RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 20-001681/AABS
Case Name: Humberto Carreon Pinera v. Motor Vehicle Accident Claims Fund (MVACF)
Written Submissions by:
For the Applicant: Cary N. Schneider, Counsel
For the Respondent: Andrew Choi, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter. It arises out of a decision in which I found that the Applicant had not established on a balance of probabilities that he was struck by a vehicle. Whether an accident occurred was the sole issue at the hearing.
2The Applicant submits that I violated the rules of procedural fairness and made an error of law which would likely have reached a different result had the error not been made.
3The Applicant is seeking an order to vary or cancel the decision or, in the alternative, order a rehearing on all or part of the matter with a different adjudicator.
RESULT
4The Applicant's request for reconsideration is dismissed.
BACKGROUND
5The Applicant was involved in an incident where he sustained a fractured clavicle while crossing an urban street late at night. The Applicant remembers something hitting his leg, but he never saw any witnesses before or after the incident, or the vehicle that allegedly struck him. At issue was whether the incident can be characterized as an accident and, thus, entitling the Applicant to claim accident benefits from the Respondent, pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
6The Applicant and a police constable who met with the Applicant thereafter the incident were the only witnesses at the hearing. I found that the Applicant was credible, but was unable to conclude from his evidence, and that of the police constable, that the incident was an accident, as defined in the Schedule.
7After hearing the testimony, I looked at the documentary evidence to see if it could corroborate the Applicant’s claim. I reviewed various health records as well as notes completed by the police constable. I determined that the evidence did not support that a vehicle was involved in the incident.
ANALYSIS
8The 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 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.
9Reconsideration 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.
10The Applicant advances his request for reconsideration under grounds (a) and (b).
Did a Violation of the Rules of Procedural Fairness Occur?
11In the initial hearing, I found that the Applicant was credible but found no compelling evidence to show that he was injured as a result of a motor vehicle accident (“accident”). The Applicant submits in this reconsideration that a finding of credibility was sufficient to be conclusive of the result. That is, in having found that he was credible, I ought to have concluded that his injuries were as a result of an accident. He also submits that I failed to give adequate reasons why I accepted that he was credible but did not accept that he was involved in an accident.
12While I appreciate that, to the Applicant, his credibility and whether he was involved in an accident are not mutually exclusive – I must disagree on this point.1 As I noted in the initial decision, the Applicant could not say for certain that a vehicle hit him, he provided no witnesses to corroborate his belief, and was unable to submit any evidence to confirm a vehicle was involved in the incident. As the Respondent submits, credibility and reliability are not one in the same. Credibility is whether the witness is sincere and telling the truth as they believe it to be. Reliability is whether the witness’s testimony is in fact, accurate. If a witness has a mistaken belief, they can be credible but not reliable.
13It is possible for the Applicant to be credible in this situation but still make a finding against him because of the lack of evidence pointing to a conclusion that his injuries were as a result of being hit by a vehicle. This is not an “oath versus oath” case where finding that the Applicant is credible discredits a witness or finding. The Applicant bears the onus of proving on a balance of probabilities that he was struck by a vehicle. Here, the Applicant gave credible testimony, but that evidence falls short of discharging the onus. There are numerous ways in which the Applicant could have sustained the injuries and I was, and remain, unable to conclude that the injuries were as a result of an accident. Thus, I see no violation of the rules of procedural fairness by finding that the Applicant is credible but concluding that there is no evidence of an accident.
Did an Error of Law or Fact Occur?
14The Applicant identified areas in my decision where he believes an error of law or fact occurred. To the Applicant I, wrongly assumed the mindset of the authors of the Applicant’s hospital records, never accepted that the spontaneous utterances of the Applicant are credible and support the evidence with respect to the circumstances of a traumatic event, incorrectly imported a legal obligation for the Applicant to provide corroborating evidence in support of the fact he was involved in an accident, and made a decision that is unreasonable as it was reached illogically or irrationally. I will address these submissions in turn.
15I find no error in how I weighed the Applicant’s medical evidence. Here, the Applicant takes issue with my interpretation of a note in his medical record. I concluded that a question mark at the beginning of a note was indicative that the note-taker remains uncertain whether the Applicant’s injuries were as a result of an accident. To me, and as submitted by the Respondent, this is a common medical notation to indicate a query or that the note is tentative and not a conclusion. Even if I were to accept that the statement was made as fact, it is outweighed by the other records referred to in my initial decision. The other hospital and walk-in clinic records were deemed equivocal and were insufficient evidence to conclude that the Applicant was involved in an accident.
16I find no error in law in my analysis of the Applicant’s “spontaneous utterances” in the medical records and police notes. No issue or concern was raised during the hearing or in written submissions with respect to the aforementioned records. Instead, as submitted by the Respondent in this reconsideration, a plain and ordinary reading of the documents supports my finding that the documents do not establish that a vehicle was involved in the incident. I agree that queries were made as to whether the Applicant was struck by a vehicle, but none of those individuals involved were able to conclude with any certainty that the injuries were as a result of an accident. I considered the documents when weighing the evidence and the Applicant’s testimony and determined that they were insufficient to find on a balance of probabilities that the Applicant’s injuries were as a result of an accident. The Applicant’s testimony stating that he advised hospital staff and police that he was involved in an accident and the hospital records are exclusive issues and can both be credible. The hospital records and police notes all speculate, at some point, whether the Applicant was involved in an accident. To me, none of the records conclusively indicate that the Applicant’s injuries were as a result of an accident.
17Remedial conduct by the Applicant does not amount to evidence that an accident occurred. I accepted the Applicant’s testimony that he made attempts to obtain security video from the fast-food restaurant that was nearby where the incident occurred. However, I was not convinced that such actions indicated that an accident occurred. In my view, the Applicant’s actions show that he attempted to determine the cause of his injuries and are not determinate that the Applicant was involved in an accident.
18I did not import a legal obligation for the Applicant to provide corroborating evidence in support of the fact he was involved in an accident. As I have noted, the onus is on the Applicant to prove on a balance of probabilities that he was struck by a vehicle. In the Applicant’s case, he was unable to testify with certainty that he was struck by a vehicle. The evidence of the police constable who was dispatched to investigate a possible accident was that he did not have enough detail to complete an accident report and that he believed that, looking at the incident in the totality, that it “wasn’t consistent” with an accident. The witness testimony alone was insufficient to determine that an accident occurred, thus it was incumbent upon me to assess the other evidence before me to make a finding on the issue. For this reason, I considered the various medical notes and records and also concluded from those documents that the Applicant did not meet his onus to prove that he was involved in an accident.
19My decision on the issue of whether an accident occurred is reasonable considering the evidence and submissions. As noted by the Respondent, a person can suffer injury by various means at various places and it does not amount to an error of law to require some form of corroborative evidence to support the Applicant’s claim. Here, I assessed the testimony and evidence and came to the conclusion that the Applicant did not discharge his onus to prove that his injuries are as a result of an accident.
CONCLUSION
20For the reasons noted above, I deny the Applicant's request for reconsideration.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 25, 2022
Footnotes
- The Applicant submitted the following cases for consideration: R. v. Braich, 2002 S.C.R. 903, R. v. Dinardo, 2008 S.C.R. 788, and F.H. v. McDougall, 2008 SCC 53