RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
File: 19-003443/AABS
Case Name: V.E. vs. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Aminder Hayher, Counsel
For the Respondent: Michael Silver, Counsel
OVERVIEW
1V.E. (“applicant”) filed this Request for Reconsideration. It arises out of a decision in which I found the applicant sustained minor injuries as defined by the Schedule and as a result was not entitled to the disputed treatment plans because they proposed treatment outside that provided for in the Minor Injury Guideline (“MIG”).
2The applicant makes this request under Rule 18.2(a) and (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017 (“LAT Rules”). The applicant submits that I acted outside my jurisdiction and violated the rules of procedural fairness by allowing the s. 44 reports of Dr. Oshidari and Dr. Nikkhou into evidence and by not allowing the applicant’s affidavit into evidence. The applicant also submits that I made significant errors of law and fact in ruling that the applicant’s injuries are within the MIG and that the applicant is not entitled to the two treatment plans in dispute.
3In response, TD Insurance Meloche Monnex (“respondent”) submits that my decision is correct and there is no basis for reconsideration. The respondent requests costs.
RESULT
4The applicant’s request for reconsideration is dismissed. No costs to respondent.
ANALYSIS
5I find that I did not act outside my jurisdiction or violate the rules of procedural fairness by allowing the s. 44 reports of Dr. Oshidari and Dr. Nikkhou into evidence. I made a factual finding based on the evidence before me that these reports had been produced to the applicant on two occasions. It was open to me to do so on the record before me.
6I find that I did not act outside my jurisdiction or violate the rules of procedural fairness by not allowing the applicant’s affidavit into evidence. The Tribunal’s September 23, 2019 case conference Order, made on consent of both parties, provided that no affidavits will be submitted as evidence at the hearing. In clear breach of this Order, the applicant submitted his affidavit sworn December 16, 2019. The applicant’s affidavit was excluded on this and other grounds set out in paragraph 9 of my decision. It was open to me to do so on the record before me. Further, in the process of ruling on the admissibility of the applicant’s affidavit, I reviewed it and found it contained arguments about the reports of Drs. Oshidari and Nikkhou rather than evidence, as set out in paragraph 9 of the decision. In the end, my decision does not turn on the evidence of Drs. Oshidari and Nikkhou but rather the applicant’s lack of persuasive evidence that he should be removed from the MIG.
7I find no error of law or fact in my analysis of the applicant’s injuries and the application of the funding limit of the MIG.
8I applied the correct test in determining that the applicant sustained minor injuries. All of the evidence and submissions were reviewed and I found no persuasive evidence that the applicant sustained a psychological injury which would remove him from the MIG. This finding was reached after a thorough review of the applicant’s evidence. I weighed his evidence and found on a balance of probabilities that it was not persuasive evidence of a psychological injury which would warrant the applicant’s removal from the MIG. In my analysis of the applicant’s evidence I found no persuasive evidence of a chronic pain condition which would preclude his recovery with the MIG.
9The applicant’s argument that the treatment plans are reasonable and necessary fails to recognize the application of the MIG and the funding limit on medical and rehabilitation benefits. It was unnecessary for me to analyze whether the treatment plans are reasonable and necessary because I found the applicant’s injuries to be minor and subject to the MIG funding limit. The treatment plans propose treatment outside the MIG funding limit. At the hearing, the applicant failed to prove his injuries were not minor and as a result has no entitlement to treatment outside the MIG.
10I find that the applicant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant has requested reconsideration, the onus is on the applicant to prove his grounds and he has not done so. Instead, the applicant’s submissions appear to be an attempt to reargue the case in a new way. A reconsideration is not an opportunity to reargue one’s case or an appeal.
11The respondent requests costs. This request is denied. 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 of the Safety, Licencing Appeals & Standards Tribunal Ontario Common Rules of Practice & Procedure, October 2, 2017. No costs are awarded to the respondent.
CONCLUSION
12For the reasons noted above, I dismiss the applicant’s request for reconsideration. No costs to the respondent.
Avril A. Farlam
Vice Chair
Released: January 5, 2021