Khalid Muhammad Iqbal v. Gore Mutual Insurance Company, 2021 CanLII 64248

RECONSIDERATION DECISION

Citation: Iqbal v. Gore Mutual Insurance Company, 2021 ONLAT 20-005901/AABS - R

Before: Lindsay Lake

Date of Order: 07/19/2021

Tribunal File Number: 20-005901/AABS

Case Name: Khalid Muhammad Iqbal v. Gore Mutual Insurance Company

Written Submissions by:

For the Applicant: Meleni David, Counsel

For the Respondent: David Raposo, Counsel

OVERVIEW

1The applicant, Khalid Muhammad Iqbal, filed a request for reconsideration of the January 29, 2021 preliminary issue decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2In the decision, I found that the applicant was statute-barred from proceeding with his application to the Tribunal pursuant to s. 55 of the Statutory Accident Benefits Schedule – Effective September 1, 2010² because he did not comply with the time limits to notify the respondent, Gore Mutual Insurance Company, of the motor vehicle accident that he was involved in on April 28, 2016 or to apply for accident benefits as prescribed in s. 32. I also found that the applicant failed to provide a reasonable excuse for the delay under s. 34 of the Schedule.³

3The applicant requested a reconsideration of the decision. The applicant submitted that:

(i) I acted outside of my jurisdiction or violated the rules of natural justice and procedural fairness;

(ii) I made a significant error of law or fact such that I would likely have reached a different decision;

(iii) I heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; and/or

(iv) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

4The applicant also requested that I grant him relief under s. 7 of the Licence Appeal Tribunal Act, 1999⁴ by extending the deadlines to provide notice to the respondent of the accident and/or to apply for accident benefits under s. 32.

5The respondent requested that I dismiss the applicant’s request for reconsideration because the applicant is attempting to:

(i) Re-litigate the matter through the reconsideration process;

(ii) Introduce new arguments that were not made at the preliminary issue hearing; and/or

(iii) File new evidence which was available prior to the preliminary issue hearing and, therefore, is now not admissible.

RESULT

6The applicant's request for reconsideration is dismissed.

ANALYSIS

7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). The grounds that the applicant submits apply in this matter are Rules 18.2(a)-(d), as he submitted that:

(i) I acted outside of my jurisdiction or violated the rules of procedural fairness;

(ii) I made an error of law or fact such that I would likely have reached a different result had the error not been made;

(iii) I heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result of the preliminary issue hearing; and/or

(iv) There is evidence that was not before me when I rendered the decision that could not have been obtained previously by the applicant who is now seeking to introduce it and that it would likely have affected the result of the preliminary issue hearing.

Acting Outside my Jurisdiction and False Evidence

8The applicant submitted that a reconsideration of the decision should be granted because I acted outside of my jurisdiction and/or that I heard false or misleading evidence during the preliminary issue hearing which affected the decision.⁵ The applicant, however, failed to indicate which portions of the decision exceeded my jurisdiction and what evidence that was false or misleading that affected the hearing outcome.

9In order to meet the high onus to warrant the reconsideration of a decision, a request for reconsideration must provide some evidence and argument to the Tribunal.⁶

10I find that the applicant’s request for reconsideration on the grounds that I acted outside of my jurisdiction and/or that I heard false or misleading evidence to be vague, and lacking particulars and argument to support his position. Therefore, I find that the applicant has failed to prove on a balance of probabilities that I acted outside of my jurisdiction or that I heard false evidence such that a reconsideration of the decision is warranted under Rules 18.2(a) or 18.2(c).

Procedural Fairness

11The applicant submitted that to allow the decision to stand would be a fundamental violation of the procedural fairness to the extent that the applicant was deprived of an opportunity to receive medical benefits for his permanent injuries.⁷

12I disagree with the applicant that “procedural fairness” includes an opportunity to obtain medical benefits. Procedural fairness has been defined as encompassing the following:

(i) Ensuring that parties understand the case they must meet; and

(ii) Ensuring that the parties have an opportunity to be heard to allow them to respond accordingly.⁸

13At the September 29, 2020 Case Conference, the respondent raised the preliminary issue that the applicant was disentitled from receiving accident benefits because he did not have a reasonable explanation for failing to comply with s. 32 of the Schedule. The Tribunal’s September 29, 2020 Case Conference Report and Order identified this preliminary issue in dispute and a written preliminary issue hearing was scheduled. Both parties submitted written submissions and evidence which I considered in rendering the decision. Specifically, I reviewed the applicant’s submissions at paragraphs [14] and [16] of the decision and found that the applicant failed to provide a reasonable excuse for his non-compliance with s. 32 of the Schedule. I disagree with the applicant that the consequences of his failure to abide by the Schedule can be characterized as a denial of procedural fairness.

