RECONSIDERATION DECISION
Before:
Chloe Lester, Vice-Chair
Licence Appeal Tribunal File Number:
21-004004/AABS
Case Name:
Bogdana Bobak v. Travelers Insurance
Written Submissions by:
For the Applicant:
Ryan Marinacci, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision in which the License Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)1 dismissed the application on the basis that the Tribunal did not have jurisdiction to hear the matter.
3The issue before the Tribunal is whether it acted outside of its jurisdiction and erred in law when rendering its decision.
4The applicant is seeking an order cancelling the Tribunal’s decision and reinstating the proceedings so the application may proceed to a hearing.
5The grounds 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) (“Rule”) as amended. A request for reconsideration will not be granted unless one or more of the following criteria are met under Rule 18.2.
6Upon review of the applicant’s submissions, submissions from the respondent were not required because one or more of the criteria under Rule 18.2 were not met. The reasons will be explained below.
RESULT
7The applicant's request for reconsideration is dismissed.
BACKGROUND
8The applicant filed an Application for Dispute Resolution on March 30, 2021 on the sole issue of whether the applicant’s injuries ought to be classified outside of the Minor Injury Guideline (“MIG”) and whether the applicant is entitled to enhanced medical and rehabilitation benefits up to $65,000.00.
9In a Notice of Motion dated July 28, 2021, the respondent raised a jurisdictional issue that the Tribunal did not have the authority to determine the sole issue of the MIG as it is not a benefit.
10The parties were directed by the Tribunal to argue the respondent’s motion via written submissions in advance of the case conference scheduled for December 14, 2021. Oral submissions were also heard at the case conference.
11After a thorough review of the parties’ submissions, I decided that the Tribunal only had jurisdiction to decide entitlement or amount of benefits an insured may be entitled to. I decided the issue of the MIG as it is not a benefit as contemplated by Section 280 (1) of the Insurance Act. The MIG is a classification of injuries that determines the benefit limit an injured party may be entitled to. The classification of injuries determines the available funding limits when requesting medical and rehabilitation benefits. Absence of benefits that require its determination, the Tribunal did not have the jurisdiction to decide it.
ANALYSIS
12Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
13The applicant submits that the decision should be cancelled for three reasons:
i. The Tribunal acted outside its jurisdiction by considering a jurisdictional issue not detailed in the Response to AABS claim, contrary to Rule 20.32
ii. The adjudicator erred in law by failing to distinguish three decisions in which the MIG was decided even though it was not tied to any other benefits.
iii. The adjudicator erred in law by not recognizing the MIG does in fact limit entitlement to benefits.
ANALYSIS AND CONCLUSION
14Firstly, the applicant submits the Tribunal acted outside its jurisdiction by considering a jurisdictional issue that was not detailed in the respondent’s response, contrary to Rule 20.3.
15Rule 20.3 states that the response to AABS claim must detail jurisdictional issues that the respondent seeks to have considered by the Tribunal. The respondent did not detail its jurisdictional issue in the response to the claim but outlined its jurisdictional defense in a motion a few months later.
16The applicant’s submissions on this point were never argued in its initial submissions on the motion. A reconsideration is not an avenue to try new legal arguments when a party was not successful. Since the applicant never argued this in the first place, it will not be considered as a part of the reconsideration decision.
17Secondly, the applicant argues that I erred in law by failing to distinguish three decisions where the MIG was decided as a standalone issue. The decisions relied upon by the applicant were discussed in paragraph 14 of my decision.3 A previous Tribunal decision may be persuasive, but it is not binding on another adjudicator’s decision. In this case, the applicant relied upon decisions in which the Tribunal decided the issue of the MIG without being tied to specified benefits and the respondent relied upon decisions where it refused to do so. I did not find the applicant’s reliance on these decisions’ persuasive as the determination of the MIG does not entitle her to benefits or any amounts of benefits. Concluding an injured person is in the MIG or not, is just a classification of the injuries. It may allow the person to apply for benefits within a greater monetary limit, however, the classification of injuries in itself does not award or entitle a person to any benefit. The decisions the applicant relied upon did not aid in determining whether the MIG was a benefit. The fact that no benefit was granted by deciding whether someone was in the MIG, even more so proves that the MIG is not a benefit. As stated previously, deciding the issue of the MIG without any benefits tied to it, would not be a good use of the Tribunal’s time.
18Lastly, the applicant argues I erred in law by labelling MIG a guide and not a limit to entitlement. The MIG is defined in s. 3. (1) of the Statutory Accident Benefits Schedule (“SABS”) as a guideline and a treatment framework in respect of one or more minor injuries. Labelling the MIG as a guide is not my decision but the legislatures. Section 18. (1) of the SABS limits the sum of medical and rehabilitation benefits to $3,500.00 when an injured person sustains a predominantly minor injury. Again, the decision of whether the applicant’s injuries are minor does not entitle the person to any benefits. So even if I erred, calling the MIG a guide of whether I call it a limit to entitlement still does not change the fact that the decision in itself does not entitle someone to specified benefits. The applicant can argue the classification of its injuries to increase the limit of medical and rehabilitation benefits at any time in conjunction with a benefit.
19Further, the applicant’s last two submissions, which I have summarized and addressed in paragraphs 17 and 18, above, are the same arguments as in her initial submissions. The Tribunal properly considered and disposed of these arguments. A request for reconsideration is also not an avenue to argue the same points. There is nothing in the applicant’s submissions that amount to an error in law or jurisdiction and therefore, I deny the applicant's request for reconsideration.
Chloe Lester
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: February 25, 2022