B.A. v. Gore Mutual Insurance Company, 2019 CanLII 83591

RECONSIDERATION DECISION

Before: Lori Marzinotto, Vice-Chair

Date: July 17, 2019

File: 18-000290/AABS

Case Name: B.A. and Gore Mutual Insurance Company

Written Submissions By:

For the Applicant: Carlos Ortiz, Paralegal

For the Respondent: Jocelyne Tatebe, Counsel

OVERVIEW

1This applicant’s Request for Reconsideration arises from a preliminary issue decision dated August 27, 2018. The Licence Appeal Tribunal (the “Tribunal”) found that the incident that occurred on June 21, 2017 did not constitute an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule- Effective September 1, 2010 (the “Schedule”).

2Pursuant 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

3The applicant’s Request for Reconsideration is dismissed.

BACKGROUND

4On June 21, 2017, the applicant attended an automobile repair shop to discuss issues he was having with a vehicle he had previously brought to the repair shop.

5The applicant parked his car in the shop’s garage and left it running with the car door open when the incident took place.

6The owner of the repair shop realized there was a verbal altercation occurring between one of his mechanics and the applicant. The owner instructed his staff to assault the applicant. The applicant was injured during the incident.

7The applicant’s statutory declaration indicated that he struck the exterior of the vehicle, was battered and pushed into the vehicle, hit his back on the vehicle, struck his head on the vehicle as he was hit with a metal bar on his shin and fell on the concrete floor.

8The applicant applied for accident benefits which were denied by the respondent on the basis that the automobile did not cause the applicant’s injuries − the assault did. The respondent denied that the applicant suffered an “accident” as defined in the Schedule.

9By letter to the Tribunal dated September 17, 2018, the applicant requested a reconsideration of the Tribunal’s preliminary issue decision.

ANALYSIS

10Rule 18.1 of the Tribunal’s Common Rules of Practice & Procedure (the “Rules”)¹ states a request for reconsideration “must” include the reasons for the request, specifying the ground(s) under Rule 18.2 being relied on.

11A Request for Reconsideration will not be granted unless one or more of the following grounds under Rule 18.2 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 had the error not been made;

(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

Request for Reconsideration – Dismissed for Failure to Identify Ground

12The respondent correctly points out in its submissions that Rule 18.1 uses mandatory language. The Request for Reconsideration “must include reasons for the request, specifying applicable criteria under Rule 18.2”.

13I agree with the respondent in that the applicant does not specify the basis under Rule 18.2 for his Request for Reconsideration. The applicant simply requests that the Tribunal’s decision be reconsidered followed by a number of submissions, none of which point to the grounds for the request for reconsideration nor state that the Tribunal erred in any way.

14The respondent submits that it is unable to properly respond to the Request for Reconsideration given that the applicant has not identified the applicable grounds under Rule 18.2. Nonetheless, the respondent made submissions under each ground of Rule 18.2 in order to respond to the applicant’s Request for Reconsideration and takes the position that none of the grounds are met. The respondent submits that the applicant’s failure to indicate what ground the applicant is seeking to have the Tribunal reconsider its decision is fatal to the applicant’s Request for Reconsideration.

15I agree. On that basis alone, I can and have dismissed the request for reconsideration.

Request for Reconsideration – Dismissed on its Merits

16Despite dismissing the request for reconsideration based on the applicant’s failure to indicate the grounds under Rule 18.2 upon which he seeks reconsideration, I feel it necessary to provide brief reasons why I would also dismiss his Request for Reconsideration on its merits.

17Rule 18.2 prevents me from making an order under Rule 18.4(b) unless satisfied that one or more of the stated grounds are met. I am not satisfied that the applicant’s request satisfies or even raises any of the available grounds for reconsideration.

18I agree with the respondent that the applicant has failed to advance any argument or provide evidence which would support any of the grounds under Rule 18.2.

19In order to meet the high onus to warrant the reconsideration of a decision, the request must provide some evidence and argument to the Tribunal.

20The applicant does not make any submissions on grounds that could be considered as falling under Rules 18.2 (a), 18.2 (c) or 18.2 (d) and therefore, these grounds for reconsideration are not met.

21This leaves the last ground: Rule 18.2(b). Although the applicant does not specifically indicate that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different conclusion, in an indirect way, the applicant suggests that the Tribunal got its decision wrong. It is unclear whether the applicant suggests the Tribunal made an error of law or fact or both.

22I find that the Tribunal made no error of law or fact.

23As stated in 16-000929 v. TD Home and Auto Insurance Company², the task on a Request for Reconsideration is not to reweigh the evidence.

24The respondent submits that the applicant’s Request for Reconsideration puts forth essentially the same arguments as he did in the hearing³. I have no argument to the contrary from the applicant in this regard.

