RECONSIDERATION DECISION
Before:
Jesse A. Boyce, Vice-Chair
10/07/2021
Tribunal File Number:
20-000672/AABS
Case Name:
Karin Sterling v. Heartland Farm Mutual Inc.
Written Submissions by:
For the Applicant:
Louis J. DelSignore Jr., Counsel
For the Respondent:
Jonathan Schwartzman, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent. It arises out of a decision dated May 13, 2021, in which I determined that an incident that occurred on February 13, 2019 constituted an accident under s. 3(1) of the Schedule.
2In its request, the respondent submits that I erred in my consideration and interpretation of the facts by way of the evidence before the Tribunal and in my application of the law to those facts and evidence. Specifically, the respondent asserts: that I failed to appreciate that it discredited the applicant’s version of events; that I did not assign appropriate weight to the doctor’s note from the day of the incident; that I failed to properly consider the onus of proof that laid with the applicant when analyzing the “accident” test; that it was inappropriate to rely on the applicant’s testimony from her examination under oath (EUO) and the hearsay evidence that stemmed from it; that I came up with my own medical formulation; and that it was improper to draw an inference from an MRI report. The respondent requests that the Tribunal vary or cancel the decision on the basis that the applicant did not meet her onus of proof.
3The applicant provided responding submissions, arguing that: the respondent essentially seeks a rehearing with respect to my original decision; that she met her burden of proof; that the Tribunal is entitled to weigh the evidence before it; that hearsay is permitted; that I employed the correct legal test and causation analysis; and that there is no error of law that would have resulted in a different outcome. Further, the applicant submits that the respondent’s request is inappropriate as the decision was on a preliminary issue that did not finally dispose of an appeal. The applicant seeks $1,000 in costs and requests that the decision be upheld, and the request dismissed.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5The 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 and Procedure, Version I (October 2, 2017), as amended (“Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the respondent relies on criterion 18.2(b), submitting that I committed errors of law and fact in reaching my decision such that the Tribunal would likely have reached a different decision had they not been made.
6The test for reconsideration under Rule 18.2(b) involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. I find that the respondent’s request here is precisely that. While I am alive to the specifics outlined in its submissions, I find many of the assertions can be whittled down to a disagreement over the weight that I assigned to the evidence at first instance, particularly her statements at the EUO. It is well-settled that this is not the purpose of reconsideration. The function of an adjudicator is to assign weight to the evidence before them to arrive at a determination.
7On review, I continue to find that that evidence supported the applicant’s claim that the incident of February 13, 2019 constituted an accident, as defined by s. 3(1) of the Schedule. I correctly stated the applicable test at paras. 13 and 14 and applied the analysis properly. While I agree with the respondent that it provided the majority of the evidence on record, I maintain that the evidence and testimony presented was sufficient to meet the applicant’s burden of proof, on a balance of probabilities, that, but for the accident, she would not have sustained her impairments. I continue to disagree with the respondent’s assertion that it discredited the applicant’s case based on the doctor’s note from the day of the incident because the note did not specifically articulate the applicant’s pain complaints. I see no error that would have resulted in a different outcome had it not been made.
8Further, it was not an error to rely on the applicant’s version of events from the EUO where the respondent had the opportunity to impugn her credibility and testimony. With respect, on review of the transcript, I find little to support the respondent’s assertion that I “failed to appreciate the significance and magnitude” of how it discredited the applicant’s version of events. In any case, I agree with the applicant that there is no restriction on the weight that can be accorded to evidence from an EUO. It was also not an error to rely on hearsay evidence provided at that examination about her condition, what occurred on February 13, 2019 or what her physicians explained to her, as the Tribunal is permitted to consider hearsay evidence and assign it appropriate weight. I found the applicant’s version of events to be consistent and supported by the evidence that was before me.
9I also do not find that I came up with my own medical formulation or that it was an error of law or fact when I stated the following at para. 19:
Where the applicant had a history of back pain and disc bulging and where she had been experiencing symptoms in the weeks prior to February 13, 2019, I accept on a balance of probabilities that the rather mundane tasks of lifting her 30 pound son into her vehicle, followed by the extension of her foot onto the pedal at just the wrong angle resulted in excruciating pain in her back and leg and, according to the MRI report, reinjury to her L5-S1 paracentral disc. Where the applicant later underwent back surgery for this injury and then submitted to an EUO to confirm these facts, I find no evidence to dispute her assertion that, but for the incident, she would not have suffered her impairment.
This is clearly not a “medical formulation” that I created. Rather, it is an acceptance of the applicant’s testimony and a rather uncontroversial acknowledgment that seemingly mundane tasks can result in injury. In my view, this was not a medical formulation, but a reasonable inference based on the evidence and testimony. I see no reason to interfere with my decision.
10Finally, the respondent asserts that my reference at para. 11 to the MRI report of February 25, 2019 is “problematic and inadequate” because the MRI does not speak to causation and the actual report was not in evidence. First, I agree that the MRI report does not speak to causation. However, I did not make a finding that it did—only that the report confirmed that there was reinjury to the applicant’s L5-S1 paracentral disc, which I found consistent with her EUO testimony and the timeline of her back surgery. I see no error that would have resulted in a different outcome.
11Second, I agree that that the MRI report was not re-filed with the applicant’s written hearing materials even though it was referenced in submissions. Instead, for clarity, I was relying on the MRI report contained within the “Records of Pro Function” that were filed with the Tribunal on June 10, 2020 in advance of the written hearing. The Tribunal’s practice is to communicate with the parties when evidence a party intended to rely on is not included in the record.1 However, here, I determined that reaching out to the parties was not required because the MRI report referenced was contained within the hearing record before me. While I regret the confusion it may have caused and perhaps should have articulated this in my decision, I find no error that would have resulted in a different outcome, as the report was clearly a document that the applicant intended to rely on.
Respondent’s request was proper
12For completeness, the applicant submits that this request was improper as the decision was on a preliminary issue that did not finally dispose of an appeal, as by finding that an accident occurred, my decision permitted the applicant’s application to continue and therefore it would be immune from reconsideration. While I agree with the applicant’s position generally, as it is supported by jurisprudence from the Tribunal and the Court of Appeal, I ultimately agree with the respondent that a reconsideration was proper at this stage in order to prevent the parties and the Tribunal from expending unnecessary time and resources on a substantive hearing that might later have been undone by a reconsideration request. However, given my finding here that no error occurred, the matter is moot.
Costs not appropriate
13Lastly, the applicant sought $1,000 in costs, pursuant to Rule 19 of the Common Rules. She submits that the request is an attempt to relitigate the issues, attack her credibility and prolong payment in this matter—actions she submits are both unreasonable and vexatious and worthy of a costs award. I disagree and decline to order costs. The reconsideration process is an avenue available to parties and in making its request, the respondent was not in breach of a Tribunal order, nor did its request interfere with my ability to carry out a fair, efficient, and effective process. While the applicant may take issue with prolonging the dispute, I find no evidence of misconduct or grounds to support the assertion that the request was unreasonable or vexatious.
ORDER
14For the reasons above, the request for reconsideration is dismissed.
Jesse A. Boyce
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 7, 2021
Footnotes
- See: J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161 (ON LAT Reconsideration), at para. 22 and Rule 9.1 of the Common Rules.```