Smektala v. TD Insurance Meloche Monnex, 2022 CanLII 27506

Licence Appeal Tribunal

Citation: Smektala v. TD Insurance Meloche Monnex, 2022 ONLAT 20-006086/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 20-006086/AABS

Case Name: Ewa Smektala v. TD Insurance Meloche Monnex

Written Submissions by:

For the Applicant: Gerlad S. George, Counsel

For the Respondent: Amanda Colarossi, Counsel

BACKGROUND

1The applicant, Ewa Smektala, filed a request for reconsideration of the October 29, 2021 preliminary issue decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).

2In the decision, I found that the applicant was not entitled to claim accident benefits from TD Insurance Meloche Monnex, the respondent, for injuries that the she sustained as a result of the accident because the applicant failed to meet her onus of proving on a balance of probabilities that her re-election to sue in tort was not made for the primary purpose of receiving benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)² and I dismissed the application.³

3The applicant requested a reconsideration of my finding and the dismissal of her application. The applicant submitted that a reconsideration is warranted in this matter because there is new evidence that could not have reasonably been obtained earlier that would affect the decision.

4The respondent requested that I dismiss this reconsideration request as there is no new evidence or, in the alternative, that such evidence would not affect the decision.

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

6The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules). The ground that the applicant submitted apply in this matter is r. 18.2(d) which allows a reconsideration to be considered if there was evidence that was not before the Tribunal when rendering its decision, that such evidence could not have been obtained previously by the party now seeking to introduce it, and that the evidence would likely have affected the result.

7The evidence that the applicant submitted is “new” and would meet the criteria of r. 18.2(d) is an affidavit sworn by the applicant’s counsel dated November 18, 2021. This affidavit outlines various settlement negotiation dates and events related to the applicant’s court application ranging from December 1, 2020 to November 17, 2021.

8I agree with the respondent that at least some of the events outlined in the affidavit occurred well before the deadline of March 22, 2021 for the applicant’s preliminary hearing submissions. No information was provided as to why at least some of the details of the settlement discussions of the applicant’s tort action could not have been provided as part of the applicant’s evidence for the preliminary issue hearing.

9Moreover, no explanation was provided as to why the applicant took no further steps, such as a motion, seeking permission to introduce additional evidence prior to the decision being rendered on October 29, 2021. Instead, the applicant waited until the release of the decision to attempt to correct the deficiencies in her evidence.

10Even if I agreed with the applicant that her counsel’s affidavit and the information contained therein was “new evidence” and met the requirements of r. 18.2(d), which I do not, the lack of information about the strength of the applicant’s tort action was not the sole reason for my decision. In applying the Tribunal’s decision of 16-002364 v. The Personal Insurance Company (16-002364),⁴ I also determined that there was no evidence before me from the applicant, via affidavit or otherwise, of the applicant’s mindset at the time of her re-election such that I could determine if the applicant’s decision to sue in tort was a choice made in good faith. Therefore, even if I considered counsel’s affidavit now, it would not change the outcome of the decision because it is not evidence from the applicant of her mindset at the time of her re-election.

11For all of these reasons, I find that the applicant has failed to meet her onus of proving on a balance of probabilities that her counsel’s affidavit sworn November 18, 2021 meets the criteria of “new evidence” under r. 18.2(d) and, even if I am incorrect on this finding, the affidavit would not have affected the decision.

CONCLUSION

12The applicant’s request for reconsideration is dismissed.

Lindsay Lake
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Smektala v. TD Insurance Meloche Monnex, 2021 CanLII 111166 (ON LAT) (the “decision”).
2. 2O. Reg. 34/10 as amended.
3. 3Supra note 1 at para. 19.
4. 42017 CanLII 148445 (ON LAT).