RECONSIDERATION DECISION
Before: Ian Maedel, Vice Chair
Tribunal File Number: 18-009043/AABS
Case Name: J.T. v. Primmum Insurance Company
Written Submissions by:
For the Applicant: J.T., Applicant, Self-Represented
For the Respondent: Daniela Faukovic, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of an decision dated August 26, 2020 where the Tribunal found the applicant was not catastrophically impaired, that his injuries fell within the Minor Injury Guideline limits and dismissed the claims for an award pursuant to s. 10 of Regulation 664 and that no costs were payable.
2Pursuant to Rule 18.2 of the Common Rules of Practice & Procedure, the applicant submits:
a. The Tribunal acted outside of its jurisdiction or violated 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.
3The applicant is seeking an order:
a. Cancelling the Tribunal’s decision; and
b. For a rehearing on all, or part of the matter.
RESULT
4The applicant’s request for reconsideration is dismissed.
PARTIES’ POSITIONS
5The applicant submits the Tribunal violated the rules of procedural fairness and made errors of law and fact. Specifically, regarding the availability of the family physician and consequences of the Covid-19 restrictions. He submits the adjudicator erred when he found the Application for Determination of Catastrophic Impairment (OCF-19) was insufficient to establish a catastrophic impairment pursuant to criterion 7 of s. 3.1 of the Schedule1, or a 55% whole person impairment. The applicant submits this accident was his third rear-end collision which exacerbated significant pre-existing impairments.
6The applicant submits he had a genuine belief that the OCF-19 completed by his family physician would suffice in establishing his catastrophic impairment pursuant to the Schedule. The lack of weight attributed to this document undermined the competency, credibility, and experience of his family doctor. The applicant further submits the weight placed on the respondent’s assessments should not undermine the medical history provided and the supervision of his family physician.
7The respondent seeks a dismissal of the reconsideration request with costs. It submits the applicant has filed no evidence in support of this request and has failed to demonstrate any of the criteria for a reconsideration pursuant to Rule 18.2.
8The respondent relied on a neurology examination, an orthopaedic examination and an Executive Summary Report which concluded the applicant exhibited a zero per cent whole person impairment pursuant to criterion 7 of section 3.1 of the Schedule. The applicant did not rely on any opinions to challenge this determination, instead relied solely on the OCF-19 completed by his family physician. The applicant was further unable to establish any pre-existing injury which would have removed him from the minor injury guideline treatment limits.
ANALYSIS
9I do not find the adjudicator acted outside of the Tribunal’s jurisdiction or violated procedural fairness, nor do I find the adjudicator made an error of law or fact that would have likely led to a different result had that error not been made.
10Reconsideration is only warranted in cases where an adjudicator has made a significant 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.
11The applicant has the onus of establishing his entitlement to accident benefits on a balance of probabilities. Although a self-represented individual, he was deemed to understand the nature of his evidentiary burden coming before the Tribunal. I realize he had genuine belief regarding the persuasiveness of the evidence tendered at the hearing, particularly the weight he believed should have been attributed to the OCF-19 completed by his family physician.
12In my review of the previous decision, it is clear the adjudicator considered the totality of the medical evidence tendered. He made specific and thorough references to the evidence throughout the decision. The adjudicator concluded that due to a lack of medical evidence and expert opinions, the applicant failed to meet his evidentiary onus in establishing a 55% whole person impairment necessary for a finding of catastrophic impairment. The adjudicator placed more weight upon the expert reports provided by the respondent, especially considering the lack of any expert reports filed by the applicant in support of his claim for accident benefits. The hearing adjudicator was entitled to prefer the respondent expert reports to the applicant’s OCF-19 and medical documents filed. This does not constitute an error of fact or law.
13Similarly, in relation to the treatment limits of the minor injury guideline, the adjudicator again reviewed the specific medical evidence provided. He could not determine the applicant’s pre-existing injuries warranted treatment beyond the $3,500.00 limit. The adjudicator correctly indicated that pre-existing injuries alone will not remove an individual from the confines of the minor injury guideline. The applicant also failed to adduce evidence he could not reach maximum recovery within the minor injury guideline treatment limit.
14The applicant has also failed to adduce any new or additional evidence that was previously unavailable to illustrate a material change in circumstances to warrant revisiting these issues. The applicant has again provided the same medical evidence tendered as part of the previous hearing. A reconsideration should not otherwise be used as an attempt to relitigate issues the Tribunal has already adjudicated.
15I do not find the caselaw the applicant relied upon to be persuasive. The cases cited are of little use or application to this matter. For example, the Union Building2 case is distinguishable on its facts and regards the interpretation of an agreement of purchase and sale for a parcel of land. While I understand the link, the applicant was attempting to establish between the lower court’s faulty reliance on theory rather than evidence, I do not find it applicable in this case. In this matter, the adjudicator did not rely on abstract theory which offended natural justice, but firmly grounded his conclusions in direct reference to the evidence tendered.
16Given the adjudicator’s conclusions regarding catastrophic impairment and treatment within the minor injury guideline, I see no reason to interfere with his findings regarding the denial of the award or costs.
17After having reviewed the totality of the submissions and evidence before me, I cannot conclude there has been a lack of procedural fairness or any error which could have otherwise led to a different decision in these circumstances. While I sympathize with the applicant, there is simply no legal justification to overturn or vary the previous decision.
18The respondent’s request for costs is denied. Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1. In awarding costs, the Tribunal shall consider all relevant factors pursuant to Rule 19.5. This includes consideration of the potential impact an order for costs may have on individuals accessing the Tribunal system. This potential chilling effect is a real concern in relation to this self-represented applicant who is of limited means. Nor am I persuaded the applicant’s request for reconsideration was otherwise unreasonable or filed in bad faith. The threshold for costs has simply not been met in this case. Thus, no costs shall be payable.
CONCLUSION AND ORDER
19For the reasons noted above, I deny the applicant’s request for reconsideration.
20The Tribunal file shall remain closed.
Ian Maedel
Vice Chair
Tribunals Ontario - Licence Appeal Tribunal
Released: May 25, 2021
Footnotes
- Ontario Regulation 34/10, Statutory Accident Benefits Schedule – Effective September 1, 2021 (“Schedule”).
- Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401 at para. 13.