RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 20-008382/AABS
Case Name: Mary Queen Galang v. Coseco Insurance Company
Written Submissions by:
For the Applicant: Michelle Jorge, Counsel
For the Respondent: Peter Durant, Counsel
BACKGROUND
1On August 15, 2022, the applicant requested reconsideration of the Tribunal’s decision (“Decision”) that was released to the parties on July 25, 2022. In that Decision, the Tribunal determined the applicant is partially entitled to a treatment plan/OCF-18 (“OCF-18”) in the the amount of $199.50 with interest and is not entitled to treatment plans in the amounts of $3,696.50, $2,901.90, $1,631.35, and $114.84.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”).1 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), (b) and (d). The applicant requests that the Tribunal’s Decision be set aside, and an order be granted upon reconsideration for payment of the denied benefits, with interest. In its responding submissions, the respondent submits that that the applicant’s reconsideration request should be denied.
RESULT
4The applicant's request for reconsideration is denied.
ANALYSIS
Rule 18.2(a) – Violation of Procedural Fairness
5The applicant submits that it was procedurally unfair for the Tribunal to request reply submissions from the applicant, and then not review them. Further, the applicant argues it was procedurally unfair to request particulars from the parties after the hearing and before the decision was made, and subsequently only accept submissions from the respondent on these particulars. The applicant argues that the Tribunal’s process allowed the respondent to clarify its submissions and make additional submissions, while the applicant’s clarifying submissions were excluded. The applicant further argues the additional information from the respondent included new evidence that was not in its original submissions and had a direct impact on the Tribunal’s Decision.
6The respondent argues there was no violation of procedural fairness. It argues that the applicant submitted late reply submissions with the Tribunal, which the respondent objected to, and the Tribunal advised would not be considered. The respondent submits that prior to the release of the decision, the hearing adjudicator posed three specific factual questions to both parties. Both parties responded to those questions with answers and thus the hearing adjudicator received input from both parties. The respondent further submits that the applicant did not oppose the Tribunal’s questions when they were asked, and only objected to the questions after the Tribunal’s Decision denied the applicant’s claim for benefits.
7As noted in the decision at paragraph 5, the applicant was provided with notice of the deadline for submissions in the Case Conference Order (released February 3, 2021). Upon review, I find the applicant met the deadline for initial submissions on July 26, 2021 as set out in the Order but did not file reply submissions by the August 23, 2021 deadline. Instead, she filed them in June 2022, some ten months after the filing deadline. The applicant’s late filing was in response to several inquiries by the Tribunal as to whether reply submissions had ever been filed, and correspondence about when they would be accepted. Unfortunately, due to a miscommunication between the adjudicator and case manager, the respondent was not copied on this correspondence between the Tribunal and the applicant. The respondent was copied when the applicant filed reply submissions on June 13, 2022, and when the Tribunal requested the applicant to file revised reply submissions that did not contain new evidence on June 14, 2022.
8In a letter dated June 14, 2022, sent to the Tribunal on June 15, 2022, the respondent objected to the late filing of reply submissions and the communication between the applicant and the Tribunal that did not include the respondent. The respondent argued that the Tribunal’s communication with the applicant about whether or not reply submissions would be accepted, by when, and in what form, raised a concern with respect to bias. On June 16, 2022, the applicant submitted revised reply submissions. On June 21, 2022, the Tribunal wrote to the parties to advise that the applicant’s reply submissions would not be considered as there was no new Order extending the timeline for submissions as set out in the original Case Conference Order, and that a new adjudicator would be assigned to hear the matter.
9The Tribunal’s Decision was issued on July 25, 2022 and the Tribunal addressed the issue of reply submissions in paragraph 5. The Tribunal noted that the applicant’s submissions did not address all the issues in dispute. The Tribunal also noted that the applicant was given an opportunity to provide reply submissions to clarify the issues within the mandated deadline of the Case Conference Order, but chose not to do so. The Decision stated that the Tribunal would still determine the issues in dispute.
10The question before me is whether there was a violation of procedural fairness in the Tribunal not considering the applicant’s reply submissions. I find there was not. Procedural fairness provides that the parties understand the case they have to meet, and that they have an opportunity to be heard and be allowed to respond accordingly. Upon review, I find that the applicant had notice of the August 23, 2021 deadline for reply submissions as set out in the Case Conference Order, but did not file in time. I acknowledge that the Tribunal made errors during the process of following up with the applicant on her reply submissions. However, once it received the respondent’s objection, the Tribunal advised the parties that a miscommunication had occurred and assigned a new adjudicator to hear the case. The key question, in my view, is whether the applicant understood the case she had to meet and had an opportunity to reply to the respondent’s submissions. I find that she did and find no violation of procedural fairness in the Tribunal adhering to the submission deadlines set out in the Case Conference Order and in not considering the applicant’s reply submissions, filed ten months after the mandated deadline.
