CITATION: Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198
DIVISIONAL COURT FILE NO.: 218/24, 222/24
DATE: 20241112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Matheson, and Jarvis JJ.
BETWEEN:
Kavitha Vivekanantham
Appellant/Applicant
– and –
Certas Direct Insurance Company and Licence Appeal Tribunal
Respondents
Doug Wright, Aryeh Samuel and Cooper Hyman, for the Appellant/Applicant
Bruce Chambers, for the Respondent, Certas Direct Insurance Company
Theresa McGee, for the Licence Appeal Tribunal
HEARD at Toronto: October 28, 2024
H. SaChs J.
Overview
[1] Kavitha Vivekanantham (the “Appellant”) was injured in a motor vehicle accident that occurred on June 1, 2018. She made an application to her insurer, Certas Direct Insurance Company (“Certas”) for various accident benefits pursuant to the Statutory Accident Benefits Schedule, O. Reg. 34/10 made under the Insurance Act, R.S.O. 1990, c. I.8 (the “SABS”).
[2] Certas paid her income replacement benefits (“IRBs”) from June of 2018 to May of 2019, when it terminated those benefits. At the same time, Certas deemed her impairment to be a “minor injury,” subject to the Minor Injury Guidelines (“MIG”), meaning that her medical and rehabilitation benefits would be capped at $3500.00 and that she could not make a claim for attendant care benefits.
[3] The Appellant also made an application for a determination of catastrophic impairment, which Certas denied.
[4] The Appellant applied to the Licence Appeal Tribunal (the “LAT”) on May 6, 2021, to dispute Certas’ denial of benefits.
[5] On September 13, 2022, at a case conference before the LAT, Certas indicated that it was agreeable to removing the Appellant from the MIG in light of her injuries. As a result, her entitlement to medical and rehabilitation benefits increased to $65,000.00. On the second day of the hearing before the LAT, Certas’ adjuster, while he was being cross-examined, agreed to pay a further $61,702.19 of treatment plans that had previously been denied and were in dispute (up to that time the insurer had paid $3,297.81 of medical rehabilitation benefits).
[6] On January 26 or 27, 2023, Certas made a decision to reinstate the Appellant’s IRBs and to pay the arrears of IRBs. On February 17, 2023, Certas paid the arrears of IRBs plus interest in the amount of $135, 958.84 and reinstated the Appellant’s IRBs.
[7] At the hearing before the LAT the Appellant requested a special award pursuant to s. 10 of Regulation 664 made pursuant to the Insurance Act. That section gives the LAT discretion to make an award in addition to the benefits and interest to which an insured is entitled to where the LAT finds that an insurer has “unreasonably withheld or delayed payments.” According to the Appellant, Certas had unreasonably delayed making payments to the Appellant for medical and rehabilitation benefits and for IRBs.
[8] The main issue that was the subject of a hearing before the LAT was whether the Appellant had sustained a catastrophic impairment pursuant to s. 3.1(1)8 of the SABS. Certas denied that the Appellant had sustained a catastrophic impairment on the basis of a multi-disciplinary catastrophic insurer’s examination, which included a psychiatric assessment by Dr. Sivasubramanian. Dr. Sivasubramanian was served with a summons to attend the hearing, which he acknowledged receiving. However, he refused to attend the hearing to give evidence.
[9] The Appellant brought a motion before the LAT to exclude Dr. Sivasubramanian’s evidence, which was in the form of a report. That motion was denied.
[10] On October 24, 2023, Adjudicator Driesel found that the Appellant had not sustained a catastrophic impairment (the “Hearing Decision”). The Adjudicator also denied the Appellant’s request for a special award. The Appellant applied for reconsideration of the Hearing Decision, and on March 7, 2024, Vice-Chair Logan denied that request (the “Reconsideration Decision”).
[11] The Appellant seeks to appeal and judicially review both the Hearing Decision and the Reconsideration Decision. In doing so she argues that (1) the LAT erred in law when it declined to consider her request for a special award, (2) that she was denied procedural fairness when the LAT considered the evidence of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be subject to cross-examination, and (3) that the LAT’s reasons for finding that she was not catastrophically impaired do not satisfy the hallmarks of reasonableness.
