Sidiura v. Aviva General Insurance, 2021 CanLII 100863

RECONSIDERATION DECISION

Before: Kimberly Parish, Adjudicator

Date of Order: 15/10/2021

Tribunal File Number: 19-014095/AABS

Case Name: Jasmine Sidiura vs. Aviva General Insurance

Written Submissions by:

For the Applicant: Darcie Sherman, Counsel

For the Respondent: Jessica M. Bacopulos, Counsel

OVERVIEW

1On August 4, 2021, the applicant filed a request for reconsideration of the Tribunal’s decision dated July 14, 2021, which found that the applicant was not entitled to an income replacement benefit (“IRB”), a treatment plan for physiotherapy, an award or interest.

2In her request, the applicant relies on Rule 18.2(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017 (“Tribunal Rules”), namely that:

(a) 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.

3In particular, the applicant alleges that the Tribunal failed to consider settled case law from the Tribunal and failed to apply the tests in the Schedule correctly and/or at all.

4The applicant requests the Tribunal to vary its decision to entitle the applicant to the income replacement benefit (“IRB”) and the medical benefit that were denied.

RESULT

5The applicant's request for reconsideration is denied.

ANALYSIS

6The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal Rules. A request for reconsideration will not be granted under 18.2(b) unless one or more of the following criteria are met:

(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 from a party or witness, which was discovered only after the hearing and likely affected the result; or

(d) There is 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.

7Reconsideration 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.

8More specifically, the applicant submitted that the Tribunal:

i. erred when it determined that the applicant was not entitled to income replacement benefits within 104 weeks and post-104 weeks;

ii. erred in not considering the exacerbation of the applicant’s pre-existing psychological impairments;

iii. erred in fact by considering only the evidence of Dr. F. Khan and Dr. H. Khan and failing to consider the clinical notes and records (“CNRs”) of the applicant’s other treating family doctor, Dr. M. Khan;

iv. erred in not including the evidence and diagnosis contained within Dr. Karmy’s Chronic Pain Assessment Report;

v. erred in fact when reaching the determination that the TD Bank employment file failed to confirm that her termination was because of impairments sustained from the accident, causing a substantial inability to perform her pre-accident job duties; and

vi. erred in determining the applicant is not entitled to the claimed medical benefit for physiotherapy treatment.

9For issues i, ii, iv, and vi, the applicant is re-litigating the same evidence and arguments which were advanced at the hearing and reconsideration is not the avenue for this.

10Regarding issue iii, the applicant submits that the Tribunal erred in fact by considering only the evidence of Dr. F. Khan and Dr. H. Khan and failed to consider the CNRs of one of the applicant’s treating family doctor’s, Dr. M. Khan. The applicant submits that Dr. M. Khan diagnosed the applicant in February 2018 with PTSD, depression, anxiety, anhedonia, and noted that she struggled to sit for more than one hour.

11An adjudicator is not required to refer to every piece of evidence or every argument put forward by a party when reaching a determination on the disputed issues. Jurisprudence from the Tribunal further establishes this. The following cases were referenced by the respondent. In G.I. v. The Guarantee Company of North America¹ which notes an adjudicator is not required to cite every piece of evidence filed during a hearing, and failure to do so will not entitle a party to a reconsideration. E.M. v. The Guarantee Company of North America² notes the “alleged failure” to explicitly refer to all evidence does not equate to a significant error of law that would have changed the decision outcome.

12Further, I disagree with the applicant that the Tribunal only considered the evidence of Dr. F. Khan and Dr. H. Khan. Paragraphs 9 -13 of the Tribunal’s decision address the evidence reviewed and considered.

13Regarding issue v, the applicant submits the Tribunal made an error of fact when reaching the determination that the TD Bank employment file failed to confirm that her termination was the result of impairments sustained from the accident, causing a substantial inability to perform her pre-accident job duties. The applicant submits this finding is prejudicial and unfair to the applicant as it would be unlikely an employer would report that an employee was terminated because of an injury or disability.

14I find the applicant has misconstrued my finding relating to this piece of evidence. The Tribunal’s decision notes the reasons why the TD Bank employment file and the March 2020 termination letter from TD Bank were not persuasive and the evidence which was preferred. Therefore, the applicant has not established that such an error was reached, or that a different conclusion would have been reached because of my analysis and weighing of the evidence in relation to the TD employment file. While the applicant may disagree with my finding, this is not grounds for a reconsideration.

New evidence submitted by applicant for reconsideration

15The applicant correctly references that the Tribunal drew an adverse inference in its decision because a copy of the employment file from the applicant’s pre-accident employer, Loblaws, was not produced for the hearing. The applicant’s reconsideration submissions note that the employment file was requested from Loblaws, but that the applicant was unsuccessful in retrieving it. With her reconsideration submissions, the applicant included attachments of the email correspondence outlining the requests made for the employment file for the period from November 24, 2017 to August 3, 2021. The respondent submits that the correspondence emails from the applicant to Loblaws requesting the employment file are new evidence which was not before the Tribunal when it rendered its decision and that this is the first time these requests were produced to the respondent.

16I find this is new evidence, not previously before the Tribunal. I do not accept that these arguments and evidence could not have been made at the hearing. Much of the email correspondence received by the applicant existed prior to the submission deadline for the written hearing. As such, these arguments and evidence cannot be considered as part of the reconsideration.

17In her reconsideration submissions, the applicant relies on two Tribunal decisions which had not been submitted for the original hearing. The applicant relies on 16-002000 v. Jevco Insurance Company³ in which the adjudicator determined that the applicant’s post-accident employment did not preclude the applicant from qualifying for a post-104 week income replacement benefit and that the applicant in that case did meet the complete disability test for entitlement to income replacement benefits. The other Tribunal decision, 16-000082 v. Echelon General Insurance Company⁴ notes the adjudicator accepted that the applicant satisfied the complete inability test for post-104-week income replacement benefits because of the applicant’s many failed attempts to find and retain employment.

18The applicant provided no explanation as to why these decisions were not produced for the hearing. The applicant argues through her reconsideration submissions that the applicant’s physical and psychological impairments interfered with her return to work and were a barrier to her employment and as such, she is entitled to post-104-week income replacement benefits. I disagree and provided the reasons for denying entitlement to post-104-week IRBs. Further, I am not bound by other Tribunal decisions.

CONCLUSION

19For the reasons noted above, I find the applicant has attempted to re-litigate her case through the reconsideration process. The applicant has not demonstrated an error of fact or law was made pursuant to Rule 18.2(b) of the Tribunal Rules.

20The applicant's request for reconsideration is denied.

Kimberly Parish

Adjudicator

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1G.I. v. The Guarantee Company of North America, 2010 CanLII 1561284 (ONLAT), para 16.
2. 2E.M. v. The Guarantee Company of North America, 2020 CanLII 12763 (ONLAT), para 18.
3. 316-002000 v. Jevco Insurance Company, 2017 CanLII 63616 (ONLAT).
4. 416-000082 v Echelon General Insurance Company, 2016 CanLII 82874 (ONLAT).