11I also find no violation of procedural fairness with respect to the request from the hearing adjudicator for answers to three factual questions from the parties before the Decision was rendered. On July 7, 2022, the Tribunal wrote to both parties with the following three questions:
When was the applicant removed from the MIG and on what basis?
On what date was the MIG exhausted or the treatments billed to the MIG to date?
What amount has the applicant incurred to date?
12This request was made by email to both parties at the same time. No objection was made by the applicant, and both parties responded with answers to the questions posed by the Tribunal. Specifically, the applicant provided information in response to all three questions, including clarifying the amount the applicant had incurred to date, and attaching supporting documentation for the Tribunal’s reference. It is only on reconsideration that the applicant now objects to the questions.
13In her submissions, the applicant characterizes her responses to the Tribunal’s questions as assisting the respondent by providing “documentation provided by the Respondent to substantiate the Respondent’s answers”, and “a collegial attempt to assist in the Tribunal’s decision-making process”. The applicant submits that despite her assistance in responding, the questions and the Tribunal’s consideration of the answers was procedurally unfair as they related to the respondent’s position alone. I disagree. I find that the questions are factual in nature. I find no violation of procedural fairness in the Tribunal posing factual questions to the parties, and then taking into consideration both parties’ responses to those questions in rendering its decision.
14For the reasons outlined above, I find the applicant has not established grounds for reconsideration under Rule 18.2(a).
Rule 18.2(b) - Error of Law
15The applicant submits that the Tribunal erred in law in its analysis of the application of the Minor Injury Guideline (“MIG”). The applicant submits that she did not sustain minor injuries, and the Tribunal’s analysis of the respondent’s denial of treatment plans based on the applicant being in the MIG was an error of law. In her submissions the applicant submits that the Tribunal “could have determined that the Applicant was never in the MIG”, that the Tribunal’s interpretation of the applicant’s entitlement to benefits sets a dangerous precedent, and that the insurer has a responsibility to continue to adjust the file, which it did not meet. The applicant also sets out arguments in support of the disputed treatment plans being reasonable and unnecessary, arguing the Tribunal did not give appropriate weight to the applicant’s submissions.
16The respondent submits that the onus is on the applicant, and she has not provided evidence that she was out of the MIG prior to the denial of the subject treatment plan. The respondent argues there was no error of law made by the Tribunal in the application and interpretation of sections 38(5) and 38(6). The respondent further submits that the applicant’s submissions on reconsideration restate the arguments she made at the written hearing.
17I find no error of law in the Decision. In paragraphs 9 through 11, the Decision addressed the question of the MIG and section 38(5) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)2 (“Schedule”). In paragraph 11, the Tribunal noted that the applicant failed to address section 38(5) or 38(6) of the Schedule in her initial submissions, and also did not address when evidence supporting the applicant’s removal from the MIG was provided to the respondent.
18In paragraphs 12 to 29 the Tribunal addressed each of the disputed treatment plans in detail, setting out the reasons for its decision on each. The fact the applicant does not agree with the Tribunal’s analysis or decision with respect to the denied treatment plans is not grounds for reconsideration. Rather, I find the applicant’s reconsideration submissions are an attempt to reargue her case, and it is well established that reconsideration is not an opportunity to make new arguments or reargue the issues in dispute.
19For the reasons outlined above, I find the applicant has not established grounds for reconsideration under Rule 18.2(b).
Rule 18.2(d) – New Evidence
20In her submissions, the applicant submits that there is evidence that was not before the Tribunal when rendering its decision. While it is not clear from the submissions, I assume that the applicant is requesting reconsideration under Rule 18.2(d). Under that Rule, the test to be met is that 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.
21I find the applicant has not established grounds for reconsideration under Rule 18.2(d). While the applicant argues there is evidence that was not before the Tribunal when rendering its Decision, she does not identify the new evidence in her submissions. While I assume the applicant is referring to evidence that was filed after the deadline in the Case Conference Order as noted above, the applicant’s submissions are not clear on this point. Further, the applicant has not indicated how any such evidence meets the test under Rule 18.2(d).
CONCLUSION
22For the reasons noted above, I deny the applicant's request for reconsideration.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: December 12, 2022
Footnotes
- 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.
- O. Reg. 34/10.