[12] For the reasons that follow, I find that the LAT erred in law when it failed to consider whether it should make a special award under s. 10 of Regulation 664 and that the LAT breached procedural fairness when it admitted and relied on the report of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be cross-examined. As a result, I would set aside both the Hearing Decision and the Reconsideration Decision and order that the application be referred back to the LAT for a hearing in front of a differently constituted tribunal. In view of this, there is no need to deal with the issue of whether the LAT’s decision that the Appellant was not catastrophically impaired was a reasonable one.
The LAT erred in law when it refused to consider whether to exercise its discretion to make a special award.
Section 10
[13] Section 10 of Regulation 664 reads as follows:
If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accidents Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
The Appellant’s Request for a s. 10 award
[14] The Appellant claimed a s. 10 award (“special award”) in respect of two benefits: the insurer’s delay in paying the IRBs and its delay in removing her from the MIG, which delayed the payment of approximately $62,000 worth of benefits.
[15] The Appellant was denied IRBs in May of 2019 and at the same time Certas made the decision to classify her impairments as a “minor injury” and to pay her benefits in accordance with the MIG.
[16] Certas made the decision to reinstate IRBs in January of 2023 (over three and a half years after the benefits were terminated). According to the Appellant, the only explanation given for the decision to reinstate benefits was that it was done in consultation with counsel.
[17] Certas removed the Appellant from the MIGS on September 22, 2022 (four years after the accident). According to the Appellant, the evidence suggests that the only reason for the removal was “the advice of counsel.” The adjuster only agreed to pay approximately $62,000.00 worth of benefits arising from that removal in March of 2023 (almost five years after the accident).
[18] While the MIG and IRBs were not issues the Adjudicator was required to determine, there was never any agreement that Certas could avoid a special award by acting unilaterally to reinstate the benefits when it did. To the contrary, the Appellant made it clear to the Adjudicator that the delay in paying these benefits was going to form the basis for a request under s. 10.
The LAT Decisions regarding the request for a special award
[19] The Adjudicator refused to make a special award. The reason for her refusal is found at para. 40 of the Hearing Decision, which reads:
As I have found that the applicant is not entitled to any of the benefits claimed, there is no basis for an award.
[20] In the Reconsideration Decision, the issue is dealt with as follows:
[40] Section 10 of Regulation 664 provides that, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award up (sic) a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, with interest. The power to make such an award is discretionary.
[41] At paragraph 40, the Tribunal found that as the applicant was not entitled to the benefits in dispute, there was no basis for an award. I see no error in this finding. As set out above, the Tribunal found that the applicant was not entitled to attendant care benefits, and the issues of MIG and IRB were not before the Tribunal at the hearing. The applicant submits she made arguments about the section 10 award at the hearing. This means that the Tribunal heard the applicant’s arguments and made its decision that there was no basis for an award. I find the applicant is attempting to re-argue her case, which is not grounds for reconsideration.
Position of the Parties
[21] The Appellant’s appeal is pursuant to s. 11(1) of the Licence Appeal Tribunal Act, S.O. 1999. C. 12. Schedule G., as amended, which provides for appeals from LAT decisions to the Divisional Court on a question of law only. It is agreed that the applicable standard of review to apply to questions of law is correctness.
[22] According to the Appellant, both LAT decisions incorrectly interpreted s. 10 of Regulation 664 in finding that a claim under s. 10 can only be made in relation to a benefit that the LAT actually adjudicated. It cannot be made in relation to a benefit that the insurer chooses to settle before the LAT makes its decision respecting that benefit.
[23] The Appellant submits that this interpretation runs contrary to the LAT jurisprudence and contrary to the meaning, context, and purpose of s. 10.
[24] Certas argues that it is not necessary for this court to engage in an exercise of statutory interpretation as in this case the LAT made no finding of unreasonable delay. Without a finding of unreasonable delay, there is no entitlement to a special award. The finding as to whether there was unreasonable delay is not an issue of law.
