RECONSIDERATION DECISION
Before:
E. Louise Logan
Licence Appeal Tribunal File Number:
19-013905/AABS
Case Name:
Omar Shahban v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Paige Schubert, Counsel
BACKGROUND
1On June 16, 2022, the applicant requested reconsideration of the Tribunal’s decision dated June 7, 2022, where the Tribunal found the applicant sustained a minor injury and was subject to the $3.500.00 limit provided for in the Minor Injury Guideline (MIG).1 In the decision, the Tribunal also determined that the applicant was not entitled to a treatment plan for a medical benefit, interest, or an award pursuant to Section 10 of Regulation 664.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(b). The applicant requests that the Tribunal’s decision be varied to find:
a. the applicant did not sustain a minor injury and is therefore entitled to medical benefits beyond the MIG, and
b. the applicant is entitled to a medical benefit in the amount of $1,281.16 for physiotherapy services in a treatment plan (OCF-18) dated November 29, 2018.
RESULT
4The applicant's request for reconsideration is dismissed.
ANALYSIS
5Granting a request for reconsideration under Rule 18.2(b) is only warranted in cases where the Tribunal has made a significant legal or factual error such that the Tribunal would likely have reached a different result had the error not been made. The onus is on the party seeking reconsideration to establish the grounds under Rule 18.2. As the Tribunal has previously stated “It is well established that the test to be successful on a reconsideration request is a high one”.2
Error of Law Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
6The applicant submits that in its decision the Tribunal made an error of law by requiring the applicant to meet the definition of permanent serious impairment, as defined in Regulation 461/96 under the Insurance Act. While the arguments put forward by the applicant in support of his position are not clear, he seems to be arguing that the Tribunal did not use the proper legal test when assessing his evidence in support of his position that his injuries were not predominantly minor and therefore not subject to treatment within the $3500.00 MIG limit. The applicant does not address the second half of the test for reconsideration under Rule 18.2(b), that is whether the error was such that the Tribunal would likely have reached a different result had the error not been made.
7The respondent opposes the request for reconsideration and submits the decision does not contain any reviewable error. The respondent submits the applicant is incorrect in sating that the Tribunal required the applicant “to meet the definition of permanent serious impairment, as defined in Regulation 461/96 under the Insurance Act.” The respondent argues that nowhere in the decision does it state that the applicant is required to meet this definition, nor is it referenced or referred to anywhere in the decision. The respondent further submits that the applicant has not satisfied the criteria for reconsideration under Rule 18.2(b), and his arguments are an attempt to re-litigate the case.
8I disagree with the applicant. Having reviewed the decision, I am satisfied that it does not contain any such error of law. Nowhere in the decision does the Tribunal state that the applicant is required to meet the definition of “permanent serious impairment”. The Tribunal does not refer to either the term “permanent serious impairment” or “Regulation 461/96”, and the applicant has not pointed me to any such reference or analysis in the decision.
9I find the Tribunal’s decision addresses the issue of whether the applicant’s injuries are predominantly minor without reference to the definition of “permanent serious impairment”. The Tribunal states at paragraph 7 that “The applicant bears the onus of establishing, on a balance of probabilities, that the injuries sustained in the MVA require treatment beyond the MIG limit.” The Tribunal reviews the evidence from paragraphs 7 to 13, and at paragraph 17 concludes that “…the applicant has not met his onus to establish, on a balance of probabilities, that his injuries are not predominantly minor. Further he failed to provide evidence that the treatment plan in dispute is reasonable or necessary.”
10I find that the applicant has not established grounds under Rule 18.2(b) for this request for reconsideration. The applicant has not properly identified an error of law in the decision. Instead, he has erroneously identified a consideration that is not referenced in the decision. Further, he has not addressed the question of how such an error, had it been made, is significant enough that the Tribunal would likely have reached a different result had there been no error.
CONCLUSION
11For the reasons above, I deny the applicant’s request for reconsideration.
E. Louise Logan, Vice-Chair
Licence Appeal Tribunal
Released: September 7, 2022
Footnotes
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- 18-003314/AABS v. Wawanesa, 2019 CanLII 101644.