RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Licence Appeal Tribunal File Number: 20-003795/AABS
Case Name: Carrie Robinson v. AIG
Written Submissions by:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Jason Frost and Hussein Pirani, Counsel
BACKGROUND
1This request for reconsideration was filed by Carrie Robinson (“applicant”). It arises out of a decision dated May 4, 2022 (“Decision”) in which I found the applicant is not entitled to any payment for attendant care benefits (“ACB”) in addition to the amounts already paid by AIG (“respondent”) for the period May 15, 2019 to date and ongoing, made no award in favour of the applicant, found no interest payable and declined to award costs to either the applicant or the respondent for the proceeding except for the costs of five motions.
2I awarded costs to the respondent in the amount of $100.00 for each of the five motions brought by the applicant, for a total of $500.00, on the basis that the motions were all brought without the notice required by Rule 15 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 February 7, 2019 (the “Rules”) and all brought on the eve of or during the hearing.
3The applicant seeks an Order “vacating the Decision and an order for a new hearing before a different adjudicator”.
4The respondent disagrees and requests a dismissal of the applicant’s request for reconsideration.
No Rule 18 Grounds for Reconsideration Specified
5Rule 18 of the Rules set out the criteria for granting reconsideration as follows:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(b) 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;
(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) 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.
6Here the applicant has not specified under which ground or grounds she seeks reconsideration of the Decision, leaving me to guess.
7In order to avoid putting the applicant to the expense and delay of re-filing the reconsideration request and specifying her ground for reconsideration under Rule 18.2, and putting the respondent to the expense and delay of re-filing it’s response, pursuant to Rule 3.1(a) and (b) of the Rules I am allowing the applicant’s reconsideration request to proceed. I find that allowing the applicant’s reconsideration request to proceed is necessary to facilitate a fair, open and accessible process and to allow effective participation by both parties and to ensure an efficient, proportional and timely resolution of the reconsideration proceeding.
8Based on the applicant’s reconsideration submissions which allege that the Decision is “…as a whole, an untenable deprivation of natural justice” and based on the applicant’s reconsideration submissions which allege “error and bias”, I will consider the applicant’s grounds for reconsideration under Rule 18.2(a) and Rule 18.2(b).
9Although the applicant also submits that “…given the nature of the bias issue, someone other than VC Farlam should review this reconsideration request” the Tribunal has assigned this reconsideration to me.
RESULT
10The applicant’s request for reconsideration is dismissed.
ANALYSIS
Rule 18.2 (a) - the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness
11The applicant submits that I “failed to appreciate that first the dispute was about the appropriate quantum of attendant care” that she could claim and that having failed to “appreciate, know, or grapple with the main issue between the parties, renders the Decision, as a whole, an untenable deprivation of natural justice, of the sort described by the Supreme Court at paragraph 18 in Vavilov.”1 The applicant further submits that my “limited focus to what was incurred” led to most of the applicant’s medical and other evidence being unconsidered and unmentioned in the Decision which is a “depravation of natural justice”.
12Having reviewed the Decision, I find that I did not act outside the Tribunal’s jurisdiction or violate the rules of procedural fairness.
13I find that I did not act outside the Tribunal’s jurisdiction. The applicant made no specific submissions in support of this ground.
14Contrary to the applicant’s submission that I failed to appreciate that the dispute was about the appropriate quantum of attendant care, paragraphs 23(i), 24, 28 through 66 and paragraph 87 of the Decision identify this issue and address it. Specifically, paragraph 33 of the Decision notes “[t]he real dispute between the parties is whether the applicant is entitled to any payment for ACB, in addition to the amounts already paid by the respondent, for the period May 15, 2019 to date and ongoing”. Paragraph 35 of the Decision records the applicant’s closing submission that the issue has always been framed by the applicant as the “applicant requires at least $6,000.00 of monthly care since the day she was run over by a truck”. Taken as a whole, the Decision reflects that I identified and rendered a decision on the main issue between the parties. Dissatisfaction with the Decision is not a ground for reconsideration, nor does it establish a violation of the rules of procedural fairness.
15The ACB issue was fully and fairly heard, the evidence, legal authorities and submissions fully considered and the Decision is supported by the evidentiary record and by full and fair reasons as expected by Vavilov. There has been no denial of natural justice.
