2017 ONSC 6696, 2017 ONSC 6696

CITATION : State Farm v. Asamoah et al, 2017 ONSC 6696 DIVISIONAL COURT FILE NO.: 201/17 DATE: 20171109 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: State Farm Mutual Automobile Insurance Company, Applicant AND: Joseph Asamoah and The Financial Services Commission of Ontario, Respondents BEFORE: Kiteley, Pattillo, Sheard JJ.

COUNSEL: Paul Omeziri , for the Applicant Richard Levin , for the Respondent Asamoah Michael Doi, for the Respondent Financial Services Commission of Ontario HEARD at Toronto: November 3, 2017 ENDORSEMENT [ 1 ] This is an application for judicial review of the decision dated March 21, 2017 [1] of the Director’s Delegate of the Financial Services Commission of Ontario. For the reasons that follow, the application is dismissed. Decision of the Director’s Delegate [ 2 ] Following a ten day hearing, the Arbitrator [2] awarded Mr.

Asamoah all of the assessments or examinations and all of the medical benefits he claimed. The Arbitrator also awarded Income Replacement Benefits (IRB), Attendant Care Benefits (ACB), Housekeeping and Home Maintenance Service Benefits (HK), but not for as long a period as Mr. Asamoah claimed them, and the Arbitrator dismissed Mr.

Asamoah’s claim for a special award. [ 3 ] The Director’s Delegate heard the appeal and cross-appeal from the decision of the Arbitrator and came to the following conclusions at paragraph 43: The Arbitrator’s award of IRBs is upheld because he did not err in his finding of causation regarding the injury to the left shoulder, he engaged in the necessary pre-104 analysis and the only available conclusion was that Mr. Asamoah was entitled to the post-104 IRB’s awarded. There was no evidence supporting the Arbitrator’s decision to limit entitlement of IRBs to 3 months post-surgery and the issue of Mr.

Asamoah’s further entitlement is therefore remitted for re-hearing. The issues of entitlement to ACBs, HK, Med/Rehab and Assessments or Examinations are remitted for re-hearing because the Arbitrator did not give adequate reasons. The issues of entitlement to a special award is remitted for re-hearing because the Arbitrator’s reasons are self-contradictory. [ 4 ] In this application the Applicant seeks an order in the nature of certiorari quashing the decision of the Director’s Delegate with respect to IRB’s, as a result of which the rehearing would also include the issue of Mr. Asamoah’s entitlement to IRBs.

Should the application for judicial review be dismissed as premature? [ 5 ] The Respondent Asamoah took the position that this court should dismiss the application for judicial review on account of prematurity because the re-hearing ordered on the entitlements referred to above has not occurred and this court typically does not allow such applications before the administrative proceedings have been completed. In Sahinbay v.

Unica Insurance Inc. [3] the Divisional Court acknowledged that in some rare cases judicial review might be appropriate before a final decision is reached, including circumstances in which the decision, although interlocutory in most respects, determines a particular issue. [ 6 ] As a result of the decision of the Director’s Delegate, the issue of entitlement to and amount of IRB has been finally determined.

As indicated in Sahinba y, while that means that the decision falls within the “extreme situations” in which this court might entertain the application, the court will sparingly exercise that discretion. [ 7 ] We conclude that the court will hear the application for judicial review. This application has caused significant delay in a proceeding in which the motor vehicle accident occurred in August 2010. The re-hearing has already been postponed from September to November 2017. It is in the interests of both parties that the re-hearing proceed with an understanding of the issues involved.

Breach of the duty of procedural fairness [ 8 ] Before us the submissions by the Applicant were based solely on breach of procedural fairness and breach of the rules of natural justice. Counsel agree that there is no standard of review. [ 9 ] There is no question that a duty of procedural fairness applies to the decision of the Director’s Delegate. The existence of a duty of fairness does not determine what requirements will be applicable.

The content of the duty of procedural fairness depends on the consideration of relevant factors. [4] [ 10 ] The decision by the Director’s Delegate involved the extent to which the Respondent Asamoah is entitled to income replacement benefits.

It is a substantive decision, not a procedural decision and was important to the Respondent because it was a decision that he was entitled to IRB’s when he alleged he was unable to return to his pre-accident employment. [ 11 ] The process that was followed in the appeals launched by both State Farm and the Respondent Asamoah was to compile the extensive record that had been provided to the Arbitrator and to exchange extensive written submissions. The parties acquiesced, if not agreed, that the transcript of the ten day hearing before the Arbitrator would not be provided to the Director’s Delegate.

