RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 18-009702/AABS & 20-001009/AABS
Case Name: Vitalis Soldatovas v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Ramandeep Minhas, Counsel
For the Respondent: Darrell March, Counsel
BACKGROUND
1This reconsideration request follows a Tribunal decision dated February 15, 2022 in which I determined that the applicant did not sustain a catastrophic ("CAT") impairment pursuant to the Schedule. I also found that the applicant was not entitled to payment of an income replacement benefit ("IRB"), and various medical benefits and cost of examination expenses, interest or an award.
2The applicant has requested a reconsideration of the decision on the IRB and award issues. The applicant argues that I made a significant error of fact and/or law such that the Tribunal would have reached a different result had the error not been made. In addition, he asserts that I breached the applicant's right to procedural fairness in rendering my decision.
3The respondent filed submissions in response to the reconsideration request past the deadline provided for by the Tribunal. In light of my decision, I do not find it necessary to address the respondent's submissions or their timing as I find the applicant has not met the threshold for reconsideration.
RESULT
4After reviewing the applicant's submissions, I order as follows:
(i) The applicant's reconsideration request is dismissed.
RECONSIDERATION CRITERIA
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, (Effective February 7, 2019 ("Rules").
6Rule 18 states that a request for reconsideration will not be granted unless one or more of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7The applicant relies on Rule 18.2(a) and (b) and argues that I breached the rules of procedural fairness by failing to consider essential evidence that was readily available to the Tribunal. Further, I erred in law by not considering this evidence in my determination of the issues in dispute. Had I considered this evidence I would have determined that the applicant was entitled to payment of an IRB for the time-period claimed, as well as an award.
8The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
9The applicant requests that I cancel my decision and make an alternative finding that he is entitled to payment of an IRB in the amount of $250.39 per week from September 19, 2016 to date and ongoing. Further, that he is entitled to an award in the quantum of 50% for the respondent's unreasonable withholding of the benefit.
ANALYSIS
Did I breach the rules of procedural fairness or make an error in law by not considering evidence that was readily available to the Tribunal in rendering my decision on the IRB issue?
10I find that I did not breach the rules of procedural fairness or error in law in rendering my decision for the following reasons.
11The applicant argues that I breached the rules of procedural fairness in my determination that he did not meet his onus in proving that he sustained an income loss, and subsequently was not entitled to payment of an IRB. He submits that my decision is not procedurally fair as I failed to consider his income tax records from 2015 to 2019 (which were part of his document brief) which proves that he sustained an income loss.
12The applicant refers to paragraph [4] of my decision where I state:
Despite being reminded throughout the hearing to identify treatment plans regarding the medical benefits in dispute or records relating to the IRB issue, the applicant did not refer me to any additional records in his closing submissions. It is well established that if the Tribunal believes that a party meant to rely upon a document but failed to submit it, the Tribunal may request the party to submit the evidence for its consideration. I have declined to do so in this case as I provided the parties with several opportunities during the hearing to direct me to the evidence relevant to the issues in dispute.
13The applicant submits that my failure to ask him to submit evidence was procedurally unfair. What the applicant failed to mention in his request for reconsideration, was the instructions I gave to both parties for how evidence would be admitted to the evidentiary record at the hearing. In paragraph [3] of my decision I note the instructions I provided to counsel to ensure a fair, timely and efficient hearing:
Both parties filed document briefs with the Tribunal which consisted of thousands of pages of medical records. At the outset of the hearing, I informed the parties that if they wanted me to consider a document, they would have to identify it and request that it be entered as an exhibit. I also reminded the parties of the importance of identifying records relating to the other issues in dispute and not to just focus on the CAT determination.
14The applicant relies on the Divisional Court's decision in Lockyear v. Wawanesa ("Lockyear") in support of his position that he was denied a fair hearing.1 In Lockyear, the court determined that the Tribunal breached the rules of procedural fairness by failing to admit video evidence in rendering its decision on a catastrophic impairment. The court held that the Tribunal's refusal to admit this video resulted in the denial of the insured's right to be heard and was a breach of procedural fairness. As a result, the decision was rendered invalid. The applicant maintains that this case is similar as I failed to consider key evidence that would have satisfied his entitlement and the quantum of IRBs.
15I find Lockyear distinguishable from the present case as I did not refuse to admit any evidence relied upon by the applicant. In my view, this matter is not about a breach of procedural fairness. Instead, it is about the applicant's failure to meet his onus as he failed to identify evidence or make submissions about the relevance of same in support of his entitlement to the benefit at the hearing. Throughout the hearing, I asked counsel for the applicant to refer me to the evidence regarding the applicant's entitlement to an IRB more than once. At the beginning of the hearing, I reminded the parties to ensure they addressed all issues in dispute. After the applicant's testimony, I asked specifically about the documentation in support of IRBs. I also reminded both parties before and after closing submissions.
16In his reconsideration submissions, the applicant asserts that I should have located the income tax records in the applicant's document brief and calculated the quantum of the IRB. As noted above, both parties document briefs were thousands of pages and counsel were directed to identify evidence and confirm where in the briefs the documents could be located. In my view, it would be inappropriate for the Tribunal to make the applicant's case for him and to do what the applicant has asked would be an error in law. In this case, I prompted the applicant to make submissions and refer to the evidence on the IRB issue multiple times. In my view, I went above and beyond what is required to give the applicant a fair hearing. The applicant submitted legal arguments and evidence on this reconsideration request for the first time that were not before the Tribunal during the course of the hearing. This is not the purpose of the reconsideration process.
17The applicant also made submissions and referred to case law on the award issue for the first time in his request for reconsideration. The applicant's submissions on the award issue failed to identify that I made any error in my determination on the award issue.
18The reconsideration process is not meant to provide the unsuccessful party with the opportunity to present evidence or legal arguments for the first time that were not made or were unsuccessful at the hearing. The applicant fell far short of meeting his onus on the IRB and award issues at the hearing. The applicant has failed to convince me that I breached the rules of procedural fairness or that I erred in law in rendering my decision.
CONCLUSION
19The applicant's request for reconsideration of my decision is dismissed.
Rebecca Hines Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 6, 2022