[G.A.] v. TTC Insurance Company Limited, 2022 CanLII 114474

RECONSIDERATION DECISION

Licence Appeal Tribunal File Number: 18-012071/AABS

Case Name: [G.A.] v. TTC Insurance Company Limited

Before: Craig Mazerolle

Written Submissions by:

For the Applicant: Kwaku Bona, Representative

For the Respondent: Laura Qaqish, Counsel

BACKGROUND

1Due to injuries sustained from an accident on May 31, 2016, the applicant sought accident benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the "Schedule").¹ The respondent denied some of these benefits, so an application was filed with the Tribunal.

2After completing a hearing conducted in-person and then via videoconference, I found the applicant was not entitled to an income replacement benefit ("IRB"). I also concluded that the applicant would remain held to the Minor Injury Guideline ("MIG"), and she was not entitled to a disputed medical benefit ("Decision").²

3The applicant took issue with the Decision, so she filed a Request for Reconsideration. For the reasons to follow, the applicant's Request is denied.

PARTIES' POSITIONS

4The four grounds for granting a reconsideration are listed in Rule 18.2 of the Tribunal's Common Rules of Practice and Procedure (the "LAT Rules"). Of particular import are subrules (a) and (b):

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and

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.

5The applicant submitted that the Tribunal made the following legal errors:

a. The Tribunal misapplied the standard for causation;

b. The Tribunal omitted relevant evidence;

c. The Tribunal relied on irrelevant evidence;

d. The Tribunal attached weight to evidence during the stage when admissibility was being decided;

e. The Tribunal misinterpreted s. 11 of the Schedule; and,

f. The Tribunal did not properly apply the evidentiary onus.

6She also based her Request for Reconsideration on the following alleged breaches of procedural fairness:

a. The Tribunal altered orders throughout the hearing to favour the respondent;

b. The Tribunal did not allow the applicant to answer the question posed in paragraph 33 of the Decision; and,

c. The Tribunal made findings about the weight afforded to Dr. Tajedin Getahun's report (dated December 24, 2018) that contradicted an order made during the hearing.

7The applicant also sought an order finding she is outside the MIG, but her submissions focused on the grounds listed above.

8Finally, the applicant asked for costs in the amount of $1,500.00, and she "reserves the right to make submissions on costs."

9The respondent opposed the Request for Reconsideration.

REQUEST TO EXCLUDE RESPONDENT'S SUBMISSIONS

10Rule 6.2(e) of the LAT Rules states that if a document is served or filed on the Tribunal via e-mail after 5:00 p.m., it is deemed to have been sent "the next day that is not a holiday". The respondent's reconsideration submissions were due by Friday, September 9, 2022. The respondent's submissions were filed via e-mail on September 9, 2022 at 7:44 p.m. According to Rule 6.2(e), the submissions were deemed to be exchanged and filed on Monday, September 12, 2022.

11In her reply, the applicant asked the Tribunal to exclude the respondent's submissions. Not only were they filed late, but the respondent did "not to seek leave for an extension of time." Further, the applicant contended this late filing was evidence of how the respondent has "consistently disobeyed Orders with impunity".

12The respondent submitted a response to the applicant's reply (dated September 26, 2022). It stated that its submissions were filed late due to "technical issues". Regardless, the applicant did not contact the respondent to ask for more time to file her reply, and she "provided no evidence that it experienced any prejudice as a result of the delay."

13I will not strike the respondent's reconsideration submissions. The deadline was breached, but I do not find the breach is sufficiently prejudicial to justify striking the respondent's submissions. I also find there is no evidence of intentional disregard for the Tribunal's orders. Finally, I am satisfied that the applicant had a chance to address her concerns about the breach in her reply.

ANALYSIS

14Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they sustain an accident-related impairment that causes "a substantial inability to perform the essential tasks" of their pre-accident employment. A stricter test comes into effect after the 104-week mark post-accident, i.e., "complete inability" to perform any role that they are reasonably suited to perform by way of experience, training, and education. Similar to other benefits, the applicant has the onus of demonstrating entitlement on a balance of probabilities.

