RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 19-010940/AABS
Case Name: Liban Yusuf v. Aviva General Insurance
Written Submissions by:
For the Applicant: Kwaku Bona, Paralegal
For the Respondent: Meredith A. Harper, Counsel
BACKGROUND
1This request for reconsideration was filed by L.Y. It arises out of a decision dated December 29, 2021, in which I found that L.Y. failed to demonstrate that he was entitled to payment for visitor expenses and interest.
2L.Y. submits that I acted outside of my jurisdiction and an error of law to find that his injuries were predominantly minor, and, on this ground, he was not entitled to the visitor expenses. He requests a reconsideration of my decision and a determination that he is entitled to the visitor expenses. In addition, L.Y. requests costs.
RESULT
3L.Y.’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are set out in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). L.Y.’s request relies on the criteria set out in Rule 18.2(a): that I acted outside my jurisdiction; and (b): that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The test for reconsideration under Rule 18.2(a) and (b) involves a significantly high threshold. It is well-settled that reconsideration is justifiable in cases where an adjudicator has made a significant legal or evidentiary error preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light at the conclusion of a hearing. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh evidence or to re-argue its position where it disagrees with the decision or where it failed to satisfy its onus at first instance.
6I find that L.Y.’s request for reconsideration fall under the premise of asking the Tribunal to reweigh evidence. His arguments on reconsideration essentially ask me to reconsider the evidence that was presented on the issue of entitlement to an expense. While it is premised under the argument of a failure to properly interpret or apply s. 22 of the Schedule, in order to do so, L.Y. is asking me to reweigh the evidence and come to a different decision. This is not allowed under the rules for reconsideration.
No Acting outside of Jurisdiction and Error of Law or Fact
7As the evidence that L.Y. relies on is essentially the same regarding s. 22, I will address his grounds for reconsideration together.
8Section 22 of the Schedule provides that if an insured sustains an impairment as a result of an accident, the insurer shall pay the reasonable and necessary expenses incurred not more than 104 weeks post-accident, by (for the purpose of this proceeding) the parents, brothers and sisters, as a result of the accident in visiting the insured during his or her recovery or treatment.
9Essentially, L.Y. submits that I erred by “holding on to the MIG to modify or overlook the legislative words “sustains an impairment” in accordance with s. 22. L.Y. further argues that I assumed that the family members were coming to provide any form of “necessary medical treatment” during the visit. On the latter point, I concede that it is incorrectly implied that the family members were coming to provide medical treatment.
10However, L.Y.’s reconsideration arguments fall short on establishing that the visitor expense was reasonable and necessary, which is the test for whether the claim is payable.
11I determined this point through considering the post-accident treatment history, discussed at paragraph 10 (a. - d.) of my decision. The evidence considered whether or not L.Y. “sustained an impairment as a result of an accident”. This is in addition to the additional evidence laid out in the paragraph, where there is no indication that L.Y. sought treatment due to sustaining an impairment as a result of the accident and that he was capable of performing all of his personal care tasks.
12More importantly, at first instance, L.Y. did not point me to any evidence that supports that the visit was reasonable and necessary. While I agree with L.Y.’s position that the MIG does not determine eligibility to visitor expenses, it assists in determining whether the visitor expenses incurred as a result of the accident are reasonable and necessary as a result of impairments sustained as a result of an accident.
13Clearly, if the medical documentation is light on impairments suffered as a result of an accident and treatment sought for same is similarly unremarkable, it follows that a finding that the visitor expenses are not reasonable and necessary is a reasonable outcome. Further, the entitlement turns on whether or not an insured has established that the visitor expenses are reasonable and necessary. L.Y. has not.
14L.Y.’s reconsideration request would entail a reweighing of evidence already put before the Tribunal, which is not permissible under the reconsideration regime. While he submits points that I agree with, I do not find those points would lead to a different decision had my considerations not been made.
15L.Y. failed to establish that the visitor expense was reasonable and necessary at first instance. On reconsideration, he has not directed me to any evidence that I acted out of my jurisdiction or committed an error of law that establishes that the visitor expense is reasonable and necessary. There is no shift in the burden of proof; it was on L.Y. at first instance.
16Reconsideration is warranted in cases where the adjudicator has made a significant legal or evidentiary error preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. L.Y. has not established that any of these grounds have been met in his request for reconsideration.
17I find that I did not act beyond my jurisdiction and no error of law was made. More notably, L.Y. has failed on reconsideration to establish that I incorrectly determined that the visitor expense was not reasonable and necessary.
18As I have found that L.Y. has not met his onus on reconsideration, costs are not payable.
CONCLUSION
19For the reasons noted above, I deny the L.Y.’s request for reconsideration.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 6, 2022