Addisalem Amare v. Economical Insurance Company, 2022 CanLII 98041

Citation: Amare v. Economical Insurance Company, 2022 ONLAT 19-004635/AABS-R

RECONSIDERATION DECISION

Before: E. Louise Logan, Vice-Chair

Licence Appeal Tribunal File Number: 19-004635/AABS

Case Name: Addisalem Amare v. Economical Insurance Company

Written Submissions by:

For the Applicant: Addisalem Amare, Applicant

BACKGROUND

1On October 25, 2021, the applicant requested reconsideration of the Tribunal’s decision that was released to the parties on October 12, 2021.¹ In that decision, the Tribunal determined the preliminary issue of whether the applicant was involved in an accident as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)² (“Schedule”).

2The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”).³ 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(a) and (b). The applicant requests that the Tribunal’s Decision be set aside, and an order be granted finding the applicant was involved in an accident as defined by the Schedule. This would allow the applicant to proceed to a full hearing of the substantive issues in his application of April 30, 2019. In the alternative, the applicant requests that he be allowed to submit additional evidence and that the Tribunal reconsider its decision based on that evidence.

RESULT

4The applicant's request for reconsideration is denied.

ANALYSIS

5For a reconsideration to be successful under Rule 18.2(a), I must find that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made.

6A summary of the incident in dispute is set out in paragraph 4 of the Tribunal’s decision. Briefly, the applicant submitted that he was driving on a 400 series highway when, without warning, the Samsung S7 mobile phone in his pants pocket exploded. According to the applicant, following the explosion of his phone, he pulled over to the side of the highway and was injured when he hit his head while leaving the vehicle.

7In its decision, the Tribunal considered whether the applicant was involved in an accident as defined by the Schedule. The Tribunal articulated its reasons for concluding the accident was staged for the applicant’s benefit. The Tribunal noted that staged accidents are excluded from the definition of “accident” and dismissed the application.

8The applicant submits that the Tribunal violated the rules of procedural fairness by not considering additional evidence outlined in his reply submissions. He argues that this evidence was relevant to findings of credibility, and by not hearing all the evidence the Tribunal made an error of fact or law (he does not indicate which) such that the Tribunal would likely have reached a different decision had the error not been made.

9The applicant also argues that the Tribunal made an error of fact and/or law (he does not indicate which) and violated the rules of procedural fairness by drawing an adverse inference from the applicant not introducing excluded evidence. Further, the applicant argues the Tribunal erred in relying on the applicant’s pleadings in a civil matter and equating “allegations” he made in those pleadings with evidence or facts before the Tribunal.

10The respondent did not make submissions with respect to the applicant’s request for reconsideration.

11Subsequent to his request for reconsideration, on July 28, 2022, the applicant submitted an affidavit “in support of his request for reconsideration”. This affidavit was not submitted within the 21-day period for filing a request for reconsideration and all submissions set out in Rule 18.1. While recognizing that Rule 3.1 allows the Tribunal to waive, vary or apply the Rules in a way to ensure a fair process, the applicant does not offer any explanation for submitting this affidavit nearly nine months after the reconsideration submissions. Accordingly, I decline to exercise my discretion to admit this affidavit and, consequently, I will not be addressing it in my decision.

Excluded Evidence

12A number of the applicant’s arguments on reconsideration center on evidence that was excluded by the Tribunal motion order dated April 14, 2021.

13At paragraphs 42 to 50 of the decision, the Tribunal set out the applicant’s failure to call material witnesses and evidence and drew an adverse inference as a result. In a footnote to paragraph 43, the Tribunal noted that the applicant had submitted a statement from his common law partner in his reply submissions. The respondent had brought a motion to have the applicant’s reply submissions struck on the basis they contained new evidence that should have been submitted with the applicant’s initial submissions. By motion order, the Tribunal had excluded certain evidence, including the common law partner’s statement.

14The applicant submits that by not considering the excluded evidence, the Tribunal violated the rules of procedural fairness. He further argues it was an error for the Tribunal not to hear all the evidence, and an error for the Tribunal to draw an adverse inference as a result of a lack of witnesses and evidence.

