RECONSIDERATION DECISION
Before: Monica Chakravarti
Licence Appeal Tribunal File Number: 19-003441/AABS
Case Name: [D. R.] v. The Co-operators
Written Submissions by:
For the Applicant: Rajwant Singh Bamel, Counsel
For the Respondent: Emily Schatzker, Counsel
BACKGROUND
1In a decision dated November 26, 2020 (the “Decision”), the Tribunal found the applicant sustained predominantly minor injuries and the applicant was therefore not entitled to any further medical benefits as the monetary limits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (O. Reg. 34/10) and the Minor Injury Guideline (MIG) were exhausted. Accordingly, neither interest nor an award were granted. Both parties request reconsideration of the Decision.
2The applicant requests a reconsideration on the basis that there is new evidence that could not have reasonably been obtained earlier and would have affected the result. Specifically, the applicant submits that there is a report from a chronic pain specialist along with an MRI that was not provided during the hearing. Thus, the applicant seeks a variation of the Decision or a rehearing on the issues in dispute at the hearing. The applicant also seeks an order for costs against the respondent.
3In response to the applicant’s request for reconsideration, the respondent submits that the applicant’s request does not satisfy the grounds for reconsideration or, in the alternative, that the reconsideration should form part of a decision in another, related Tribunal matter between the parties to avoid inconsistent results. Further, the respondent also requests reconsideration as the Tribunal did not provide its reasons or consider its request for costs made during the hearing. The respondent requests a variation of the Decision to address the costs issue.
RESULT
4The applicant’s request for reconsideration is dismissed. The respondent’s request for an alternative relief to the applicant’s reconsideration (i.e. to combine the matters) is also not granted as the primary relief of reconsideration sought by the applicant was considered and reasons are provided. With respect to the respondent request for a reconsideration to address the issue of costs that were not addressed in the Decision, the respondent’s request for reconsideration is granted.
ANALYSIS
5The grounds for the request of reconsideration are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice & Procedure (Version I), October 2, 2017 (“Rules”), as amended. The applicant relies on Rule 18.2 (d), which is that there is new evidence that could not have reasonably been obtained earlier and would have affected the result of the Decision.
6The new evidence that the applicant submits is the chronic pain consultation report dated October 8, 2020 by Dr. Dimitri Louvish. As explained below, this is a report requested pursuant to a treatment plan dated September 12, 2020 thus this report was done at the behest of the applicant outside of the OHIP funded system.
7Further following the chronic pain report, an MRI was done on December 9, 2020, with the consequential report dated December 11, 2020 by Dr. William Hsu. Again, explained below, this was also not done through OHIP but at the behest of the applicant.
8The applicant submits that the chronic pain report by Dr. Louvish provides a formal diagnosis of chronic pain syndrome that would remove the applicant from the confines of the MIG and would place his accident-related injuries outside of the Schedule’s definition of “minor injury”. The applicant submits that the MRI shows a pre-existing condition that would have also removed the applicant from the MIG.
9Rule 18.2 (d) contains two parts. First, the applicant must show that the new evidence could not have reasonably been obtained earlier (emphasis added) and that the new evidence would have affected the result.
10The applicant does not provide any evidence or submissions in its reconsideration request to show that the new evidence could not have reasonably been obtained sooner. The respondent submits, and I agree, this new chronic pain report of Dr. Louvish is done pursuant to the Schedule as a treatment plan was provided for the assessment therefore it is an assessment that is done at the behest of the applicant. Further the Tribunal’s Order of November 5, 20201 lists the issue of entitlement to a chronic pain assessment by Dr. Louvish as an issue in dispute, thus confirming that this chronic pain report is being requested by the applicant pursuant to the Schedule.
11It was reasonable for the applicant to obtain this type of assessment and report prior to the hearing or, in the alternative, to seek an adjournment or a stay of the hearing to have the reports done prior to the Decision and to have them put before the hearing adjudicator before the Decision was released. The applicant did not do any of this.
12I am persuaded by the Tribunal’s reconsideration decision of H.T. v T.D Insurance2 wherein the applicant requested Executive Chair Lamoureux to reconsider a decision on the basis of a chronic pain assessment and a treatment and assessment plan that the applicant obtained after the hearing and the decision was rendered. In denying the request for reconsideration, the Executive Chair held:
While both documents were created after the Tribunal’s decision was released, H.T. has not explained why he could not have reasonably obtained additional medical documentation prior to the hearing. Parties at the Tribunal are expected to provide the Tribunal with all of the evidence that they intend to rely on to prove their case. The reconsideration process is not intended to be an opportunity for parties to fill in the evidentiary gaps that could have been addressed at the hearing. Therefore, the requirement of Rule 18.1(d) is not met.
13As stated earlier, Rule 18.2(d) requires the applicant to show that this new evidence could not have been reasonably obtained earlier. The applicant has not met his burden and I decline to admit Dr. Louvish’s report.
14As for the MRI report, the applicant also relies on Rule 18.2(d) as new evidence that would likely have affected the result and, therefore, ought to be considered in granting the reconsideration.
15The applicant submits that the MRI was done based on the recommendations by Dr. Louvish; however, the MRI is requisitioned by Dr. Domenic Minella. Further, the respondent submits, and I agree, that the MRI was done privately, as the requisition is not made by the applicant’s family doctor, Dr. Magee (the respondent’s reconsideration submissions note that Dr. Magee is confirmed as the family doctor), nor was it requisitioned by Dr. Louvish. Further the request for funding of the MRI is also part of the subsequent matter at the Tribunal, which again confirms that the MRI is requested report is being requested by the applicant pursuant to the Schedule.
