) ) BLOOR WEST PHYSIOTHERAPY ) ) Jeffrey Haylock , for the Appellant (Respondent in Appeal) ) Appellant (Respondent in Appeal) ) ) – v. –, 2017 ONSC 7087

CITATION : Bloor West Physiotherapy v. Charytoniuk, 2017 ONSC 7087 DIVISIONAL COURT FILE NO.: 088/17 DATE: 2017/11/27 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, QUIGLEY and LeMAY JJ. BETWEEN: ) ) BLOOR WEST PHYSIOTHERAPY ) ) Jeffrey Haylock , for the Appellant (Respondent in Appeal) ) Appellant (Respondent in Appeal) ) ) – and – ) ) MARIA CHARYTONIUK ) ) Marek Z.

Tufman , for the Respondent (Appellant in Appeal) ) Respondent (Appellant in Appeal) ) ) ) HEARD at Toronto: November 27, 2017 LeMAY J. (Orally) [ 1 ] This is an appeal of a decision of Penny J. dated January 26th, 2017 in which he determined that the Appellant owed the Respondent the sum of $34,764.06 on account of physiotherapy treatments, interest and taxi rides to and from treatment that the Respondent had arranged.

The matter proceeded before Penny J. by way of an Application and he made his decision on the basis of the affidavit materials that the parties had filed, and the cross-examinations that the parties had conducted on those Affidavits. [ 2 ] On this appeal, the Appellant raises three grounds: (

a) The Application Judge erred by permitting the matter to proceed by way of an application as opposed to converting the matter to an action. (

b) The Application Judge erred by making findings of fact on evidence that was not capable of supporting those findings. (

c) The Application Judge erred in awarding a rate of interest that “appears contrary to the provisions of sections 4 and 5 of the Interest Act, R.S.C. 1985, c. I-15.”. [ 3 ] I would not give effect to any of these grounds of appeal and would therefore dismiss the appeal. I will review each issue. Proceeding by Way of An Application [ 4 ] In making her submission on this point, the Appellant relies on the provisions of Rule 14.05(3) that states that, unless the relief claimed falls within subsections (

a) to (g.1) of this subrule, a matter can only proceed by way of application “where it is unlikely that there will be any material facts in dispute.” [ 5 ] I start by noting that this issue is being raised for the first time on this appeal. As such, as set out by the Court of Appeal in Sawdon Estate v. Sawdon 2014 ONCA 101 at paragraph 75 : [75] It is trite law that appellate courts are not to entertain new issues except in very limited circumstances: Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 1998 CanLII 7197 (ON CA) , 42 O.R. (3d) 229, at p. 233.

As Watch Tower raises the secret trust issue for the first time before this court and none of the exceptional circumstances exist, it would be improper to decide the issue. To do so would be unfair to the Respondents, who may very well have adduced different evidence had they known that such an issue was before the court. Moreover, there is an obligation to raise the issue before the trial judge to allow for an appealable issue: see Clark v.

BMO Nesbitt Burns Inc., 2008 ONCA 663 (CanLII) , 300 D.L.R. (4th) 313, at para. 54 . [ 6 ] The Appellant argues that it is always an exceptional circumstance when the Court below does not apply legislation, regulations or rules and that this justifies raising the issues on appeal for the first time. She provided no authority for this proposition

and I do not agree with it. This is particularly true given that, even if this matter was converted to an action, the Plaintiff, Bloor West, could have brought a motion for

summary judgment immediately after the close of pleadings. The evidence on the

summary judgment motion would have been exactly the same as the evidence before the Application Judge. [ 7 ] Further, for the reasons discussed in dealing with the second ground of appeal, there are no actual substantive disputes on any of the material facts. Improperly Evaluating the Evidence [ 8 ] The Appellant points to five factual disputes that she says the Application Judge either did not resolve, or did not resolve correctly. Those alleged factual disputes are as follows: (

a) Whether the Respondent ever advised the Appellant about the rates they were charging for their services. (

b) Whether the Respondent failed to tell the Appellant that the treatment plans it had submitted to the Appellant’s insurer had been rejected, and that the Appellant would be responsible for all of the payments. (

c) Whether the Respondent overbilled the Appellant for the transportation charges. (

d) Whether the Appellant’s insurer, Economical, paid any amount to the Appellant that was earmarked for the Respondent. (

e) Whether the accounts rendered by the Respondent were inappropriate, inflated and unjustified. [ 9 ] I see no actual substantive dispute over any of these issues. Underlying much of the Appellant’s claim is her assertion that she was required to sign the treatment plans in blank. The Application Judge rejected this assertion as preposterous, and it was open to him on the evidence to reach this conclusion. The only evidence before the Application Judge that the Appellant signed these treatment plans in blank is her bald statement.

