RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
File: 19-006032/AABS
Case Name: Nadia Shaikh v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Melissa Chan, Counsel
For the Respondent: Mahroze A. Khan, Counsel
OVERVIEW
1Nadia Shaikh (“applicant”) asks for a reconsideration of my Decision released on May 14, 2020 (“Decision”) in which the applicant was barred from proceeding with her application to determine her entitlement to non-earner benefits (“NEBs”) because she failed to attend the respondent’s s. 44 independent examination (“IE”). She seeks a rehearing of the issue. TD Insurance Meloche Monnex (“respondent”) asks that the reconsideration be dismissed.
Applicant’s Reconsideration Request Made Under Outdated Rule 18
2As a preliminary observation, I note the applicant made her reconsideration request under Rules 18.2 (a) and 18.2(b)1 as they were before Rule 18 was amended on February 7, 2019. Rule 18.5 provides that Rule 18, as amended, applies to any reconsideration of a decision issued after February 7, 2019. In this case, the Decision at issue was released on May 14, 2020 and, therefore, this reconsideration is governed by Rule 18, as amended.
3Even though neither party made submissions on this issue, I am of the view that the applicant’s failure to request reconsideration under the current Rule 18 should not be fatal. The wording of Rule 18 was amended on February 7, 2019. However, the difference in wording is not great. In order to avoid putting the applicant to the expense and delay of re-filing the reconsideration request under amended Rule 18 and putting the respondent to the expense and delay of re-filing its response, I am allowing the applicant’s reconsideration request to proceed. Doing so will facilitate a fair, open and accessible process and allow effective participation by both parties while ensure an efficient, proportional and timely resolution of the reconsideration proceeding. Thus, I will consider the applicant’s reconsideration as having been made under the current Rule 18.
4The Applicant submits that I:
i. acted outside its jurisdiction or violated the rules of procedural fairness; and
ii. have made an error of law or fact such that I would likely have reached a different decision had the error not been made.
RESULT
5The Applicant's Request for Reconsideration is dismissed.
ANALYSIS
6The criteria for granting reconsideration of a Tribunal decision that finally disposes of an appeal are set out in Rule 18.2 (a), (b), (c) and (d). Here, the applicant relies on (a), that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and (b), that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
7Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The onus is on the party seeking reconsideration to establish one or more of the Rule 18 grounds for reconsideration to be successful. The Tribunal has previously stated that “[i]t is well established that the test to be successful on a reconsideration request is a high one.”2
a. Jurisdiction and Procedural Fairness
8The applicant does not argue that the Tribunal acted outside its jurisdiction. Rather, the applicant argues that the Decision violates the rules of procedural fairness because it is “so flawed as to not pass a reasonableness review.” To this end, the applicant relies on several Court and Tribunal decisions.3
9Having reviewed the Decision, I am satisfied that I did not violate the rules of procedural fairness. The onus is on the applicant to establish this ground and she has failed to do so. I am entitled to decide the issues on the record before me and did so here. The four documents attached to the applicant’s reconsideration submissions were filed at the hearing and considered. One of them is referred to in paragraph 9 of the Decision.
10The applicant’s case law does not support reconsideration. While in Vavilov,4 the Supreme Court of Canada set out a new standard of review for administrative decisions, this standard applies to court review and not to reconsideration under the Tribunal’s Rules. Even if it could be said to apply as part of procedural fairness or other theory, the Decision meets the presumptive standard of review of reasonableness because it is not unreasonable. The Decision sets out the salient facts of record in paragraphs 6, 7, 8, 9, 10, 11 and 12, the Schedule’s notice requirements in paragraph 20, the factual findings in paragraphs 24, 25 and 28 and the analysis in paragraphs 25, 26, 27, 28, 29. With respect to my discretion, the Decision contains the Schedule’s provisions in paragraph 22 and the reasons for not exercising the discretion in paragraph 30. There is nothing in the Decision’s facts, law, analysis or conclusion that is flawed or unreasonable as argued by the applicant. Dissatisfaction with the result is not a ground for reconsideration.
11In the Hoang case, the Divisional Court applied the standard of reasonableness in dismissing an application for judicial review of two FSCO decisions concerning the interpretation of different sections of the Schedule relating to a minor. This case does not advance the applicant’s arguments regarding reconsideration. With respect to the other Tribunal decisions cited relied on by the applicant5, these are non-binding decisions confined to their own facts. The applicant has failed to demonstrate that I violated rules of procedural fairness.
b. Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
12The applicant argues that I erred in law in failing to apply the appropriate tests in the jurisprudence with respect to whether the respondent had complied with the notice requirements pursuant to s. 44 of the Schedule prior to formulating an outcome. The applicant also argues that I erred in law in making a finding of fact that the applicant is barred from the proceeding by virtue of her failing to provide a reasonable explanation for non-attendance at the IE. Having reviewed the Decision, I am satisfied that it does not contain any such error of law or fact. I correctly stated the requirements for the notice in paragraphs 18, 19 and 20 of the Decision.