14For these reasons, I find that the applicant had a full opportunity to argue its case pertaining to the preliminary issue identified in the September 29, 2020 Case Conference Report and Order and to respond to the respondent’s position. Therefore, I do not find any violation of procedural fairness such that a reconsideration of the decision is warranted under Rule 18.2(a).

Error of Fact and/or Law

15The respondent relied upon Rule 18.2(b) for its position that I erred in fact and/or law. In order to interfere with a decision under Rule 18.2(b), however, I must not only have made an error of law or fact, but that error of law or fact must be enough that, had it not been made, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

16For the reasons that follow, I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made. Therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.

Settlement Date of the applicant’s RBC Life Insurance Company Claim

17The applicant submitted that I incorrectly stated the date that the applicant settled his claim with RBC Life Insurance Company (“RBC”) as July 17, 2019 when his claim was settled on June 17, 2019.

18I find that my misstatement of the date of settlement was an error of fact. However, this error was inconsequential because nothing turned on the date of settlement. I considered the settlement itself, not the date of the settlement, in balancing the prejudice and hardship to the parties. As a result, I find that the high threshold under Rule 18.2(b) to warrant a reconsideration is not met.

Failing to Consider the applicant’s Reasonable Explanations

19The applicant submitted that I disregarded or unheeded the following “reasonable and credible explanations” with respect to his excuse for the delay in complying with the time limits to notify the respondent of the accident and/or to apply for accident benefits:

(i) That the applicant’s benefits from RBC had started while he was still in the hospital (i.e. on May 3, 2016);⁹

(ii) That the applicant was not in a “frame of mind” to pursue other benefits while being on bed rest;¹⁰

(iii) That the applicant only retained a lawyer for his LTD claim after RBC initially denied his claim.¹¹ At no time was the applicant advised by his representative to commence a new claim with the respondent for accident benefits;¹²

(iv) That the applicant naively followed the advice of his employer to obtain benefits from RBC;¹³

(v) That the applicant was not certain that he would require long-term treatments and be impaired for the rest of his life;¹⁴ and

(vi) That the applicant was ignorant of the law¹⁵ and was not qualified to understand the complicated insurance system.¹⁶

20I disagree with the applicant that I disregarded these purported explanations as they were all listed in the decision at paragraph [14] and considered in paragraph [16] except the applicant’s claim that he was not certain that he would require long-term care for his permanent impairments. It is settled that the Tribunal is not required to expressly address every piece of evidence, argument, or case submitted by a party. Additionally, I find that the applicant did not provide any evidence to support this submission at the preliminary issue hearing, such as a sworn affidavit or the transcripts from the applicant’s examination under oath, and the applicant’s submissions without anything more are not evidence. Therefore, I find that the fact that this argument was not explicitly addressed in the decision, is not an error of law that affected the result of the decision.

21In the same vein, while the decision listed but did not specifically consider the applicant’s submission that he was not advised by his legal representatives to seek accident benefits from the respondent, there was again no evidence before the Tribunal to support this submission at the preliminary hearing. The applicant’s submissions did not constitute evidence. As a result, I find that this argument would not have changed the result of the decision.

Failing to Consider the Prejudice to the applicant

22The applicant submitted that I erred in the decision by only considering the prejudice to the respondent and not the prejudice to the applicant.¹⁷ I disagree.

23Under the heading, “Balancing Prejudice and Hardship” at paragraphs [17] to [21] of the decision, I explained how I balanced the prejudice to the respondent as against the hardship to the applicant in accordance with the Tribunal’s decision in J.V. v. Unifund Assurance Company.¹⁸

24In addition, the applicant submitted that the lump sum settlement from RBC of $70,000.00, which I took into consideration when balancing prejudice and hardship, was not the final amount that the applicant received given legal costs, disbursements and outstanding medical invoices. As stated in my decision, the total amounts paid were not particularized and again, there was no evidence before me to support the applicant’s submissions. Therefore, I find that no error was made in the decision on this basis.

