RECONSIDERATION DECISION
Before: Monica Chakravarti
Tribunal File Number: 19-002201/AABS
Case Name: [MM] v Aviva General Insurance Company
Written Submissions by:
For the Applicant: Ivy So, Paralegal
For the Respondent: Amanda Fowler, Counsel; Danielle Wilkinson, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of the June 3, 2020 decision (the Decision) of the Tribunal, which found that the applicant was not entitled to income replacement benefits (IRBs) as she was neither employed and working at the time of the subject accident of May 1, 2017 nor was she employed in the 26 weeks of the 52 weeks prior to the accident.
2The applicant is seeking a new hearing on the issues of IRBs on the basis that there is new evidence, specifically bank records and paystubs from her "employer",1 and that this new evidence would have affected the results of the hearing.
3The Decision also held that the treatment plans in dispute were not payable, however, the applicant takes no issue with the findings related to the treatment plans.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request 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), as amended ("Common Rules"). A request for reconsideration will not be granted unless one or more of the criteria are met.
The request for reconsideration and the parties' positions
6For the purposes of this request, the applicant relies on Rule 18.2(d), arguing that there is evidence that was not before the Tribunal when rendering its Decision that could not have been obtained previously by the applicant and would likely have affected the result.
7The evidence that the applicant submits that was not before the Tribunal, but now is, are the applicant's paystubs of March 3, 2017 and April 8, 2017 (the New Paystubs) and the applicant's bank statements from February 6 - May 31, 2017 (the Bank Statements).
8The test to be met on a request for reconsideration under Rule 18(d) requires that the applicant demonstrate: first, that the new evidence was unavailable at the time of the hearing; and, second, that the new evidence would likely have affected the result.
9The applicant also relies on criteria 18.2(b), submitting that the Tribunal made errors of law or fact in reaching its Decision such that the Tribunal would likely have reached a different result had the error not been made. The applicant submits that the error was that the Tribunal failed to consider that the applicant was self-employed.
10The test for reconsideration under Rule 18.2(b) 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 where it failed to meet its burden at first instance.
11The applicant also relies on Rule. 18.2(a), submitting that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. However, in the reconsideration submissions, the applicant does not point to anything, generally or specifically, in reliance on this submission and, thus, I find that this is not a ground on which the applicant is seeking a reconsideration.
12The respondent submits that the applicant has not made a proper request for reconsideration. The respondent submits that Rule 18.1 allows a reconsideration of decisions of the Tribunal that finally disposes of an appeal. The respondent submits that the applicant is actually seeking a reconsideration of the post-hearing Motion Order of February 14, 2020 and that Motion Order was an interlocutory order and not an order that finally disposes of the appeal.
13Further, the respondent submits that on the basis of res judicata alone this reconsideration should be dismissed. The Tribunal in the Motion Order already decided on the issue, admitting the paystubs and bank records, and already found that these documents are not admissible following the close of the hearing.
14Lastly, and in the alternative, the respondent submits that the applicant has not met the test under 18.2(a). Further, the respondent submits that the applicant has not met the test under 18.2(b) because the applicant never raised the issue of the applicant being self-employed at the time of the accident, so it was not an error for the Tribunal not to consider that the applicant was self-employed. In addition, the respondent submits that the applicant has not met the test under 18.2(d) in that the new evidence of paystubs and bank records would not have affected the result because, based on the Decision where the Tribunal found that the testimony and evidence from the purported employer, Mr. Y, as well as the evidence of the applicant, was contradictory and not credible and thus the evidence did not support the applicant's position that she was employed at the time of the accident.
15In support of its position, the respondent provided the hearing transcript with their submissions at this reconsideration.
Is this a reconsideration of an Interlocutory Decision?
16Based on the submissions of the applicant and comparing it to the Motion Order of February 14, 2020 I find that the applicant is seeking a reconsideration of an interlocutory decision.
17The request to admit the above noted fresh evidence was denied as per the Motion Order on the following basis:
7The applicant is seeking to enter documents that were not provided prior to the hearing nor provided at the hearing. Those documents (bank records, employment file) did exist prior to the hearing and the applicant did not turn her mind to those documents until the hearing.
8The applicant submits that it was only at the hearing that she was informed that the respondent was taking the position that the applicant was not employed prior to the accident.
9This I find to be patently false. On October 31, 2019 by way of email the respondent submitted an amended response. The filing of an amended response was an indulgence granted to the respondent pursuant to the Tribunal's Order of October 23, 2019. In the amended response the respondent specifically stated that:
10In light of new information it is the respondent's position that the Claimant may not be eligible for the Income Replacement Benefit. The Claimant has not proven that she was employed at the time of the accident....2
11Not only was the applicant's representative present during the motion which led to the October 23, 2019 Order, but the amended response was also served on the applicant on October 31, 2019.