15I do not agree. The respondent brought a motion to have the applicant’s reply submissions excluded. The motion hearing was adjourned twice to allow the applicant to make submissions in response to the respondent’s motion. The applicant made submissions with respect to the admissibility of the evidence. After weighing the submissions of both parties, the Tribunal issued a motion order that set out its reasons for allowing the respondent’s motion, in part. The Tribunal’s order struck certain evidence, including a witness statement and cell phone records that were not previously part of the applicant’s evidence.

16In its decision of October 12, 2021, the Tribunal correctly noted that this evidence was not before it as it had been excluded. Excluded evidence cannot be considered by a decision-maker. I find the Tribunal heard all the evidence that was properly before it, and it was entitled to draw an adverse inference from the applicant’s lack of evidence. It is the applicant’s burden to prove the accident occurred, and the Tribunal correctly considered the material witnesses and evidence properly before it, and it cited a lack of corroborating evidence in finding he had not met his burden.

17I find no violation of the rules of procedural fairness in either the Tribunal’s treatment of the evidence, or the drawing of an adverse inference due to a lack of evidence.

18While the applicant has made a general assertion that the Tribunal made an error of fact or law in its treatment of the evidence and findings of credibility, he has not pointed me to a specific error in the decision or demonstrated how the decision would likely have been different had the error not been made. Regardless, I find no error of fact or law in either the Tribunal’s treatment of evidence, or in its findings related to the applicant’s credibility.

19I also do not agree with the applicant that the Tribunal made an error of fact or law with respect to its treatment of the applicant’s pleadings in a civil proceeding.

20At paragraphs 23 to 41, the Tribunal addressed, in detail, the question of the applicant’s credibility, and whether the accident was staged. In doing so, the Tribunal found inconsistencies in the applicant’s narrative of the incident. At paragraph 28, the Tribunal noted the applicant had included an account of the incident in a civil proceeding against Samsung. The Tribunal found the account given by the applicant in that proceeding was inconsistent with the account given by the applicant to the Tribunal. At paragraph 28 the Tribunal noted:

While I acknowledge that the pleadings in a lawsuit are not facts found to be true in court, they are assertions coming from the Applicant, and I note the inconsistencies in the narrative put forward by the Applicant.

21The applicant asserts that the Tribunal equated “allegations” in his civil proceeding with evidence or facts before the Tribunal. I find the Tribunal did no such thing. Rather, it correctly acknowledged that the pleadings were not facts found to be true in court. The Tribunal clearly stated it was drawing on these statements as evidence of inconsistency in the applicant’s narrative, not as statements of fact. It did not make any findings as to whether these pleadings were true or not. The Tribunal simply noted the inconsistencies in the narrative given by the applicant of the same incident, and then took these inconsistencies into account when assessing the applicant’s credibility.

22I find no error of fact or law in either the Tribunal’s with respect to the Tribunal’s treatment of the applicant’s pleadings in the civil proceeding.

Alternative Remedy

23In his submissions, the applicant requests that as an alternative remedy, the applicant be allowed to submit additional evidence and that that Tribunal reconsider its preliminary issue decision based on that evidence.

24The applicant has indicated his request for reconsideration is pursuant to Rule 18.2(a) and (b). He did not request a reconsideration under Rule 18.2(d) which refers to there being evidence that was not before the Tribunal when rendering its decision that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result. Nor did the applicant make any submissions with respect to the criteria for reconsideration set out in Rule 18.2(d). Therefore, I must assume that this alternative remedy is an attempt to have the Tribunal consider the very evidence that it excluded.

25In my view, the applicant has advanced this alternative remedy simply because he disagrees with the Tribunal’s decision. This is not grounds for reconsideration. I have already addressed the Tribunal’s consideration of the applicant’s evidence, and found no error of fact or law, or violation of the rules of procedural fairness. I deny the applicant’s alternative remedy.

CONCLUSION

26For the reasons noted above, I deny the applicant's request for reconsideration.

E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1The Decision is incorrectly dated October 12, 2022. The decision was released by email to the parties on October 12, 2021.
2. 2O. Reg. 34/10
3. 3The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended.