CITATION: Baskaran v. Security National Insurance Company, 2025 ONSC 1014 DIVISIONAL COURT FILE NO.: 534/24
DATE: 20250218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, D.L. Corbett and Charney JJ.
BETWEEN:
SHANOOJAN BASKARAN
Applicant
– and –
SECURITY NATIONAL INSURANCE COMPANY
Respondent
– and –
LICENCE APPEAL TRIBUNAL
Respondent
Vanessa Liang, for the Applicant
Nicole De Bartola, for the Respondent, Security National Insurance Company
Sabrina Fiacco for the Respondent, Licence Appeal Tribunal
HEARD at Toronto: February 10, 2025
BACKHOUSE J.
REASONS FOR DECISION
[1] This is an application for judicial review from two decisions of Adjudicator Damarce of the License Appeal Tribunal: a decision dated January 10, 2024 (2024 876) (the “Decision”) and the reconsideration decision dated August 1, 2024 (2024 72658) (the “Reconsideration Decision”).
[2] Mr. Baskaran was injured in an insured motor vehicle accident on October 18, 2019, and sought medical and rehabilitation benefits from his insurer, the respondent Security National. Security National concluded that Mr. Baskaran’s injuries were “minor” within the meaning of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, (the “SABS”) under the Insurance Act, R.S.O. 1990, c.18 and thus were subject to the benefits limit of $3500 prescribed in the Minor Injuries Guideline set out in s.18 of the SABS (the “MIG”). Mr. Baskaran applied to the Licence Appeal Tribunal (the “LAT”) for a finding that his injuries were not “minor” within the meaning of the SABS.
[3] Mr. Baskaran argued before the LAT that his injuries aggravated pre-existing injuries in his shoulder and caused him chronic pain and psychological issues and that consequently, his injuries were not “minor”. The LAT found otherwise in the impugned Decision and Reconsideration Decision.
[4] Mr. Baskaran argues the Decision and Reconsideration Decision are unreasonable and based on a misapprehension of several facts. He seeks a declaration that he be removed from the confines of the MIG and that the additional treatment plans that he submitted for psychological and rehabilitative benefits beyond the $3500 MIG cap be found to be reasonable and necessary.
[5] For the reasons set out below, the application is dismissed.
Jurisdiction and Standard of Review
[6] An appeal was available to this court from the LAT’s decision, but only on a question of law: Licence Appeal Tribunal Act, 1990, S.O. 1999, c. 12, Sched.G, s.11(6). Mr. Baskaran did not bring an appeal. Despite any right of appeal, the Divisional Court has jurisdiction to hear this judicial review application: Judicial Review Procedure Act, R.DS.O. 1990, c.J.1, ss. 2, 6(1). Judicial review is a discretionary and extraordinary remedy, but the existence of a right of appeal limited to questions of law does not in itself amount to a discretionary bar nor preclude a judicial review application for questions of fact or mixed fact and law: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 DLR (4th) 191, at para. 57.
[7] Should this court exercise its discretion to undertake judicial review, findings of fact and mixed fact and law raised in the application are to be reviewed on the reasonableness standard. None of the exceptional categories warranting the application of a correctness standard arise in this matter: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[8] The meaning of the reasonableness standard was explained in Vavilov, at para. 15, as follows:
In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place.
Statutory Framework
MIG
[9] Section 18 of the SABS states:
Monetary limits re medical and rehabilitation benefits
- (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable … for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.
(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.
[10] Section 3(1) of the SABS defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associate sequelae to such an injury”. An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition that will prevent them from achieving maximum recovery if kept within the confines of the MIG.
[11] Mr. Baskaran accepts that the Decision and Reconsideration Decision correctly stated the law but submits that the LAT misapprehended the evidence and made unreasonable factual findings about his injuries, thereby misapplying the standards.
Pre-existing Right Shoulder Injury
[12] Mr. Baskaran submits that in concluding that he did not meet the burden of proof that his pre-existing shoulder injury would preclude his recovery if he remained in the MIG, the Adjudicator misapprehended the following evidence:
that the physiotherapist was seen 6 days after the accident and did not report any mention of the accident; and
that the physiotherapist treatment and over the counter medication that Mr. Baskaran is receiving is consistent with the treatment that he had been receiving prior to the accident.
[13] It is submitted that these errors led the Adjudicator to wrongly conclude that Mr. Baskaran’s pre-existing condition was not worsened by the accident. In support of his conclusion, the Adjudicator stated at para. 13:
[13] I am most persuaded by the following:
i. The injuries caused by the accident were primarily sprains and strains.
ii. The physiotherapist was seen 6 days after the accident and did not report any mention of the accident.
iii. The physiotherapist reports that the applicant had seen improvement since the accident.
iv. The physiotherapy treatment and over-the-counter medication that the applicant is receiving is consistent with the treatment that he had been receiving prior to the accident.