[25] If I do not accept Certas’ view of the LAT decisions, then Certas submits that the LAT was correct when it found that the LAT only has jurisdiction to make a s. 10 award in relation to the benefits that it actually adjudicates.
Analysis
[26] In the Hearing Decision, the LAT clearly stated that its reason for refusing make a s. 10 award was because the Appellant was “not entitled to any of the benefits claimed.” This finding directly engages the meaning of s. 10, which provides that the LAT “may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award” (emphasis added). This raises the question of whether a person who has settled their claim for a benefit is “entitled” to that benefit “at the time of the award.” In this case the LAT decided that the answer to this question was “no.”
[27] The Appellant argues that the LAT erred in interpreting s. 10 in the restrictive way that it did. This is a question of law, and it is up to this court to determine if the LAT was correct in its interpretation of s. 10.
Applying the Correctness Standard to Questions of Law
[28] In applying the correctness standard, the court is free to replace the opinion of the tribunal with its own. However, the starting point remains the reasons provided by the LAT for its interpretation of the law. As stated in Canada (Minister of Citizenship of Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 54:
When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view. While it should take the administrative decision maker’s reasoning into account – and, indeed, it may find that reasoning persuasive and adopt it – the reviewing court is ultimately empowered to come to its own conclusions on the question (cites omitted).
[29] In this case neither the Hearing Decision nor the Reconsideration Decision contains any reasoning regarding the proper interpretation of s. 10. However, other LAT decisions have considered this question and their reasoning will be a starting point for my correctness analysis.
The Relevant Principles of Statutory Interpretation
[30] Statutory provisions are interpreted in accordance with the “modern principle” of statutory interpretation, i.e., that the legislative provisions must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and intention of Parliament”: Vavilov, at para. 117. This principle is true for both courts and tribunals: Ibid., at para. 118.
[31] The starting point in statutory interpretation is the plain language of legislation. The ordinary meaning “is the natural meaning which appears when the provision is simply read through”: Blue Star Trailer Rentals Inc. v. 407 Concession Company Limited, 2008 ONCA 561, 91 O.R. (3d) 321, at para. 24. As put by the Court of Appeal:
After considering the ordinary meaning of the language involved, the court should consider the context in which the language is found as well as the purpose of the legislation or the statutory scheme. If this analytical approach yields a plausible interpretation, then the court need go no further and should adopt that interpretation. It is only when there remains genuine ambiguity between reasonable interpretations that the court should resort to other principles of statutory interpretation. (Ibid. at para. 25, citing Bell ExpressVu Limited Partnership v. Rex, 2022 SCC 42, [2002] 2 S.C.R. 559, at para. 29).
[32] In Rizzo v. Rizzo Shoes Ltd. (Re), (1998) 1998 837 (SCC), 1 S.C.R. 27 at para. 27, the Supreme Court of Canada noted:
It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences…an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.
The LAT Jurisprudence
[33] In 17-006757 v. Aviva Insurance Canada, 2018 81949 (“17-006”), the LAT dealt with the question of whether it had “jurisdiction to make a ‘special award’ order when the substantive issues in dispute related to the benefits sought by the applicant have been resolved at the time of the hearing”: 17-006, at para. 7.
[34] In 17-006, the insurer made the same submission that Certas has made before us, namely that a “straightforward reading of the words ‘at the time of the award’”: at para. 13, (emphasis in original) precluded the LAT from having any jurisdiction to make an order under s. 10 in respect of any benefit that was settled prior to the date of the award.
[35] The LAT found that the words “at the time of the award” were not defined in the Insurance Act and were capable of being interpreted in different ways. To arrive at the correct interpretation the LAT noted the provision of the Legislation Act that makes it clear that the Insurance Act and the regulations made thereunder is remedial legislation. As a result, it is to be “given such fair, large and liberal interpretation as best ensures the attainment of its objects”: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1).
