Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 20-006171/AABS
Case Name: Binh Nguyen v. Economical Insurance Company
Written Submissions by:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Catherine A. Korte and Ryan R. Taylor, Counsel
OVERVIEW
1This request for reconsideration was filed by Binh Nguyen ("applicant").
2It arises out of an October 7, 2021 decision ("Decision") in which I dismissed the applicant's application because her claims for caregiver benefits and non-earner benefits ("NEB") are res judicata before the Tribunal and the application is also statute-barred. As a result, I found it unnecessary to consider the alternative grounds for dismissal advanced by the respondent.
3The applicant asks that the Decision be set aside, an Order made that the applicant applied to the Tribunal within the time limit and allowing a case conference.
4The respondent requests that the request for reconsideration be dismissed, or alternatively, the application be dismissed on the alternative grounds for dismissal advanced by the respondent at the hearing. The respondent submits that the applicant does not contest that the applicant's claims for caregiver benefits and NEB were found to be res judicata in the Decision, no error in fact or law was made in finding that the limitation period began to run on March 14, 2018, and the applicant's request to videotape the assessment and that she claim to have been "mistreated" at prior assessments was considered in the Decision. The respondent submits that the applicant has not established any of her grounds for reconsideration and is attempting to re-argue her case through counsel retained after the hearing.
RESULT
5The applicant's request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Rules, as amended. The applicant makes this request under Rule 18.2 (a) which is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and also under Rule 18.2 (b), which is that 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.
7In summary, the applicant submits that I violated the rules of procedural fairness and made errors of fact and law by concluding that:
a. The applicant's claims for caregiver benefits and NEB arising from the accident are res judicata before the Tribunal, and
b. The applicant's Tribunal application is also statute-barred.
8Having reviewed the Decision, I find that I did not violate the rules of procedural fairness or make any errors of fact or law by concluding that the applicant's claims for caregiver benefits and NEB arising from the accident are res judicata before the Tribunal. The applicant did not make any submissions to support this reconsideration ground.
9Having reviewed the Decision, I find that I did not violate the rules of procedural fairness or make any errors of fact or law by concluding that this application is statute-barred.
10Although on reconsideration the applicant submits that the denial letter dated March 13, 2018 was sent by mail1, the applicant did not make this submission at the hearing or any submissions whatsoever about the denial or the time limitation. Although the applicant may disagree with the Decision, reconsideration is not an opportunity for the applicant to re-argue her position, even if represented post-hearing by counsel.
11On a balance of probabilities, the evidence of the respondent establishes that the denial letter of March 13, 2018 was given to the applicant on its date which started the limitation period on March 14, 2018. This is not an error of law or fact but is my finding based on the totality of the evidence before me.
12The applicant now relies on s. 64(18) of the Schedule which provides that in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail under clause (2)(d) on the fifth business day after the day the document is mailed in accordance with (2)(d). Based on s. 64(18), the applicant argues that the denial date is deemed to be March 20, 2020, by which time limitation periods had been extended to September 14, 2020 as a result of a regulation under the Reopening Ontario (A Flexible Response to COVID-19) Act, 20202. The applicant argues that her application to the Tribunal was not statute-barred and, having been filed in June, 2020, was within the extended time deadline of September 14, 2020.
13Section 64(18) of the Schedule does not assist the applicant here because it applies only "in the absence of evidence to the contrary". On the totality of the evidence before me, I found that the March 13, 2018 letter constituted a denial letter which started the limitation period on March 14, 2018. Implicit in this finding is the finding that the applicant received the March 13, 2018 letter on its date. The applicant made no submissions to the contrary at the hearing and provided no evidence to the contrary as noted in paragraph 27 of the Decision.
14Although the applicant now submits the March 13, 2018 letter was mailed to her, there is no evidence to support this submission and the applicant did not point to any in her reconsideration submissions. As a result, extension of the time limitations for COVID-19 does not assist the applicant here.
15On reconsideration, applicant's current counsel suggests that because the applicant was unrepresented at the hearing, she was somehow "taken advantage of" as a self-represented litigant. While the applicant represented herself at the hearing, the evidence is clear that she was represented by counsel in 2017 and in the spring of 2018, the time frame in which the denial was made. Self-representation at the hearing was a choice open to the applicant and the one she made. That the respondent made submissions at the hearing contrary to the applicant's view does not amount to taking advantage of the applicant nor is the fact that the Decision was not in her favour.
16Further, even though the applicant did not request an extension of the limitation period, this was considered by me in paragraphs 28 to 33 of the Decision.
17Although the applicant submits that her request to set parameters on her attendance at any catastrophic assessment and her submissions about how she was mistreated at prior assessments were not considered by me, these submissions are acknowledged in paragraph 16 of the Decision.
18Although the applicant submits that the applicant's status as a vexatious litigant does not bar this application, no part of the Decision is based on this.
19The applicant has not established her grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant has requested reconsideration, the onus is on her to establish her grounds and she has not done so. Instead, the applicant's submissions amount to a re-argument of her case. A reconsideration is not an opportunity to reargue one's case or an appeal.
CONCLUSION AND ORDER
20For the reasons noted above, I dismiss the applicant's request for reconsideration of my Decision dated October 27, 2021.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 24, 2022