Tim Binet v. Liberty Mutual Insurance Company, 2021 CanLII 127459

RECONSIDERATION DECISION

Before: Avril A. Farlam, Vice Chair

Date of Order: 12/09/2021

Tribunal File Number: 20-001886/AABS

Case Name: Tim Binet v. Liberty Mutual Insurance Company

Written Submissions by:

For the Applicant: Nick De Koning, Counsel

For the Respondent: Jonathan A. Schwartzman, Counsel

BACKGROUND

1This request for reconsideration was filed by Tim Binet (“applicant”). It arises out of a July 9, 2021 decision (“Decision”) in which I found the applicant is not entitled to income replacement benefits (“IRB”) in the amount of $400.00 per week, or in any other amount, for the period in dispute, not entitled to the disputed treatment plan, made no award and no interest is payable from Liberty Mutual Insurance Company (“respondent”).

RESULT

2The applicant’s request for reconsideration is dismissed. The applicant’s request to make further submissions is denied. The respondent’s request for costs is dismissed.

ANALYSIS

3The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019 (“Rules”). Here, the applicant makes his request under Rule 18.2 (a), which is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and Rule 18.2 (b), as amended, which is that I made an error of law or fact such that I would likely have reached a different result had the error not been made.

4Regarding ground (a), I agree with the respondent’s submission that the applicant did not specify in his initial reconsideration submissions how he perceives that I acted outside the jurisdiction of the Tribunal or violated the rules of procedural fairness. I agree with the respondent’s submission that the applicant had, and used, every opportunity to put forward all evidence, including thousands of pages of records, to call his witnesses and make all arguments.

5In his reply submissions the applicant submits that I misapprehended the qualifications and evidence of Dr. Gouws, applicant’s psychologist, and rejected his evidence “out of hand”.

6Regarding ground (b), the applicant submits that I made significant errors of law and fact such that I would have reached a different decision. Specifically, the applicant submits that I erred in:

a. Concluding that Dr. Gouws’ evidence should be given no weight, particularly on the basis that Dr. Gouws allegedly had “no qualifications” as a vocational assessor.

b. Suggesting in paragraph 31 of the Decision that if no psychological impairment emerged until after the disc herniation event of October, 2017, same could not be causally related to the accident of July 11, 2017.

c. Giving little weight or insufficient weight to the opinion of Dr. Surla, allegedly on the basis that Dr. Surla “deferred” to the insurer’s expert Dr. Jaroszynski, when Dr. Surla did not do so and, at most, was equivocal on that point.

d. Stating that the applicant’s impairments were not causally related to the accident of July 11, 2017.

e. By failing to take into account that the applicant’s soft tissue injuries from the original July 11, 2017 accident simply had not healed as of the disc herniation incident in October 2017, and had not healed as of the time of Dr. Surla’s assessment on November 16, 2019.

7The respondent submits that the request for reconsideration be dismissed and requests costs under Rule 19.1 of the Rules in the amount of $1,000.00.

a. Tribunal Acted Outside its Jurisdiction or Violated the Rules of Procedural Fairness

8In his reply submissions the applicant submits that the “…misapprehension about Dr. Gouws unfortunately appears to have colored the Adjudicator’s reception of all his evidence and led her to reject it out of hand. This is…both a serious error of fact and a breach of procedural fairness.”¹

9Having reviewed the Decision, I find that it is clear that I did not misapprehend the qualifications or evidence of Dr. Gouws or reject his evidence “out of hand”. My mandate at the hearing was to consider the evidence, in totality, weigh it and render a Decision with reasons. My finding on the totality of the evidence is set out in paragraph 17 of the Decision. I considered the evidence of Dr. Gouws, including his testimony, his report and his statement of qualifications, all of which were before me, and found Dr. Gouws’ evidence to be not persuasive for the reasons set out in paragraphs 30, 31, 32, 33, 34, 35 and 36 of the Decision. Finding Dr. Gouws’ evidence to be not persuasive, when taken in totality with other evidence, is not an error of fact or a breach of procedural fairness. Dissatisfaction with the Decision is not grounds for reconsideration.

10Here, there was no evidence of Dr. Gouws that was missing like in the 16-004445² case nor did I rely on evidence that the parties had agreed would not form part of the record as in the T.H.³ case that the applicant cites in reply.

11The applicant’s argument that there was no competing expert opinion to compare and contrast with Dr. Gouw’s report was made at the hearing and not accepted as set out in paragraph 33 of the Decision. As the Tribunal has said before, it is open to the Tribunal to accept or reject the evidence before it, regardless of whether there is expert evidence to the contrary.⁴

12Accordingly, I find that the applicant has failed to demonstrate that I acted outside of the Tribunal’s jurisdiction or violated the rules of procedural fairness.

b. Error of Law or Fact Such that the Tribunal Would Likely have Reached a Different Result had the Error not been Made

13I have reviewed the Decision and I find no errors of law or fact in the Decision, including any errors of law or fact such that I would likely have reached a different result had the error not been made. Generally, the applicant’s submissions are an attempt to reargue the case in order to convince me to arrive at a different Decision based on the same arguments that were made at the hearing, considered and rejected.

14I made no errors of law or fact in concluding that Dr. Gouws’ evidence should be given no weight. I did not make this finding, as the applicant submits, “…particularly on the basis that Dr. Gouws allegedly had “no qualifications” as a vocational assessor”.⁵ I found Dr. Gouws evidence to be not persuasive for the reasons set out in paragraphs 30-36 of the Decision. The four most important reasons why I found the evidence of Dr. Gouws not to be persuasive are set out in paragraph 31 of the Decision.

