RECONSIDERATION DECISION
Before:
Theresa McGee, Vice-Chair
Tribunal File Number:
20-006746/AABS
Case Name:
Maria Micu v. The Personal Insurance Company
Written Submissions by:
For the Applicant:
Arthur Semko, Counsel
For the Respondent:
Jonathan B. White, Counsel
OVERVIEW
1The applicant requests reconsideration of a decision dated October 19, 2021 (the “decision”). In the decision, the Licence Appeal Tribunal (“Tribunal”) found that the applicant was not entitled to attendant care benefits because she had failed to prove that her care provider sustained an economic loss while providing attendant care.
RESULT
2The applicant has not established an error of fact or law warranting reconsideration of the decision. The request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration are contained in Rule 18.2 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 (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:
i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
ii. 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;
iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
iv. 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.
4The applicant submits that the Tribunal erred in fact and law by finding that the applicant failed to establish economic loss, and that the Tribunal would have reached a different result had it not made this error.
5In her reconsideration submissions, the applicant reduces the quantum of monthly attendant care benefits she seeks from $3,079.00 to $526.75. This reduction is based on a fresh analysis of the data contained in the Economic Loss Calculation Report from S&T Accounting tendered at the hearing. The applicant submits that this new calculation shows an economic loss of $263.37 biweekly. This new interpretation of the evidence is advanced solely in submissions and not by way of expert opinion. It does not resolve the concerns articulated by the Tribunal at paragraph 15 of the decision, namely that the pay periods used to calculate Ms. Bagtas’ estimated biweekly earnings include the pay period from December 22, 2019 to January 4, 2020. In that period, Ms. Bagtas worked 87.75 holiday hours and was compensated for 25 hours of sick time in addition to 50 regular hours of work.
6The applicant reasserts the position, rejected by the Tribunal for the reasons set out in the decision, that a calculation of Ms. Bagtas’ average pre-accident employment hours should include the six pay periods preceding the accident, including the December 22, 2019 to January 4, 2020 period. The Tribunal found that calculating average pre-accident employment using these pay periods failed to yield a reasonable assessment of Ms. Bagtas’ pre-accident earnings.
7The applicant takes pains to submit that holiday pay, a wage supplement, should properly be considered earnings. She refers me to case law in support of this point. Respectfully, these submissions misapprehend the basis of the Tribunal’s findings. The Tribunal did not exclude the December 22, 2019 to January 4, 2020 pay period from its calculation of Ms. Bagtas’ average pre-accident earnings because it included holiday pay. All pay forming part of a care provider’s gross earnings, whether from regular hours worked, holiday hours, sick pay, or non-operational hours, are relevant to determining economic loss. The Tribunal excluded this pay period because it represented abnormally high earnings relative to the other pay periods in the report, even considering the routine fluctuations in Ms. Bagtas’ income. As the Tribunal reasoned at paragraph 15 of the decision, including this pay period distorts the calculation of the average of Ms. Bagtas’ pre-accident earnings such that the result ceases to be reasonably representative.
8Gross earnings and regular hours worked both factor into an economic loss analysis. While gross earnings tend to establish whether a care provider lost or gained income, a reduction in hours worked can show the time taken away from employment activities to engage in attendant care for a family member. In the decision, the Tribunal considered both. It found that while Ms. Bagtas’ earnings tended to fluctuate, the range of fluctuation from the relevant pre-accident period reflected that of the post-accident period. As the Tribunal concluded at paragraph 20 of the decision, the absence of a marked difference between Ms. Bagtas’ pre- and post-accident hours of work and earnings showed that she suffered no economic loss while providing attendant care to the applicant.
9Proof of economic loss is required for attendant care benefits under the Schedule. There is no provision under s. 37 for non-professional attendant care providers to receive compensation for services unaccompanied by a loss of income. The applicant bears the onus of establishing such a loss on a balance of probabilities. In the present case, though the evidence adduced in the hearing was detailed, it did not establish such a loss.
10A reconsideration under Rule 18 is not an opportunity to relitigate a matter, or to advance new arguments based on the evidence that could have been made at the hearing. It is open to the Tribunal, as the trier of fact, to weigh evidence and to make reasonable findings based on that evidence. The Tribunal conducted a close and careful review of the expert evidence in this case and supported its factual and legal findings with reasoned analysis. The applicant has identified no error of fact or law that would warrant reconsideration in this matter.
11For these reasons, the reconsideration request is dismissed.
CONCLUSION
12The applicant has failed to establish grounds for reconsideration. The reconsideration request is accordingly dismissed.
Theresa McGee
Vice Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: January 20, 2022