered after the hearing and would likely have affected the result; and (d) there was evidence that was not before the tribunal when rendering its decision, could not have been obtained previously by the party seeking to introduce it and would have likely affected the result.[^1] The appellants relied on all the criteria but provided no submissions with respect to Rule 18.2(d) and so it was not considered.

[14] The request for reconsideration was denied.

[15] In denying the request Vice Chair Moore addressed each of the criteria.

Violation of procedural fairness (Rule 18.2(a))

[16] The appellants alleged that the LAT panel violated the rules of procedural fairness and demonstrated bias. The allegations of procedural unfairness and bias related to an adjudicator who participated at a preliminary stage of the proceeding that dealt with procedural matters but who was replaced by a different panelist when the substantive issues were heard. The exclusion of certain of the appellants’ documents resulted from the ruling made at the preliminary stage. The appellants’ allegations included the panel’s exercise of its discretion to exclude the late filing of a document by the appellants pursuant to s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, C. S.22 (“the “SPPA”). The other allegations of procedural unfairness involved consideration by the LAT panel of a Divisional Court decision unrelated to the matter before the LAT that disclosed the whereabouts of the appellants on a day scheduled for the LAT hearing that the appellants had represented that they were unable to attend due to a medical procedure involving one of them. They also relied on the absence of a claims adjuster who had been involved in the file but was unavailable for the LAT hearing. However, evidence was given by another adjuster who was familiar with the file and who was cross-examined by the appellants.

[17] Vice Chair Moore ruled that the appellants had not met the criterion for reconsideration under Rule 18.2(a) for these reasons:

I find no violation of procedural fairness for the following reasons. As noted in paragraphs 6 to 9 of the Decision, Vice-Chair Shapiro and I issued a procedural Order on June 13, 2022. The Order addressed procedural and preliminary matters only. Vice-Chair Shapiro and I did not hear any testimony on June 13, 2022. The day was spent reviewing procedural and preliminary matters with the parties. Vice-Chair Shapiro was not seized of the matter at point. It is not a violation of procedural fairness to have the preliminary issues and the substantive issues heard separately, or by different adjudicators.

With respect to the applicants’ submission that Adjudicator Reilly excluded certain documents that were submitted by the applicants, I concur with the respondent that the matter has already been addressed in the Decision under the heading of 'Preliminary Issue', specifically at paragraphs 7 and 8. Adjudicator Reilly and I did exclude a late document that was not filed by the applicants until June 15, 2022, based on Section 15 of the Statutory Powers Procedure Act ("SPPA"). Section 15 sets out that the Tribunal adjudicators have the discretion to admit or exclude evidence at a hearing. I find no violation of procedural fairness in our Decision with respect to the excluded document.

The applicants have also submitted that Adjudicator Reilly and I considered a Divisional Court decision that is unrelated to the matter before the Tribunal. That decision, however, was only considered to the extent that it disclosed the whereabouts of the applicants on June 24, 2022. The applicants advised Adjudicator Reilly and I at the time of the hearing that they were unable to participate in the Tribunal hearing that was scheduled to proceed on June 24th for the entirety of the day because of a medical procedure. The Divisional Court decision confirms that the applicants attended a motion for an unrelated matter on that date.

The respondent submits that adjudicator Reilly and I considered a Divisional Court decision of Justice Nishikawa only to the extent that it disclosed the whereabouts of the applicants on June 24, 2022. An appeal of that decision does not alter the applicants’ physical location, and consideration of that decision did not deny the applicants procedural fairness. I find no violation of procedural fairness.

With respect to the production of Ms. Polanco, claims adjuster, as a witness Vice-Chair Shapiro and I considered this matter in our Preliminary Order dated June 13, 2022, at paragraph 5. We found that Ms. Erikson, the applicants’ current claims adjuster who is quite familiar with the file was made available for cross-Examination by the applicants. I find that having only one adjuster, Ms. Erikson, testify at the hearing did not impede or violate the rules of procedural fairness.

Error of fact and law (Rule 18.2(b))

[18] The appellants alleged that the LAT panel erred in law in accepting post-hearing material served on them by the respondent and that the panel demonstrated bias by considering a Divisional Court decision on the unrelated matter because the decision was distributed “illegally and improperly” by the respondent to bias the panel.[^2] Vice Chair Moore dealt with these issues as follows:

[21] There is a certificate of service confirming that the motion material was properly filed with the Tribunal and served upon both Michael Hordo and Diana Hordo via email, pursuant to Rule 15 of the License Appeal Tribunal Rules of Practice and Procedure, on July 26, 2022. I accept the respondent’s submission that they did not receive any bounce back email after serving the post-hearing motion material from Michael Hordo’s email account. The applicants have not submitted that Diana Hordo was not properly served. There is also no indication that Michael Hordo made any request for the respondent’s motion material after his spouse, whom he resides with, was properly served. I find that this does not constitute an error of fact or law. …

[23] The respondent submits that the applicants admit that they were able to attend before the Divisional Court on June 24, 2022, via videoconference. This is despite their claims that they were unable to attend the Tribunal hearing on the same date due to an alleged medical appointment. According to the respondent, the applicants mislead Adjudicator Reilly and I, as well as the respondent because they failed to disclose the motion before the Divisional Court until it was discovered by the respondent.

