RECONSIDERATION DECISION
Before: Adjudicator Robert Watt
Date of Order: 08/26/2021
Tribunal File Number: 19-011837/AABS
Case Name: Norma Gordon-Tennant v. Aviva General Insurance
Written Submissions by:
For the Applicant: David Carranza Counsel
For the Respondent: Andrea L. Bandow 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 $598. 44 for psychological treatment, $1,739.00 for chiropractic treatment, $299.22 for a psychological assessment, and $2,516.60 for a chronic pain assessment, as well as interest and an award.
4The Tribunal found no medical and rehabilitation benefits were owing and therefore no interest or award were owing.
5The Applicant submits that the Tribunal:
- Should rehear the issue for a chronic pain assessment as there is new evidence that was not available at the time of the hearing.
6The Applicant is seeking an order:
Varying the Tribunal’s decision regarding the applicant’s eligibility to a medical benefit for a chronic pain assessment and specifically finding that this assessment was reasonable and necessary, and that the applicant is entitled to interest in relation to this assessment.;
or
For a rehearing on the regarding the applicant’s eligibility to a medical benefit for a chronic pain assessment and specifically finding that this assessment was reasonable and necessary, and that the applicant is entitled to interest in relation to this assessment.;
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 Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”). 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 applicant’s position is that the reports from insurer’s examinations (“IE“) examinations with Dr. Khan on August 15, 2020 and with Dr. Kanagaratnam on August 19, 2020 were beyond the dates on which the parties submissions were due (June 10, 2020, July 17, 2020, July 28, 2020 for the applicant’s submissions, respondent’s submissions and the applicant’s reply respectfully) and once produced, could not be introduced as evidence for the hearing. The applicant argues that this evidence was not before the Tribunal when rendering its decision, could not have been obtained previously by the applicant, and would have affected the result if it had been allowed to be put in front of the Tribunal.
11The applicant’s position is that Dr. Khan concluded in his report that from a physical perspective, the applicant had not reached maximum medical improvement and that the proposed treatment plan was reasonable and necessary. Dr. Kanagaratnam concluded in his report that from a psychological perspective the applicant had not reached maximum medical improvement and from a psychological perspective the proposed plan was partially reasonable and necessary.
12The applicant’s position is that these reports would have affected the result, and by not being allowed in as part of the written submissions, affect the applicant’s right to procedural fairness and breach the rules of natural justice.
13The respondent’s position is that the applicant received the IE reports of Dr. Khan and Dr. Kanagaratnam on September 18, 2020. Dr. Khan in his report (contrary to the applicant’s submissions) concluded that the treatment plan was not reasonable and necessary. Dr. Khan recommended a self-directed home exercise for the applicant with the respondent approving 16 sessions of active physical therapy. The applicant did also approve psychological services in accordance with Dr. Kanagaratnam’s report.
14The respondent’s position, relying on Rule 18(2)(d) is that the applicant must show that she has new evidence, that was not before the Tribunal when it rendered its decision, could not have been obtained earlier, and that would affect the result. The applicant’s position is that the evidence is not new evidence, as the applicant had the evidence (i.e. the reports) on September 18, 2020. The evidence was therefore available to put before the Tribunal before it rendered its decision on May 19, 2021. The respondent’s position is that the cut-off date for the evidence is the date the decision is released1 and the applicant could have brought a motion prior to the release of the decision for the Tribunal to consider the reports but failed to do so.
15The respondent’s position is that the reports are not evidence that could not previously be obtained by the applicant, as the applicant already had the reports approximately seven months before the decision was rendered.
16The respondent takes the position as an alternative argument that even if the reports were allowed in, the applicant has not shown that the decision issued would have been changed. Paragraphs [40] and [41] of the decision clearly set out the reasons why the proposed chronic pain assessment was not reasonable and necessary, and the additional reports would not change the findings in the decision.
17I agree with the respondent’s position in both regards. I find that the applicant has not met the requirements of Rule 18(2)(d). The reports were available long before the decision was rendered and therefore, they are not new evidence. The Tribunal could have been asked to look at the reports before it rendered its decision but was not asked to do so. The reports would not in any event have changed the reasons given for the denial of the assessment as set out in paragraphs [40] and [41] of the decision.
18The Tribunal’s has held that any party must provide all of the evidence they intend to rely on and that the reconsideration process is not intended to be an opportunity for parties to fill in evidentiary gaps or supplement the evidence that should have been provided at the hearing.2
CONCLUSION
19For the reasons noted above, I deny the Applicant's request for reconsideration.
Robert Watt
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: August 26, 2021
Footnotes
- H.M.L. v Northbridge Personal Insurance Corporation, Reconsideration Decision of Vice -Chair Susan Mather, 2020 CanLII 87983(ON LAT)
- 16-000066 v. Waterloo Regional, 2017;17-006956 v The Guarantee Company 2018, CanLII 130858 (ONT LAT)