[36] The Tribunal then went on to apply the modern principles of statutory interpretation. First it focused on the meaning of the words “at the time of the award” and found that the dictionary definition of the word “award” (“a decision or determination rendered by arbitrators…upon controversy submitted to them”) supported a finding that as long as the dispute was the subject of an application before the Tribunal and the Tribunal had the power to make an award in relation to the dispute, then the Tribunal has jurisdiction to make an award under s. 10. The Tribunal continued:
[21] Second, I am cognizant of the fact that the Insurance Act is consumer protection legislation and provides protection against insurers who unreasonably deny claims. Ample case law supports the proposition that the Schedule constitutes consumer protection legislation and as such must be read generously with any limitations construed narrowly. Viewed in this context, I consider it unlikely that the legislature intended to deny consumers the protection of s. 10 by allowing the insurer to unilaterally dispense with its enforcement by virtue of delaying the settlement of the main claims until after a proceeding has been commenced. This would amount to an absurd result where a “special award” is only granted in circumstances where there are ongoing accident benefit issues in dispute. The literal meaning of a few words in s. 10 should not run counter to both the consumer protection mandate, and the goal of providing accident benefits to injured persons in a timely manner. This would be unreasonable, inequitable and defeat the purpose of the statute. Fairness and not the guise of linguistic reform must always take primacy.
[23] It seems to me that do otherwise would be to allow the insurer to delay payments to the insured without consequences. More to the point, it would be patently unfair that an insurer be allowed to circumvent the mandatory requirements of s. 10 through a non-contextual interpretation in situations where they have unreasonably withheld or delayed payments to then settle the benefits in dispute, perhaps on the eve of a hearing or at the case conference.
[24] It offends all sense of fairness and is not in keeping with the policy objective that accident victims promptly receive the benefits to which they are entitled under the Act to avoid injustice or hardship. If the legislature had intended such a significant automatic result, it would have certainly said so.
[37] In Stegenga v. Economical Insurance Company, 2019 ONCA 615, 147 O.R. (3d) 65, the Ontario Court of Appeal dealt with the question of whether a claim for an insurer’s bad faith conduct in dealing with a claim under the SABS could be pursued in the courts through a civil proceeding. In deciding that the LAT had jurisdiction over such claims (and not the courts) the Court of Appeal pointed to 17-006 as an example of how the LAT enters into inquiries about an insurer’s conduct in administering claims and makes awards to punish what could be considered bad faith conduct. While not specifically addressing the jurisdictional issue discussed above, the Court of Appeal cites the case as an example of how the LAT uses special awards to punish an insurer who delays approving payments without an apparent explanation. Read in context, the case was part of the reason that the Court of Appeal concluded that the legislature had given the LAT the power to deal with an insurance company’s bad faith conduct in administering claims.
[38] In Ross v. Aviva General Insurance, the Tribunal again reiterated that the special award is a stand-alone issue that is not dependent on the Tribunal deciding the issue of entitlement to any other benefit. In doing so it relied on 17-006 and JM v. Certas Direct Insurance Company, 2019 94016 (ONLAT), in which the LAT also found that “[a]n insurer that unreasonably withholds or delays payments and waits to pay the benefits after an application is initiated at LAT may risk an award [under section 10]”: Certas, at para. 29.
[39] The LAT appeared before us and submitted that the meaning of s. 10 under Regulation 664 is not a settled question in the LAT jurisprudence. In support of that proposition, it cited three LAT cases: Contreras v. Intact Insurance Company, 2023 62916 (ONLAT), Spence v. Aviva General Insurance Company, 2024 4272 (ONLAT), and Karamet v. Aviva Insurance Canada, 2024 15888 (ONLAT).
[40] In Contreras, the LAT dealt with a dispute concerning certain medical benefits, which would only be payable if the insured was removed from the MIG guidelines. The LAT concluded that the insured had not “demonstrated that his accident-related impairments warrant removal from the MIG” (at para. 5) and therefore, he was not entitled to the disputed benefits. The LAT also found that he was not entitled to a s. 10 award. However, there is no suggestion in the decision that this finding was in relation to anything but the disputed benefits the LAT adjudicated at the hearing. There is no mention in the decision of benefits that the insurer refused to pay, but eventually agreed to pay after the insured initiated their LAT application.