The parties make no objection that the hearing was conducted in writing. [ 12 ] The statutory scheme of SABS is such that an insured person can expect that the issue, if any, of the benefits to which he is entitled will be addressed early, expeditiously and fairly and that insurers who are called upon to pay for benefits will have the opportunity to respond.

The legitimate expectations of the insured and the insurer were met in that each had the opportunity to know the issues to be addressed and had an opportunity to make submissions. [ 13 ] The nature of the decision and the importance of the decision to the insurer and the insured indicate a higher expectation of procedural fairness. However the other factors suggest a more modest expectation of procedural fairness. On balance, we are not persuaded that there was a denial of procedural fairness.

Adequacy of reasons [ 14 ] As indicated in paragraph 3 above, the Director’s Delegate held that there was no evidence supporting the Arbitrator’s decision to limit entitlement of IRBs to 3 months post-surgery; that the reasons of the Arbitrator were inadequate with respect to the entitlement to ACBs, KH, Med/Rehab and Assessments or Examinations; and that the reasons of the Arbitrator on the issue of entitlement to a special award were self-contradictory. [ 15 ] The Applicant takes the position that once the Director’s Delegate identified that the reasons for decision of the Arbitrator were inadequate in any respect, that that meant there had been a breach of the rules of natural justice and therefore the Director’s Delegate had to direct a re-hearing on all of the issues.

Instead, counsel for the Applicant argues that the Director’s Delegate reviewed the record and made his own findings of fact. [ 16 ] There is a flaw in that submission: it assumes that the issue of inadequacy of reasons of the Arbitrator was before us. In this court, the issue is the adequacy of the reasons of the Director’s Delegate. [ 17 ] Where there are reasons for a decision, courts have found that the adequacy of the reasons is not a procedural fairness matter.

Rather the adequacy of the reasoning should be considered in light of the evidentiary record under the reasonableness standard of review to determine whether the decision is reasonable. [5] [ 18 ] In arriving at conclusions with respect to IRBs, there were three issues: causation, pre-104 IRBs and post-104 IRBs. At paragraph 24, the Director’s Delegate noted that the Arbitrator did not specifically address the test for entitlement. At paragraph 28, he rejected the Applicant’s submission that there was no evidence to support the Arbitrator’s finding that the accident caused the injury to Mr.

Asamoah’s left shoulder and he reviewed the evidence before the Arbitrator. The Director’s Delegate was entitled to look at the entirety of the record before the Arbitrator and he was entitled to rely on parts of the record whether the Arbitrator had referred to it or not, such as the report of Dr. Olgivie-Harris. At paragraph 29, the Director’s Delegate concluded that there was ample evidence to support the finding of causation whether the “but for” or the “material contribution” test had been applied.

He observed that the Arbitrator was entitled to deference regarding that finding of fact. [ 19 ] At paragraph 30, the Director’s Delegate reviewed the conclusions reached by the Arbitrator and pointed out that although the Arbitrator did not specifically invoke the test for entitlement to pre-104 IRBs, the evidence illustrated that the Arbitrator engaged in the analysis necessary to support his factual conclusion that the injury to Mr.

Asamoah’s left shoulder caused a substantial inability to engage in the essential tasks of his employment at the time of the accident. [ 20 ] The Director’s Delegate pointed out that the Arbitrator did not show an awareness of the change in the test for the post-104 period. However, at paragraph 33, the Director’s Delegate concluded that on the evidence, the only available conclusion was that at least until November 24, 2012, Mr.

Asamoah’s injury to his left shoulder caused a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. [ 21 ] The Director’s Delegate did not make his own findings of fact. As counsel for the Respondent Asamoah suggested, the Director’s Delegate was entitled to “put more paint on the canvas”. The Director’s Delegate rescinded all of the decisions for which there was no evidence or for which the reasons were inadequate or contradictory.

He was not required to rescind the entirety of the decision. [ 22 ] The Applicant’s challenge to the adequacy of the reasons for decision of the Director’s Delegate is addressed within the context of the reasonableness standard of review. Those reasons demonstrate justification, transparency and intelligibility within the

decision-making process. The decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [6] ORDER TO GO: [ 23 ] The application for judicial review is dismissed. [ 24 ] On consent as to the amount, the Applicant shall pay costs to the Respondent Asamoah in the amount of $5000 all inclusive, payable within 30 days. _______________________________ Kiteley J. _______________________________ Pattillo J. _______________________________ Sheard J. Date: November 09, 2017