15I found the applicant was not entitled to an IRB, and that she did not demonstrate that she should be removed from the MIG. I also found the applicant was not entitled to the disputed medical benefit, nor was she entitled to an award or interest. Much of the Decision focused on the IRB, with the following paragraph providing a summary of this conclusion:

I am not satisfied that the applicant has established—on a balance of probabilities—that the May 31, 2016 motor vehicle accident caused an impairment that substantially interfered with her ability to perform the essential tasks of her pre-accident employment. Rather, I find that the evidence strongly supports the position that—at the time of the workplace accident in April 2017—the applicant was able to perform the essential tasks of her pre-accident employment. By failing to establish that the subject accident caused her alleged "substantial inability" to perform these tasks, there is no entitlement to the IRB for the requested period.³

Standard for Causation

16To start, the applicant contended that my analysis improperly applied the standard for causation, as I did not account for the cumulative effects of the motor vehicle accident on the later workplace accident. In this way, the applicant alleged that I did not account for how this initial accident materially contributed to the second accident: i.e., "[b]ut for the material contribution…" of the motor vehicle accident, the workplace accident would not have led to her shoulder injury. Or, as the applicant summarized in her initial submissions:

Hence, Adjudicator Mazerolle's failure to consider that [the applicant's] left shoulder injury from the TTC accident materially contributed to the workplace injury is erroneous in law. In consonance with Major J.'s speech in [Athey v. Leonati⁴], "[s]ome latent weakness spontaneously manifested" (Athey, para 40) during the workplace incident. This caused her substantial inability to perform her pre-accident employment duties and rendered her complete inability to engage in any employment for which she was suitable by education, training or experience.

17Though the applicant framed this submission as an alleged legal error, I find this concern is better seen as a dispute over how I weighed the evidence. While the applicant argued that I failed to apply the proper legal standard for causation, the source of this disagreement arises from my finding that the workplace accident was—on a balance of probabilities—the source of her purported inability to work after April 2017. Put another way, I found any effect that the motor vehicle accident had on the applicant's ability to perform her pre-accident employment had resolved in advance of the workplace accident. Due to this chain of events, I was not satisfied that—on a balance of probabilities—there was a causal link left between the motor vehicle accident and her ability to work after the point when she returned to similar employment.

18As I will return to throughout this decision, mere disagreement with a factual finding is not sufficient to merit a reconsideration. The values of finality and predictability mean that a reconsideration is not an appropriate avenue for relitigating arguments decided at first instance. Rather, a party must show that there is an error in a factual or legal finding, not that it disagrees with these findings. For this ground, I do not conclude that the applicant has established an error.

19Similarly, the applicant claimed that I "chose to not be assisted by the repeated expert opinion remarks of Dr. Getahun". Though she again defined this alleged error as an improper application of the legal standard for causation, I find this submission is better understood as a disagreement over the weight attached to an expert opinion. As detailed in the Decision, I considered Dr. Getahun's evidence at length, and I reached a conclusion over what weight to assign his opinion. This type of weighing is well within my purview as an adjudicator, and, once again, disagreeing with how an adjudicator weighed a piece of evidence is not enough to trigger a reconsideration.

20Finally, the applicant contended that I improperly applied the doctrine of novus actus interveniens. Beyond the fact that I did not formally invoke this doctrine in my analysis, I find this submission is another complaint about how I weighed the evidence involving the relationship between the motor vehicle accident, the workplace accident, and her alleged inability to work after April 2017. A disagreement about how I weighed the evidence is not a valid basis to grant a reconsideration.

