CITATION: Hall v. Unifund Assurance Company, 2024 ONSC 6677
DIVISIONAL COURT FILE NO.: 54/23
DATE: 20241129
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Rady, Mew, and Myers JJ
BETWEEN:
ISAIAH HALL
Appellant
- and –
UNIFUND ASSURANCE COMPANY
Respondent
Alexa Duggan, for the Appellant
Robert Bowman, for the Respondent
HEARD at London: November 29, 2024
FL Myers J.:
REASONS FOR DECISION
The Appeal
[1] Mr. Hall appeals the decision of the Licence Appeal Tribunal dated June 28, 2023 and the reconsideration decision dated October 25, 2023.
[2] In the decisions under appeal, the tribunal held that Mr. Hall’s injuries did not meet the definition of “catastrophic impairment” under s. 3.1(1)(8) of the Statutory Accident Benefit Schedule - Effective September 1, 2010, O Reg 34/10 under the Insurance Act, RSO 1990, s I.8.
[3] In order to qualify for benefits available to those with catastrophic impairments, the regulation requires an assessment of the insured person’s degree of impairment under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993.
[4] Under the regulation, Mr. Hall was required to show that he suffered “marked impairment” in three or more defined areas of function. The tribunal held that Mr. Hall was only able to show that he suffered marked impairment precluding useful functioning in two of the four defined areas of function.
[5] Under the regulation and the AMA’s Guide, to measure catastrophic impairment requires assessment of four areas of a person’s ability to function:
a. Activities of daily living,
b. Social Functioning,
c. Concentration, Pace, and Persistence, and
d. Adaptation.
[6] The parties agreed before the tribunal that Mr. Hall suffers marked impairment of his adaptation function. The tribunal held that he also suffered marked impairment of his social functioning.
[7] But the tribunal held that, while Mr. Hall suffered impairment of the remaining two functions, he did not suffer “marked impairment” as defined.
Jurisdiction and Standard of Review
[8] Under s. 11 (6) of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G, an appeal lies to this court from a decision of the tribunal in proceedings under the Insurance Act on a question of law alone.
[9] The standard of review on an appeal of a question of law is correctness. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 28. Procedural fairness is assessed under the factors set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC).
Issues
[10] The appellant raises two issues:
a. Whether the tribunal failed to apply the proper legal test for catastrophic impairment; and
b. Whether the tribunal violated the rules of procedural fairness by deciding issues not raised by the parties and thereby denying the appellant the opportunity to know the case he had to meet.
Analysis
[11] While the appellant set out his first issue as one of law, his argument reveals that he is principally concerned with the tribunal’s findings of fact or the application of the law to the facts as found. Questions of fact and mixed fact and law are not appealable to this court (absent an extricable error of law).
[12] In describing elements of the appellant’s performance of the activities of daily living, the tribunal found that Mr. Hall was not precluded from “all useful functioning” and that his pace was not “always significantly impeded”. The appellant submits that the test of “marked impairment” does not require such stringent proof. That is true. But he cherry-picks descriptive words used by the tribunal during its narrative and treats them as the dispositive findings of fact or mixed fact and law. They were not. They were descriptions used by the tribunal during its discussion of the degree of Mr. Hall’s impairment.
[13] The tribunal held:
[20] In fact, both the in-home and community-based assessments show the applicant, was able to complete or partially complete most of the tasks set out for him in situational assessments, only some of which requiring prompting at various stages that varied in frequency. I accept that these tasks, selected and observed by occupational therapy professionals for the purposes of functional assessment, are globally representative of his overall ADL functioning.
[21] I therefore conclude these situational assessments-taken together on a balance of probabilities and to the degree they are corroborated by file evidence and witness testimony-show the independence, sustainability, effectiveness, and appropriateness of the applicant's ADL task performance is more akin to a moderate impairment that is compatible with some, but not all useful functioning. In fact, the applicant was able to initiate, sustain, and somewhat effectively complete some tasks in a largely appropriate manner-albeit with the assistance of lists and written instructions - despite his methodical tendencies and the distractions along the way that slowed him down.
