Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Amanda Fricot, Adjudicator

Date: October 10, 2019

File: 18-005359/AABS

Case Name: [IMN] v. Intact Insurance Company

Written Submissions by:

For the Applicant: Kiamehr Yazdani, Counsel

For the Respondent: Sean T. Miller, Counsel

OVERVIEW

1The applicant filed a Request for Reconsideration of the July 22, 2019 Decision (“the Decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In that Decision, I dismissed his application for accident benefits after finding that he was not entitled to receive statutory accident benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The applicant submits that I made errors of law and fact and violated the rules of natural justice and procedural fairness, and seeks an order setting aside the Decision and an order in favour of the applicant. The respondent submits that the Decision should be upheld, and the Request for Reconsideration dismissed.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

4The applicant’s Request for Reconsideration is dismissed.

BACKGROUND

5The applicant, an Ontario resident, was injured in a motor vehicle accident in Quebec as a pedestrian (“the accident”). The respondent is the insurer of the vehicle that struck the applicant, which vehicle is insured under a Quebec policy (“Quebec Policy”). The applicant sought statutory accident benefits from the respondent pursuant to the Schedule. When the respondent denied the applicant’s claim, the applicant submitted an appeal to the Tribunal. A written preliminary issue hearing was held to determine whether the applicant is entitled to statutory accident benefits pursuant to the Schedule. I concluded that the applicant is not and dismissed the application. The applicant seeks reconsideration of that Decision.

ANALYSIS

6The grounds upon which a Request for Reconsideration can be granted are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure¹. The applicant’s submissions allege errors that fall under the criteria set out in Rules 18.2 (a) and (b), which state:

“(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.”

7Reconsideration is only warranted in cases where an adjudicator has acted outside their jurisdiction, violated the rules of procedural fairness, 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 hearing². The latter two circumstances have not been identified as grounds for reconsideration in this case. To meet the high onus on him, the party seeking reconsideration must provide some evidence and argument to the Tribunal to support its request. Reconsideration is not an opportunity to relitigate issues, nor is it an opportunity to make new submissions or arguments³.

8For the reasons set out below, I am not persuaded by the submissions of the applicant that I made any error of law or of fact or that I breached the rules of natural justice and procedural fairness.

Procedural Fairness

9Procedural fairness requires that a party have an opportunity to be heard and an opportunity to respond to the position taken against him⁴.

10Under the heading “Errors of Law and Breaches of Rules of Natural Justice and Procedural Fairness” in the Request for Reconsideration the applicant lists the alleged errors set out below in paragraph 14. The applicant’s submissions do not identify specifically what errors he alleges breach the rules of natural justice or procedural fairness.

11The respondent submits that the applicant was not denied natural justice or procedural fairness.

12Tribunal Order dated October 10, 2018, issued following a case conference, identifies the preliminary issue in dispute as being whether the applicant is entitled to receive statutory accident benefits pursuant to the Schedule. On consent, this preliminary issue proceeded to a written hearing. The respondent filed written submissions and evidence, to which the applicant filed responding written submissions and evidence. The submissions and evidence of both parties were considered by me in reaching my Decision.

13Having reviewed the Tribunal process followed in this case, I find that the applicant had the opportunity to fully argue his case and respond to the position taken by the respondent. The Decision references and analyzes the evidence and submissions of both parties. I do not find any breach of the rules of natural justice or procedural fairness.

Errors of Law or Fact

14The applicant submits that I made errors of law and fact, alleging generally that I:

a. did not apply the appropriate legal test when reviewing and analyzing the evidence;

b. failed to take into consideration the proper law of different jurisdictions both inside and outside Ontario;

c. failed to properly interpret case law and applicable laws;

d. improperly interpreted Ont. Reg. 293/95;

e. disregarded credible and relevant evidence; and

f. improperly interpreted s. 32(2) of the Schedule.

15The respondent submits that I made no errors of law or of fact.

16Paragraph 4 of the Decision identifies the preliminary issue to be determined, namely, whether the applicant is entitled to statutory accident benefits pursuant to the Schedule. Paragraph 5 sets out the following additional issues, identified and addressed by the parties in their submissions, that needed to be addressed in order to determine the preliminary issue:

• Does Part VI of the Ontario Insurance Act apply in this case?

• Is the applicant an “insured person” under s. 3(1) of the Schedule?

• Does s. 59 of the Schedule apply in this case?

• Does Ontario Regulation 283/95 (“Ont. Reg. 283/95”) require the respondent to provide the applicant with benefits under the Schedule?

17The Decision, at paragraphs 12 through 39, analyzes the submissions, evidence, legislation and caselaw that is relevant with respect to each of these issues. The applicant’s Request for Reconsideration alleges errors of law and fact but does not identify any specific errors of law or fact. The applicant does not identify any error in any part of the analysis of the evidence, nor has the applicant identified any evidence that he alleges was disregarded. Similarly, there is no reference to legislation or caselaw that the applicant alleges has been improperly interpreted or applied.

18The applicant alleges, for the first time in the Request for Reconsideration, that the respondent did not comply with s. 32(2) of the Schedule, a provision that imposes obligations on an insurer that receives notification of a person’s intention to apply for benefits. Reconsideration is not intended to give a party an opportunity to raise new arguments that were not raised at the hearing, unless the party seeking reconsideration brings himself within the scope of the Rule 18.2 criteria. None of those criteria apply to the applicant’s submissions relating to s. 32(2) of the Schedule, and accordingly those submissions have not been considered in determining whether reconsideration is warranted in this case.

19With the exception of the applicant’s submissions relating to s. 32(2) of the Schedule discussed above, the applicant’s Request for Reconsideration does nothing more than attempt to re-argue some of the issues addressed at the hearing. I find that I applied the correct legal tests, properly interpreted the relevant legislation and case law, and considered all relevant evidence. The applicant’s arguments were fully considered in the written hearing and rejected. I find that the applicant has failed to identify any error of law or of fact.

CONCLUSION

20For the reasons set out above, I find that the applicant has not met the high onus on him to establish that reconsideration is warranted in this case. He has failed to identify any error of law or of fact or any breach of natural justice or procedural fairness. I therefore dismiss the applicant’s Request for Reconsideration.

Amanda Fricot

Adjudicator Licence Appeal Tribunal

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
2. 2Ibid, Rule 18.2.
3. 3Respondent’s Brief of Authorities, Tab 3, 10872 v. Registrar, Motor Vehicles Dealers Act, 2002, 2019 CarswellOnt 7811 (ON LAT), at paragraph 20.
4. 4Respondent’s Brief of Authorities, Tab 7, Certas Direct Insurance Company v. Gonsalves, 2011 CarswellOnt 6643, at paragraph 8.