12In my view it is only after the conclusion of the hearing and after hearing the full defences raised by the respondent, does the applicant now see these documents as necessary.
13I find that it would be procedurally unfair to allow the applicant to submit documents as part of the evidence after the close of the hearing.
14Further, I am not persuaded by the applicant's alternative submission that she could not have produced these documents between October 31, 2019 (date or receipt of the amended response) and the hearing dates because the deadline for the production exchange had passed. Again, the applicant had the ability to bring a motion and chose not to.
15The applicant much like the respondent submitted evidence by way of documents and witnesses that they believed would provide a full understanding of the issues in dispute. To allow the applicant to then go back and re-submit evidence that she did not deem relevant at the first instance would go against the principles of procedural fairness and therefore natural justice.
18Based on the above and the submissions of the applicant in the reconsideration, I find that this request for reconsideration is a re-litigation/reconsideration of the motion of February 14, 2020 and therefore as per Rule 18.1 this reconsideration is dismissed. However, for the purposes of fairness and transparency I will address the merits of the reconsideration.
Rule 18.2(d) Evidence that was not before the Tribunal when rendering its decision
19The evidence that the applicant submits that was not before the Tribunal, but which it has now, is the applicant's New Paystubs) and Bank Statements.
20As per Rule 18.2(d), the applicant must show that they could not have obtained the paystubs and banks statements previously.
21The applicant argues, as they did in the motion, that they could not obtain the paystubs and bank records earlier because she did not know it was needed, as she were unaware of the respondent's position that the applicant was not employed. As noted above, the applicant submits it was only at the hearing that she became aware of the respondent's position.
22With respect to the applicant, this is patently false. I adopt the reasons provided in the Motion Order quoted above and, specifically paragraph 9-10 of the Motion Order quoted above, that show the applicant was aware of the respondent's position as of October 31, 2019—well before the hearing.
23The applicant submits that she was unable to get the paystubs prior to the hearing because it was only after the hearing that the "employer" Mr. Y. provided the applicant with the Paystubs. The applicant submits that during the hearing Mr. Y testified that he had "soft records" with respect to the applicant's purported work with this employer but that she was denied an adjournment by the hearing adjudicator to obtain these soft records that included the paystubs. It was only after the hearing that Mr. Y provided same.
24I find no merit to this submission. As per the hearing transcript, specifically page 103 of the transcript from November 26, 2020, the applicant is asked what she would like to do to obtain the soft records and the ground for her proposal. On page 104 -105 of the transcript, the adjudicator specifically asks the applicant what she would like to do with the balance of the hearing, to which the applicant's representative states that we can proceed.
25On November 27, 2019, as noted on page 46 of the transcript, the applicant again is asked pointedly if she is seeking an adjournment. Again, the applicant answers no. Accordingly, I do not put weight on the applicant's position that she was unable to obtain the paystubs prior to the hearing because she was not granted an adjournment or an opportunity to do so.
26The applicant provides no reason why she was unable to obtain her own bank records prior to the hearing.
27As the applicant has not met the first part of the test for reconsideration under rule 18.2(d), the reconsideration is dismissed.
Rule 18.2(b): Did the Tribunal err by failing to consider that the applicant was self-employed
28The applicant submits that the Tribunal made a factual and/or legal error when it did not consider that the applicant was self-employed.
29The test for reconsideration under Rule 18.2(b) involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to raise new arguments that were not raised at first instance when it disagrees with the decision or where it failed to meet its burden at first instance.
30As per Rule 18.2(b), the new argument that the applicant was self-employed was never presented at the hearing and is not a basis for reconsideration as it does not point to any errors by the Tribunal.
31Further, even if I am wrong in the above, the applicant provided both oral evidence and documentary evidence at the hearing. The applicant in the reconsideration does not point to anywhere in the documentary or oral testimony of the applicant where the applicant holds or states that she is self-employed. In reviewing the transcripts from the hearing, there is no basis for the Tribunal to conclude that the applicant could be self-employed. I also point out that Mr. Y was brought to the hearing as the applicant's "employer" and, as per the transcripts, he did not consider her self-employed. Thus, there is no factual error because the facts support that the applicant was not holding herself out to be self-employed. I see no error.
ORDER
32For the reasons above, the request for reconsideration is dismissed.
Monica Chakravarti
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 14, 2022