RECONSIDERATION DECISION

Before:

Terry Hunter, Vice Chair

Date:

March 12, 2019

File:

18-005019/AABS

Case Name:

D.T. v. Wawanesa Mutual insurance Company

Written Submissions by:

For the Applicant:

Imtiaz Hosein, Counsel

For the Respondent:

Catherine Korte, Counsel

OVERVIEW

1This Request for Reconsideration arises from an adjudicator’s decision to order that the Applicant, D.T. (“the Applicant”) produce the 2017 income tax return and notice of assessment of his spouse, F. M. (“the Order”). The applicant does not agree with the adjudicator’s decision and requests that her order which is dated December 3, 2018 be overturned.

2Wawanesa, the respondent, submits that the Tribunal’s decision is correct and should not be overturned.

3The applicant was involved in an accident on January 22, 2018. He was denied certain benefits by the respondent and filed an application with the Tribunal. A Case Conference was held and the parties were ordered to provide written submissions relating to the respondent’s motion for production of the applicant’s spouse’s 2017 Notice of Assessment and Income Tax Return. The respondent’s motion was made in relation the applicant’s claim for attendant care benefits and services provided by the applicant’s spouse who is a personal support worker.

4On November 9, 2018, the parties participated in a second case conference. The adjudicator ordered that the applicant produce the 2017 Notice of Assessment and Income Tax Return of his spouse. The adjudicator’s case conference report and order are dated December 3, 2018.

5Pursuant 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 responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

6The applicant’s Request for Reconsideration is dismissed.

ANALYSIS

7The grounds that must be established in order for a Request for Reconsideration to be successful are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.

8The grounds that the applicant argues apply to this case are as follows:

a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice by ordering the disclosure of third party documentation without considering the applicant’s written submissions;

b. The Tribunal acted outside its jurisdiction by ordering the disclosure of information not relevant for a determination of the issues in dispute;

c. The income tax records sought are not relevant because this information was not requested by the respondent prior to the applicant filing his application with the Tribunal.

d. The order should be quashed as the order of the third party documents is in breach of PIPEDA.(Personal Information Protection of Electronic Documents Act, SC 2000, c.5)

9For the following reasons the applicant has failed to persuade me that Tribunal’s decision should be overturned;

a. The adjudicator states in her December 3, 2018 case conference report that she has considered the submissions of both parties. The fact that the submissions were not considered in advance of the case conference does not in my view breach the requirement of procedural fairness. I have no reason to find that the adjudicator did not fully considered the positions of the parties before arriving at her decision.

b. I agree that the documents in question may be relevant to the issues to be determined at the hearing. Since one of the arguments being advanced by the respondent is that the payment of attendant care benefits is contingent upon the applicant establishing that his spouse sustained an economic loss, I find that the documents in question may be relevant to issues to be decided by the hearing adjudicator.

Reconsideration is not an opportunity to reargue previously failed arguments. The applicant previously argued that the income tax documents that he has been ordered to produce are not relevant to the issues to be determined. As stated above, the applicant has failed to persuade me that the Tribunal erred in finding that these documents may be relevant to the issues to be determined at the hearing.

c. Contrary to the applicant’s submissions, the relevancy of documents is not contingent upon or linked to when the documents were requested by the respondent. The fact that the respondent did not request the 2017 tax return and notice of assessment of the applicant’s spouse prior to the applicant commencing his application with the Tribunal has nothing to do with whether or not they are relevant to the issues to be determined at the hearing. Tribunal Rule 9.1 provides the Tribunal may at any stage in a proceeding order production by a party as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding. The applicant fails to identify how this meets the criteria under Rule 18.2. For these reasons I dismiss the applicant’s request for reconsideration on this ground.

d. The issue of whether or not the Tribunal has jurisdiction to determine whether a breach of the federal Personal Information Protection and Electronic Documents Act has occurred has yet to be determined by the Tribunal. The issue will be determined at a motion hearing which has yet to be scheduled by the parties with the Tribunal. This ground was not argued in the initial submissions. The Tribunal did not address this issue as it was not raised by the applicant. I therefore dismiss the applicant’s request for reconsideration on this ground.

CONCLUSION

10The applicant’s request for reconsideration is dismissed.

Terry Hunter
Vice Chair
Tribunals Ontario – Safety Licensing Appeals and Standards Division