Omitting Evidence

21The applicant claimed I ignored evidence that would have supported her claim:

i. The WSIB found the April 2017 workplace accident was a "chance event type of accident", which is, according to the applicant, "a significant finding that throws into question Adjudicator Mazerolle's comment that the decision-maker had found the workplace incident as the sole cause of [the applicant's] left shoulder injury";

ii. The Tribunal improperly disregarded Dr. Getahun's report based on the assessor's review of the applicant's medical condition during the period in and around her return to work in 2017; and,

iii. The Tribunal ignored the report of Dr. Abraham Chaiton, rheumatologist (dated September 21, 2018), in reaching the "contention that the family doctors' records showed no reports about the TTC accident in the aftermath of the workplace incident".

The applicant claimed that my failure to consider this evidence allowed me "to make negative finding to achieve desired result in the case." She further stated in reply that I "deliberately omitted this evidence and that this should be extremely concerning because it was just done to deny [the applicant's] access to justice."

22First, I do not understand how the applicant's submission about the WSIB file challenges my analysis. Since the WSIB's decision-maker found the workplace accident was forceful in nature, I do not see how adding that it was a "chance event" would have altered this characterization. Moreover, I do not understand how recognizing that it was "chance event" in the Decision would have affected my conclusions, a necessary element of Rule 18.2(b).

23There was also a brief reference in the applicant's reconsideration submissions to how the WSIB noted a "prior right shoulder [left shoulder] injury…". However, a similar finding from the WSIB was addressed in the Decision at paragraph 32, so I do not see how this submission supports a reconsideration.

24Second, I do not find there is a sufficient basis to establish that my findings about Dr. Getahun's report constituted a legal or factual error. Though the applicant may disagree with my conclusion about the sufficiency of this assessor's document review, mere disagreement is not enough to merit a reconsideration.

25Finally, in regard to Dr. Chaiton's report, I do not accept that citing this report would have affected my analysis. While I accept it was not referenced in the Decision, I do not conclude that mentioning this report would have likely affected the outcome, a necessary element of Rule 18.2(b).

26To start, I did not, as the applicant submitted, find there were "no reports about the [motor vehicle accident] in the aftermath of the workplace incident". Rather, I accepted that there were limited references in the family physicians' records, i.e., "… references to the subject accident largely disappear from these records." [emphasis added].⁵ In fact, one of the post-April 2017 notes quoted in my Decision referenced the motor vehicle accident. However, I concluded that this note showed how the applicant did not see the motor vehicle accident as the source of her left shoulder pain [emphasis added]:

Additionally, a note from January 13, 2018 establishes the centrality of the workplace accident to the applicant's own understanding of her left shoulder pain:

left shoulder pain

secondary to accident last year

pulled arm when went to work but wsib won't acknowledge pain since had mva

Beyond specifying that the left shoulder pain relates to an accident from "last year" (i.e., 2017, not 2016 when the bus accident took place), there is a concern about how WSIB will not accept the effects of the workplace accident on her left shoulder. This understanding of the source of her left shoulder pain is at odds with the applicant's testimony before the Tribunal.⁶

As such, the underlying finding in this part of the Decision was not that there were no references to the motor vehicle accident after April 2017. Rather, I concluded that, after the workplace accident, these notes suggested that the stated source of the applicant's left shoulder pain shifted. This finding supported my conclusion that—in and around her return to work—the applicant had the capacity to perform the essential tasks of her pre-accident employment.

27Relatedly, when considering the date of the applicant's visit with Dr. Chaiton on September 21, 2018, this report has a similar timing issue as Dr. Getahun's assessment on December 17, 2018. Both visits happened after the 104-week post-accident mark, and both took place over a year after the workplace accident. When speaking to the timing of Dr. Getahun's assessment, I described this concern in the Decision as follows: "…even if I accepted [Dr. Getahun's] opinion to be an accurate account of the applicant's physical condition, his underlying assessment took place well after the accident and the period of concern for my analysis above."⁷ The same issue is present with Dr. Chaiton's report.

28Taken together, I am not satisfied that citing Dr. Chaiton's report would have likely altered my conclusions in the Decision.

