RECONSIDERATION DECISION
Before:
Ludmilla Jarda, Adjudicator
Licence Appeal Tribunal File Number:
21-003315/AABS
Case Name:
Zhu Xian Chen v. BelairDirect Insurance Company
Written Submissions by:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Christian Farahat, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant.
2It arises out of a decision on a motion order dated August 16, 2022 (“Motion Order”) in which the Tribunal barred the applicant, on the basis of res judicata, from seeking a determination that the injuries sustained in the subject motor vehicle accident were not subject to the treatment limits of the Minor Injury Guidelines (“MIG”) and as such, her claim for a catastrophic impairment determination could not succeed. Further, given that the applicant had exhausted her MIG limit, her claim for medical and rehabilitation benefits and interest could not succeed. As none of the applicant’s claims could succeed, the application was dismissed.
3The applicant requested a reconsideration of the Motion Order on the basis that:
a. The Tribunal violated the rules of procedural fairness; and
b. The Tribunal made an error of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
4The applicant asked that the Motion Order be overturned and that the parties be permitted to proceed to the videoconference hearing scheduled for November 21-24, 28-30, December 1-2, 2022. Alternatively, the applicant requested that a new motion hearing be ordered.
5The respondent’s position was that the request for reconsideration should be denied.
RESULT
6The applicant’s request for reconsideration is dismissed.
BACKGROUND
7The applicant was involved in an automobile accident on June 18, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
8The relevant background is set out in paragraphs 1-6 of the Motion Order, and I need not repeat that here.
9On June 15, 2022, the respondent filed a Notice of Motion requesting an order dismissing the applicant’s claim that her injuries are subject to treatment beyond the MIG; and an order dismissing the applicant’s claim that she has sustained a catastrophic impairment as defined by the Schedule.
10The motion hearing was heard by way of written submissions on July 25, 2022.
11On August 16, 2022, the Tribunal released the Motion Order dismissing the applicant’s application.
ANALYSIS
12The 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, Version I (October 2, 2017), as amended (“Rules”). A request for reconsideration will not be granted unless one or more of the grounds is met. For the purpose of this request, the grounds that the applicant submits apply in this matter are Rules 18.2(a) and (b), as she submitted that:
a. The Tribunal violated the rules of procedural fairness; and
b. The Tribunal made an error of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
13The test for reconsideration under Rule 18.2 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 the weight assigned to the evidence.
14For the reasons that follow, I find that:
a. There was no violation of procedural fairness such that a reconsideration of the Motion Order is warranted under Rule 18.2(a); and
b. No error was made in the Motion Order such that a reconsideration under Rule 18.2(b) is warranted in this matter.
Procedural Fairness
15Procedural fairness requires that a party have an opportunity to be heard and an opportunity to respond to the position taken against them.1 This ensures that the parties understand the case they must meet, and that the parties have the opportunity to be heard and to respond accordingly.2
16The applicant submitted that the Tribunal violated the rules of procedural fairness by denying her the opportunity to (1) participate in a 10-day videoconference hearing; (2) to conduct an examination in chief to explain and provide reasons how her medical condition had changed since the first application; and (3) to put forth evidence via experts to explain how her medical condition has changed since the first application.
17The applicant indicated that at the case conference, the parties engaged in substantial discussions over the hearing format and given the complexity of the issues and the involvement of several experts, it was determined that the parties would proceed to a videoconference hearing for a hearing on the issues in dispute. The applicant submitted that by allowing the respondent’s motion to proceed, she was denied the opportunity to adduce viva voce evidence explaining how her medical condition has changed since the first application and to adduce video evidence.
18I disagree with the applicant, and I find that the Tribunal did not violate the rules of procedural fairness.
19First, the Tribunal may finally dispose of an application at a preliminary issue hearing when it is appropriate to do so. That discretion falls squarely within the scope of its power to control its process found in section 23 and section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA). Further, unless there is a good reason for not doing so, the Tribunal may hold written hearing pursuant to section 5.1 of the SPPA and Rule 12.1.
20Second, procedural fairness does not inescapably mean that a party’s preferred mode of hearing must be used by the adjudicator hearing the matter. As the Supreme Court of Canada held in Baker v. Canada (Minster of Citizenship and Immigration), 1999 CanLII 699 at paragraph 33, “… it cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations.” The applicant had the opportunity to fully argue her case and to respond to the position taken by the respondent against her. It cannot be said that there is a breach of procedural fairness simply because the applicant chose not to present all of the evidence that may have been available to her prior to the July 25, 2022 written motion hearing.
