RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 19-002559/AABS
Case Name: [AT] v. Allstate Canada
Written Submissions by:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Ian D. Kirby, Counsel
OVERVIEW
1This request for reconsideration was filed by [AT] (“applicant”). It arises out of a December 23, 2020 decision (“Decision”) in which the Tribunal found the applicant’s injuries are within the Minor Injury Guidelines (“MIG”)1, the applicant is not entitled to an OCF-18 treatment plan in the amount of $1,892.20 or the cost of a psychological examination, interest or an award from Allstate Canada (“respondent”).
RESULT
2The applicant’s request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019 (“Rules”). Here, the applicant makes her request under:
i. Rule 18.2 (b), as amended, which is that 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. Specifically, the applicant submits the Tribunal erred by finding in paragraph 14 of the Decision that the pathway to a psychological pre-screening for psychological impairment was through the applicant’s physical treatment facility and that the prescreening was submitted through VCare Rehabilitation Centre instead of Somatic Assessment and Treatment Clinic by a psychologist, erred in placing little weight on the pre-screening report by finding that the treatment plan for $1,892 was not reasonable and necessary, failing to consider the consumer protection intent of the Schedule and failing to find that the applicant’s injuries were outside the MIG due to psychological impairment.
ii. Rule 18.2 (d) which is that 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 likely have affected the result. Specifically, the applicant submits that the applicant underwent a psychological assessment on January 8, 2021 which is new evidence not available prior to January, 2020 because the applicant has a fear related to travel and the assessment had to be completed virtually due to the pandemic restrictions.
4The respondent submits that the request for reconsideration be denied.
b. Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
5Having reviewed the Decision, I find no errors of law or fact in the Decision, including any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
6I find no errors of law or fact in the Decision regarding the finding that the pathway to a psychological pre-screening for psychological impairment was through the applicant’s physical treatment facility. It was open to the Tribunal to make this finding on the record before it at the hearing.
7I acknowledge paragraph 14 of the Decision misstates the name of the treatment facility as VCare Rehabilitation Centre instead of Somatic Assessment and Treatment Clinic. However, in my view this simply amounts to a minor clerical or drafting error. The Decision sets out clearly in paragraph 14 the correct date of the prescreening report and the name of the psychologist Dr. McDowell. Nothing turns on the incorrect naming of Dr. McDowall’s treatment facility. Therefore, I find that even if the minor clerical error in paragraph 14 of the Decision amounts to an error of fact, it did not affect the outcome before the Tribunal. Further, the applicant has put forward no evidence that the Tribunal would likely have reached a different result had this minor clerical error not been made.
8I likewise find no errors of fact or law in the Decision regarding the Tribunal’s weighing of the evidence. The weight to be given to evidence at the hearing is a matter to be determined by the adjudicator. The Tribunal explained its reasons for its decision to put little weight on the pre-screening report and for rejecting that the Applicant suffered from a psychological impairment that would remove her from the MIG in paragraphs 15 and 17, respectively. I have reviewed the Tribunal’s reasons for these findings as well as broader analysis of this issue in paragraphs 13-20. I find no error in the Tribunal’s reasons or broader analysis. It was open to the Tribunal, on the evidence before it in this particular case, to place little weight on the psychological pre-screening report and to decline to find that the applicant’s injuries were outside the MIG due to psychological impairment. These findings of fact were open to the Tribunal on the evidentiary record before it at the hearing and were made for the reasons set out in paragraphs 12, 13, 14, 15, 15, 16, 17 and 20 of the Decision. I find no error in them.
9The Tribunal found all the disputed treatment plan for $1,892.20 not to be reasonable and necessary for the reasons set out in paragraphs 21, 22, 23 and the $2,200.00 for the pre-screening psychological assessment not to be reasonable and necessary for the reasons set out in paragraphs 24 and 25 of the Decision. I find no error of law or fact in doing so.
10The Tribunal appears to have considered all of the applicant’s arguments made at the hearing. It is well established that the Tribunal need not cite every submission, piece of evidence or authority cited in its Decision. As the Tribunal noted in paragraph 6 of its Decision, the burden was on the applicant to prove, on a balance of probabilities that she is entitled to a higher level of benefits. The consumer intent of the Schedule does not relieve the applicant of meeting this burden with persuasive medical evidence. Based on the above, I do not accept that the Tribunal erred by failing to find that the applicant’s injuries were outside the MIG due to psychological impairment.
d. 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 likely have affected the result.
11The applicant seeks to now submit as “new evidence” a psychological assessment completed January 8, 2021 by Mandy Fang, psychotherapist under the supervision of Dr. McDowall, psychologist.
12It appears that this evidence could have been obtained prior to the hearing. If the applicant required this evidence for the hearing then an adjournment of the hearing should be been requested for more time to obtain this assessment or a motion could have been brought. It was not until after the Decision was released December 23, 2020 that the applicant attended this assessment.
13The applicant submits that she did not have this psychological assessment earlier because the applicant has a fear related to travel and the assessment had to be completed virtually due to the pandemic restrictions. Neither of these reasons sufficiently explains why the assessment could not have been completed in time to be submitted as evidence at the hearing. The assessment could have been completed virtually or in some other format accommodating the applicant’s needs prior to the hearing on February 24, 2020 but the applicant appears to have failed to take the necessary steps or to request time to do so. A request for reconsideration is not to be used by a party as an opportunity to try and bolster their case with evidence which could have been obtained previously.
14I find that the applicant has not established her grounds for reconsideration. The criteria for the reconsideration of a Tribunal Decision available under Rule 18.2 are limited and specific. Reconsideration 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.
15In order to succeed on a reconsideration request, at least one of the criteria under Rule 18.2 must be met. Here, because the applicant requested reconsideration, the onus is on the applicant to establish her grounds and she has not done so. Instead, the applicant’s submissions appear raise many of the same arguments made at the hearing. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION
16For the reasons noted above, I dismiss the applicant’s request for reconsideration of the Tribunal’s Decision dated December 23, 2020.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 14, 2021