[14] With respect to factor ii in para.13 of the Decision set out above, I agree with Mr. Baskaran that the record shows that the chiropractor (not the physiotherapist) he saw six days following the accident completed a Disability Certificate (OCF-3) and Treatment Confirmation Form (OCF-23) premised on the accident specifically so that he could apply for accident benefits. The SOAP (Subjective, Objective, Assessment, Plan) notes prepared by his chiropractor and physiotherapist from November 18, 2019 to October 20, 2020, documented his complaints of right shoulder pain and recurrent dislocation following the accident. His family physician made similar notes during his visit on November 4, 2019. Therefore, it is unintelligible why the Adjudicator found that one of four factors he was most persuaded by in concluding that Mr. Baskaran’s pre-existing condition was not worsened by the accident was that “the physiotherapist was seen 6 days after the accident and did not report any mention of the accident”.
[15] With respect to factor iv in para. 13 of the Decision Mr. Baskaran submits that while he did have a pre-existing injury in his shoulder, he never reported this pain to his doctors or sought treatment for it and only sought treatment following the accident for his shoulder from the Alexmuir Wellness Centre.
[16] Mr. Baskaran argues that his shoulder dislocations prior to the accident were clearly worsened by the accident, and that the Adjudicator failed to consider this. He submits that his prior shoulder injuries were minor compared to the “recurrent dislocation” he experienced after the accident, which was supported by SOAP notes prepared by physicians at Alexmuir Wellness Clinic documenting his complaints about shoulder pain. He also notes his family physicians’ referral to obtain an ultrasound for his “recurrent dislocation” and the fact that he recommended Mr. Baskaran undergo physiotherapy during their visits.
[17] Mr. Baskaran submits that while the family physician was not aware of the MIG so that he did not explicitly say that it was unlikely that Mr. Baskaran was not able to recover if confined within the MIG monetary limit (the test set out in s. 18(2) of the SABS), his notes and other notes prepared at the clinic provide compelling evidence of this.
[18] The Adjudicator relied on evidence in the record to reasonably find that the treatment Mr. Baskaran received post-accident is consistent with the treatment that he had been receiving prior to the accident. In the Psychiatry Report of Dr. Zielinsky, the doctor records in his notes that Mr. Baskaran told him that he had not played hockey in the past three years due to COVID and because his right shoulder had been dislocated while playing hockey. Dr Zielinsky recorded that Mr. Baskaran told him that he had received physical treatment in the past for a shoulder injury, attending at a Wellness Centre for treatment 2-3 times a week receiving massage for the neck and shoulder, chiropractic manipulation and neck exercises. While Dr. Zielinsky records that it was the Alexmuir Wellness Centre that Mr. Baskaran told him he had attended pre-accident, it appears from Mr. Baskaran’s submissions on reconsideration that it was the Altima Wellness Centre where he attended pre-accident. Mr. Baskaran made the following submission on reconsideration in this regard:
"He attended Altima Wellness Centre to treat his right shoulder injury in 2017.
After he had recovered from his right shoulder injury, he continued to receive
massage therapy only for body maintenance purpose. He continued to attend
massage therapy not because of any injuries but because it relaxed his body and
improved his moods.”
[19] In his request for reconsideration, Mr. Baskaran included an email from AlexMuir Wellness Clinic stating that October 24, 2019 was his first visit there (i.e. post-accident). However, he did not produce any records from Altima Wellness to confirm the accuracy of his above-noted submission on reconsideration.
[20] Mr. Baskaran relied on clinical notes and records from his family physician, Dr. Lambotharan, and assessments conducted by a chiropractor at Alexmuir Wellness Centre which documented his complaints of having neck, shoulder, and back pain after the accident. He was prescribed physiotherapy and over-the-counter pain medication which the Adjudicator found was consistent with the treatment that he had been receiving prior to the accident.
[21] Security National argued that there was no evidence the accident worsened Mr. Baskaran’s pre-existing injury. The Adjudicator found that Security National’s position was supported by two s. 44 assessors. Its first assessor, Dr. Farooq Ismail, found that Mr. Baskaran’s shoulder had a range of motion and was within normal limits and pain-free in all directions. He concluded that Mr. Baskaran’s injuries were limited to sprains and strains of the cervical and lumbar spine which did not aggravate his shoulder condition. The second assessor, Dr. Ariel Zielinksy, reported that Mr. Baskaran returned to work immediately following the accident without missing work. Security National also noted that clinical notes and imaging taken of Mr. Baskaran’s shoulder indicated improvements in his condition.
[22] The Adjudicator found that Mr. Baskaran had not demonstrated that removal from the MIG was warranted. Weighing evidence is a core function of adjudication and disagreement over weighing does not constitute an error of law or fact. The Adjudicator’s decision was well supported, apart from the error noted above.
[23] The Supreme Court of Canada has provided guidance in Vavilov that to set aside a decision as unreasonable, “[a]ny alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.” Instead, they must be "sufficiently central or significant to render the decision unreasonable.” (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para.100).
[24] The error noted above was not sufficiently central or significant to change the outcome of the Decision in regard to the pre-existing injury which was well-supported by the Adjudicator’s other findings. The error did not render the Adjudicator’s Decision unreasonable.
