RECONSIDERATION DECISION
Before: Ian Maedel
Licence Appeal Tribunal File Number: 20-004000/AABS
Case Name: Christopher Tipoulow (by his Litigation Guardian) v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Robert Bernstein, Counsel
For the Respondent: Kristofer B. Angle, Counsel
BACKGROUND
1On May 27, 2022, the applicant requested reconsideration of the Tribunal’s Decision that was released to the parties on May 6, 2022 (“Decision”). In that Decision, I determined the preliminary issue of whether the applicant was involved in an “accident”, as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)1 (“Schedule”).
2The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.2 To grant a request for reconsideration, the Tribunal must be satisfied that 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 likely 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 likely have affected the result.
3The applicant is seeking a reconsideration pursuant to Rule 18.2 (a) and (b). The applicant requests that my Decision be varied to determine that the incident was an accident as defined by the Schedule. In the alternative, the applicant requests a rehearing of the preliminary issue in all, or in part.
RESULT
4The applicant’s request for reconsideration is denied.
ANALYSIS
5A summary of the incident in dispute is set out at paragraphs 17-20 of my Decision. Briefly, the applicant submitted he was walking toward a Hamilton transit bus when it began to pull away from the bus stop. The applicant knocked on the side of the bus as it drove away. He lost his balance, and he slipped off the curb. His right foot was allegedly run over by one of the rear bus tires. As a result of the incident, the applicant allegedly suffered an undisplaced Weber B fracture of his right ankle and a broken ankle-foot orthotic (“AFO”).
6In my Decision, I considered whether the applicant was involved in an “accident” as defined by the Schedule. In considering the two-part test laid out by the Court of Appeal for Ontario in Greenhalgh v. ING Halifax Insurance Co.3 (“Greenhalgh”), I determined the applicant’s incident with the bus did not satisfy the second part of the test. Specifically, while I was satisfied that the “purpose test” was met, I found the applicant failed to establish his injuries were directly caused by the use or operation of the transit bus.
7For a reconsideration to be successful under Rule 18.2(a), I must find that I acted outside its jurisdiction or violated the rules of procedural fairness. The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that I would likely have reached a different decision had the error not been made. I will now turn to the submissions of the parties on these two grounds for reconsideration.
Parties’ Submissions
8The applicant submits that I violated the rules of procedural fairness by ignoring the utmost good-faith relationship between the insured party and the insurer, and failed to account for the “uncontroverted” medical records which should be taken at face value. The applicant argues it is otherwise cumbersome and oppressive to require a person of limited means to retain a medical expert to opine on the mechanics of the incident. The applicant submits he should have been treated with “special care” in the analysis to account for his pre-existing cognitive and intellectual impairments. The applicant is also assisted by his sister, Penelope Tipoulow, his Litigation Guardian for this matter.
9The applicant also submits that I made an error of fact or law by not considering the “hit and run” scenario, given the sufficiency of the evidence provided. The applicant notes that not one medical professional questioned the mechanics of his injuries as a result of the incident. Additionally, the applicant argues there is no standard imported from Greenhalgh that objective or direct evidence is necessary to determine that an incident is an “accident”. Given that I ruled he met the purpose test, he argues I failed to properly interpret the second prong of the Greenhalgh test related to causation, which was an error of law.
10The respondent submits that there is a high onus on the applicant to establish a legal or evidentiary mistake preventing a just outcome. There is no evidence to substantiate a claim that I violated procedural fairness pursuant to Rule 18.2(a). Both parties were provided an equal opportunity to be heard and to respond.
11The respondent further submits there was no error of law or fact such that the I would have likely reached a different conclusion had the error not been made. In this case, I made factual findings based on the evidence, including evidentiary deficits specific to the causation test in Greenhalgh. My interpretation and application of the applicable legal test was sound. Even if an error was made (which is specifically denied), the respondent submits that I would have come to the same conclusion.
Procedural Fairness
12To be clear, the reconsideration of a decision is not a collateral means to reconsider or reweigh evidence when a party disagrees with the previous Decision. Having said that, I have conducted a complete review of the evidentiary record for this matter, including a review of the almost 700 pages of submissions and evidence originally provided.
13The applicant submits I failed to consider the utmost good faith relationship between the insured and the insurer. According to the applicant, I should have taken his reports regarding the mechanism of the incident at face value, especially in light of his personal circumstances. I disagree. While I do not deny the applicant’s personal challenges, including living with Cerebral Palsy, and his pre-existing cognitive and intellectual impairments, the evidentiary burden of proof remains the same. I addressed the question of whether the applicant met his burden of proof at paragraphs 32 and 36-37 of my Decision. The applicant was unable to establish the Weber B ankle fracture was directly caused by the operation of the transit bus. While the injury was evident from the Emergency Room notes and the X-ray taken on the alleged date of loss, the mechanism of how exactly this injury occurred was unclear. The applicant had the burden to establish a nexus between the operation of the bus and his broken ankle on a balance of probabilities, a burden I found he, ultimately, failed to meet.