21As per the Notice of Written Motion Hearing dated June 15, 2022, the applicant was notified of the following:
If you satisfy the Tribunal that there is good reason for not holding a written hearing, the Tribunal will hold the motion hearing either by teleconference or in person. If you satisfy the Tribunal that holding the motion hearing by teleconference is likely to cause you significant prejudice, the Tribunal will hold the motion hearing in person.
22Considering the above, the applicant had the opportunity to request a change in the motion hearing format to lead viva voce evidence and video evidence. However, she did not submit a request to convert the Written Motion Hearing to a teleconference hearing, in person hearing, or videoconference hearing.
23Moreover, after the respondent filed their written submissions and evidence, the applicant was afforded 28 days to file responding written submissions and evidence. The applicant had the opportunity to file affidavit evidence explaining and providing reasons for her alleged change in medical condition since the first application, but she did not do so. The applicant also had the opportunity to lead expert evidence in order to demonstrate a change in her medical condition, and she took advantage of this opportunity by filing medical records along with her written submissions.
24The applicant’s submissions and evidence were considered by me in reaching my decision, and they were expressly referred to in the Motion Order at paragraphs 24, 26, and 29. Further, it is trite law that the Tribunal in its reasons is not required to refer specifically to every argument made or piece of jurisprudence that it considered in arriving at its decision.
25For these reasons, I find that the applicant had a full opportunity to respond to the respondent’s motion and to argue her case. Therefore, I do not find any violation of procedural fairness such that a reconsideration of the Motion Order is warranted under Rule 18.2(a).
Error of Fact and/or Law
26The applicant relied upon Rule 18.2(b) for her position that the Tribunal made several errors in fact and/or law such that the Tribunal would have arrived at a different decision had those errors not been made. Specifically, the applicant submitted that the Tribunal erred by (1) failing to consider fresh new evidence that would conclusively impeach the original results of the first application; and (2) failing to consider the third circumstance where res judicata can be waived, e.g. whether fairness dictates that the original result should not be binding in the new context.
27The applicant submitted that her psychological and physical health had changed since the first application, that new medical reports had been provided to the respondent, and that she should have the opportunity to proceed to the scheduled hearing along with the evidence from the applicant and her experts in order to properly evaluate whether the Decision can be impeached. She further submitted that the Tribunal erred by not considering whether fairness dictated that the original result should not be binding in the new context. She noted that the issue of a catastrophic impairment determination had not previously been adjudicated, and it would be unfair and prejudicial to the applicant to deal with this serious and substantive issue at a motion without the opportunity to consider the details, evidence, and the expert testimony of the specialists on the new evidence. The applicant also submitted that the Tribunal erred in fact and in law in paragraphs 27 and 30 of the Motion Order.
28I disagree with the applicant’s submissions, and I find that the Tribunal did not make an error of fact and/or law such that the Tribunal would have arrived at a different decision had the error not been made.
29The applicant is essentially re-litigating the position she took at the written motion hearing. The applicant has reiterated the submissions she made in the written motion hearing, and she has tendered the same medical evidence. I previously considered these submissions, and I expressly considered her medical evidence at paragraphs 24, 26, and 29 of the Motion Order.
30As per paragraphs 27 to 30 of the Motion Order, I found that the applicant’s new evidence was not actually new evidence in the sense of being fresh, new evidence that was previously unavailable and new evidence that would conclusively impeach the original results. Moreover, after finding that res judicata applied to the MIG determination, I concluded at paragraphs 20 and 30 of the Motion Order that although there was no previous decision on the issue of a catastrophic impairment determination, a finding of fact was made with respect to the applicant’s injuries on its merits, and as such, the applicant’s claim for a catastrophic impairment determination could not succeed.
31With respect to the application of the test for res judicata, the Tribunal correctly applied the test as set out in the jurisprudence provided by the parties. Further, I note that as per paragraph 19 of the Motion Order, “the applicant’s submissions on the issue of res judicata are limited”. Also, the applicant’s submissions regarding the third circumstance in which res judicata can be waived were considered, but I ultimately found at paragraph 30 of the Motion Order, that “based on the facts and evidence before me, I agree with the respondent that res judicata applies to the applicant’s MIG determination and that it should not be waived”.
32Accordingly, no error was made regarding the third circumstance of res judicata. Rather, the applicant is attempting to re-litigate her position on the issue of whether res judicata should be waived in the circumstances.
33For these reasons, I find that the Tribunal did not make an error in fact and/or law such that the Tribunal would have arrived at a different decision had the error not been made. Therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.
CONCLUSION
34For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 6, 2022
Footnotes
- Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 at para 8
- Iqbal v. Gore Mutual Insurance Company, 2021 CanLII 64248 (ON LAT) at para 12