RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
File: 19-003973/AABS
Case Name: M.Y. v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Mitchell J. Barber and Fawad Siddiqui, Counsel
For the Respondent: James Schmidt, Counsel
OVERVIEW
1The applicant, MY (“applicant”), asks for a reconsideration of the Tribunal’s Decision released on April 7, 2020 (“Decision”) in which the applicant was found to be barred from proceeding with her application, (save and except for the IRB claim) because she failed to attend two s. 44 examinations. Wawanesa Mutual Insurance Company (“respondent”) asks that the reconsideration be denied.
PRELIMINARY ISSUES – RECONSIDERATION REQUEST IS LATE AND DECISION DOES NOT FINALLY DISPOSE OF THE APPEAL
2The respondent argues that the reconsideration request was not made within 21 days of Decision as required by Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017 (“Rules”). The Decision was released April 7, 2020. The reconsideration was requested April 29, 2020 which was one day late under Rule 5.1. Given that one day is unlikely to have resulted in any material prejudice to the respondent, I allow the reconsideration to proceed under Rule 3.1(a) in order to facilitate a fair, open and accessible process and to allow effective participation by all parties.
3The respondent also argues that the reconsideration request is premature because the Decision does not finally dispose of the appeal as required by Rule 18. Because, in the words of Associate Chair Jovanovic, “Rule 18.1 has recently received a more expansive interpretation to encompass decisions that dispose of certain preliminary issues or partial claims and not the entire application”1, I am allowing the applicant’s reconsideration request to proceed. The Decision finally disposes of part, but not all, of the applicant’s claim and can be reconsidered.
RESULT
4The Applicant's Request for Reconsideration is dismissed.
ANALYSIS
5The criteria for granting reconsideration of a Tribunal decision that finally disposes of an appeal are set out in Rule 18.2 (a), (b), (c) and (d). Here the applicant relies on (b), that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
6Reconsideration 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 undiscoverable evidence comes to light after a hearing. The onus is on the party seeking reconsideration to establish one or more of the Rule 18 grounds for reconsideration to be successful. The Tribunal has previously stated “It is well established that the test to be successful on a reconsideration request is a high one.”2
18.2 (b) - Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
7In summary, the applicant argues that the Tribunal failed to properly address the issue of how to properly interpret the Schedule and the fact that the disputed IE assessments were unnecessary, duplicative and are “more than reasonably necessary” under the circumstances.
8Having reviewed the Decision, I am satisfied that it does not contain any such error of law or fact. The Tribunal correctly stated the law concerning the applicant’s obligation to attend the IE assessments. The Tribunal found that the applicant failed to do so, without reasonable explanation, and based on the evidence presented, was entitled to make these findings. The Tribunal took into account the applicant’s arguments concerning the MIG and rejected them. Paragraphs 13 and 14 shows the applicant made these same arguments at the hearing and they were rejected for the reasons expressed in paragraphs 16, 17, 24, 25, 27 and 31 of the Decision.
9The applicant also argues that the Tribunal made a significant error of law or fact by ruling that applicant was required to attend the IE assessment even though the applicant argued the IEs were unnecessary, duplicative and “more than reasonably necessary.” Having reviewed the Decision, I am satisfied that it does not contain any such error of law or fact. The applicant made these same arguments at the hearing and they were rejected for the reasons expressed in paragraphs 25, 26, 27 and 28 of the Decision.
10The applicant also argues that the Tribunal made a significant error of law or fact by failing to find that the respondent is the author of its own prejudice because the applicant offered to attend the IEs if the question of MIG was removed and the respondent failed to agree. Alternatively, the Tribunal made a significant error of law or fact because there was no prejudice to the respondent because the “applicant’s health has remained virtually unchanged since the IE requests were made”. Having reviewed the Decision, I am satisfied that it does not contain any such errors of law or fact. The applicant made submissions regarding prejudice at the hearing, they were taken into account and rejected for the reasons expressed in paragraphs 28 and 31. As noted in the applicant’s reconsideration reply, the argument that the applicant’s health remained virtually unchanged was made at the hearing but was unsupported by sufficient evidence at the hearing and unpersuasive as an argument to support the applicant’s refusal to attend the IEs given the respondent’s s. 44 rights.
11Lastly, the applicant argues that the Tribunal made errors of fact or law in finding that the applicant put forward no reasonable explanation for her non-attendance at the two IEs and in finding that her application is barred pursuant to s. 55. Having reviewed the Decision, I am satisfied that no such errors of fact or law were made. The applicant made submissions at the hearing as to why the applicant refused to attend the IEs, they were considered and rejected for the reasons expressed in paragraphs 23, 24, 25, 26, 27, 29, 30 and 31. The weight to be given to evidence at the hearing is a matter to be determined by the Tribunal. The Tribunal found the applicant’s evidence lacking and legal arguments unpersuasive for the reasons expressed.
12I find that the applicant has not established this ground for reconsideration. The grounds for reconsideration of a Tribunal decision are limited and specific. Rule 18.2 (b) is a two-part test requiring the applicant to establish firstly, the Tribunal made an error of law or fact and secondly, the error of law or fact was significant enough that the Tribunal would likely have reached a different result had there been no error. Here because the applicant has requested reconsideration, the onus is on her to prove her grounds and she has not done so. Instead, the applicant’s submissions appear to be an attempt to reargue the case made before the adjudicator in a new way. A reconsideration is not an opportunity to reargue one’s case or an appeal.
ORDER
13For the reasons noted above, I deny the Applicant's Request for Reconsideration.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: August 5, 2020
Footnotes
- L.D. v. Gore Mutual Insurance Company, 2020 CanLII 35471 (ON LAT).
- 18-003314/AABS v. Wawanesa, 2019 CanLII 101644 (ON LAT-Reconsideration) at para 13.