Irrelevant Evidence

29Citing my reliance on her workplace accident (and the references to the motor vehicle accident in the family physicians' records), the applicant claimed my conclusions were based on irrelevant evidence. The applicant also claimed that, by concluding that the severity of a motor vehicle accident is not necessarily determinative of the resulting injuries, it was inappropriate to then state that, since the workplace accident was "serious", the resulting injuries must have been significant. By rectifying these errors, I would have been unable to conclude that the workplace accident caused significant injuries, nor would I have been able to "create a catapult conclusion that the claimant's injury had resolved."

30I do not find this submission merits a reconsideration. Despite the characterization of this submission as an alleged legal error, the applicant is again challenging my weighing of the evidence and, by extension, the conclusions based on these findings. Disagreement with a factual finding is not enough to trigger Rule 18.2.

Assigning Relevance at the Admissibility Stage

31Another purported legal error was my reference to the level of relevance that a disputed document had at the stage when its admissibility was being questioned. This argument is summarized by the applicant as follows:

A well established rule, in the law of evidence, is that in considering admissibility of evidence, "relevance" is the test and that "[t]here are no degrees of relevance" (Ronald J. Delisle, Canadian Evidence Law in a Nutshell, 2nd Edition, page 5(b)).

During the hearing, Adjudicator Mazerolle frequently gave undue weight to admissible evidence. For instance, he stated a letter by [the applicant's] representative to Dr. Getahun to conduct an assessment was "significant"…

It is submitted that giving weight to evidence prior to deliberation or to evidence that were subject to admissible debates prejudiced [the applicant's] case before a decision was made, hence an error in law.

32The applicant then added in her reply that I "persistently attached weight to certain evidence during debates over their admissibility and that such conduct, contrary to the rationalist tradition, pre-determined the outcome of the case."

33I do not accept this ground. First, even if I accepted that there was a legal error, there is no indication of how avoiding this error would have likely impacted the outcome of the decision. For instance, there is no indication of what arguments, evidence, etc. would have been tendered had this alleged error not occurred.

34Further, there is no support provided for the proposition that "giving weight to evidence prior to deliberation or to evidence that were subject to admissible debates" is improper. The only legal authority provided by the applicant is a selection from Canadian Evidence Law in a Nutshell, i.e., ""[t]here are no degrees of relevance". However, this quotation needs to be read in its full context to understand the author's meaning [citation removed, emphasis added]:

Relevance exists if there is, logically, probative value within the tendered evidence. The proponent of the evidence must demonstrate that, based on logic and experience, there is a rational connection between the evidence tendered and the proposition sought to be established thereby. Logical relevance is insisted upon. Though the phrase "legal relevance" sometimes finds its way into the jurisprudence that concept has been specifically rejected by our highest court. The only relevance insisted on is logical relevance. There are no degrees of relevance.

35Put another way, the author notes that the use of the term "legal relevance" is misleading, because the need for a logical connection between proffered evidence and the fact at issue means there can only be "logical relevance". This observation does not then mean an item cannot have a high, low, etc. level of relevance—rather the key determination is the logical connection between the evidence and the fact in question. As such, I do not agree that it was inappropriate to say that a disputed item had a certain level of relevance when determining admissibility. My analysis at this stage of the hearing process was grounded in the correct legal principle, i.e., determining this logical connection.

Interpretation of Section 11

36The applicant argued that I misinterpreted s. 11 of the Schedule by failing to apply the modern principle of statutory interpretation, "an analysis that has regard to the text, context and purpose".⁸ According to the applicant, my interpretation of s. 11 led me to make "impermissible findings, such that [the applicant's] ability to return to work and to perform her pre-accident employment duties amounted to resolution of her left shoulder injury from the TTC accident."

37Similar arguments were addressed in the Decision [emphasis in original]:

… I do not place significant weight on her submission about s. 11 of the Schedule. Section 11 states that a return to work will not—in and of itself—deprive an insured person from receiving an IRB.

