RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 20-002064/AABS
Case Name: Naomi Kellerman-Bernard v. Unica Insurance Company
Written Submissions by:
For the Applicant: Stanley Razenberg and H. Jack Parsekhian, Counsel
For the Respondent: Jamie R. Pollack, Counsel
BACKGROUND
1This request for reconsideration was filed by Naomi Kellerman-Bernard (the "applicant"). It arises out of a February 3, 2022 decision (the "Decision") in which I found the applicant does not meet the criteria for catastrophic impairment ("CAT") as defined by the Schedule. The substantive issues in the applicant's application remained scheduled for hearing.
2Unica Insurance Company (the "respondent") opposes the applicant's request for reconsideration.
RESULT
3The applicant's request for reconsideration is dismissed.
ANALYSIS
4The 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, October 2, 2017, as amended February 7, 2019 ("Rules"). Here, the applicant makes her request under Rule 18.2 (b), as amended, which is that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
5In summary, the applicant submits that I erred in:
a. Finding that the applicant's emotional impairments were not caused by the accident in which her son was involved, and
b. Wrongly interpreting the statute given s. 45(1) of the Schedule permits the applicant's CAT claim, given the consumer protection nature of the legislation, and given that the legislature could have restricted the applicant's claim expressly.
6The respondent submits that the request for reconsideration be dismissed because the applicant has failed to show that the Decision contains a reviewable error of fact or law and the applicant's request for reconsideration is an attempt to re-litigate the same issues raised at the hearing.
b. Error of Law or Fact Such that the Tribunal Would Likely have Reached a Different Result had the Error not been Made
7Having reviewed the Decision, I find no errors of law or fact in the Decision, including any errors of law or fact such that I would likely have reached a different result had the error not been made.
8I made no errors of law or fact in finding that the applicant does not meet the criteria for CAT as defined by the Schedule because her alleged injuries were not directly caused by the accident. On the facts of this particular case, it was open to me to make this finding on the record before me.
9Although the applicant's reconsideration submissions suggest that I found a requirement that an applicant must sustain a physical injury in order to satisfy the causation test, in fact I made no such finding in my Decision.
10That the applicant's alleged injuries are psychological and mental only is acknowledged in paragraphs 8 and 11 of the Decision.
11The causation analysis in the Decision does not depend on the nature of the applicant's alleged injuries but rather on the lack of some direct causal connection between the applicant's injuries and an automobile as set out in paragraph 21. The applicant has not put forward any case law where an applicant's CAT injuries were found to be caused by an accident they were not directly involved in and did not witness.
12I made no errors of law or fact in interpreting the statute. I applied the modern approach to statutory interpretation which involves a textual, contextual and purpose analysis as set out in paragraphs 19 through 24 of the Decision.
13Regarding s. 45(1), the operative wording, "result of an accident", from s. 45(1) of the Schedule is set out in paragraph 23 of the Decision. However, the applicant's argument that s. 45(1) expressly permits the applicant to seek a CAT designation is not persuasive as set out in paragraph 23 of the Decision. Section 45(1) must be read in in the context of and in conjunction with s. 3(2) which defines catastrophic impairment and requires a two part test to be met as set out in paragraphs 16, 17 and 18 of the Decision. The applicant did not establish that her alleged injuries were caused by an accident as set out in paragraphs 19 through 24.
14The consumer protection nature of the legislation is well established. However, this general approach does not preclude the analysis of causation set out in the Decision. Nor is the fact that both parties agreed that the applicant is an "insured person" determinative of whether the applicant can claim a CAT designation as set out in paragraph 12 of the Decision.
15I find no merit in the applicant's argument that the legislature could have restricted the applicant's type of CAT claim expressly in the Schedule. The legislature did not do so.
16The applicant made substantially these same arguments at the hearing and they were found lacking given the facts of this particular case. I have reconsidered them given that I am not required to show deference to the original decision nor to the original adjudicator's factual findings1 and have found no error of law or fact such that I would likely have reached a different result had the error not been made.
17I find that the applicant has not established her grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. Reconsideration 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.
18In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant requested reconsideration, the onus is on the applicant to establish her grounds and she has not done so. Instead, the applicant's submissions appear to raise many of the same arguments made at the hearing.
CONCLUSION AND ORDER
19For the reasons noted above, I dismiss the applicant's request for reconsideration of my Decision.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 2, 2022
Footnotes
- Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 at para 80 (Div.Ct.).