RECONSIDERATION DECISION
Before: Avril Farlam, Vice Chair
Date of Order: 05/26/2021
Tribunal File Number: 19-010799/AABS
Case Name: Warren Nash v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Rita Margaret Gratsias, Counsel Rishi Sharma, Counsel Kwaku Bona, Paralegal
For the Respondent: Amanda Fowler, Counsel Mark Vella, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, Warren Nash. It arises out of a December 14, 2020 decision (“Decision”) in which I found that the applicant was not entitled to income replacement benefits (“IRB”) from Aviva General Insurance Company (“respondent”), and not entitled to an award.
2The applicant seeks a variation of the Decision to provide that he is entitled to the IRB as claimed and an award or, alternatively, ordering a rehearing.
RESULT
3The applicant’s request for reconsideration is dismissed. No costs to the respondent.
ANALYSIS
4The grounds for a request for reconsideration 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 allows for a reconsideration where the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and also under Rule 18.2 (b), which allows for reconsideration where 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.
5In 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) ignoring the modern principle of statutory interpretation in interpreting s. 11 and s. 58 of the Schedule and finding the applicant eligible for IRB despite his return to work,
b) failing to apply a liberal construction to the Schedule which would have resulted in a finding that the applicant met his onus of proof with Dr. Yaroshevsky’s report,
c) drawing an adverse inference from the applicant’s failure to produce his employment files from Reset and Ashbiri,
d) misapprehending or failing to consider the evidence and arguments of the applicant,
e) admitting into evidence the respondent’s surveillance,
f) erring in law on the 104-week test,
g) erring in law on the post 104-week test, and,
h) failing to follow the doctrine of “stare decisis”.
6The respondent denies there is any merit to the applicant’s request for reconsideration. The respondent requests costs under Rule 19.
7Having reviewed the Decision, I find no breach of procedural fairness and natural justice 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.
8I find no error in jurisdiction regarding the “modern principle” of statutory interpretation. The applicant’s argument at the hearing that the Schedule has consumer protection purposes and should be liberally construed in his favour was acknowledged and dealt with at paragraph 50 of the Decision.
9Contrary to the applicant’s reconsideration submissions, there is no finding in the Decision that the applicant’s post-accident return to work “constituted a forfeiture of the IRB claim”. To the contrary, and consistent with s. 11 of the Schedule, the applicant’s testimony and submissions on his ability to work post-accident were considered in the context of all of the evidence as set out in paragraphs 22, 28, 30, 31, 32, 33, 34, 35, 37, 40, 44, 45 and 46 of the Decision. In the end, the applicant’s evidence of substantial inability to perform the essential tasks of his pre-accident employments was found to be lacking as set out in paragraph 48 of the Decision. This is not an error of statutory interpretation or ignorance of or a failure to properly construe s. 11 of the Schedule as suggested by the applicant but instead is a determination that the applicant’s evidence was insufficient to establish his eligibility to IRB. This determination was open to me to make based on the record before me at the hearing and was specifically what I was asked to do at the beginning of the hearing by both parties.
10Contrary to the applicant’s reconsideration submissions, s. 58 of the Schedule was not argued at the hearing by the applicant nor was any evidence put forward by the applicant that a s. 58 notice had been delivered by the respondent.
11I find no errors of law or fact in the Decision resulting from a failure to apply a liberal construction to the Schedule which would have resulted in a finding that the applicant met his onus of proof with Dr. Yaroshevsky’s report. Dr. Yaroshevsky’s evidence was found lacking for the reasons set out in paragraphs 39, 40, 41, 42 and 43 of the Decision. Interpretation of the Schedule, liberal or otherwise, has no bearing on the specifics of the applicant’s medical evidence which was found to be lacking.
12I find that no errors of law or fact arising from the drawing of an adverse inference from the applicant’s failure to produce his employment files from Reset and Ashbiri. No adverse inference against the applicant was made on this or any other issue. Findings against the applicant in the Decision were not inferred but were express and based on the applicant’s evidence which I found to be inadequate to support his entitlement to IRB and to an award for the reasons expressed.
13Having reviewed the Decision, I find no error of law or fact resulting from misapprehending or failing to consider the evidence and arguments of the applicant. Failing to accept the applicant’s evidence and submissions is not an error of law or fact. I made the findings in the Decision based on the evidence and after careful consideration of the totality of the evidence. The findings made were open to me to make based on the record before me at the hearing.
14I find no error of fact or law by admitting into evidence the respondent’s surveillance video at the hearing. The document briefs of both parties were admitted into evidence at the beginning of the hearing without objection. The respondent’s surveillance was part of its document brief. An excerpt from the video surveillance was played at the hearing without objection from the applicant’s two lawyers present at the hearing. Reconsideration is not an opportunity to raise an objection to evidence not objected to at the hearing. Similarly, if the applicant had any concerns about the rule in Browne v. Dunn, then this could have and should have been raised at the hearing. It was established at the hearing that the surveillance had been served on the applicant prior to the hearing, reviewed by the applicant and was put to him in cross-examination.
15I find no error of fact or law was made on the 104-week test or by failing to determine the post 104-week test. Both tests were set out in paragraphs 12 through 16 of the Decision. Further, it is well established law that if an applicant does meet the 104-week test, the applicant cannot meet the more stringent post 104-week test. A finding that the applicant does not meet the 104-week test ends the analysis required.
16I find no error of law was made regarding the doctrine of “stare decisis”. The applicant’s evidence and submissions, including submissions on the law, were considered as set out in paragraph 50 of the Decision. Not accepting the applicant’s submissions or finding his case law unhelpful is not an error of law. It is not necessary for an adjudicator to expressly state every argument, piece of evidence or authority put forward.
17Lastly, contrary to the lengthy reconsideration submissions of the applicant, there are no flaws such that the Decision violates the standards of Canada (Minister of Citizenship and Immigration) v. Vavilov.1
18It was the applicant’s onus to bring himself within the eligibility criteria in s. 5(1) of the Schedule 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 is outside the Tribunal’s jurisdiction, 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.
19Having reviewed the Decision, the only error is at paragraph 31 of the Decision, where I wrote that Dr. Khan identified “specific modified duties were listed” in Dr. Kominek’s OCF-3 when in fact “no specific modified duties were listed”. This error is not such that the I would likely have reached a different Decision given that I preferred the evidence of Dr. Khan over that of Dr. Kominek for the reasons
20I 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.
21The respondent requests costs of $1,000.00 or any other amount deemed appropriate by the Tribunal. In reply reconsideration submissions the applicant made no response to the request for costs.
22Although the applicant has failed to make out his grounds for reconsideration, 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
23For the reasons noted above, I dismiss the applicant’s request for reconsideration of my Decision dated December 14, 2020. No costs to the respondent.
Avril A. Farlam Vice Chair Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: May 26, 2021
Footnotes
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.