A.A. v. TD Insurance Meloch Monnex, 2023 CanLII 40091 

Full Decision

AA v. TD Insurance Meloche Monnex is a Reconsideration Decision before the Licence Appeal Tribunal (“LAT”). On January 17, 2023, in the initial decision, the LAT dismissed the applicant’s application, pursuant to section 55(1)2 of the Statutory Accident Benefits Schedule (“SABS”). The reason for the dismissal was that the applicant did not attend properly scheduled, Independent Medical Examinations (“IME”), requested by the insurer. At reconsideration, the applicant requested for the initial decision be set aside and for a new hearing before a different adjudicator. Under Rule 18.2 of the Common Rules of Practice and Procedure, the grounds for the applicant’s request for reconsideration included the following:

a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result

The applicant’s request for reconsideration was allowed in part.

The first argument advanced by the applicant, in accordance with Rule 18.2(a), was that the LAT violated rules of natural justice and procedural fairness. The basis for said allegation was that the LAT found that the notice requirements for an insurer’s IME did not apply in the applicant’s case. The grounds for this claim was that in the initial decision, the LAT stated that the applicant was not an unsophisticated party, and they were experienced in the field of automobile accident benefits. On reconsideration, the LAT determined that the insurer’s explanation of benefits provided all the necessary information for the applicant to understand why their attendance was required for the IME and further that the notice requirements under the SABS were satisfied. As such, this potential ground for reconsideration failed.  

 The next ground for reconsideration was that the LAT allegedly failed to remain impartial in rendering its decision. The applicant stated that the LAT improperly focused upon the applicant as a “sophisticated party,” without fair consideration of the issues in dispute, the applicant’s submissions and the applicable case law. As such, the LAT did not adjudicate fairly, and it violated natural justice and procedural fairness. The LAT references the following test for reasonable apprehension of bias:

The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not the decision-maker, whether consciously or unconsciously, would not decide fairly.[1]

The court notes there is a presumption of judicial impartiality. A party alleging an apprehension of bias must establish the presence of “serious grounds.” The onus is upon the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one. A further requirement is for “cogent evidence in support of [the] allegation.”

The applicant’s allegation of bias was based upon the Tribunal’s references to the applicant’s knowledge of the SABS. On reconsideration, the LAT found this does not amount to “cogent evidence demonstrating a reasonable apprehension of bias.” The LAT did not agree with the applicant’s allegations of a lack of impartiality.

The applicant also argued that the LAT violated rules of procedural fairness because it overlooked, mischaracterized and selectively referenced evidence in its decision. The applicant further submitted that the LAT omitted any analysis of the applicant’s submissions in fact and law. On reconsideration, the LAT acknowledges that “it is not required to reference every piece of evidence or argument put forward.” On reconsideration, the LAT further notes that in the initial decision, the LAT cited the evidence it relied upon and set out its reasons for its conclusions. There was thus no violation of procedural fairness.

The applicant further alleged that the LAT violated the rules of natural justice and procedural fairness by omitting analysis of the sufficiency of the notice requirements in its decision. The LAT disagreed with this allegation, noting that the initial decision set out the positions of the parties; the evidence relied upon; and the reasons for concluding that the notices are sufficient. The LAT further noted that on reconsideration, the applicant did not establish grounds for reconsideration under Rule 18.2(a).

Under Rule 18.2(b), the LAT found on reconsideration that the LAT erred in dismissing the application in its entirety. The LAT’s initial decision to dismiss the application involved the interpretation of section 55(1) of the SABS. This section bars an insured from applying to the LAT if the insurer has requested an IME and the insured has not complied. The LAT’s error was made in relation to the scope of a preliminary issue hearing, as set out in the Case Conference Report and Order (“CCRO”). A preliminary issue hearing occurred to determine whether the application was barred regarding entitlement to (i) attendant care benefits, (ii) housekeeping benefits and (iii) caregiver benefits. However, the CCRO did not reference a number of additional issues in dispute, which were included in the application filed with the LAT. These additional issues included the following:

  1. Occupational Therapy services — $2,658.86
  2. Medical benefits – other goods and services, $34,126
  3. Visitor expenses — $1,249.44
  4. Rehabilitation benefit – other goods and services, $854.25

There was no indication that these issues had been withdrawn, or settled, or if they were proceeding to a hearing. The LAT nonetheless dismissed the application in its entirety following the preliminary issue hearing. On reconsideration, the LAT notes that submissions at the preliminary issue hearing did not reference these additional issues. Moreover, on reconsideration the LAT remarks that in the initial decision, the LAT was not aware there were additional benefits in dispute when the application was dismissed. The LAT thus made an error in the initial decision, such that the LAT would likely have reached a different outcome if the error was not made. The applicant was thus entitled to proceed with their application regarding the issues which were not subject to the preliminary issue determination.

The applicant had also added an additional issue in dispute, which was added at a case conference on June 17, 2021. More specifically, other medical and rehabilitation benefits in the amount of $10,054.74. The applicant was entitled to deal with this issue at a future case conference, along with the other issues that were not subject to the preliminary hearing.

The LAT briefly addresses reconsideration pursuant to Rule 18.2(c), noting that the applicant did not establish grounds for reconsideration under this rule. The order on reconsideration was ultimately that the LAT’s initial decision was varied so that the additional issues, listed above, could be adjudicated. The applicant was also free to proceed with a claim for an award under section 10 of O. Reg. 664.

[1] Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369

Written by