RECONSIDERATION DECISION
W.A. vs. Aviva General Insurance, 2020 ONLAT 19-000287/AABS
Before: Avril A. Farlam, Vice Chair
File: 19-000287/AABS
Case Name: W.A. vs. Aviva General Insurance
Written Submissions by:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Kristofer B. Angle, Counsel
OVERVIEW
1[W.A.] (“applicant”) asks for a reconsideration of the Tribunal’s Decision released on April 1, 2020 (“Decision”) in which the applicant’s claim for income replacement benefits in the amount of $162.20 per week from March 22, 2017 to July 26, 2017 and from January 31, 2018 to January 14, 2019 (“IRB”) and interest was denied.
2The applicant submits that I acted outside the Tribunal’s jurisdiction or violated the rules of natural justice or procedural fairness, errors of law and fact were made and there is new evidence. The applicant seeks an Order varying the Decision or alternatively, a rehearing. Aviva General Insurance (“respondent”) asks that the reconsideration be dismissed.
Applicant’s Reconsideration Request Made Under Outdated Rule 18
3As a preliminary observation, I note the applicant made his reconsideration request based on Rule 18.2 (a), (b) and (d) as it was before Rule 18 was amended February 7, 2019. Rule 18.5 provides that Rule 18, as amended, applies to any reconsideration of a decision issued after February 7, 2019. The Decision was released April 1, 2020 and therefore, this reconsideration is governed by Rule 18, as amended.
4Although neither party made submissions on this error, I am of the view that the failure of the applicant to request reconsideration under the current Rule 18 should not be fatal to his reconsideration request. The wording of Rule 18 was amended on February 7, 2019. However, the difference in wording is not great. In order to avoid putting the applicant to the expense and delay of re-filing the reconsideration request under amended Rule 18 and putting the respondent to the expense and delay of re-filing its response, pursuant to Rule 3.1(a) and (b) of the Rules, I am allowing the applicant’s reconsideration request to proceed.
5I find that allowing the applicant’s reconsideration request to proceed is necessary to facilitate a fair, open and accessible process and to allow effective participation by both parties and to ensure an efficient, proportional and timely resolution of the reconsideration proceeding. I will consider the applicant’s ground for reconsideration under Rule 18.2 (b) and (d) pre-amendment to have been made under Rule 18.2 (b) and (d) post-amendment, and will re-state the applicant’s grounds under amended Rule 18 for clarity.
6The Applicant submits that in the Decision I:
(a) acted outside its jurisdiction or violated the rules of procedural fairness; and
(b) made an error of law or fact such that I would likely have reached a different decision had the error not been made.
(d) There is evidence that was not before me when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
RESULT
7The Applicant's Request for Reconsideration is dismissed.
ANALYSIS
8The 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 Rule 18.2 (a), (b) and (d) as set out above.
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 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…”.1
(a) Jurisdiction and Procedural Fairness
10The applicant submits that I acted outside the Tribunal’s jurisdiction or violated the rules of natural justice or procedural fairness due to apprehension of bias toward the applicant.
11As the applicant correctly stated in his reconsideration submissions, the test used to assess whether a reasonable apprehension of bias exists was set out by the Supreme Court of Canada in Commission for Justice and Liberty v. National Energy Board2 as follows:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not [the decision-maker], whether consciously or unconsciously would not decide the matter fairly?
12However, the Ontario Court of Appeal in Ontario Provincial Police v. MacDonald3 wrote “There is one final, essential element that informs this analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one.”
13It is well established that the presumption of impartiality and integrity applies to administrative decision makers such as this Tribunal.4
14The basis of the applicant’s argument is first, that I unreasonably failed to consider the medical evidence submitted by both parties; second, that I unreasonably commented and considered the fact that there was no affidavit evidence despite the Tribunal’s case conference Order that the parties shall not submit affidavits; and finally that I failed to provide sufficient reasons as to why the information provided in the OCF-2 by the employer was not considered as sufficient evidence regarding the applicant’s essential tasks given that these tasks were accepted in the respondent’s submissions.
15Having reviewed the Decision, I am satisfied that the totality of the medical evidence was considered as set out in paragraphs 6, 9, 14, 16 and 17 of the Decision and reached reasonable conclusions based on the evidence as a whole including the credibility problems inherent in the evidence. Clearly, the totality of the evidence was reviewed to identify the serious inconsistencies referred to in paragraph 18 of the Decision. I am not required to refer to every piece of evidence in the Decision.5
16Having reviewed the Decision I am also satisfied that I did not unreasonably comment on or consider the fact that there was no affidavit evidence despite the Tribunal’s case conference Order that the parties shall not submit affidavits. It is not unfair or unreasonable for me to comment on what evidence is before me in my Decision. I made my decision after considering all the evidence provided. If the applicant wished to submit affidavits for the hearing, then an adjournment of the hearing could be been requested for more time to do so and a motion could have been brought to vary the Tribunal’s May 7, 2019 case conference Order which provided no affidavits would be filed, based on the agreement of both parties.
17It is open to me to weigh the evidence. I did this and the applicant’s evidence including the OCF-2 was found lacking for the reasons expressed in paragraphs 19, 20, 21 and 22 of the Decision.
