Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, 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 77 rue Wellesley Ouest, 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: Nidhi Punyarthi, Adjudicator
File: 18-004362/AABS
Case Name: J.D. v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Douglas M. Bryce, Counsel
For the Respondent: Benjamin Hutchison, Counsel
OVERVIEW
1On January 29, 2019, the Licence Appeal Tribunal (“Tribunal”) rendered a decision following a hearing of the subject application. In that decision, the Tribunal found that the applicant was not involved in an accident as defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2The applicant has submitted a Request for Reconsideration of the decision. In her request, the applicant submitted that the Tribunal erred in its analysis of causation in relation to whether an accident had taken place. The applicant submitted that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made. Accordingly, the applicant requested a variation of the Tribunal decision or, in the alternative, a new hearing.
3The respondent submitted that the Tribunal made findings of fact that were available to it based on the evidence, and that the Tribunal correctly applied the causation analysis.
4Pursuant 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.
5I was also the member who had rendered the decision in the first instance. Effective February 7, 2019, Rule 18.1 of the Common Rules of Practice and Procedure of the Tribunal was amended to permit a reconsideration to be heard by the same member whose decision is the subject of the request.
RESULT
6For the reasons that follow, I dismiss the applicant’s Request for Reconsideration.
ANALYSIS
7The applicant’s arguments on its Request for Reconsideration can be grouped into two categories:
a. The Tribunal did not find that an automobile was not present.
b. The Tribunal was not explicit in its causation analysis and performed that analysis incorrectly in light of the findings of fact that it made.
8Contrary to the arguments of the applicant, the decision of the Tribunal in the first instance demonstrates the following:
a. The Tribunal made a specific finding of fact that an automobile was not present; and
b. The Tribunal correctly engaged in the causation analysis following this finding of fact.
9In the following paragraphs, I explain how I arrived at these two conclusions.
A. The Tribunal found that an automobile was not involved
10The applicant submitted in her Request for Reconsideration that the Tribunal did not make a factual finding that an automobile was not present or involved in startling the applicant.
11Contrary to what is submitted by the applicant, the Tribunal was clear in its determination that an automobile was not present. The following paragraphs of the Tribunal’s decision indicate these clear findings:
a. At paragraph 16, the Tribunal states: “There is no mention of the vehicle or of the vehicle startling [the applicant] in any of these medical records.”
b. At paragraph 17, the Tribunal states: “There is no medical evidence from the date of the event or from the two months following the event to indicate that a vehicle caused the applicant to fall.”
c. Also at paragraph 17, the Tribunal states: “I conclude, on a balance of probabilities, that the cause of the fall as reported to the medical professionals was the icy surface and not the vehicle. I prefer the content of these medical records to the content of the testimony provided by the applicant and her witnesses because the medical records are consistent in their indication that the applicant slipped and fell on ice.”
12The Tribunal therefore made an unambiguous finding, on a balance of probabilities, that an automobile did not cause the applicant to fall and that rather, the icy surface caused the applicant to fall. The Tribunal arrived at this finding by preferring the evidence contained in the contemporaneous medical records (which did not refer to an automobile) to the testimony given by the applicant during the hearing (which referred to an automobile). The Tribunal made findings of fact and credibility that it was entitled to make based on the evidence available to it in the first instance, and deference is owed to those findings.
13The hearing is meant to be a final determination of a matter, subject to the rights of review. A request for reconsideration is not an opportunity to rehear the evidence or to re-litigate the matter, which is essentially what the applicant is asking me to do. There is no basis to interfere with the Tribunal’s finding that an automobile was not present or involved in the incident.
B. The Tribunal correctly engaged in the causation analysis based on the factual findings it made
14The applicant also submitted in her Request for Reconsideration that the Tribunal did not correctly engage in the legal analysis of causation. The applicant submitted that the Tribunal did not negate the presence of an automobile and should therefore have engaged in the causation analysis following that factual finding, and the applicant also submitted that the Tribunal could have been more explicit in its causation analysis.