15An additional reason given in paragraph 32 of the Decision is that Dr. Gouws admitted in his testimony that he has no qualifications as a vocational assessor, which is my summary of a statement Dr. Gouws made during his cross-examination. I understood Dr. Gouws to admit that he does not hold a voluntary industry designation. The applicant agrees Dr. Gouws made this admission.⁶ In considering Dr. Gouws’ evidence, I was aware of his experience and other qualifications as set out in his statement of qualifications and report and explained at some length in his testimony.

16Even if I had been mistaken as to Dr. Gouws’ qualifications and experience, which I was not, this would not have constituted an error of law or fact such that I would likely have reached a different result had the error not been made given the other reasons I did not find Dr. Gouws evidence to be persuasive as set out in paragraphs 30-36 of the Decision. The vocational evidence of Dr. Gouws was given no weight for the reasons set out in paragraph 38 of the Decision. I took into account that Dr. Gouws qualifications as a vocational assessor which was a lack of voluntary industry designation but more importantly, found that the applicant had returned to work by October 11, 2017 and it was the injuries resulting from the disc herniation, not the accident, that have led the applicant to conclude that he cannot work at his pre-accident employment. The analysis of the evidence leading to this conclusion is set out in paragraphs 18--39 of the Decision.

17I made no errors of law or fact in paragraph 31 or elsewhere in the Decision regarding causation or in giving little weight to the opinion of Dr. Surla. On the evidentiary record before me, it was open to me to make these findings and the other factual findings I made. I made these findings after full and fair consideration of the evidentiary record before me and after fully and fairly considering the applicant’s submissions on the legal test for causation made at the hearing as set out in paragraphs 33--37 of the Decision. It is not necessary for an adjudicator to set out all arguments, case law and legal references considered in the Decision.

18I made no errors of law or fact by “failing to take into account” the applicant’s position at the hearing that the applicant’s soft tissue injuries from the original July 11, 2017 accident had not healed as of the disc herniation incident in October 2017, and had not healed as of the time of Dr. Surla’s assessment on November 16, 2019. This was fully taken into account and addressed in paragraphs 17, 18, 20-22, 26, 28, 29, 35, 38, 39, 44 and 45 of the Decision.

Applicant’s Request to Make Further Submissions

19In the applicant’s initial reconsideration submissions dated July 30, 2021, the applicant requests “…an opportunity for more fulsome submissions on these points once the transcripts of the evidence of Drs. Gouws and Surla are available”.

20The respondent objects to this request because the applicant wrote to the Tribunal on July 31, 2021 and asked for special dispensation to make additional submissions and to use the transcripts. The respondent objected by letter to the Tribunal dated August 3, 2021. The Tribunal responded by letter dated August 3, 2021 in which Vice Chair Boyce acknowledged receipt of the applicant’s submissions but did not grant permission for the applicant to either make additional submissions or file the transcripts. Instead, the Tribunal set a timetable for the respondent’s responding submissions and the applicant’s reply submissions. Despite this, the applicant went ahead and on September 1, 2021, two days before the respondent’s submissions were due, unilaterally sent additional submissions to the Tribunal, referenced the transcripts and filed the transcripts. The respondent objects on the basis that this is “case splitting” which the Tribunal has said before can be unfair.⁷

21I decline to grant the applicant an opportunity to make “more fulsome submissions once the transcripts of the evidence of Drs. Gouws and Surla are available”.

22Under Rule 18.1(a) of the Rules, within 21 days of the date of the Decision, the party requesting reconsideration must put forward “all submissions in support of the request for reconsideration and must specify the applicable criteria under Rule 18.2.” If either party required transcripts from the hearing to assist them in making reconsideration submissions, it had time to obtain them after the Decision was released. Transcripts of evidence can be obtained on an expedited basis.

23I find that the applicant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. Reconsideration 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.

24In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant requested reconsideration, the onus is on the applicant to establish his grounds and he has not done so. Instead, the applicant’s submissions focus on many of the same arguments made at the hearing. A reconsideration is not an opportunity to reargue one’s case or an appeal.

Costs Requested by Respondent

25The respondent requests costs in the amount of $1,000.00 under Rule 19.1 of the Rules because the applicant is attempting to re-litigate the issues addressed in the hearing and Decision, including by now trying to force before the Tribunal transcripts and made additional submissions despite having asked for and not been given permission from the Tribunal to do so. The respondent submits the actions of the applicant are both unreasonable and vexatious within the meaning of Rule 19.1.

26Rule 19.1 of the Tribunal’s Rules provides that where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may request costs from the Tribunal.

27While unilaterally filing material with the Tribunal on a reconsideration, especially in circumstances where permission was requested and not granted, is not to be taken lightly, in this particular case I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19. No costs are awarded to the respondent.

CONCLUSION AND ORDER

28For the reasons noted above, I dismiss the applicant’s request for reconsideration of my Decision, deny the applicant’s request to make further submissions and the respondent’s request for costs.

Avril A. Farlam

Vice Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Applicants Request for Reconsideration-Brief Reply Submission of Applicant dated September 10, 2021, para 9.
2. 2Aviva Canada v. R.R., 16-004445, para 24 (Exec. Chair Reconsideration) (ONLAT).
3. 3T.H. v. Allstate, 19-004567, December 30, 2020 (Reconsideration) (ONLAT).
4. 4See for example: 17-001552 v. TD Insurance Meloche Monnex, 2018 CanLII 141026, para 26 (ONLAT).
5. 5Request for Reconsideration Submissions of Applicant dated July 30, 2021, para 5(i).
6. 6Request for Reconsideration Submissions of Applicant dated July 30, 2021, para 7.
7. 718-004462 v. Wawanesa Mutual Insurance Company, 2019 at paras. 14-16 (ON LAT).```