18I was entitled to make these rulings and gave reasons for doing so. I find that none of this exhibited a reasonable apprehension of bias on my part.
19I am not satisfied that the applicant has met the onus of establishing that I acted outside the Tribunal’s jurisdiction or violated the rules of natural justice or procedural fairness due to apprehension of bias.
20I find that the applicant has not established this ground for reconsideration.
(b) Error of Law or Fact Such that the Tribunal Would Likely have Reached a Different Result had the Error not been Made
21The applicant submits that I made an error of fact or law in concluding in paragraph 18 of the Decision that inconsistencies left me without reliable evidence.
22The applicant’s various documents contain inconsistencies as to the particulars of the accident, applicant’s name, address, date of birth and injuries. This evidence was found to be lacking for the reasons expressed in paragraphs 14, 15, 17 leading to the conclusion in paragraph 18. In the Decision there is explanation of why findings of fact were made and conclusions reached. I find no misapprehension of the evidence or errors of law or fact were made.
23The weight to be given to evidence at the hearing is a matter to be determined by the adjudicator. I found the applicant’s evidence lacking and provided reasons for doing so.
24The applicant also submits that I made an error of fact or law in failing in “its obligation to provide consumer protection in the adjudicative process (sic)” given that the Insurance Act has been recognized as consumer protection legislation.6
25Although the legislation has been recognized as consumer protection legislation, here the applicant did not meet the test for IRB set out in paragraphs 11, 12 and 13 of the Decision for the reasons set out in the Decision. That conclusion is reasonable based on the record before me at the hearing and does not constitute an error of law or fact that likely would have caused me to reach a different decision.
26The applicant also argues again that their medical evidence was not reviewed or considered. Again, clearly, the totality of the evidence was reviewed to identify the serious inconsistencies referred to in paragraphs 18 and 19 of the Decision. Again, I am not required to refer to and list every piece of evidence or submission in the Decision as argued in the applicant’s reconsideration submissions.
27I find that the applicant has not established this ground for reconsideration. The applicant’s submissions appear to be an attempt to reargue the case. A reconsideration is not an opportunity to reargue one’s case or an appeal.
(d) Evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
28The applicant seeks to now submit as “new evidence” the applicant’s April 16, 2020 affidavit setting out the essential tasks of, earnings from and circumstances of his employment and an April 16, 2020 affidavit of Rami Islan, the applicant’s employer, setting out the essential tasks of the applicant’s employment, difficulties experienced at work because of his injuries, dates of employment and rate of pay.
29It appears that all of this evidence existed and could have been obtained prior to the hearing. Again, if the applicant required this evidence for the hearing then an adjournment of the hearing should have been requested for more time to obtain this information and a motion could have been brought to vary the Tribunal’s Order which provided no affidavits would be filed, based on the agreement of both parties. A request for reconsideration is not to be used by a party as an opportunity to try and bolster their case, after the outcome of the hearing is known, with evidence which could have reasonably been obtained before the hearing.
30The applicant submits that because at paragraph 19 of the Decision I “unfairly noted” that there was no affidavit evidence, it is reasonable to assume that this was part of the reasoning for finding against the claim for IRB. Having reviewed the evidence and my Decision, it is clear that the applicant failed to establish with consistent and reliable evidence the accident-injuries, the essential tasks of his employment and a substantial inability to complete these tasks. It is well established law that to succeed on an IRB claim the applicant must establish the accident-injuries and also the essential tasks of his employment, as well as a substantial inability to complete these tasks.
31Even if the applicant had brought forward the affidavit evidence he now seeks to introduce, it is unlikely to have affected the result in the Decision for two reasons. Firstly, because most of this information was already before the Tribunal as set out in paragraphs 5 and 6 of the Decision. Secondly, because the evidence put forward by the applicant about the accident and his alleged injuries contained significant discrepancies leading to credibility issues and resulting in a finding that the applicant’s evidence is inconsistent and unreliable as set out in paragraphs 14, 15, 16, 17, and 18 of the Decision. These discrepancies are not affected by the contents of the affidavits. Further, these discrepancies go to the heart of the matter, specifically whether the applicant satisfied his burden of proof and established the essential elements of his IRB claim. At the hearing the applicant did not persuade me that he met the test for IRB, which was his onus.
32I find that the applicant has not established this ground for reconsideration.
ORDER
33For the reasons noted above, I dismiss the Applicant's Request for Reconsideration.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: November 10, 2020
Footnotes
- 18-003314/AABS v. Wawanesa, 2019 CanLII 101644 (ON LAT-Reconsideration) at para 13.
- 1976 CanLII 2 (SCC).
- Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (C.A.).
- 17-000502 v. RSA Insurance, 2019 CanLII 22212 (ON LAT) para. 16, citing Raba v. Criminal Injuries Compensation Board, 2015 ONSC 5893 (Div. Ct.); Terceira v. Labourers International Union of North America, 2014 ONCA 839; Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856; Sigesmund v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 27325 (Div. Ct.).
- Cowles v. Balac, 2006 CanLII 34916 (ON CA), [2006], 83 O.R. (3d) 660 (ONCA).
- Smith v. Co-operators General Insurance Company 2002 SCC 30, [2002] 2 S.C.R. 129 (S.C.C.).