16Contrary to the applicant’s submission that most of the applicant’s medical and other evidence was unconsidered and unmentioned in the Decision which is a “depravation of natural justice”, I considered the evidence of both parties in reaching the Decision. The testimony of the applicant and her witnesses was referred to in paragraph 31 of the Decision. The acknowledgment of the respondent that the applicant was seriously injured in the accident and required significant assistance with personal care once discharged from the hospital and that her injuries had been determined by the respondent to be catastrophic are all noted in paragraph 32 of the Decision. Given this acknowledgment by the respondent, there was no need to detail the applicant’s voluminous medical evidence and testimony in the Decision.
17Failure to mention all of the applicant’s evidence, documents and submissions does not mean they were not considered by me and does not establish a “depravation of natural justice”. All of the evidence, documents and submissions was considered by me. In a decision, it is well established that an adjudicator need not refer to every piece of evidence, submission or precedent referred to by the parties in submissions. Not doing so does not indicate it was not considered.
Rule 18.2 (b) - 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
18The applicant submits that I limited my decision to what was incurred, while “ignoring the greater issue of entitlement” which she suggests is contrary to my obligations to the insured person as described by the Divisional Court in a case involving treatment plans which the insurer refused to pay even though the Tribunal had found them all payable. ACB was not at issue in that case.2 This case is unhelpful regarding the ACB at issue here.
19My Decision determines not only what was incurred in paragraphs 33 through 50 but what amount, if any, should be deemed incurred as set out in paragraphs 51 through 64 of the Decision.
20The deemed incurred analysis is based on guidance from the Ontario Court of Appeal3 and on the record before me.
21Here the applicant in many months did not consume amounts approved by the respondent, failed to establish that services were provided and did not establish that any amounts were incurred or should be deemed incurred in order for additional past amounts to be payable. The respondent established that all invoices submitted to it for ACB were paid in full and that in no month since the accident did the applicant incur an amount in excess of the amount approved by the respondent as set out in paragraphs 34, 36, 38, 42, 44, 48 and 50 of the Decision. I find no error of law or fact in my Decision based on the evidentiary record before me.
22Having reviewed the Decision, I find no errors of law or fact in the Decision, including any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
23I find no errors of law or fact in the Decision regarding an alleged failure to consider the Assessment of Attendant Care Needs, Form 1. The Form 1s submitted by the applicant and their corresponding reports were in evidence before me at the hearing and are specifically referred to in paragraphs 29, 36, 50 and 60 of the Decision. Similarly, the respondent’s Form 1 is referred to in paragraph 30, 53.
24After having considered and weighed the relevant evidence, both medical and financial, I determined that the applicant was not entitled to any payment for ACB in addition to the amounts already paid by the respondent for the period in dispute. This constitutes a determination of the quantum of ACB in accordance with the appropriate legal test. To make this determination is not an error of law but is the expected and just determination of this proceeding on its merits. With respect to future payments, it was not within my mandate to determine how much ACB the applicant may be entitled to in the future as future ACB depends on future circumstances.
25It was open to me, on the evidence before me in this particular case, to make the findings in the Decision and reach the conclusion made. I find no error of fact or law in doing so.
26I find no errors of fact or law in the Decision from the fact that I did not grant the applicant’s motion alleging bias mid-hearing. This motion was denied orally by me on March 2, 2022 and the hearing proceeded to its end. The reasons are set out in the Decision at paragraphs 17 through 22 as promised.
27Although the applicant submits that the applicant’s evidence on the motion was rejected because it was not in an affidavit format, this is only one of the reasons given. The purported analysis of my published decisions for the Tribunal was not supported by any affidavit. Citing other published decisions is insufficient to establish a reasonable apprehension of bias, let alone actual bias against this particular applicant in this particular proceeding. The applicant’s failure to meet her onus on the recusal motion is amply supported by reasons. I find no error of fact or law in the motion decision.
28Most of the applicant’s submissions on reconsideration involve her request for more ACB. These submissions were made at the hearing and cannot be re-argued on reconsideration.
29I find that the 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 requested reconsideration, the onus is on the applicant to establish her grounds and she has not done so. Instead, the applicant’s submissions appear raise many of the same arguments made at the hearing. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION AND ORDER
30For the reasons noted above, I dismiss the respondent’s request for reconsideration of my Decision dated May 4, 2022.
Avril A. Farlam
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: August 3, 2022
Footnotes
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at 39 and 128.
- Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 at para 32.
- Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 at para 32, 33 and 42 (C.A.).