[24] As I have previously outlined, Adjudicator Reilly and I did not consider the contents of the Divisional Court decision. The decision simply provided confirmation that the applicants were able to participate in a videoconference hearing for an unrelated matter when they had previously disclosed to Adjudicator Reilly and I that they were unable to participate in the Tribunal hearing for the entirety of the day on June 24, 2022. The respondent simply brought this to our attention. Again, I do not find that this constitutes an error or fact or law.

[19] The appellants failed to establish grounds for reconsideration under this criterion.

False evidence (Rule 18.2(c))

[20] The appellants alleged that they had not been provided with a transcript of the hearing which would have supported their entitlement to the benefits in dispute, that the LAT panel erred in concluding that the appellants had failed to comply with an order requiring them to provide their tax assessments for 2019 (tax assessments for 2018 and 2020 had been ordered) and that the OCF-3 form from Mr. Hordo’s family doctor did not correspond with the OCF-3 form of the Financial Services Regulatory Authority.

[21] Vice Chair Moore found that the absence of a hearing transcript was not a ground for reconsideration under this criterion and that the appellants provided no plausible explanation how either the mistaken reference to their failure to provide their 2019 tax assessments could have negatively affected the LAT decision or how the report from Mr. Hordo’s family doctor contained misinformation that would have led to a different decision outcome.

Jurisdiction and Standard of Review

[22] This court has jurisdiction over this appeal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, SO 1999, c. 12, Sched. G (the “Act”). Pursuant to section 11(6) of the Act an appeal to this court from the LAT relating to a matter under the Insurance Act, RSO 1990, c. I.8, may be made on a question of law only.

[23] The standard of review for questions of law arising on a statutory appeal is correctness. The reviewing court can uphold the administrative decision or substitute its own view: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 54. Issues of procedural fairness are decided on a correctness standard: Abrametz v. Law Society of Saskatchewan, 2022 SCC 29, 470 DLR (4th) 328. As observed in Housen v. Nikolaisen, [2002] SCC 29, 470 D.L.R. (4th) 328, at para. 36, …[t]he application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle…can be characterized as an error of law…”

Was the Reconsideration Decision correct?

[24] The appeal of the Reconsideration Decision is limited to questions of law. In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 at para. 28 (reversed on other grounds) the scope of the approach as follows:

[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 evidence, may give rise to an error of law alone for the purposes of 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 do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable 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).

[25] The appellants’ submissions before this court involved, for the most part, submissions made either before the LAT hearing, at that hearing, and repeated at the reconsideration hearing. They submitted that procedural orders made before the substantive LAT hearing and the LAT decision be set aside. They sought orders appealing or varying awards of costs made at earlier stages in the LAT process before the substantive hearing and also a costs award made by Leiper J. on November 30, 2023. The appellants contended that the alleged procedural irregularities demonstrated the respondent’s bad faith (for which they claimed punitive and exemplary damages, as well as damages from the LAT). None of these remedies is available to the appellants in this proceeding. First, as already noted, this proceeding has been limited to an appeal of the Reconsideration Decision. Second, the appellants claim against the insurer is limited to what is available under the SABS. This does not include the right to claim bad faith damages. It does include the right to claim a special award, but the appellants failed to demonstrate that the LAT erred in law when it declined to make such an award.

[26] The procedural orders made by the LAT regarding such matters as denying the appellants the right to examine two adjusters were discretionary orders the LAT was entitled to make to control its own process. They do not raise a question of law.

[27] The appellants allege that the LAT erred when it found that it was not improper for Adjudicator Reilly to replace Adjudicator Shapiro. I disagree. As the LAT correctly noted, Adjudicator Shapiro had heard no evidence and no arguments on the merits. The appellants failed to demonstrate how their rights to procedural fairness were violated because a different adjudicator heard the preliminary procedural matters.

[28] Principally, the appellants contend that the Reconsideration decision should be set aside because it failed to meet the standard of adjudicating set out in Weerasinge v. Canada (Minister of Employment and Immigration), 1993 2996 (FCA), [1994] 1 F.C. 330 (“Weerasinge”). The appellants claim that since there were two adjudicators at the LAT hearing they were entitled to two adjudicators for the reconsideration hearing. Weerasinghe of no assistance to the appellants. It was decided by the Federal Court of Appeal under a federal statute pursuant to which a quorum for a Refugee Division hearing required two members or, if a claimant so requested, a single member. The procedure governing a reconsideration hearing is set out, as Vice Chair Moore correctly noted, in the Tribunal’s Common Rules of Practice and Procedure which nowhere requires that a reconsideration hearing be comprised of the same number of members who adjudicated the LAT hearing.

