AMENDED RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice-Chair
Tribunal File Number: 19-001026/AABS
Case Name: Mary-Adam Younis v. Coachman Insurance Company
Written Submissions by:
For the Applicant: Andrew Franzke, Counsel
For the Respondent: Linda Kiley, Counsel
OVERVIEW
1This request for reconsideration was filed by Mary-Adam Younis (“applicant”). It arises out of an April 22, 2021 decision (“my Decision”) in which I found the applicant not entitled to the costs of examination in the amount of $26,919.25 for catastrophic determination assessment (“CAT assessment”), interest or an award from Coachman Insurance Company (“respondent”).
RESULT
2The applicant’s request for reconsideration is granted. The matter shall be reheard in writing by another Tribunal adjudicator on the original submissions filed by both parties together with reference to the Aviva Court decision.
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 Rule 18.2 (b), as amended, which is that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
4The applicant submits that I applied the incorrect test to determine whether the CAT assessment was payable and erred because:
a. it is not necessary to determine if the CAT assessment is reasonable and necessary on a balance of probabilities, and
b. it is not necessary to determine if there is evidence that a catastrophic impairment exists or that the impairment arose from the accident, nor is it necessary to determine that any further investigation into catastrophic impairment is necessary, and
c. it would erode rule of law and cause a proliferation of inconsistent results at the LAT to come to a different conclusion than was reached in Aviva Insurance Company v. J.A.1 (“Aviva Court decision”) in factual circumstances that give rise to identical concerns about procedural fairness and the right to be assessed, namely where the Respondent is in possession of CAT reports and the Applicant is not.
5The respondent submits that the request for reconsideration be dismissed. The respondent’s position is that I made findings of fact based on the available medical evidence, correctly applied the test and was correct in concluding that the applicant did not meet the test of proving the CAT assessment was reasonable and necessary on a balance of probabilities. The respondent also submits that the applicant has not established grounds for reconsideration and the applicant has also mistakenly conflated the conclusions on temporal issues raised in the Aviva decision with the burden of proof established by previous decisions of the Tribunal that requires an applicant to prove that a proposed CAT assessment is reasonable and necessary before an insurer will be ordered to pay for it.
a. Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
6Subsequent to the release of my Decision, the Aviva decision was released by the Court, clarifying the law on when an insurer is to be ordered to pay for a CAT assessment and on what constitutes a rebuttal CAT assessment. The Aviva Court decision was not put before me by either party as it had not yet been released.
7The Court cited with approval the finding in the Tribunal’s decision before it that “the assessment at issue was not a rebuttal assessment; it was J.A.’s first CAT assessment conducted on J.A.’s behalf.”2
8Having reviewed my Decision in light of the subsequently released Aviva Court decision, I find that I made an error of law or fact in my Decision such that I would likely have reached a different result had the error not been made, specifically, that the applicant’s claim was for the cost of a rebuttal CAT assessment. As a result, I find that the applicant has established her grounds for reconsideration.
9Given that I have reviewed the evidence and already expressed views on it, in the interests of fairness to both parties, this matter should be sent back to be heard by another Tribunal adjudicator so that both parties can be confident that the decision at the second hearing was not influenced by any pre-disposition of the adjudicator. Justice must not only be done but also be seen to be done.
CONCLUSION AND ORDER
10For the reasons noted above, the applicant’s request for reconsideration is granted. The matter shall be reheard in writing by another Tribunal adjudicator on the original submissions filed by both parties together with reference to the Aviva Court decision.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 8, 2021
Footnotes
- Aviva Insurance Company of Canada v. J.A., 2021 ONSC 3185 (Div Crt).
- Ibid., para 13.