The applicant asserted that this provision disallows the Tribunal from considering her return to work as part of its determination about her IRB. In addition to the wide discretion provided to the Tribunal to consider all relevant facts, I do not find this interpretation is supported by the language of s. 11. Focusing on the second half of the section, it is clear that insured persons still have to meet the entitlement standard for an IRB [emphasis added]:

… without affecting his or her entitlement to resume receiving any benefits to which he or she is entitled under this Part if, as a result of the accident, he or she is unable to continue the employment or self-employment.

In essence, I do not accept that this section disallows the Tribunal from considering attempted returns to work as part of the overall factual matrix involved in determining whether the IRB entitlement standards have been met.⁹

38As demonstrated by this quotation, I considered the language, context, and purpose of s. 11 in reaching this interpretation. I then used this interpretation in my application of the facts to the IRB entitlement standard.

39At a more fundamental level, disagreement with a legal finding is not sufficient to trigger Rule 18.2, as reconsiderations are not a venue to relitigate arguments made at first instance. A party must establish a legal error, and then show that "the Tribunal would likely have reached a different result" without the error. Aside from references to case law laying out the modern principle of statutory interpretation, I do not find the applicant has presented an explanation for why my interpretation is incorrect. I also do not find this case law alone is a compelling basis to reconsider my interpretation of s. 11.

40In reply, the applicant added that the purpose of s. 11 is "to encourage insured persons to return to work", and so "ruling that a return-to-work amounts to no disability cuts through legislative purpose to discourage persons from returning to work." Once again, this reading does not account for the highlighted selection from s. 11 cited above, namely the requirement that an insured person show "as a result of the accident, he or she is unable to continue the employment or self-employment."

Evidentiary Onus

41The final alleged error is the applicant's claim I reversed the parties' evidentiary onus when deciding she was not entitled to an IRB for the post-104 week period:

It is submitted that this ruling cuts through the referenced dicta from [Clements v. Clements¹⁰]. Perhaps [the respondent] bore no legal burden to show [the applicant] was not entitled to IRB. But it risked the choice it made to not provide evidence to counter the reports of Drs. Safieh and Getahun…

… The burden is on the insured person to discharge, by evidence, that she met the IRB test. [The applicant] discharged that burden by reports of Drs. Getahun and Safieh. Again, [the respondent], in its "power", chose to take no steps to contradict the opinions contained in the reports of Drs. Getahun and Safieh.

42I do not accept this submission, because it is based on the premise that the applicant had satisfied her evidentiary onus for entitlement to the post-104 week IRB. By finding that the applicant had not met this burden, there was no requirement on the respondent to rebut the claim. This line of reasoning was explained at paragraphs 54 and 55 of the Decision:

Considering this evidence, I am satisfied that the applicant is reasonably suited to perform employment of a physical nature. Therefore, since I am not satisfied that the applicant established that the subject accident substantially interfered with her ability to perform her physical, pre-accident employment, I am further satisfied that she has not established that this accident rendered her completely unable to perform physical employment.

I would also note that the applicant suggested that, since the respondent's experts did not comment on her post-104 week condition, Dr. Getahun's conclusion about this standard must be accepted as uncontested. I do not agree with this line of reasoning. The respondent does not have the onus of demonstrating that the applicant is not entitled to an IRB. Instead, the applicant has this burden. Since the applicant did not meet her evidentiary onus, it does not matter whether the respondent's experts specifically addressed the post-104 week standard.

Once again, it is not enough for a party to disagree with what is, in effect, a factual finding.

Procedural Orders During the Hearing

43Turning to the allegations that I breached her right to procedural fairness, the applicant claimed I made a series of procedural orders that contradicted an earlier order barring further documents from the hearing. According to the applicant, these inconsistent orders favoured the respondent, and they amounted to a breach of procedural fairness.