[41] The same is true of the decisions in Spence and Karamat. Again, the LAT was asked to determine various benefit issues. It found in favour of the insurers with respect to all of the issues in dispute and therefore determined that no s. 10 award was warranted. Again, there was no suggestion in either case of any dispute relating to benefits that were in dispute at the time the insurers initiated their LAT applications and that were subsequently agreed to by the insurers.
[42] Thus, I was pointed to no LAT case where, prior to the case at bar, the LAT took a different position on the LAT’s jurisdiction to make s. 10 awards to that taken in 17-006, Ross and JM. In other words, this appears to be the only case where the LAT has determined that it had no jurisdiction to make a s. 10 award in relation to benefits that were in dispute at the time the insured initiated their LAT application and that were subsequently settled by the insurer before the LAT made its determinations on the application. Furthermore, as the Appellant points out, the LAT in the case at bar conducted no analysis of the issue.
Conclusion Regarding the Correct Interpretation of s. 10
[43] I agree with the reasoning and the conclusion in 17-006, Ross and JM.
[44] First, as found in all three cases, the wording of the section does allow for an interpretation that is consistent with the LAT’s conclusion in all three cases. The key words that are relevant to this determination are “entitled at the time of the award.” As the Court of Appeal found in Stegenga at para. 44, “‘entitlement’ is a term of wide meaning, referring to ‘a right to do or receive something.’” In this case the Appellant had a right to receive the SABS that the insurer agreed to pay her prior to and during the course of the hearing before the LAT. The fact that those benefits may have been paid by the insurer does not detract from the fact that at the time of the award the insured had a right to receive those benefits.
[45] In terms of the context of s. 10, the Stegenga case also supports the meaning adopted by the LAT in 17-006 and the other cases that have analyzed the issue of the LAT’s jurisdiction under Regulation 664.
[46] As noted, Stegenga focused on the extent to which the Insurance Act ousted the jurisdiction of the courts to deal with bad faith claims against insurers. This required the court to focus on the breadth of s. 280 of the Insurance Act. Section 280 is the section that explicitly restricts the right to bring a court of proceeding in respect of a dispute concerning entitlement to statutory accident benefits. The appellant in that case argued that she should be allowed to proceed with her court proceeding as her dispute, which had to do with how the insurance company handled her claim, and was not within the jurisdiction of the LAT. The Court of Appeal disagreed that s. 280 should be interpreted so narrowly and pointed to s. 10 of Regulation 664 (the section at issue in this case) as an example of how the LAT has jurisdiction to make determinations about the manner in which an insurer has administered claims for SABS. In doing so, it referenced 17-006 as an example of how the LAT enters into these enquiries and makes those determinations. More specifically, the Court of Appeal described what behaviour was covered in the special award as follows:
[50] … In making a special award, the LAT considered the insured’s entitlement to the benefits claimed, the insurer’s delay in approving payments without apparent explanation, its near total disregard of the correspondence from the insured’s legal representatives and medical practitioner’s, its failure to reassess the claim when new information became available, its ignoring the claim for a period of time and its imprudent, stubborn and inflexible and unyielding stance with respect to the benefits claimed.”
[47] Given this, the Court of Appeal found that the LAT did have a broad power under s. 10 to grant a remedy in relation to how an insurance company handles an insured’s claim. This was key to its decision that the appellant in Stegenga had no right to proceed with her bad faith claim in the courts.
[48] In this regard it is important to note that the Court of Appeal also found that the purposes of s. 280 — to reduce insurance rates by providing for efficient dispute resolution through the LAT — meant that there should not be an overly restrictive reading of the LAT’s jurisdiction.
