Complimentary Issue Volume. 8 Issue. 25 – July 10, 2024

This week, we review a court decision wherein the court noted many of the issues raised by the Appellant were not legal errors. However, accepted a supplementary factum following the Supreme Court ruling in Yatar v TD to hear arguments on the grounds that the Tribunal made errors of fact and mixed fact and law.

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Court Allows Applicant to Submit Judicial Review After the Fact

Court Finds Tribunal Made no Errors in Rejecting CAT Claim – Injured in an October 2016 MVA, the Applicant Hamad claimed to have sustained a CAT impairment as a result of the injuries sustained. The Tribunal rejected this assertion and confirmed its position on reconsideration. In Hamad v. Dominion, Hamad appealed to the court, with the court noting that many of the issues raised by Hamad were not legal errors, the only available basis for appeal. However, the court took note of the Supreme Court in Yatar v. TD, wherein “a statutory right of appeal limited to questions of law does not preclude an individual from seeking judicial review of a decision of the Tribunal on other issues.”

Following the release of Yatar, Hamad filed a supplementary factum in which he argued the Tribunal made errors of fact and mixed fact and law. While Hamad did not file the requisite motion seeking this remedy, the court exercised its discretion to allow for the arguing of errors of fact and errors of mixed fact and law. Counsel for Dominion indicated that they were prepared to address same, with the court finding that this would serve to avoid delay and ensure the effective use of judicial resources.

Ultimately, the court determined that it would not give effect to any of Hamad’s grounds of appeal. Essentially, Hamad argued that the Tribunal had incorrectly found that his expert, Dr. Liu, recanted his opinion that Hamad suffered a catastrophic impairment as a result of the accident, and improperly discredited his and his daughter’s evidence. For their part, Dominion argued that once the Tribunal found that Liu had in fact recanted his opinion, there was no medical evidence in support of a finding of CAT.

The court noted that the Tribunal did not accept Liu’s opinion that Hamad had suffered a marked impairment in all four spheres of functioning for two reasons. The first being the failure to consider important medical information prior to and subsequent to the MVA. Secondly, it was found that Liu had recanted his opinion regarding CAT in his testimony before the Tribunal. With respect to the first reason, it was noted that Hamad had applied to ODSP a few months prior to the subject MVA, detailed issues regarding anxiety, depression, lack of focus, sleep disruption and nightmares, exhaustion, incontinence and general pain. He had further noted that “his family had to care for him “in all aspects of life.” However, at the hearing, Hamad advised that all of the above issues started post MVA, at which point his family then commenced assisting with his care.

At the hearing, Liu confirmed that he had not received a copy of the ODSP application, that he agreed on cross was “very relevant to his assessment of Mr. Hamad’s impairment”. Additionally, he had not been provided with a January 2022 report from Dr. Pilowski that had indicated in part that at the time of a 2nd 2021 MVA, Hamad was improving from the impairments sustained in the subject MVA. Liu again on cross agreed that this 2022 report would have relevance to a determination of Hamad’s impairments were related to the subject MVA. The court found that it was reasonable for the Tribunal to have found that Liu’s initial opinion was undermined by not having all relevant evidence, and as a result the Tribunal for a fact “did not place undue weight on these weaknesses in Dr. Liu’s opinion.”

The court further found that it “was also reasonable for the Tribunal to find that Dr. Liu recanted his opinion on causation”, despite agreeing that Liu had not unequivocally recanted his opinion. Rather, it was found that following cross Liu had “distanced himself from his earlier opinion”, suggesting that “it was “difficult to say” whether his opinion would have been the same if he had Mr. Hamad’s ODSP application and Dr. Pilowski’s 2022 assessment when he prepared his report”. Liu had testified that “he thought the 2016 accident was still a cause of some impairment but that it was “difficult to say” if his opinion would be the same if he had had complete information. It was reasonable for the Tribunal to characterize this as a recantation by Dr. Liu.” Accordingly, the court found that once the Tribunal rejected the opinion of Liu, “, there was no other expert opinion evidence to support Mr. Hamad’s claim. The Tribunal, therefore, made no error in rejecting his claim.”

On the second point, the court found that the Tribunal was required to assess the credibility of Hamad’s evidence and that of his daughter. There was “was nothing improper or unfair about the Tribunal finding that Mr. Hamad’s evidence was contradicted by his own statements on his ODSP application and by his own statements to Dr. Pilowski during the 2022 assessment. There was also nothing improper or unfair about the Tribunal using the surveillance to assess Mr. Hamad’s credibility.” Similarly, there was “no error in rejecting the evidence of Mr. Hamad’s daughter as untruthful. It was open to the Tribunal to find that her evidence was also contradicted by the surveillance evidence and by Mr. Hamad’s statements in his ODSP application.”

Concluding, the court found that theTribunal had made no legal error in its treatment of the evidence, and the credibility findings were reasonable, therefore “there is no basis for this court to interfere with those findings.” In accordance with the agreement of the parties, Hamad was ordered to pay $12,500 in costs to Dominion.

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