Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 19-011094/AABS
Case Name: Michael Baranov v. Aviva General Insurance
Written Submissions by:
For the Applicant: Cary N. Schneider, Counsel
For the Respondent: Aryeh Samuel, Counsel
OVERVIEW
1This request for reconsideration was filed by Michael Baranov (“applicant”).
2It arises out of an October 14, 2020 decision (“Decision”) in which I found the applicant is not entitled to amount of income replacement benefits (“IRB”) claimed by the applicant but is entitled to the amount of IRB calculated by Aviva General Insurance (“respondent”) together with interest under s. 51 on any unpaid amounts. I also found that the applicant is not entitled to the balance of two disputed treatment plans or to an award. I declined to add the applicant’s request for costs as an issue at the hearing or to determine it.
3The applicant seeks a variation or cancellation of the Decision or alternatively, a rehearing on all or part of the matter to take place with a different adjudicator.
RESULT
4The applicant’s request for reconsideration is dismissed.
ANALYSIS
5The 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 & Procedure, October 2, 2017 (“Rules”), as amended. The applicant makes this request under Rule 18.2 (a) which is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and also under Rule 18.2 (b), which is that 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.
6In summary, the applicant submits that I acted outside the Tribunal’s jurisdiction, violated the rules of procedural fairness and made errors of fact and law by: a) admitting into evidence and/or unduly relying upon the respondent’s in-house accounting report; b) making mistakes in fact and law regarding source documentation; c) making a mistake in law regarding the quality of self-employed source documentation; d) making findings of fact not in evidence; e) not accepting that the applicant’s calculations are correct in law due to s. 4 (2) (3); and, f) misapplying the law regarding the hourly rate of the psychotherapist.
7The respondent submits the reconsideration request is baseless and without merit and my decision ought to stand.
8Having reviewed the Decision, I find no breach of the rules of procedural fairness to the applicant or errors of law or fact, including any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
9I find no violation of the rules of procedural fairness or errors of law or fact as submitted by the applicant in “admitting into evidence and/or unduly relying upon the respondent’s in-house accounting report.” The applicant objected at the hearing to the admission into evidence of the respondent’s report from Nyrie Telemi, a member of the respondent’s in-house accounting team, and also objected because he submitted the report had never been produced to the applicant. Both objections were heard and determined in paragraphs 16, 17 and 18 of the Decision. Reconsideration is not an opportunity to re-argue these objections.
10I also find no violation of the rules of procedural fairness or errors of law or fact as a result of “unduly relying upon the respondent’s in-house accounting report”. The respondent’s report was not “unduly” relied upon. As set out in paragraphs 19 through 37 of the Decision, the accounting evidence of both parties was reviewed, analyzed and weighed with the result that I found the applicant had failed to prove on a balance of probabilities the amount of self-employment income on which his accountant’s calculation is based. Concluding that the applicant failed to meet his onus of proof does not violate the rules of procedural fairness or constitute an error of law or fact.
11I find no errors of law or fact in the Decision regarding source documentation or the quality of the self-employed source documentation. As set out in paragraph 21 of the Decision, the applicant’s accountant expressly qualified its reports with the note that the applicant represented to his accountant that “he does not keep accounting books and records for his self-employment” and that “…all income earned from self-employment was paid to him in cash”. While the applicant’s accountant may have found the information provided by the applicant adequate for its purposes, I did not. For this and the other reasons set out in paragraphs 21, 22, 23, 24, 25 and 36 of the Decision I gave the applicant’s accounting reports little weight. A finding as to the inadequacy of evidence does not violate the rules of procedural fairness or constitute an error of law or fact.
12I find that there are no errors of law or fact arising from making findings of fact in paragraph 25 of the Decision absent evidence as argued by the applicant. No finding of fact was made absent evidence in paragraph 25. I found in paragraph 25 that the applicant’s customers “appear to be businesses in their own right”. The fact that the applicant’s customers appear to be businesses was put into evidence by the applicant who filed his accountant’s report which named the two businesses, a renovation enterprise and a window and door enterprise.
13I find no error of law or fact in not addressing the fact that the applicant had exercised his rights under s. 4 (2) (3) of the Schedule as argued by the applicant. Before me, it was not in dispute that the applicant had calculated his income based on being self-employed as set out in paragraphs 11, 12 and 19 of the Decision. The respondent accepted that the applicant was self-employed as set out in paragraph 15 of the Decision. As a result, there was no need to make a finding that the applicant had exercised his rights under s. 4 (2) (3). The legal issue before me on IRB was correctly stated in paragraph 19 of the Decision.
14The applicant is correct in his reconsideration submissions that the “the adjudicator did not rule that she was denying the applicant his absolute right of election under Section 4 (2) (3)…the adjudicator did not conclude the applicant was employed as opposed to self-employed”. Neither of these findings were made nor was it necessary to make them. Failing to accept the applicant’s evidence and submissions regarding the basis for his self-employment income calculation is not an error of law or fact. I determined the matter based on the evidence and after carefully considering the totality of the evidence. The findings that were made were open to me to make based on the record before me at the hearing.
15I find no error of fact or law regarding “misapplication of the law regarding hourly rate of psychotherapist” as submitted by the applicant. The applicant’s arguments concerning the hourly rate applicable were made at the hearing and determined as set out in paragraphs 40, 41, 42, 43, 44 and 45 of the Decision. The proposed rate for Ms. Levitas was $224.42 per hour in both disputed treatment plans before me in evidence. Even if it could be said that I misstated the hourly rate sought by the applicant, which I find is not the case, this is not a violation of the rules of procedural fairness or an error of law or fact such that I would likely have reached a different result had the error not been made. In the end, the hourly rate already approved by the respondent was determined to be reasonable for the reasons given.
16I find no error of law based on the applicant’s argument that I declined to follow J.V. v. Intact Insurance Company. The applicant made the argument at the hearing that I should follow this case, it was considered and rejected for the reasons set out in paragraph 44 of the Decision. Not accepting the applicant’s submissions at the hearing or declining to follow his case law is not an error of law. A tribunal is not bound as a matter of law to follow its own decisions.1 Further, it is not necessary for an adjudicator to expressly state every argument, piece of evidence or authority put forward.
17It was the applicant’s onus to prove his claims and it is the evidentiary failure to do so that resulted in my Decision. Dissatisfaction with the result contained in the Decision does not establish that a Decision violated the rules of procedural fairness or that an error of law or fact or was made such that the Tribunal would likely have reached a different result had the error not been made.
18Having reviewed the Decision, I am also satisfied that no violation of procedural fairness and no error of law or fact such that I would likely have reached a different result had the error not been made occurred when I declined to make an award or add the issue of costs. Both of these determinations were within my discretion which was exercised appropriately and fairly and for the reasons set out in paragraphs 48, 49, 50, 51 and 52 of the Decision regarding an award and in paragraphs 56, 57 and 58 regarding adding the issue of costs.
19I 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 establish his grounds and he has not done so. Instead, the applicant’s submissions appear to be an attempt to reargue his case in a new way. Dissatisfaction with the Decision is not a ground of reconsideration. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION AND ORDER
20For the reasons noted above, I dismiss the applicant’s request for reconsideration of my Decision dated October 14, 2020.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 23, 2021
Footnotes
- R. v. Transcanada Pipelines Limited, 2000 CanLII 5713 (ON CA), para 129.