44I addressed these procedural orders in the Decision as follows:

First, there were frequent objections raised about the inclusion of new documents. In particular, the applicant took issue with the interaction between an early order to restrict the inclusion of new records, and then subsequent orders admitting further documents from the respondent. For instance, midway through the applicant's testimony, the respondent sought to put forward her OHIP summary for the purpose of cross-examination. Due to its high relevance, I allowed it into the hearing over the applicant's objections. However, to remedy any prejudice facing the applicant, the hearing was adjourned for the rest of the day.

Another issue arose when the applicant alleged that the respondent did not properly file an Acknowledgement of Expert's Duty form prepared by its orthopaedic assessor, Dr. Reuven Lexier. When asked what prejudice faced the applicant from admitting this record, she stated that she was under no obligation to establish prejudice. Rather, this breach of procedural fairness was presumed to be prejudicial. I allowed Dr. Lexier's form into the hearing record, as I was satisfied that any of the applicant's concerns could be adequately addressed through cross-examination and closing submissions. Additionally, the highly relevant nature of Dr. Lexier's evidence outweighed any prejudice facing the applicant through its addition at that juncture.

An adjudicator is tasked with ensuring the parties are afforded a fair, proportional, and efficient hearing process at all stages of the proceeding. This obligation does not end once an order has been issued on a particular, procedural point. Rather, with an eye to ensuring consistency, the adjudicator must still always be alive to the concerns of fairness and efficiency. This ongoing duty informed my orders to allow highly relevant documents into the hearing record, and it also explains why allowances were made to ensure fairness to the applicant who was asked to consider these records as part of her submissions.¹¹

45The applicant's concern about these orders was considered, with accommodations made when necessary. I also provided the applicant with the opportunity to establish any prejudice arising from these orders, and the applicant declined to make submissions on this point. Taken together, I do not find the applicant has established a breach of procedural fairness, nor do I accept that these concerns are a reason to grant a reconsideration.

Question at Paragraph 33 of the Decision

46The applicant then took issue with a question I posed at paragraph 33 of the Decision [emphasis added]:

First, the applicant informed the WSIB that she was able "to perform her regular job duties without difficulty". This statement is at odds with her testimony before this Tribunal. Beyond being an inconsistency in her evidence, this statement is corroborated by other records in her WSIB file that indicated there were no modified duties available after the workplace accident. If modified duties were available for a shoulder injury arising from the earlier bus accident (namely, the assistance of a fellow co-worker), why would there be no modified duties available for a later workplace injury affecting the same shoulder? These inconsistencies raise the possibility that the applicant was able to work at the bakery prior to the workplace accident with minimal assistance.

The applicant argued that she should have been afforded an opportunity to answer this question during the hearing.

47I do not accept this ground. This sentence was structured as a question to highlight an inference I made about the interaction between the applicant's testimony and the WSIB file. This sentence could have been rephrased as a statement: e.g., "I find there is an inconsistency, as modified duties were available for a shoulder injury arising from the earlier bus accident (namely, the assistance of a fellow co-worker), yet unavailable for a later workplace injury affecting the same shoulder." Nothing substantive turns on this sentence being framed as a rhetorical question, so I do not accept this ground as a valid reason for granting a reconsideration.

Weight Afforded to Dr. Getahun's Evidence

48According to the applicant, I erred by reaching allegedly inconsistent findings about Dr. Getahun's evidence. While I found no issue during the hearing with Dr. Getahun's inability to cite the dates of the particular medical notes he reviewed in preparation of his report, I allegedly reversed this order in the Decision.