[49] As the LAT has noted, the need not to give an overly restrictive reading of the LAT’s jurisdiction in s. 10 is reinforced by the fact that the Legislation Act provides that the Insurance Act (and the regulations made under that Act) are to be interpreted as being remedial, with the result that it is to be interpreted in as large and liberal a way as to best ensure that it achieves its objects.
[50] Further, the SABS is consumer protection legislation: Smith v. Co-Operators General Insurance, 2002 SCC 30, [2002] 2 S.C.R. 129, at para. 11. As the Court of Appeal has found in Stegenga, one of the ways consumers are protected is if insurance companies are encouraged to be efficient in their resolution of legitimate benefit disputes. Section 10 is a vehicle for promoting efficiency by deterring insurance companies from unreasonably delaying the payment of benefits to which an insured is entitled. If s. 10 is read in the way proposed by the Respondent insurer, its effect in achieving its desired purpose will be undermined, not enhanced. As put by the LAT in 17-006, insurers would be able to unreasonably delay payments to insureds without consequences, thereby causing vulnerable people who are injured increased hardship and suffering. As noted in Rizzo, at para. 27, statutory interpretations that produce inequitable results or results that are “incompatible with other provisions or with the object of the legislative enactment” are to be avoided.
[51] For these reasons. I find that the LAT erred when it found that it did not have jurisdiction to make a special award in this case.
The LAT Breached Procedural Fairness
Relevant Factual Background
[52] The focus of the evidence in respect of catastrophic impairment were the Appellant’s accident-related mental and behavioural impairments. As noted in the Hearing Decision, in order to succeed in her claim for a catastrophic impairment designation, the Appellant had to satisfy the LAT on a balance of probabilities that she had a marked impairment in three of the four spheres of useful daily functioning or an extreme impairment in one sphere.
[53] To support her claim, the Appellant relied on the opinion of Dr. S. Parekh, a psychiatrist, who gave an opinion that the Appellant suffered from a marked impairment in three of the four spheres of useful daily functioning (Activities of daily living, Social functioning and Adaptation to work and work-like settings) and a moderate impairment in the fourth sphere (Concentration, persistence and pace.)
[54] Certas relied on the opinion of Dr. Sivasubramanian, also a psychiatrist. He gave an opinion that the Appellant suffered from a moderate impairment in Activities of daily living, social functioning, and Adaptation to work and work-like settings and a mild impairment in Concentration, persistence, and pace.
[55] Dr. Parekh gave evidence at the hearing and was cross-examined. Dr. Sivasubramanian was served with a lawful summons, which he acknowledged receiving, but refused to attend the hearing to give evidence. He also failed to file an acknowledgment of expert’s duty form, which is required by rule 10.2(b) of the LAT rules.
[56] The Appellant brought a motion before the LAT to exclude Dr. Sivasubramanian’s evidence. Her request was denied for oral reasons delivered on March 31, 2023. In those reasons the LAT stated that the Divisional Court had directed the LAT to “let things in, review them and give them weight.” The LAT did not provide particulars of the decision referred to, nor was this court provided with any authority to support his proposition. The LAT went on to find that Dr. Sivasubramanian’s failure to file an acknowledgment of expert’s duty form showed a total disregard of the LAT’s process. The LAT stated that it would be a matter that it would consider when deciding what weight to give to his opinion. The LAT also said that it would take the expert’s failure to appear into account when deciding what weight to give to the disputed aspects of his report and would tell the Appellant how he dealt with it.
[57] In the Hearing Decision, the LAT relied on Dr. Sivasubramanian’s report to find that the Appellant suffered from only a moderate impairment in the sphere of Activities of Daily Living. Given this, the Appellant could not satisfy the test for a catastrophic impairment. At no point did the LAT consider what weight to give to Dr. Sivasubramanian’s evidence, given his failure to file an acknowledgment of expert’s duty form or his failure to appear and be cross-examined.
[58] In the Reconsideration Decision, the LAT expressed no concern about how the LAT dealt with Dr. Sivasubramanian’s evidence. As put in the Reconsideration Decision “the Tribunal set out its reasons for giving more weight to Dr. Sivasubramanian’s report, noting the inconsistency in Dr. Parekh’s report in light of the applicant’s level of functioning” and “[t]he Tribunal preferred Dr. Sivasubramanian’s opinion because it found it was more consistent with the evidence of the applicant’s ability to function.”