15Contrary to what is submitted by the applicant in relation to the applicable factual finding, the Tribunal had found that an automobile was not involved in the incident. The Tribunal preferred the evidence contained in the contemporaneous medical records that made no reference to an automobile.
16As for the argument that the Tribunal could have been more explicit in its analysis, it should be noted that failure to provide additional and ultimately redundant detail in a decision is not a permitted ground for reconsideration. It is within the Tribunal’s purview to include the level of detail that it deems necessary in order to explain its findings and conclusions. The Tribunal is not required to address each and every piece of evidence referenced by the parties or each and every argument made before it.
17The applicable legal tests and considerations were cited by the Tribunal at paragraphs 18-20 of its decision. In the next few paragraphs, I will explore in more detail the applicant’s submission that these tests and considerations were not dealt with correctly in the first instance.
The Purpose Test
18The applicant submitted that the Tribunal had not at least explicitly considered the “purpose test”, which asks whether the incident arose out of the ordinary use or operation of an automobile.
19The Tribunal had referred to the existence of the purpose test in paragraph 19 of its decision. The purpose test could not have been met and did not need to be explicitly considered given the Tribunal’s finding that a car was not involved. If an automobile was not involved, it could not have been said that the incident arose out of the ordinary use or operation of the automobile. This additional level of detail was unnecessary for the Tribunal to include in its decision and would not have changed the outcome given the finding of fact on the absence of an automobile that had already been made.
The Causation Test
20The applicant submitted that the Tribunal had not correctly considered the causation test, including the “but for,” “intervening cause” and “dominant purpose” considerations.
21The respondent submitted that the Tribunal had no basis to engage in the “but for” test given its finding that an automobile was not involved, and that regarding the intervening cause and dominant purpose considerations, the Tribunal “opted for something stronger,” which was to restate its factual finding that the ice was the direct cause of the applicant’s slip and fall and the dominant feature of the incident.
22A reading of the decision indicates that the Tribunal did start its causation analysis by restating the finding of fact that it had previously made that an automobile was not involved. At paragraph 21, the Tribunal restated: “the contemporaneous records as well as the records in the two months following the incident make no reference to the presence or role of an automobile and instead refer to the incident as a slip and fall on ice.”
23The Tribunal then proceeded to address the causation analysis following this restated finding of fact. The Tribunal stated at paragraph 21: “on a balance of probabilities, the direct cause of the applicant’s injuries was the presence of ice underneath her.” In this statement, the Tribunal addressed the test in the Schedule, the purpose test, as well as the intervening cause consideration. The conclusion that the simple and direct cause of the applicant’s injuries was the presence of ice was available to the Tribunal following its finding of fact that an automobile was not involved. It was unnecessary for the Tribunal to explicitly state that, given its finding of fact, an automobile could not have initiated a chain of events in which an intervening cause could be identified. This type of detail would have been redundant and unnecessary. The Tribunal opted to state its analysis in a more direct and accessible fashion, by restating its finding of fact and affirming that an automobile had no role to play in the chain of causation.
24The Tribunal also considered the “but for” and “dominant feature” aspects of the causation test by once again referring back to the finding of fact that had been previously made when it stated at paragraph 21: “She [the applicant] would not have slipped and fallen on December 20, 2016 but for the icy surface underneath her. The ice was the dominant feature of her fall and injuries.”
25Referring to clear factual findings and representing the analysis in a concise manner is not an error in the application of a legal test. There was, accordingly, no error made by the Tribunal in its application of the correct legal test for causation. The Tribunal applied that test to the facts that it found. The Tribunal also explained, using a sufficient level of detail, that its conclusions were based on the findings of fact and credibility that it had made on the evidence before it. There is, accordingly, no basis to interfere with this decision.
CONCLUSION
26For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Nidhi Punyarthi Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: July 15, 2019