Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 16-000066/AABS
Case Name: 16-000066 v Waterloo Regional Municipalities Insurance
Written Submissions By:
For the Respondent: Shawn MacDonald, Counsel
For the Applicant: Georgiana Masgras, Counsel
Overview
1On December 9, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued a final decision in 16-000066 v Waterloo Regional Municipalities Insurance.
2The applicant’s application to the Tribunal was for an increase to his income replacement benefit (IRB) and for medical benefits for treatment. The Tribunal found that there was insufficient evidence provided by the applicant to vary the IRB amount. The Tribunal also found that the applicant suffered predominantly minor injuries as defined in the Schedule1 and therefore his medical benefits were limited to a maximum of $3,500.
3On December 25, 2016, the applicant requested a reconsideration of the Tribunal’s decision. The applicant requests that the December 9, 2016 Order be cancelled and the matter be sent before another adjudicator for a new hearing.
4The respondent provided submissions in response to this request on January 25, 2017.
5For the reasons that follow, I deny the applicant’s request for reconsideration.
Discussion and Reasons
6The criteria for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, which states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7The applicant’s request for reconsideration is based on the following assertions:
i. The Tribunal mischaracterized an issue in dispute and acted outside its jurisdiction and thereby violated the rules of natural justice and procedural fairness;
ii. The Tribunal made a significant error of law or fact in not considering certain evidence; and
iii. The applicant has new evidence that could not have reasonably been obtained earlier and would affect the result.
I will address each one of the applicant’s assertions.
The applicant submits that the Tribunal mischaracterized an issue in dispute and acted outside its jurisdiction and thereby violated the rules of natural justice and procedural fairness
8The applicant submits that even though the Tribunal found that the applicant’s injuries were properly assessed as falling within the Minor Injury Guideline (MIG) it should have still addressed whether the specific treatment plans in dispute were reasonable and necessary.
9I do not find there is any basis for reconsideration on this issue. The Tribunal did not mischaracterize the issue but in fact, considered the exact issue as set out in the applicant’s hearing submissions. The applicant’s written submissions include the following as an issue in dispute:
[Do] the applicant’s injuries from the MVA on September 17, 2015 fall within the Minor Injury Guideline?
The applicant’s submissions did not include any reference to whether the treatment plans in dispute were reasonable and necessary.
The applicant submits that the Tribunal made a significant error of law or fact in finding that no submissions were made with respect to the IRB quantum
10The applicant asserts that he engaged a forensic accountant to calculate the amount of his IRB and that there was a report dated December 24, 2015 that varied the amount. The applicant asserts that this report calculates the IRB at $45.88 higher per week than what the respondent had paid him. The applicant’s submissions assert that this report was not before the Tribunal either by “administrative error” by either the Tribunal or the applicant.
11In paragraph 32 of the Tribunal’s decision the adjudicator notes in respect of the IRB amount that “…[a]s no submissions were made to vary that amount, I cannot make a finding to change it.”
12The respondent characterizes the applicant’s request on this issue as an attempt to “split” the applicant’s case and adduce evidence that was not submitted at the hearing.
13I note that the Applicant’s own submissions in this request for reconsideration are ambiguous as to whether the evidence of the forensic accountant was entered into evidence. In reviewing the hearing record I see no reference to it. Nor did the applicant’s written submissions at the hearing refer to it or make any arguments in support of the applicant’s entitlement to an IRB at a higher quantum. In raising this issue on reconsideration, the Applicant is attempting to introduce new evidence that was clearly available at the time of the hearing. Ensuring that the Tribunal has the necessary evidence and is aware of relevance to the issues in dispute is the responsibility of counsel. The reconsideration process cannot be used to relitigate matters that should have been addressed in the first instance.
14As such, I find no error of law or fact in respect of this issue.
The applicant submits that the Tribunal made a significant error of law or fact in not considering evidence of a pre-existing medical condition
15The applicant asserts that the Tribunal did not consider evidence of pre-existing medical issues which support a determination that the applicant’s injuries fall outside the MIG. Specifically, the applicant notes several references in the OHIP summary to various medical conditions between 2008 and 2010; a specific note on February 2, 2016 in the clinical notes and records of Dr. Onoja; and an MRI dated March 10, 2016. The applicant claims that this evidence was not specifically addressed in the decision.
16Decision makers are not required to include every argument, statutory provision, decision or other detail in their reasons or to make explicit findings on each constituent element leading to conclusion, provided a reviewing court could understand why a decision was made and whether it was within range of acceptable outcomes.2
17In the case before me, I find that the Tribunal did in fact address and consider the evidence that was adduced by the applicant. The Tribunal noted at several points in the decision that there was no medical or opinion evidence to support various the medical assertions set out in the applicant’s submissions.
18The applicant also raises a concern about the Tribunal’s consideration of the clinical notes of Dr. Paton, chiropractor. However, I find that the Tribunal clearly does consider the evidence adduced and states:
I found the notes for the visits were brief, sometimes cryptic, and often illegible. No other clinical notes, records, reports or medical opinions were submitted in support of the applicant’s position.
19I agree with the position of the respondent that the applicant is attempting to discuss evidence in this request for reconsideration that was not raised at the hearing. I find that the evidence noted in the applicant’s reconsideration request was not referenced in the applicant’s written submissions for the hearing.
20I do not find there has been any error of law or fact.
The applicant submits that he has new evidence that could not have reasonably be obtained earlier
21The applicant argues that he received updated physiotherapy records on December 23, 2016. The importance of these records was for a reference to a diagnosis within them to a record dated May 14, 2016 – which was more than 7 months earlier. There is no explanation as to why the May 14, 2016 record was not obtained prior to the hearing and included in the applicant’s hearing submissions which were provided to the Tribunal on August 2, 2016.
22There is also no evidence provided as to when the records were originally requested.
23Rule 18(d) is intended to allow parties to provide and rely on evidence that they legitimately had no opportunity to obtain before the hearing. I do not find that this is the case here.
Conclusion
24Based on the reasons above, I therefore deny the applicant’s request for reconsideration.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: March 14, 2017
Footnotes
- Statutory Accident Benefits Schedule - Effective September 1, 2010
- N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (at 14-17)