Against that evidence, it is clear that the treatment plans were signed by both the Appellant and by her treating physiotherapist within a couple of days of each other. Further, if they were signed on different dates, generally the physiotherapist signed them first. To accept the Appellant’s bald statement would require an inference that the physiotherapist backdated these reports and engaged in fraudulent conduct.

If these treatment plans were not signed in blank, then it is clear that the Appellant knew the rates that she was being charged, and the first alleged factual dispute is not supported by any of the evidence before the Application Judge. [ 10 ] There is ample other evidence that the Appellant, and her lawyers, knew the amounts that were being charged.

Indeed, there is correspondence with her counsel outlining the amounts that were being charged, and her counsel also sought information on the basis for these calculations. [ 11 ] The second alleged factual dispute is whether the Respondent failed to tell the Appellant that her treatment plans had been rejected, and that she was responsible for paying these costs. This issue is irrelevant in my view because of the fact that the Appellant, through her lawyers, was made aware that the treatment plans had been rejected before she settled her MVA claim.

That is why she claimed these amounts when she settled her MVA claim, and she knew that she was responsible for forwarding any amounts that she received in satisfaction of those claims from the insurer to the Respondent. [ 12 ] The third and fifth alleged factual disputes can be dealt with together. The Appellant claims that she was overcharged for services. If the Appellant was of the view that she was being overcharged, it was open to her to challenge these amounts through her lawyers prior to the settlement of the MVA action.

Further, what she cannot do is settle the MVA action on the basis of the amounts that she was charged and then seek to pay less than those amounts. Permitting that outcome would be, as the Application Judge noted, allowing her to obtain an unjustifiable windfall. [ 13 ] This brings me to the final alleged factual dispute, which is whether an amount for physiotherapy expenses was earmarked in the settlement between the Appellant and the insurer, Economical.

The Appellant refused to provide any evidence on this point, and thus the only evidence before the Application Judge was the evidence from the insurance adjuster that “almost all or a large chunk of [the Respondent’s account] would have been accounted in the settlement numbers.” [ 14 ] As a result, there are no material factual disputes in this case. The Interest Act Argument [ 15 ] This is another argument that the Appellant is raising for the first time on appeal. Again, I do not feel that there is any exceptional circumstance to justify this Court in hearing this argument for the first time on appeal.

If I am wrong in this conclusion, I find that the argument has no merit. [ 16 ] The provision of the Interest Act that the Appellant relies on applies where an agreement requires a party to pay interest. The obligation that the Appellant has to the Respondent arises as a result of the direction that she signed.

In that direction, the Appellant directed her lawyers to pay the Respondent the amounts she received from a third party in respect of her physiotherapy treatments plus the interest that the third party was obligated to pay pursuant to the provisions of section 46(2) of the Statutory Accident Benefits Schedule, which states: 46.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. [ 17 ] It is because the direction relates to interest amounts that the Appellant has received from a third party that the Respondent made no claim for interest after September 16th, 2015, the date of payment by the third party.

[ 18 ] Moreover, the consumer protection policy concerns that underly

section 4 of the Interest Act have no application where the legislature has specifically provided for the payment of a particular rate of interest in respect of unpaid statutory accident benefit claims. Conclusion [ 19 ] For the foregoing reasons, the appeal is dismissed. SACHS J. [ 20 ] I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed for reasons given orally by LeMay J. The Respondent is entitled to its costs of this Appeal, which we fix in the amount of $6,000, all inclusive.” ___________________________ LeMAY J. I agree ___________________________ SACHS J.

I agree ___________________________ QUIGLEY J. Date of Reasons for Judgment: November 27, 2017 Date of Release: December 1, 2017 CITATION : Bloor West Physiotherapy v. Charytoniuk, 2017 ONSC 7087 DIVISIONAL COURT FILE NO.: 088/17 DATE: 2017/11/27 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, QUIGLEY and LeMAY JJ. BETWEEN:

BLOOR WEST PHYSIOTHERAPY Appellant (Respondent in Appeal – and – MARIA CHARYTONIUK Respondent (Appellant in Appeal) ORAL REASONS FOR JUDGMENT LeMAY J. Date of Reasons for Judgment: November 27, 2017 Date of Release: December 1, 2017