[14] The definition of “moderate impairment” set out in para. 6 of Mr. Hall’s factum is, “Impairment levels are compatible with some but not all useful functioning.” It is apparent that the tribunal recited and applied the correct legal standards. It looked at the independence, sustainability, effectiveness, and appropriateness of the appellant’s task performance as set out in the AMA Guide. It did not err in law or apply the wrong test.
[15] Still dealing with the assessment of Mr. Hall’s ability to perform the activities of daily living, the appellant also submits that the tribunal erred in law by finding that Mr. Hall’s ability to perform some parts of a multi-step task supported a finding of only moderate impairment because he could perform “some but not all” tasks. The appellant submits that it is an error of law to find that performing some parts of a multi-part task is “some but not all useful functioning” as defined. The appellant cites no legal precedents for this proposition. In my view, a determination that the facts supported a finding of “some but not all useful functioning” is an application of the law to the facts as found and is not appealable.
[16] The appellant submits that the tribunal also erred in law in the test for assessment of Mr. Hall’s functional “persistence, performance, and pace.” The appellant submits that the tribunal erred in law in defining this function.
[17] The tribunal recognized that this was a close call. If found that there was evidence that was more consistent with marked impairment, but then stated that in "thinking broadly on CPP, I see more evidence of some, but not all useful functioning.”
[18] As he did on the reconsideration below, the appellant submits that the tribunal erred by preferring some witnesses over others and weighing some functions as more significant than others. He criticizes the tribunal for making its own assessment of a psychological or OT measurement tool rather than accepting the evidence and analysis of the appellant’s OT witness.
[19] But the tribunal explained fully and cogently in the reconsideration decision, that it did not reject the OT’s test or substitute its own analysis for that of the witness. Rather, the tribunal assigned weight to the evidence as it found appropriate on the totality of evidence adduced. The tribunal explained why it assigned less weight to this evidence and more weight to other competing evidence.
[20] On an appeal confined to issues of law, the court does not re-weigh the evidence heard and assessed by the trier of fact.
[21] The appellant’s factum makes clear that he is contesting the evidence accepted by the tribunal in priority to his evidence. This does not state an error of law. An appeal Is not a do-over of the facts.
[22] Nor do I find that there was any denial of procedural fairness to the appellant. He knew the case he had to meet. The appellant’s complaints about the issues that go to procedural fairness. Moreover, I have already rejected the submission that the tribunal substituted its own analysis for expert testimony.
[23] Finally, the appellant submits that, as a recent appointee to the Licence Appeal Tribunal, the Adjudicator did not possess the necessary qualities of experience and expertise to attract the deference described by the Court of Appeal in Pastore v Aviva Canada Inc., 2012 ONCA 642 at paras. 19 and 22. That is an untenable and inappropriate submission. As with any judicial officer or tribunal member, the Adjudicator is presumed to have the necessary qualities and competencies to execute his functions. Deference is not dependant upon an assessment of a decision-maker’s background knowledge or experience let alone a gratuitous and unsubstantiated allegation in a factum.
[24] The appeal is therefore dismissed.
[25] As agreed by the parties, costs are payable by the appellant to the respondent fixed in the amount of $7,500 all-inclusive.
Myers J.
I agree _______________________________
Rady J.
I agree _______________________________
Mew J.
Released: November 29, 2024
CITATION: Hall v. Unifund Assurance Company, 2024 ONSC 6677
DIVISIONAL COURT FILE NO.: 54/23
DATE: 20241129
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RADY, MEW, AND MYERS JJ
BETWEEN:
ISAIAH HALL
Appellant
- and –
UNIFUND ASSURANCE COMPANY
Respondent
REASONS FOR DECISION
FL Myers J.
Released: November 29, 2024