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 n° 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
Date: February 9, 2017
File: 16-000098/AABS
Case Name: 16-000098v. Aviva Insurance Canada
Written Submissions By:
For the Respondent: Nestor Kostyniuk, Kostyniuk & Greenside
For the Applicant: Ed J Brogden, J.M.J. Law
Overview
1On November 29, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued a final decision in 16-000098v. Aviva Insurance Canada.
2The Tribunal found that the applicant established on the balance of probabilities that her injuries fall outside of the Minor Injury Guideline (MIG) because of her psychological symptoms and impairments.
3The Tribunal further found that the treatment plans in dispute were not however reasonable and necessary as they were for physical impairments and the Tribunal found that the recommended treatment would “not produce further recovery for the applicant.”
4On December 22, 2016, the respondent, Aviva Insurance Canada, requested a reconsideration of the Tribunal’s decision on the basis that the Tribunal made several significant errors of fact and law.
5Specifically, the respondent submits that:
- The Tribunal made a significant error of fact with respect to its assessment of Dr. Cook’s report in finding that Dr. Cook’s conclusion was inconsistent with his findings.
- The Tribunal made a significant error of fact in accepting and favouring the evidence of Ms. Pilc, a social worker over that of Dr. Cook.
- The Tribunal made a significant error of law in failing to make a determination as to the nature of the applicant’s “predominant injury” and further finding that the applicant’s impairments are not a “minor injury” and as such fall outside the MIG.
6The respondent requests that the Tribunal reconsider its determination that the applicant falls outside of the MIG.
7On January 13, 2017, the applicant provided submissions in response to this request.
8For the reasons that follow, I deny the respondent’s request for reconsideration.
Discussion and Reasons
9The 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.
10A fundamental part of the role of the hearing adjudicator is to assess and weigh the evidence presented and make determinations of fact. The hearing adjudicator has the clear discretion to make such determinations. I agree with the submission of the applicant that any reconsideration of these findings should not be interfered with lightly.
11I find that the adjudicator carefully weighed all of the evidence and made clear findings based on a balance of probabilities. In assessing the evidence the adjudicator found some evidence more persuasive than others and found that the applicant falls outside of the MIG because of her psychological impairments. The Tribunal clearly found that that the applicant’s impairments “do not fall within the definition of minor injury.”
12The determinations made by the Tribunal in this case fell squarely within the jurisdiction of the hearing adjudicator to decide. The Tribunal did not make any error of law or fact such that the Tribunal would likely have reached a different decision.
13Based on the above reasons, I therefore deny the request for reconsideration.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: February 9, 2017