RECONSIDERATION DECISION
Before: Monica Chakravarti
Licence Appeal Tribunal File Number: 19-013326/AABS
Case Name: Darmanan Pottayya v. Unica Insurance Inc.
Written Submissions by:
For the Applicant: Yasar Saffie, Counsel
For the Respondent: Domenic Nicassio, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent, insurer Unica Insurance Inc. It arises out of a decision released March 5, 2021 (the Decision), in which the Tribunal determined that the applicant had met his onus to show that his accident related injuries are not predominately minor injuries, as defined in s. 3 of the Schedule, and that the cost of a psychological assessment is reasonable and necessary.
2The respondent submits that the Tribunal erred in law and fact in determining that the applicant sustained a concussion, thereby removing him from the Minor Injury Guideline, and that the Tribunal further erred in finding that the applicant has a psychological impairment as a result of the accident.
3The applicant provided responding submissions, arguing that the respondent is essentially seeking a rehearing with respect to the Decision and that a reconsideration is not an opportunity to reweigh the evidence, which is what is being sought by the respondent.
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.
6For the purposes of this request, the respondent relies on criteria 18.2(b), submitting that I made errors of law or fact in reaching my decision such that the Tribunal would likely have reached a different result had the error not been made.
7The 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 where it failed to meet its burden at first instance.
8I find that the respondent’s request here is precisely that, a request to reweigh the evidence. The respondent takes issue with the finding in the Decision that the applicant sustained a concussion because of the accident. The respondent’s submissions on this point are essentially the same as the submissions in the hearing in that there was no formal testing done to make the diagnosis. The Decision is clear that the Tribunal relied on the evidence provided, which is articulated in paragraphs 13-16 of the Decision.
9The Tribunal also notes in the Decision that the respondent has provided no evidence that “testing” is needed for the treating physician to make the diagnosis of a concussion and even on reconsideration the respondent has not provided any authority or evidence for its position on testing. The Tribunal did not agree with the submission nor put any weight on the fact that there was no testing. The reconsideration process is not an opportunity to litigate issues that have already been determined and thus there is no basis for a reconsideration.
10The second issue raised by the respondent is the finding by the Tribunal of the applicant’s accident related psychological impairment. The respondent specifically argues that the evidence provided in the hearing should not have led to the conclusion made by the Tribunal that the applicant has psychological injuries. The submissions provided by the respondent are simply a rehashing and expanding on the submissions made at first instance. The respondent has not pointed to any error of law or fact that would allow for a reconsideration under Rule 18(b), as the finding made by the Tribunal with respect to the applicant’s injuries was based on the evidence filed and is articulated in paragraphs 21-27 of the Decision.
11Accordingly, the respondent has not raised an articulable error of law or fact that would have resulted in a different outcome had the error not been made, which is the requirement for reconsideration of a decision under Rule 18.2(b). I therefore see no reason to interfere with the Decision.
ORDER
12For the reasons above, the request for reconsideration is dismissed.
Monica Chakravarti
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 14, 2022