Justin Charles v. Intact Insurance Company, 2022 CanLII 124665

RECONSIDERATION DECISION

Before: Jessica Cavdar

Licence Appeal Tribunal File Number: 20-010159/AABS

Case Name: Justin Charles v. Intact Insurance Company

Written Submissions by:

For the Applicant: Davide Cortinovis, Counsel

For the Respondent: Sivan Bune, Counsel

BACKGROUND

1On September 6, 2022, the applicant requested reconsideration of the Tribunal’s decision “(decision”) that was released to the parties on August 16, 2022. In that decision, the Tribunal determined that the applicant had not established that he sustained accident-related impairments to justify his removal from the Minor Injury Guideline (“MIG”).

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(b). The applicant contends that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

4The applicant is seeking an order to vary the Tribunal’s initial decision, to remove the applicant from the MIG, and to approve the disputed treatment plan.

5The respondent submits that the applicant has no grounds for reconsideration. The respondent contends that the applicant’s submissions provide no evidence that any of the grounds under Rule 18.2 of the Common Rules of Practice and The respondent submits that the Tribunal considered and appropriately weighed all the evidence before it.

RESULT

6The applicant's request for reconsideration is denied.

ANALYSIS

7The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made.

8Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome.

9A reconsideration is a limited, error-correcting exercise. As the Divisional Court held in Warren v. Licence Appeal Tribunal, a “reconsideration under the LAT Rules is not a hearing de novo or an appeal: it is a corrective mechanism which allows an adjudicator to correct overriding errors or fundamental evidentiary concerns.”²

10The party requesting reconsideration is obligated to demonstrate how or why the decision at first instance fits into one of the categories in Rule 18. The relevant question is not whether the evidence could have been weighed differently, but whether the Tribunal made the error alleged.

Error of Fact or Law

11The applicant argues that the MIG’s monetary limits do not apply to him because, in the applicant’s opinion, his treating practitioners and assessors determined and provided compelling evidence that he has a pre-existing medical condition which will prevent him from achieving maximal recovery within the MIG limit. He further submits that the Tribunal incorrectly applies the test for MIG.

12More specifically, the applicant contends that the Tribunal erred in preferring the evidence of Dr. Christopher Aldridge over that of the applicant himself, the applicant’s family doctor, and Dr. Mohamed Abounaja.

13I disagree. I preferred the medical evidence of Dr. Aldridge over the evidence submitted by the applicant for the reasons set out in my decision, one of which was the timeframe of Dr. Aldridge’s examination. Dr. Aldridge evaluated the applicant seven months after the accident, whereas Dr. Abounaja’s examination of the applicant took place 37 months post-accident. As discussed in my decision, while the applicant’s back pain is raised in his family doctor’s clinical notes pre-accident, I did not find that the post-accident clinical notes and records of the same doctor demonstrated that the applicant’s back pain was an impairment that would prevent maximal recovery if the applicant remained in the MIG.

14In my decision, I also gave weight to the applicant’s own OCF-3, which described the applicant’s injuries in a manner that fell within the scope of a minor injury pursuant to the definition in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).³

15I find that I addressed the applicant’s arguments at paras. 12, 25, 26, 28, 29, 31, and 33. I see no error of fact or law that would have affected the outcome of my decision.

16Next, the applicant asserts that the Tribunal “effectively excluded the evidence of Dr. Abounaja entirely.”⁴

17I disagree. Assigning more – or less – weight to a particular piece of evidence is a core adjudicative function of the Tribunal. I find that, contrary to the applicant’s contention that I “effectively excluded” Dr. Abounaja’s evidence entirely, in fact I reviewed and considered the evidence of Dr. Abounaja at paras. 10, 13, 29, and 32 of my decision. I specifically addressed the reasons that I afforded that evidence less weight at para. 29 of my decision. I see no error of fact or law that would have affected the outcome of my decision.

18The applicant also submits that the Tribunal should have considered that the applicant’s injuries could have manifested to the extent that the applicant could have, 37 months after the subject accident, developed chronic pain that would have removed him from the MIG.⁵

19I find that I did in fact consider the issue of chronic pain at para. 33 of my decision. I found that the applicant did not provide evidence to prove that lingering accident-related pain later became chronic in nature, nor did the applicant provide evidence that such pain was causing a functional impairment. I further noted that Dr. Aldridge observed the applicant perform actions during his examination which were incongruous with a finding that the applicant suffered from chronic pain causing functional impairment that would entitle him to treatment outside the MIG. I see no error of fact or law that would have affected the outcome of my decision.

20The applicant argues that, among other reasons, he should have been removed from the MIG because certain medical records include notation of pre-accident back pain.⁶

21I disagree. As noted at para. 28 of my decision, I found that, while pre-accident clinical notes of the family physician do mention the applicant’s back pain, the post-accident clinical notes and records of the family physician do not meet the burden of demonstrating that the applicant’s back pain is an impairment that would prevent maximal medical recovery if kept within the MIG. I see no error of fact or law that would have affected the outcome of my decision.

22The applicant argues that he consistently complained of accident-related pain to his doctor following the subject accident.⁷ As detailed in para. 12 of my decision, the family doctor’s clinical notes and records show that the applicant did not complain of any accident-related pain after October 2018. Although the applicant told his family doctor he was suffering from back pain on June 20, 2021, this back pain was not related to the accident and had only come about in May 2021.⁸ I see no error of fact or law that would have affected the outcome of my decision.

23The applicant argues that the Tribunal failed to consider that Dr. Aldridge reached the conclusions that he did during the assessment because the applicant had been receiving treatment at or around the time Dr. Aldridge assessed the applicant.⁹ The applicant did not provide evidence to support this argument, nor was any evidence provided to prove that he was in fact receiving treatment contemporaneously with Dr. Aldridge’s assessment. I see no error of fact or law that would have affected the outcome of my decision.

24I find that the applicant has failed to demonstrate how or why the decision at first instance fits into Rule 18.2(b). I disagree with the applicant’s contention that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

CONCLUSION

25For the reasons noted above, I deny the applicant's request for reconsideration.

Jessica Cavdar

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended.
2. 22022 ONSC 3741 at para. 22
3. 3O. Reg. 34/10 as amended.
4. 4Applicant’s written submissions at para 8.
5. 5Ibid.
6. 6Applicant’s written submissions at para. 9.
7. 7Applicant’s submissions at para. 12
8. 8Respondent’s document brief at Tab 3, at pp. 8-9.
9. 9Applicant’s submissions at para. 14.