Finding that the applicant did not Suffer Cognitive or Neurological Conditions

25The applicant submitted that I erred in finding that there was no evidence before me that the applicant suffered any cognitive or neurological conditions.¹⁹ The applicant submitted that this was an error of fact because Dr. Gulam Khan, psychiatrist, diagnosed the applicant with post traumatic stress disorder with behavioural changes and major depressive disorder with psychotic features in his clinical note dated September 24, 2018.²⁰

26As the respondent noted, the diagnoses made by Dr. Khan were psychiatric in nature and were not cognitive or neurological diagnoses which would impact the applicant’s ability to think or process information, as suggested by the applicant, or to decide which insurance avenue to pursue or from deciding to simultaneously pursue benefits from both the respondent and RBC. Therefore, I find that I made no error on this basis.

27The applicant also referred to an April 3, 2019 Psychiatric Assessment by Dr. Felix Yaroshevsky, psychiatrist,²¹ who diagnosed the applicant with, among other conditions, post-traumatic cognitive impairment.²² I agree with the respondent that this report was not included in the applicant’s hearing brief for the preliminary issue hearing. Dr. Yaroshevsky’s report was dated well over a year prior to the due date for applicant’s written preliminary issue hearing submissions and the applicant has provided no submissions or evidence as to whether Dr. Yaroshevsky’s report was available to him prior to the preliminary issue hearing. As a result, I find that the applicant has not met the test to introduce new evidence for reconsideration under Rule 18.2(d) and, therefore, Dr. Yaroshevsky’s report is not properly before me and will not be considered as part of this reconsideration.

28Therefore, I find that on the evidence that was before me at the preliminary issue hearing, I made no error by stating that there was no evidence that the applicant suffered any cognitive or neurological conditions as a result of the accident.

Other New Evidence

29The applicant also submitted that a reconsideration of the decision should be granted based on new evidence that could not have reasonably been obtained earlier and would have affected the result of the preliminary issue hearing.

30I again find that the applicant’s submissions on the issue of new evidence to be vague and fails to identify what evidence was not available for the hearing. Aside from Dr. Yaroshevsky’s April 3, 2019 report discussed above in paragraph [27], the applicant also failed to submit any new evidence as part of his request for reconsideration. For these reasons, I find that the applicant has failed to prove on a balance of probabilities that a reconsideration should be granted under Rule 18.2(d).

Section 7 of the LAT Act

31The applicant also requested that I grant him relief under s. 7 of the LAT Act by extending the limitation period to provide notice to the respondent of the accident and/or to apply for accident benefits under s. 32 of the Schedule.

32I agree with the respondent that the applicant never raised s. 7 of the LAT Act in his submissions for the preliminary issue hearing. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. The applicant also failed to raise any exceptional circumstances in which consideration of s. 7 of the LAT Act, as a new argument, should be permitted on a reconsideration. Therefore, I find that the applicant’s submissions regarding s. 7 of the LAT Act contain new arguments that the applicant could have made in its preliminary issue hearing submissions but, for whatever reason, failed to do so. As a result, I am denying the applicant’s request that I now consider s. 7 of the LAT Act as it is not properly before me as a ground for reconsideration.

CONCLUSION

33For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Lindsay Lake

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Iqbal v. Gore Mutual Insurance Company, 2021 CanLII 11888 (ON LAT) (the “decision”).
2. 2O. Reg. 34/10 (the “Schedule”).
3. 3Ibid. at para. 22.
4. 4S.O. 1999, c. 12, Sched. G (the “LAT Act”).
5. 5Applicant’s Request for a Reconsideration, para. 4(a).
6. 6See B.A. v Gore Mutual Insurance Company, 2019 CanLII 83591 (ON LAT) at para. 19.
7. 7Applicant’s Request for a Reconsideration, para. 66.
8. 8See the reconsideration decision of IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
9. 9Applicant’s Request for a Reconsideration, para. 47.
10. 10Applicant’s Request for a Reconsideration, para. 48.
11. 11Applicant’s Request for a Reconsideration, para. 49.
12. 12Applicant’s Request for a Reconsideration, para. 55.
13. 13Applicant’s Request for a Reconsideration, para. 52.
14. 14Applicant’s Request for a Reconsideration, para. 53
15. 15Applicant’s Request for a Reconsideration, paras. 58-59.
16. 16Applicant’s Request for a Reconsideration, para. 52.
17. 17Applicant’s Request for a Reconsideration, para. 45.
18. 182019 CanLII 30359 (ON LAT) (“J.V. v Unifund”).
19. 19Supra note 1 at para. 16(i).
20. 20Written Hearing Brief of the Applicant, tab 16.
21. 21Applicant’s Request for a Reconsideration, tab 15.
22. 22Ibid. at page 14.```