Psychological Symptoms
[25] Mr. Baskaran also sought removal from the MIG based on psychological symptoms. The Adjudicator correctly noted that a psychological condition may warrant removal from the MIG.
[26] In support of his claim, Mr Baskaran relied on various clinical notes from his family physician and a s. 25 psychiatric report provided by Dr. Steiner, who diagnosed him with “Adjustment Disorder with Mixed Anxiety and Depressed Mood – Specific Phobia, Situational (Driver/Passenger related)”. Although Mr. Baskaran had pre-existing anxiety issues, he submitted that he experienced more acute mood swings, PTSD, and sleep disorder following the accident.
[27] Security National relied on a s. 44 report provided by Dr. Zielensky, who cast doubt on Dr. Steiner’s analysis having failed to account for Mr. Baskaran’s pre-existing anxiety issues. Dr. Zielensky also found that Mr. Baskaran’s sleep and appetite were normal, that he had returned to work immediately post-accident; and that he denied feeling depressed or having nightmares about the incident. Finally, National Security also highlighted the fact that Mr. Baskaran had not been prescribed medication for these alleged maladies following the accident, and while his family physician recommended counselling sessions, Mr. Baskaran had not completed any.
[28] Mr. Baskaran submitted that the Adjudicator should have given more weight to his s. 25 Psychological Assessment report of Dr. Steiner and less weight to Security National’s s. 25 Psychological Assessment report of Dr. Zielensky.
[29] In finding that Mr. Baskaran did not meet the burden of proof required to be removed from the MIG based on psychological grounds, the Adjudicator specifically noted that Mr. Baskaran’s ongoing treatment was limited to his physical injuries, not any psychological impairments. The Adjudicator found it significant that Mr. Baskaran did not receive psychological treatment through either medication or psychotherapy, that he had the opportunity to partake in psychological treatment as prescribed by Dr. Steiner and did not explain why he declined to do so.
[30] Mr. Baskaran raised the same arguments on reconsideration as he raises before this court. The Adjudicator found that Mr. Baskaran was seeking to have the evidence reweighed as opposed to presenting any reasons to suggest that there was an error in law or fact. I agree. The Adjudicator’s finding in the Decision and Reconsideration Decision that Mr. Baskaran did not meet the burden of proof for removal from the MIG based on psychological grounds was reasonable.
Chronic Pain
[31] Mr. Baskaran submitted that he experienced ongoing pain that has persisted for over six months and affects his day to day activities. As support for this he highlighted various notes made by his family physician based on Mr. Baskaran’s self reporting and consistent with his self-reporting to his chiropractor, physiotherapist and psychologist. While Security National’s assessor, Dr. Ismail, found otherwise, Mr. Baskaran submits that this is inconsistent with these other reports and should be given little weight.
[32] In the Decision, the Adjudicator failed to address Mr. Baskaran’s contention that he suffered from chronic pain. In the Reconsideration Decision, the Adjudicator characterized this failure as an error of law, and then went on to consider it. After reviewing the evidence for chronic pain put forth by Mr. Baskaran, the Adjudicator found that he did not furnish sufficient evidence to prove he suffered from chronic pain. The Adjudicator found that to prove chronic pain there must be considerable medical evidence to support the claim. Simply claiming that pain is chronic is insufficient. While Mr. Baskaran had tendered Dr. Steiner’s s. 25 report as support, the Adjudicator found that it lacked any formal diagnosis for chronic pain and merely suggested certain symptoms. In the absence of a formal diagnosis, Mr. Baskaran also failed to provide substantiation for this condition with reference to the American Medical Associations’ Guidelines.
[33] Mr. Baskaran has not identified any errors in the Adjudicator’s dismissal of his chronic pain claim in the Reconsideration Decision. Rather, he is seeking to have this court reinterpret the evidence presented at the hearing because he disagrees with the outcome. Reviewing courts must not reweigh and reassess evidence. Absent exceptional circumstances, the reviewing court should not interfere with factual findings of the decision maker: Vavilov, at para. 125.
[34] The dismissal of the chronic pain claim was reasonable.
[35] The Decision and Reconsideration Decision exhibit the requisite degree of justification, intelligibility and transparency and are not unreasonable.
CONCLUSION
[36] The application is dismissed. In accordance with the parties’ agreement, Security National as the successful party is entitled to costs from Mr. Baskaran in the all inclusive amount of $10,000.00.
Backhouse J.
I agree________________________
D.L. Corbett J.
I agree________________________
Charney J.
Released: February 18, 2025
CITATION: Baskaran v. Security National Insurance Company, 2025 ONSC 1014 DIVISIONAL COURT FILE NO.: 534/24
DATE: 20250218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, D.L. Corbett and Charney JJ.
BETWEEN:
SHANOOJAN BASKARAN
– and –
SECURITY NATIONAL INSURANCE COMPANY
– and –
LICENCE APPEAL TRIBUNAL
REASONS FOR DECISION
BACKHOUSE J.
Released: February 18, 2025