14The thrust of the applicant’s evidence was based on his repeated self-reports to various practitioners that his broken ankle was the result of being run over by the rear bus wheel. The applicant also relied on the transcript of an Examination Under Oath (“EUO”) conducted on December 18, 2020, more than two years post-incident. As part of his reconsideration submission, the applicant submits that requiring a medical or reconstruction expert for this type of matter creates an oppressive burden for someone of limited means.
15This is an argument that was not made in the first instance, and I will not address it on reconsideration except to note that while expert medical or reconstruction evidence is not required, the applicant did not provide any opinion or diagnosis from any treating medical practitioner that supported the alleged mechanism of the incident. The applicant did not report the incident to police or the City of Hamilton. The applicant did not provide any photographic evidence of the applicant’s injuries or his broken AFO. There was not even a documented description of the damaged AFO by the treating Orthotist. This is in addition to the lack of witness evidence, incident reports, surveillance evidence, expert medical opinions, or reconstruction evidence. Again, the applicant relied upon his self-reports regarding the mechanism of the incident, which were, ultimately, unsupported by any objective evidence.
16I find no violation of procedural fairness in the previous treatment of the evidence, nor do I place any weight upon the applicant’s submissions that I created an oppressive burden to produce medical or reconstruction evidence in relation to the mechanism of the incident. While I again acknowledge the applicant’s personal pre-existing life challenges, I do note that he was assisted and guided by legal counsel throughout this administrative process who was retained less than three-weeks after the incident.
17I am not persuaded the applicant has demonstrated there were any violations of procedural fairness in the treatment of the evidence, nor the ultimate finding rendered in my Decision.
Error of Law or Fact
18I agree with the applicant that I did err in failing to acknowledge that the applicant was assisted by a Litigation Guardian in this application before the Tribunal. Ms. Penelope Tipoulow, the applicant’s sister, was added as the Litigation Guardian in the Case Conference Report and Order dated January 27, 2021. However, the applicant has not demonstrated how this error had any effect on the outcome of the Decision, as required by Rule 18.2(b).
19The applicant submits the failure to consider a “hit and run” scenario with limited direct evidence is an error of law and fact. Although not specifically addressed in my previous Decision, the applicant failed to articulate this method of analysis. The applicant did not provide any case law, nor articulate how this approach would otherwise be useful in analyzing the evidence before the Tribunal. Ultimately, the applicant had the evidentiary burden on a balance of probabilities standard, and that is precisely how I evaluated the evidence.
20I also reject the applicant’s assertion that I misapplied the two-part test set out in Greenhalgh. I articulated and applied the two-part test in my Decision at paragraphs 24-26 and 30-32. At paragraph 30, I stated that the purpose test, or whether the incident arose out of the use or operation of an automobile is a relatively low bar. I found that in this matter, if the bus was being operated on the street as a transit vehicle, this portion of the test is satisfied. However, it does not follow that meeting this stage of the test means I had to find that the applicant met the second stage.
21I disagree with the applicant that the second portion of the Greenhalgh test was made out in this case. As set out in paragraphs 32-36 of my Decision, the applicant failed to establish his injuries were directly caused by the operation of the bus. The lack of objective evidence failed to meet the causation threshold. Thus, an analysis related to “but for” considerations, an intervening act, or dominant feature was not required. This was not “flouting” guidance from the Court of Appeal as the applicant submits, but a determination based purely on the lack of objective evidence relating to the mechanism of the injury. This was not an error of law, but a conclusion made after careful consideration of the evidence.
22I also disagree that I failed to take a “common sense” approach to the evidence by placing insufficient weight upon the applicant’s sworn testimony at the EUO. I am mindful that this examination took place more than two years after the incident, and this testimony was unsupported by the evidence tendered. Specifically, as noted in paragraphs 33-35 of my Decision, no opinion (medical or otherwise) was provided that linked the type of injuries sustained to the potential impact of a bus driving over the applicant’s right foot. Again, this was not an error of law or fact, but a conclusion based upon a review of the EUO transcript, and the evidence provided.
23Thus, I do not agree with the applicant that my Decision exhibited an error of law or fact in the Tribunal’s treatment of the evidence, or the two-part test set out in Greenhalgh. Nor was there an error which would have likely led to a different result if this error had not been made. Instead, I weighed the evidence and rendered a ruling based on this careful consideration. Once again, the reconsideration process is not a collateral means to have the Tribunal reweigh evidence when a party disagrees with a Decision. The requesting party must show that at least one of the criteria under Rule 18.2 has been met.
24The applicant has not satisfied the grounds under Rule 18.2, so I will not grant his request for a reconsideration.
CONCLUSION
25For the reasons noted above, I deny the applicant's request for reconsideration.
Ian Maedel
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: November 17, 2022
Footnotes
- O. Reg. 34/10.
- 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.
- 2004 CanLII 21045 (ON CA).