2023 ONSC 2609, 2023 ONSC 2609

CITATION : Bennett v. Allstate Insurance Company of Canada, 2023 ONSC 2609 DIVISIONAL COURT FILE NO.: 028/22 DATE: 20230501 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Janet Bennett, Appellant AND: Allstate Insurance Company of Canada, Respondent BEFORE: Fregeau, Varpio, Nishikawa JJ. COUNSEL: Karl Arvai , for the Appellant Jeffrey R.

Goit , for the Respondent HEARD at London: April 28, 2023 (By videoconference) ENDORSEMENT Nishikawa J. (Orally): Overview and Background [ 1 ] The Appellant, Janet Bennett, appeals from the decision and reconsideration decision of Vice-Chair Nancy Aquilina (the “Adjudicator”) of the Licence Appeal Tribunal (the “Tribunal”) dated January 20, 2022 and May 17, 2022 respectively.

The Adjudicator declined to order an award under s. 10 of Regulation 664, R.R.O. 1990 (the “Regulation”) because she found that the Respondent, Allstate Insurance Company of Canada, did not unreasonably deny or withhold Income Replacement Benefits (IRB) from September 24, 2018 to November 5, 2021. [ 2 ] The Appellant was involved in a motor vehicle accident on June 30, 2016, when she was 58 years old.

She suffered significant injuries and received IRB from the Respondent from July 8, 2016 to April 26, 2018, based on a substantial inability to perform the essential tasks of her employment as a quality control inspector and supervisor in an auto parts manufacturing plant. [ 3 ] In September 2018, the Respondent terminated the IRB on the basis that the Appellant failed to satisfy the post-104-week test of a complete inability to engage in any employment for which she was reasonably suited by education, training or experience, and which was comparable in status and reward to her pre-accident occupation. [ 4 ] After further medical examinations and assessments, in 2021, Allstate reinstated the IRB.

The Respondent also paid a 50 percent award for the period of April to July 2018 when IRB were suspended. [ 5 ] Before the Tribunal, the Appellant sought an award under s. 10 of the Regulation for the period from September 2018 to November 2021 during which IRB were unpaid, on the basis that the Respondent had unreasonably withheld or delayed payments. [ 6 ] In the decision, the Adjudicator found that Allstate did not unreasonably withhold or delay payments and that, as a result, an award was not payable from September 24, 2018.

The Adjudicator dismissed the Appellant’s request for reconsideration on the basis that none of the grounds for reconsideration were established. Specifically, the Adjudicator found that, among other things, there was no error of law in relying on the evidence of the Respondent’s experts. [ 7 ] On appeal, the Appellant raises the following issues: (

a) Whether the adjudicator erred in law in finding that the Respondent did not unreasonably withhold or delay payment of IRB; (

b) Whether the conduct of the insurer can be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate; and (

c) In the event that the above issues are decided in favour of the Appellant, the amount of an award. [ 8 ] The Appellant submits that the Adjudicator erred in law in finding that the testimony of the Respondent’s experts provided support for the Respondent’s decision to terminate IRB because the experts failed to consider her condition of chronic pain syndrome, which fell outside their areas of expertise. Analysis [ 9 ] This court has jurisdiction to hear an appeal of a decision of the Tribunal, but only on questions of law: ss. 11(1) and (6) of

the Licence Appeal Tribunal Act, 1999 , S.O. 1999, c. 12, Sch. G (the “ Act ”) . [ 10 ] In our view, the appeal raises no question of law. In determining whether an award under s. 10 of the Regulation was warranted, the Adjudicator identified and applied the correct principles . The Appellant does not argue otherwise. [ 11 ] The issues raised by the Appellant, namely: (

i) the Adjudicator’s determination that the Respondent did not unreasonably withhold or delay payment of IRB, and (ii) whether the Respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate are questions of fact. A t their highest, they are questions of mixed fact and law from which no extricable question of law has been demonstrated. As a result, they are not the proper subject of an appeal under the Act . [ 12 ] The Appellant’s submissions largely relate to the Adjudicator’s assessment of the evidence of the Respondent’s experts.

The weighing of evidence and weight to be given to expert testimony by a specialized tribunal is a finding of fact and not a determination of a point of law: Maxwell v. Ottawa (City) , 2012 ONSC 7224 , at para. 23 (Div. Ct.). [ 13 ] Further, there was ample evidence in the record before the Adjudicator, including through cross-examination of the Respondent’s expert, to support the factual conclusions arrived at by her. For example, i n both the decision and the reconsideration decision, the Adjudicator noted that the Respondent’s expert, Dr.

Jaroszynski, was cross-examined about his ability to diagnose chronic pain. In that context, he gave evidence that he did not see cause for “organically based pain” in the Appellant. It was open to the Adjudicator to rely on this evidence in finding that the Respondent did not improperly rely on Dr. Jaroszynski’s report to terminate IRB. [ 14 ] In addition, the evidence was that the Respondent re-evaluated the Appellant’s claim after receiving and having its assessors consider the reports, including updated reports, received from the Appellant’s assessors, Dr. Ogilvie-Harris, Dr.

Bax and Allan Mills. [ 15 ] As a result, t here was no finding of fact by the Adjudicator that would amount to an error of law, namely, a finding that was unsupported by the evidence or that was based on an “irrational inference.” See: Micanovic v. Intact Insurance , 2022 ONSC 1566 , at paras. 35-36 . Conclusion [ 16 ] Accordingly, the appeal is dismissed. As agreed by the parties, the Appellant shall pay the Respondent’s costs of the appeal in the amount of $5,750, all-inclusive. “Nishikawa J.” I agree: “Fregeau J.” I agree: “Varpio J.” Date of Oral Endorsement: April 28, 2023 Date of Release: May 1, 2023