S.K. v. Certas Home and Auto Insurance, 2021 CanLII 35578

Citation: S.K. v. Certas Home and Auto Insurance, 2021 ONLAT 18-008537/AABS-R

RECONSIDERATION DECISION

Before:

Adjudicator Robert Watt

Date of Order:

04/26/2021

Tribunal File Number:

18-008537/AABS

Case Name:

[SK] vs. Certas Home and Auto Insurance

Written Submissions by:

For the Applicant:

Andrew Franzke, counsel

For the Respondent:

Patrick Baker, counsel

OVERVIEW

1This request for reconsideration was filed by the Applicant in this matter.

2It arises out of a decision in which the Tribunal found that the applicant was not entitled to any medical and rehabilitation benefits.

3The issues that were before the Tribunal were: whether the applicant was entitled to a medical and rehabilitation benefit in the amount of $2,165.00 for physiotherapy treatment; interest and an award.

4The Tribunal found no medical and rehabilitation benefits were owing and no interest or award was owing

5The Applicant submits that the Tribunal:

1. Violated the applicant’s right to procedural fairness, by providing no reason as to why it failed to consider Dr. Wilderman’s evidence.

6The Applicant is seeking an order:

a. Varying the Tribunal’s decision

or

b. For a rehearing on all of the matters.

RESULT

7The Applicant's request for a reconsideration is dismissed.

ANALYSIS

8The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted 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 would have 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 have affected the result.

9Reconsideration is only warranted in cases where an adjudicator has made a 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.

10The Tribunal reviewed all of the evidence put before it, including Dr. Wilderman’s evidence.

11The issue of causation as set out in paragraphs [20]-[21] was one of the reasons for denying the applicant’s claim. The other reason was the applicant’s failure to show that further physiotherapy services would have any effect on reducing or eliminate her pain as set out in paragraphs [22]-[23].The reasons were clear and the basis upon which those reasons were given in the decision, was clear based on all of the evidence.

12It is settled law that an adjudicator should review all evidence put before him or her but does not need to refer to every piece of evidence in rendering a decision.¹

13The absence of a reference to evidence, does not render a decision unreasonable, nor does it amount to a breach of procedural fairness.²

14The ground that the Applicant argues, being no discussion of Dr. Wilderman’s report in the decision, and therefore a lack of procedural fairness, has already been ruled on by the courts as set out above.

CONCLUSION

15For the reasons noted above, I deny the Applicant's request for reconsideration.

Robert Watt

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1A.G. v. Aviva General Insurance Company, 2020 Can LII 58835 (ON LAT) (Reconsideration) at paras. 15-17 and M.K. v. Aviva General Insurance Company 2020 Can LII 30403 (ON LAT) (Reconsideration) at paras. 29-30.
2. 2Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board, 2011 SCC 62, at paras 14-17.