49I do not accept this submission. My findings about Dr. Getahun's report are mainly discussed in the following paragraphs of the Decision:

I also do not find the expert opinion of Dr. Getahun alters my conclusions. Though I found him to be a credible witness (e.g., he accepted when his opinion could be challenged during his testimony), his assessment took place years after the motor vehicle and over a year after the workplace accident. In fact, since the assessment took place on December 17, 2018, Dr. Getahun did not meet with the applicant until after the 104-week post-accident mark had passed…

I would also note that, despite his reference to the family physicians' records in the "Review of Documentation" section of his report, Dr. Getahun could not identify the time periods for when these notes were provided. Aside from references to two OCF-3s from June 14 and October 14, 2016 (as well as the aforementioned letter from Dr. Safieh), his report simply stated that "Clinical notes and records" of Drs. Kosar and Safieh were "reviewed". This lack of detail leaves me unable to confirm whether Dr. Getahun had a comprehensive understanding of the applicant's condition during the important period in and around the applicant's return to work. Taken together, his opinion does not change my findings about the applicant's ability to work in March 2017.¹²

50These findings are not in contrast to my ruling from the hearing, as this order arose from a discussion between the parties over how to allow Dr. Getahun's testimony to proceed. While the respondent wanted to present him with records for comment, the applicant opposed questions based on documents Dr. Getahun had not previously reviewed. Since there was limited information about the specific medical records he had reviewed (nor could the applicant produce this information), I accepted that any documents included in the hearing brief could be placed before Dr. Getahun.

51This ruling did not remove the possibility that I could then assess his report based on his review of the medical documentation. Rather, this ruling was meant to facilitate a comprehensive cross-examination of the witness. I would also note that, as referenced in the quotation above, several factors went into my analysis of Dr. Getahun's report—not just the document review.

Minor Injury Guideline

52Near the conclusion of her initial reconsideration submissions, the applicant argued that "… because of his faulty application of so-called 'causal chain' he missed finding [the applicant's] left shoulder injury fell outside the MIG." Therefore, the applicant asked the Tribunal to conclude that her left shoulder injury removed her from the MIG.

53Due to my findings above, I do not conclude that the applicant has established any of the grounds for reconsideration. In this way, I find that my entire Decision (including my findings about the MIG) shall remain.

Respondent's Failure to Respond

54As a closing note on the grounds for reconsideration, the applicant stated in reply that, since the respondent did not address some of these grounds, this silence should be seen as tacit acceptance of these arguments.

55Rule 18 is a discretionary power that allows the Tribunal to reconsider its final determinations. To engage this power, a requesting party must establish that at least one of the criteria under Rule 18 has been met. It is, therefore, not enough for a party to present an undisputed allegation about a final determination. Rather, it must convince the Tribunal that the standard under Rule 18 has been met. Only then will the Tribunal be in a position to consider whether to use this power. Further, it is only at this point that it then becomes incumbent on the responding party to try and counter the requesting party's grounds for reconsideration.

56I am not satisfied that the applicant has established that any of her grounds for reconsideration meet the standard under Rule 18. As such, it is irrelevant whether the respondent addressed all of these grounds for reconsideration in its responding submissions.

Costs Request

57Rule 19.1 of the LAT Rules allows the Tribunal to order costs where a party's behaviour is found to be unreasonable, frivolous, vexatious, and/or bad faith. Rule 19.4 requires the party requesting costs to "set out the reasons for the request and the particulars of the other party's conduct" that are at issue.

58The applicant did not provide any reasons or particulars in support of her costs request, despite the requirement under Rule 19.4. For this reason, I will not order costs.

ORDER

59The applicant's Request for Reconsideration is dismissed.

60No costs will be ordered as part of this Request for Reconsideration.

Craig Mazerolle Adjudicator Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2G.A. v. TTC Insurance Company Limited, 2022 CanLII 46848 (ON LAT).
3. 3Decision at para. 20.
4. 4[1996] 3 S.C.R. 58.
5. 5Decision at para. 36.
6. 6Decision at para. 38.
7. 7Decision at para. 46
8. 8Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 118.
9. 9Decision at paras. 47 and 48.
10. 102012 SCC 32.
11. 11Decision at paras. 6 – 8.
12. 12Decision at paras. 49 and 50.