[29] To summarize, I find that Vice Chair Moore acknowledged the high threshold required for reconsidering the LAT decision, carefully considered the appellants’ submissions, and concluded that their allegations were unsupported by the record before him. The Rules were applied properly. Most of the appellants’ complaints about the proceedings before Vice Chair Moore and this court comprised bald allegations and revisited complaints about procedures which had been determined before the substantive issues were considered at the LAT hearing or which, in the case of excluded evidence, were wholly within the LAT’s discretion and had no error in principle. The Reconsideration Decision discloses no error of law.

Post-Reconsideration Decision (Bias)

[30] After the Reconsideration Decision was released, an issue involving a reasonable apprehension of bias was raised by the appellants after they had served their notice of appeal. One of the adjudicators from the LAT hearing (Reilly) had been hired by a different insurer in June 2022 when the appellants’ claims were heard and had continued to hear cases for the LAT until November 2022. The appellants allege that between accepting her new employment and leaving the LAT the adjudicator made decisions favouring her new employer. As the appellants did not have the opportunity to seek recusal of the adjudicator or to raise the issue on reconsideration, Leiper J. granted them leave to amend their Notice of Appeal to include this ground: Hordo v. CAA Insurance Company, 2023 ONSC 6774.

Is there a reasonable apprehension of bias?

[31] After the Reconsideration Hearing, it came to the attention of the appellants that Adjudicator Reilly who had participated in the LAT decision on September 12, 2022, had accepted an offer of employment with another insurer, Aviva Canada Inc. (“Aviva”) in June 2022. Her appointment to the Tribunal ended on November 4, 2022, after which she started working for Aviva in approximately December 2022.

[32] The appellants also rely on an article in a legal news publication that reported that Adjudicator Reilly had sat in LAT hearings involving her future employer and they raised issues about the adjudicator’s conflict of interest and possible bias. There was no reference in that article and none in the evidence before this court that any insurer other than Aviva was involved.

[33] In Nagesu v. Traders General Insurance Company, 2024 ONLAT 19-008171/AABS-R, a reconsideration hearing, a LAT decision of Adjudicator Reilly was cancelled, and a rehearing ordered. Associate Chair Mintz found that there has been a violation of procedural fairness since Adjudicator Reilly had dismissed an application for certain accident benefits in July 2022 in a hearing involving Aviva (Traders General Insurance is owned by Aviva). The decision applied only to Aviva-owned companies. Associate Chair Mintz emphasized (at para. 24) that there was nothing before her that would lead her to believe that Adjudicator Reilly was influenced on other matters and saw no reason to disturb decisions in which the Adjudicator had conducted hearings with other insurers. Two other LAT decisions by Adjudicator Reilly involving Aviva led to the same result.

[34] An allegation of actual or a reasonable apprehension of bias is serious and not to be made lightly. The criterion was expressed by de Grandpre J. in Committee for Justice and Liberty v National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369:

…the apprehension of bias must be a reasonable one, held by

reasonable and right-minded persons, applying themselves to the

question and obtaining thereon the required information. In the

words of the Court of Appeal, that test is “what would an

informed person, viewing the matter realistically and practically -and

having thought the matter through – conclude. Would he think that

it is more likely than not that [the decisionmaker], whether.

consciously or unconsciously, would not decide fairly.

[35] In this case, the Adjudicator had accepted a position at a different insurer. That is the central fact in the bias allegation. This is not a case of actual bias. Further, the threshold for finding that there was a reasonable apprehension of bias is high and has not been met in this case by the appellants. The appellants have not shown that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that these facts would give rise to a reasonable apprehension of bias. The connection with one insurer does not automatically create a link with all insurers.

Disposition and Order

[36] I would dismiss the appeal and order that the appellants pay to the respondent its costs of the appeal in the amount of $10,000.

Jarvis J.

I agree:

Sachs J.

I agree:

Matheson J.

DATE: December 6, 2024

CITATION: Hordo v. CAA Insurance Company, 2024 ONSC 6064

DIVISIONAL COURT FILE NO.: 172/23 DATE: 20241206

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Matheson, Jarvis JJ

BETWEEN:

DIANA HORDO and MICHAEL HORDO

Appellants

– and –

CAA INSURANCE COMPANY

Respondents

REASONS FOR JUDGMENT

JARVIS J.

Date: December 6, 2024

[^1]: Effective August 21, 2023, the LAT transitioned to its own set of rules-the Licence Appeal Tribunal Rules. The new criteria for granting reconsideration eliminated 18.2(c) dealing with false evidence.

[^2]: Hordo v. Zweig, 2022 ONSC 4344. This matter was heard by Nishikawa J. by videoconference on June 24, 2022.