25In addition, the respondent submits that the applicant advanced the following two new arguments in its Request for Reconsideration⁴:

i) There is no doctor who says that the injuries are not the direct result of the motor vehicle accident⁵; and,

ii) The respondent refused to approve a series of OCF-18s for multidisciplinary treatment, psychological assessment, physiatry assessment and functional abilities assessment, “in an effort to explore the extent of the applicant’s injuries as they relate to the motor vehicle accident”⁶

26Firstly, the applicant did not make any submissions that the arguments and evidence referred to in paragraph 25 are new and could not have reasonably been obtained earlier as required under Rule 18.2(d).

27As stated in I.K. v. Primmum Insurance Company⁷, the reconsideration process is not an avenue for advancing new arguments that a party could but did not make at the hearing on the merits. The applicant points to no exceptional circumstances to warrant the new argument and evidence on reconsideration. The reconsideration is not meant as a separate adjudicative or fact-finding forum.

28Secondly, I find that neither of these two arguments are relevant to this request for reconsideration. The issue before the hearing adjudicator was whether the incident that occurred on June 21, 2017 was an “accident” as defined in s. 3(1) of the Schedule. This is a legal test which is beyond the scope of medical practitioners’ expertise.

29Regarding the denied OCF-18s, exploring “the extent of the applicant’s injuries” does not speak to whether the incident was an “accident” but would be relevant to the substantive issues if the Tribunal found that the incident was an accident.

30Even if the applicant had made submissions indicating that this was new evidence could not have been obtained prior to the hearing, I would give these arguments little to no weight for the reasons I have indicated.

31The applicant submits that the fact that there was a preceding assault should not preclude the incident from being an “accident” under the Schedule considering the applicant’s impairments were caused directly by his body parts striking the exterior of the vehicle”.⁸

32Contrary to what the applicant states in paragraph 11 and paragraph 10 in his request for reconsideration submissions, the Tribunal did not find or state that it accepted that the applicant suffered impairments as a result of striking various parts of his body against the exterior of the vehicle.

33In fact, paragraph 31 of the Tribunal’s decision specifically indicates that the Tribunal “cannot say that the applicant falling against his vehicle during the assault was the direct cause of his impairments.”

34If the applicant is attempting to argue an error of fact by the Tribunal, I see no such error in the Tribunal’s findings of fact regarding the circumstances of the incident. It is the role of the adjudicator hearing the merits of an application to consider and weigh the evidence presented and make findings of fact. The hearing adjudicator has the discretion to make such determination as he sees fit.

35The Tribunal did not err in law when it found that the assault was an intervening act. The Tribunal did not err in aptly applying the case law to the facts of this case when it found that the owner’s decision to instruct his staff to attack the applicant was “an intervening act that broke the chain of events between the automobile’s use and the impairments.”⁹

36In applying North Waterloo Farmers Mutual Insurance Co. v. Samad¹⁰ and its description of “direct cause”, the Tribunal weighed the evidence and determined that it could not find that the applicant falling against his vehicle during the assault was the direct cause of his impairments.

37As the Tribunal stated, “intervening acts” drive much of the analysis in assault cases.¹¹ In this case, The Tribunal clearly found that the owner’s decision to instruct his staff to attack the applicant was a break in the chain of causation between the ordinary use of the automobile and the impairments.¹²

38The applicant may not agree or like the Tribunal’s decision; however, the applicant failed to argue the grounds for his Request for Reconsideration nor has he proven that a reconsideration should be granted on any of the enumerated grounds under Rule 18.2.

CONCLUSION

39For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.

Lori Marzinotto

Vice Chair

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission, October 2, 2017.
2. 216-000929 v. TD Home and Auto Insurance Company, 2017 CanLII 69239 at para. 19.
3. 3The applicant’s request for reconsideration submissions are 15 paragraphs in length. The respondent submits that paragraphs 1,2,3,4,5,7,14 and 15 of the submissions were already argued at the hearing.
4. 4The respondent submits that paragraphs 6 and 8 are new arguments not previously advanced by the applicant.
5. 5Applicant’s Request of Reconsideration Submissions, para. 6.
6. 6Applicant’s Request of Reconsideration Submissions, para. 8.
7. 7I.K. v. Primmum Insurance Company, 2018 CanLII 13162 (ONLAT) at para. 27.
8. 8Applicant’s Request for Reconsideration letter dated September 17, 2018 at para. 11.
9. 918-000290 v. Gore Mutual Insurance Company, 2018 CanLII 112128 (ON LAT) at para. 30.
10. 10North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.
11. 1118-000290 v. Gore Mutual Insurance Company, 2018 CanLII 112128 (ON LAT) at para. 26.
12. 1218-000290 v. Gore Mutual Insurance Company, 2018 CanLII 112128 (ON LAT) at para. 30.