16Again, I am persuaded by the reconsideration decision of H.T v T.D. Insurance that the reconsideration process is not intended to be an opportunity for parties to fill in the evidentiary gaps that could have been addressed at the hearing. Thus, as the applicant has failed to meet his onus that this new MRI could not have been reasonably obtained prior to the hearing and the Decision being rendered, the requirement under Rule 18.2(d) is not met and I decline to admit the MRI report.
17With regards to the respondent’s alternative relief, i.e. whether to combine this reconsideration with the other, related Tribunal matter between the parties, as I have already provided reasons and a decision regarding the primary relief sought by the applicant, I need not consider the alternative relief.
18Further, the applicant as well has not consented nor provided his position with respect to combining the reconsideration with the subsequent application he brought before the Tribunal and thus it would be procedurally unfair to combine the applicant’s subsequent appeal with this reconsideration without hearing submissions from the applicant and/or obtaining his consent.
Applicant’s Request for Costs
19In his reconsideration submissions, the applicant requested costs against the respondent. The applicant provides no submission or evidence of the respondent acting unreasonably, frivolously, vexatiously, or in bad faith thus there can be no award of costs.
Respondent’s Request for Reconsideration
20The respondent requests reconsideration regarding the costs issue that it raised at the hearing, but the Tribunal did not address it in its Decision.
21I agree with the respondent. Although the respondent requested costs in the hearing, the adjudicator did not provide a finding or reasons with respect to the respondent’s request, thus the Tribunal violated the rules of procedural fairness.
22To remedy the above, however, I will consider the parties’ hearing submissions on costs and provide reasons at this time.
23Pursuant to Rule 19.2, a party may make a request for costs at the hearing or any time before the decision or order is released. The respondent did so in their written submissions for the hearing.
24Costs are awarded in rare circumstances and, pursuant to Rule 19.1, where a party’s conduct is unreasonable, frivolous, vexatious or in bad faith. Costs are not awarded as a matter of course to a successful party.
25Rule 19.5 lists factors that an adjudicator must consider when deciding whether to award costs: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.
26The respondent submits that costs should be awarded because the applicant brought an unmeritorious motion prior to the hearing and that motion caused a delay and unnecessary expenses and thus the applicant acted in a manner that was frivolous and abused the Tribunal’s process.
27The in-person portion of the hearing was originally scheduled for January 20, 2020 and the submissions for the written portion were to be completed by March 9, 2020. The applicant brought a motion to change the format of the hearing and to add additional witnesses to the hearing. The motion was heard on February 3, 2020 and the basis for the relief sought by the applicant was as follows:
“The applicant now requests an in-person hearing, instead of the combination format as set out in the Tribunal order. In short, the applicant’s arguments are: he received an investigation report from Larrek Investigations on December 11, 2019; the investigation was requested by the respondent after the case conference took place; as this report is new evidence, it warrants reconsideration of the Tribunal’s decision regarding a combination hearing in favor of an in-person hearing…”3
28The Tribunal dismissed the motion as it was not persuaded that the investigation report of Larrek Investigations is a material change that warranted a change of hearing format.
29In its hearing submissions, the respondent requested a costs order because the above motion was frivolous, vexation and an abuse of the Tribunal’s process as the applicant subsequently testified at the hearing that he did not have an opportunity to see the surveillance report by Larrek Investigations. Therefore, the respondent submits that there was no merit to the applicant’s motion.
30The applicant responds that his credibility was put into question through the surveillance report, and the applicant’s obligation was to bring a motion for an in-person hearing as the case law outlined in the motion material had established. Further, whether the applicant read the surveillance report at the time of his testimony at the hearing bore no weight to the legal foundation of the motion that he brought.
31I find that there is no basis for costs. I am firstly not persuaded that the respondent believed at the time of the motion that costs were necessary as the respondent did not seek costs at that time. As noted in the motion order of February 3, 2020 the respondent took the position that the applicant filed its motion only days before the originally scheduled in person hearing and as a result of the applicant’s lateness in filing the motion the respondent showed up but the hearing did not proceed and thus the respondent incurred unnecessary costs. While the respondent could have requested costs at the motion or sought to add the issue of costs to the hearing during the motion it chose not.
32I am not also persuaded that the motion brought by the applicant was vexatious, frivolous or in bad faith as it was initially brought in response to new evidence provided by the respondent. The Tribunal subsequently ruled that there would be no change to the format of the hearing despite the surveillance report, in other words the surveillance report was going to form part of the hearing and the applicant was not entitled to call witnesses to challenge same. The respondent has not shown how the applicant in not seeing the surveillance report following his unsuccessful outcome at the motion and not seeing the surveillance report prior to the hearing rises to the level of it being an abuse of the process or prejudicial to the respondent or something that needs to be dissuaded by a costs order.
33The respondent also has not shown nor do I find that the applicant’s actions interfered with the Tribunal’s ability to carry out a fair, efficient and effective process.
34Thus, the respondent’s request for costs in the hearing is denied.
CONCLUSION
35For the reasons given above, the applicant’s request for reconsideration is denied and the respondent’s request for reconsideration is partially granted. I decline to order costs.
Monica Chakravarti
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 6, 2021
Footnotes
- Page 36-39 of the Respondent’s reconsideration submissions brief (“Respondent’s Brief”)
- 2017 CanLII 82018 (ON LAT) at para.25
- Tribunal’s motion order of February 3, 2020