RECONSIDERATION DECISION
Before: Adjudicator Frontini
Licence Appeal Tribunal File Number: 20-015493/AABS
Case Name: Gennadi Gelfand v. Security National Insurance Company
Written Submissions by:
For the Applicant: Tanzeela Ansari, Counsel
For the Respondent: Sean Cheskes, Counsel
OVERVIEW
1The Applicant is seeking reconsideration of the Tribunal’s Decision, dated June 6, 2023, which dismissed the application (the “Decision”).
2The application sought a determination that the applicant was not subject to the $3,500.00 limit of the Minor Injury Guideline (“MIG”) and that certain treatment plans were reasonable and necessary. I dismissed the application on the basis that the applicant had failed to establish that MIG guidelines did not apply. In view of my finding regarding the MIG-limit, I explicitly ruled that I would not consider the reasonableness and necessity of the treatment plans in dispute.
3The grounds for a request for reconsideration are found in Rule 18.2 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 (“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.
4The Applicant’s request for reconsideration is grounded in criteria 18.2(b), alleging that the Tribunal made multiple errors of law or fact such that the Tribunal would likely have reached a different result had these errors not been made.
5In his submissions, the Applicant seeks leave to make submissions for the reconsideration of the Decision and an extension of the time for service of those submissions, as well as such further and other relief that the Tribunal may deem “just”.
6While not specifically requested in his submissions, I infer that the Applicant is requesting that the Decision be varied to grant the relief originally requested in the application.
RESULT
7The Applicant's request for reconsideration is dismissed. The Tribunal did not make any errors of law or fact that would have changed the Tribunal’s decision had they not been made.
ANALYSIS
8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
9The majority of the Applicant’s submission revolve around the alleged error, namely, that the Decision failed to consider whether the disputed treatment plans were reasonable and necessary. I find that the Applicant’s request is grounded in a misapprehension of the Applicant’s burden to first establish that his injuries are not “minor” and therefore not subject to the MIG. If, and only if, the Applicant meets that initial threshold, is it necessary to consider whether he has met his separate onus of establishing that the treatment plans in question are reasonable and necessary.
10The Applicant’s onus to establish that the MIG does not apply to his injuries was thoroughly explained in paragraphs 5-8 of the Decision. It is well-settled that the Applicant bears the burden of demonstrating that they sustained injuries that are not subject to the MIG, see: Scarlett v Belair Insurance, 2015 ONSC 3635. The Applicant’s reconsideration submissions do not suggest that any errors of law were made in the Decision with respect to the Applicant’s onus regarding the MIG.
11If an Applicant fails to establish that they have non-minor injuries and they are entitled to treatment beyond the $3,500 limit, then treatment plans seeking funding beyond the MIG limit are not payable. It is therefore not necessary to consider the reasonableness and necessity of the plans in this situation. As this was explicitly set out at paragraph 34 of the Decision and where the Applicant has provided no authority to suggest otherwise, I see no error of law or fact that would have resulted in a different decision had it not been made.
The Applicant has failed to identify any relevant errors with respect to physical treatment
12The Applicant raises a number of complaints regarding how the evidence was weighed and essentially argues that I gave insufficient weight to certain evidence that supports his position. A reconsideration is not an opportunity for an unsuccessful party to reargue their case, and merely arguing that certain evidence should have been give more weight is not an error of law or fact that would have resulted in a different decision had it not been made.
13The Applicant also cites two cases that were not argued in his application submissions. A request for reconsideration is not the venue to raise new legal arguments, and it is inappropriate to raise new law for the first time when seeking reconsideration. In any event, these cases deal with the the issue of causation. The causation issue is completely different from the finding in the Decision that the Applicant failed to meet his burden in establishing that he had any injuries or impairments that warrant removal from the MIG. As such, the Applicant has not identified an error of law or fact that would have resulted in a different decision had it not been made.
14The Applicant also submits that it was an error of law that there was no mention of whether the OCF-18 in question was reasonable or not, because the Decision “merely focused on the MIG”. As explained in the Decision and above, if the Applicant fails to establish that they are not subject to the MIG limits, as is the case here, then there is no need to consider the reasonableness or necessity of any disputed treatment plans because there is no funding available to the Applicant.
15The Applicant has failed to identify any errors of fact or law that, had they not been made, would have changed the Tribunal’s decision with respect to the Applicant’s entitlement to the treatment plan dated September 9, 2019.
The Applicant has failed to identify any relevant errors with respect to Psychological Treatment Plans
16The Applicant relies on the decision in 17-003735 v Certas Direct Insurance Company (Certas), in which the Tribunal held that in assessing treatment plans for psychological assessment, the Applicant only needs to prove that it is reasonable and necessary that the Applicant explores the possibility that they suffer from a psychological impairment.
17The Applicant’s reliance on this decision is misplaced. He has failed to appreciate that in Certas, the adjudicator found the applicant suffered from chronic pain syndrome and therefore was not subject to the MIG and was entitled to benefits coverage beyond the $3,500 MIG limit. Having established that the MIG limits did not apply, the adjudicator went on to consider the reasonableness and necessity of the treatment plans in question.
18In this case, the Applicant has failed to establish that his alleged injuries are not minor and warrant removal from the MIG.
19The Applicant has failed to identify any errors of fact or law that, had they not been made, would have changed the Tribunal’s decision with respect to the Applicant’s entitlement to the psychological treatment plans.
CONCLUSION & ORDER
20For the reasons noted above, I dismiss the Applicant's request for reconsideration.
Matthew Frontini
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 8, 2023