The Position of the Parties
[59] The Appellant submits that she was denied procedural fairness when the LAT admitted and relied on Dr. Sivasubramanian’s opinion when she was not given the opportunity to cross-examine him. According to her, his report contained a number of shortcomings that would have been the focus of cross-examination.
[60] Further, while the LAT had said that it would take Dr. Sivasubramanian’s failure to fill out an expert’s duty form and his failure to appear into account in assessing the weight of Dr. Sivasubramanian’s opinion, it did not do so.
[61] Certas argues that the LAT did not rely on Dr. Sivasubramanian’s opinions as to the Appellant’s impairment ratings under any of the four spheres of function. Further, if this could be disputed with respect to the sphere of Activities of Daily Living, the LAT went on to make a finding that the Appellant did not have a marked impairment in the sphere of social functioning without relying on Dr. Sivasubramanian’s opinion. This finding was sufficient to disentitle the Appellant from a catastrophic impairment designation.
Analysis
[62] In Shahin v. Intact Insurance Company, 2024 ONSC 2059, the central issue before the Divisional Court was whether Ms. Shahin was denied procedural fairness by the LAT when it relied on the report of Intact’s expert who had testified in chief at her accident benefits hearing, but never attended to be cross-examined. Intact made submissions similar to the ones that Certas has made before this court, namely, that the LAT did not really rely on the expert’s opinion to support its conclusions.
[63] The Divisional Court rejected this submission and found that while there was other substantial evidence to support its conclusions, the expert’s evidence “infected the Tribunal’s conclusions on the central issues governing its decision”: Shahin, at para. 18. Further, once it became clear that the expert would not attend for cross-examination and the LAT determined it would not order him to do so, it should have “struck his report from the record”: Ibid., at para. 120.
[64] I agree with the reasoning and conclusion in Shahin. Once it was clear that Dr. Sivasubramanian was not going to appear at the hearing to be cross-examined, the LAT should have refused to admit his report. The LAT promised to take steps to mitigate the unfairness occasioned by admitting his report, but then did not do so.
[65] The LAT relied on Dr. Sivasubramanian’s report. This is clear from the following statement in para. 21: “I agree with the finding of the respondent’s assessor that in the sphere of ADL [Activities of Daily Living], the applicant suffers from a Class 3, moderate impairment.”
[66] I also reject Certas’ submission that LAT’s reliance on Dr. Sivasubramanian’s report with respect to the Activities of daily living sphere did not matter since the LAT made a determination regarding the social functioning sphere without referring to his report. In my view, like in Shahin, Dr. Sivasubramanian’s report “infected’ the LAT’s reasoning and conclusions regarding all aspects of the issue of whether the Appellant was catastrophically impaired.
[67] For these reasons, I find that the LAT’s decisions must be set aside on the basis of a denial of procedural fairness.
[68] In view of my conclusion on this issue and the jurisdiction issue, there is no need to address the reasonableness of the LAT’s decisions.
Disposition
[69] The appeal is allowed. The Hearing Decision and the Reconsideration Decision are set aside. The matter is referred back to the LAT for a new hearing in front of a differently constituted tribunal to be conducted in accordance with the findings in these reasons. As agreed by the parties, the Appellant is entitled to her costs of this proceeding, fixed in the amount of $7500, all inclusive.
“Sachs J.”
“I agree Matheson J.”
“I agree Jarvis J.”
Released: November 12, 2024
CITATION: Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198
DIVISIONAL COURT FILE NO.: 218/24, 222/24
DATE: 20241112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Matheson, and Jarvis JJ.
BETWEEN:
Kavitha Vivekanantham
Appellant/Applicant
– and –
Certas Direct Insurance Company and
Licence Appeal Tribunal
Respondents
REASONS FOR JUDGMENT
SACHS J
Released: November 12, 2024