P.B. v. Aviva General Insurance Company, 2020 CanLII 14465

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: Robert Watt

Date: February 4, 2020

File: 18-009287/AABS

Case Name: [P.B.] v. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Stephanie Weir, Campisi Lawyers LLP

For the Respondent: J.C. Rioux, Flaherty McCarthy

OVERVIEW

1This request for reconsideration was filed by the applicant in this matter. It arises from a decision of the Licence Appeal Tribunal (the “Tribunal”) that found the OCF-election by the applicant on June 28, 2016 was valid and final, and that the applicant was not entitled to a non-earner benefit in the amount of $185.00 per week from October 9, 2016 and ongoing.

2The applicant is seeking an order quashing the decision and ordering a rehearing regarding the preliminary and substantive issues.

3The applicant requests the decision be reconsidered on the basis that:

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.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive chair delegated to me, her responsibility to decide this matter.

5As explained below, the request for reconsideration is dismissed.

ANALYSIS

6Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2.

7Under Rule 18.2, one or more of the following four grounds needs to be established

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;

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

d) There is new evidence that was not before the Tribunal when rendering its decision that could not have reasonably been obtained earlier by the party now seeking to introduce it and would likely have affected the result.

8The Rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.

9Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake, preventing a just outcome, where false evidence has been admitted or where genuinely new and indiscoverable evidence comes to light after a hearing.

OCF-10 Election

10The applicant argues that the Tribunal failed to consider the applicant’s submissions, in the Tribunal’s decision, that the OCF-10 election by the applicant on June 28, 2016, was valid and final.

11The Tribunal did take into account the applicant’s submissions as set out in paragraphs 19, 20 and 21 of the decision.

12The Tribunal found that the working history of the applicant was not clear, based on the evidence as set out in paragraphs 28-30 of the decision. The respondent was therefore required under Section 35 of the Schedule to ask the applicant to elect.

13The applicant indicates that the Tribunal wrongly took into account Dr. Syed’s report on the issues of the election. This is an incorrect statement as that report had no relevance to the issues before the Tribunal. This fact is set out in paragraph 35 of the decision.

14There was no evidence put in by the applicant to show complete inability to carry on a normal life, with comparisons between pre-accident and post- accident activities. This evidence is required under section 12 of the Schedule. Even if the Tribunal had found in favour of the applicant relating to the election issue and to the limitation issue, the applicant still would not have received a NEB. This finding is set out in paragraph 8 of the decision.

15I find that the applicant is trying to re-argue its case. A reconsideration is not an opportunity to reargue arguments that previously failed.

16I find that there was no issue of error of law or fact relating to this issue.

Limitation Issue

17The applicant submits that the Tribunal failed to consider his submissions relating to the issue of the limitation issue. The applicant provides no factual argument for this conclusion but just makes a bald argument.

18The Tribunal actually not only looked at the election issue which limited the applicant’s moving forward with his application, but also looked at the limitation period set out in section 56 of the Schedule and section 7 of the Lat Act. The applicant failed to provide any reasonable basis for the Tribunal to waive the limitation period, as set out in paragraphs 39, and 40 of the decision.

19I find that there is no issues of error of law or fact relating to this issue.

Fair hearing

20An issue came up before the Tribunal at the hearing that the adjuster log notes were confusing and not clear. The Tribunal agreed that clearer log notes were needed to be produced. A further opportunity was given to the applicant once they were produced, to continue to cross examine the adjuster. The applicant chose not to re-attend and cross examine the adjuster.

21I find that there is no issue of error of law or fact, relating to this issue.

CONCLUSION

22For the reasons noted above, I dismiss the applicant’s request for reconsideration