13The applicant argues that the notice is insufficient. I found that the notice was sufficient for the reasons set out in paragraphs 25, 26, 27, 28 and 29. Although the Hedley6 case is not specifically referenced in the Decision, its principle that the medical and other reasons in the notice should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue is set out in paragraph 25 of the Decision. The applicant made this same Hedley argument at the hearing. I considered it and found it lacking. The applicant did not bring forward any evidence that she or her counsel did not understand the notices or the reasons why the s. 44 in-home assessment was required.
14The applicant correctly states that in paragraph 19 of the Decision, reference is made to the s. 38(10) instead of s. 37 which applies to NEB. However, this is a minor slip or clerical error of no import as both sections 38 and 37 provide that the insurer may require a s. 44 examination. The “reasonably necessary” requirement in s. 37(1) argued by the applicant in reconsideration is addressed in paragraph 28 of the Decision and the s. 44(5) notice requirements are set out in paragraph 20 of the Decision. As a result, I am not satisfied that this is an error of law or fact such that I would likely have reached a different result had the error not been made.
15I also correctly stated that the onus is on the applicant to put forward a reasonable explanation for non-attendance at an IE in paragraph 23. I found that the applicant did not do so based on the evidence presented. I took into account that the applicant argued the notice was not sufficient as set out in paragraphs 14, 15 16 and 26 of the Decision. However, I also found that the applicant failed to establish with appropriate evidence that she had a reasonable explanation for her non-attendance as expressed in paragraphs 24, 25, 26, 27, 28 and 29 of the Decision. Further, these paragraphs of the Decision show that the applicant made these same arguments at the hearing and they were rejected for the reasons expressed.
16The applicant argues that I should have found it irrelevant as to whether or not the applicant had sought clarification or further explanation of the requested IE, whether efforts were made to reschedule, or whether she showed a willingness to attend. I was required to determine whether the notice was sufficient. I did so for the reasons set out in paragraphs 25, 26, 27, 28 and 29.
17The applicant also argues that because in my Decision I erroneously made findings of fact in order to “reverse engineer” a conclusion rather than applying legal tests from the relevant jurisprudence, the Decision amounts to a “serious denial and breach of procedural fairness”. Having reviewed the Decision, I am satisfied that no such errors were made. Paragraphs 14, 15, 16 and 24 through 30 of the Decision show that the applicant’s arguments made at the hearing were considered and not disregarded or overlooked. Further, there are no “erroneous findings of fact” as suggested nor a “serious denial and breach of procedural fairness”.
18The applicant further argues that had I applied the appropriate test as to whether the requested IE was reasonably necessary, the applicant would not have the onus of providing a reasonable explanation for her non-attendance.
19Having reviewed the Decision, I am satisfied that no such errors were made. I found the notice to be sufficient for the reasons set out in paragraphs 25, 26, 27, 28 and 29. The applicant failed to satisfy her onus of establishing she had a reasonable explanation for her non-attendance. These are findings I am entitled to make.
20Having reviewed the Decision, I am satisfied that none of the suggested errors of fact or law were made. In this Decision I explained why findings of fact were made and conclusions reached. I find no misapprehension of the evidence or errors of law or fact were made as the applicant alleged. The weight to be given to evidence at the hearing is a matter to be determined by me. I found the applicant’s evidence lacking for the reasons expressed.
21I find that the applicant has not established this or any of the other grounds for reconsideration. The grounds for reconsideration of a Tribunal decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. In this particular case, because the applicant has requested reconsideration, the onus is on the applicant to prove her grounds and she has not done so. Instead, the applicant’s submissions attempt to reargue the case made before at the hearing and raise new arguments. A reconsideration is not an opportunity to reargue one’s case or an appeal.
ORDER
22For the reasons noted above, I dismiss the Applicant's Request for Reconsideration.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: September 9, 2020
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1, (October 2, 2017), as amended (“Rules”).
- 18-003314/AABS v. Wawanesa, 2019 CanLII 101644 (ON LAT-Reconsideration) at para 13.
- [3] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.); Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 (S.C.C.); Personal Insurance Company v. Hoang, 2014 ONSC 81; Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; 18-007658 v. Security National Insurance Company, 2019 ONSC 5318; 18-007658 v. Security National Insurance Company, 2019 CanLII 58169 (ON LAT); V.D. and Aviva Insurance Canada, 2019 CanLII 43892 (ON LAT); 17-007683 v. Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT).
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.)
- 18-007658 v. Security National Insurance Company, 2019 ONSC 5318; 18-007658 v. Security National Insurance Company, 2019 CanLII 58169 (ON LAT); V.D. and Aviva Insurance Canada, 2019 CanLII 43892 (ON LAT); 17-007683 v. Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT).
- Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318.