RECONSIDERATION DECISION
Before: Laura Goulet
Licence Appeal Tribunal File Number: 21-014745/AABS
Case Name: Adelaide Boachie-Danquah v. TD General Insurance Company
Written Submissions by:
For the Applicant: Anindita Asaduzzaman, Counsel
For the Respondent: Frank Comella, Counsel
OVERVIEW
1On September 5, 2023, the applicant requested reconsideration of the Tribunal’s decision dated August 14, 2023 (“decision”). In the decision, the Tribunal dismissed the application and found that she is not entitled to income replacement benefits (“IRBs”) and interest.
2The 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.
3The applicant has requested a reconsideration pursuant to Rule 18.2(a) and (b). The respondent requests that the applicant’s request for reconsideration be dismissed.
4The applicant seeks to vary the decision to find that she is entitled to IRBs and interest. In the alternative, the applicant seeks an order for rehearing of the matter.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The 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.
Rule 18.2(a) - The Tribunal did not violate the rules of procedural fairness
7I find that the Tribunal did not violate the rules of procedural fairness for the following reasons.
8The applicant relies on the decision of Scarlett v. Belair Insurance, 2015 ONSC 3625 where Justice Gordon stated “the basic principle underlying the duty of procedural fairness is that parties affected by a decision should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial, and open process.”
9The applicant argues that the Tribunal breached its obligation to provide procedural fairness by “switching” the legal test to be met at the conclusion of the hearing, since both parties agreed that the legal test to be applied in this case was whether the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment (“pre-104 test”). The applicant submits that both parties and the Tribunal had established at the outset of the hearing that the pre-104 test applied. The applicant argues that it was only at the end of the hearing, during the respondent’s closing submissions, that the Tribunal pointed out the applicability of the “post-104 test” (i.e. whether the applicant suffered a complete inability to engage in any employment for which she is reasonably suited by education, training or experience) and that she was not afforded an opportunity to make comprehensive submissions pertaining to the post-104 test.
10The applicant has not established grounds for reconsideration for the following reasons.
The Tribunal did not prevent the applicant from presenting her case
11I find that the Tribunal did not prevent the applicant from presenting her case by stating that the pre-104 test applied in this case. The Case Conference Report and Order (“CCRO”) dated November 15, 2022 sets out the period in dispute for the IRB, namely “from November 30, 2019 to ongoing.” The entire period is post-104. This is the notice of the issues to be heard at the hearing. The applicant did not file a motion to correct the CCRO or to argue that it was inaccurate. The document giving rise to the hearing clearly deals with a post-104 period. The parties cannot apply a different test.
12In the transcript from April 17, 2023 at page 8, there was a suggestion by the Tribunal that the post-104 test applied to the issues at the hearing. The applicant disagreed and stated “no, it’s still at pre-104.” Likewise, the respondent, in its opening submissions at page 31 of the transcript from April 17, 2023, also indicated that the pre-104 test applied to the issues at the hearing. I find that while the Tribunal asked the question to confirm the positions of the parties, the Tribunal was confirming on the record the applicability of the post-104 test as a result of the information in the CCRO, without dictating how the parties would present their cases.
13On April 21, 2023, the fourth and final day of the hearing, the applicant (at page 141 of the transcript) and the respondent (beginning at page 143) made their final submissions based on the pre-104 test. When the respondent indicated in its final submissions (beginning at page 158 of the transcript) that it had paid IRBs to the applicant just past the two-year mark, the Tribunal once again questioned the parties’ positions as to how the pre-104 test applied.
14The Tribunal then gave the parties a break to consider their positions. After a 35- minute break, the respondent returned and took the position that it was the post-104 test that in fact applied because the period in dispute was entirely outside the pre-104 week period. The applicant, however, did not change her position. Rather, she maintained that the pre-104 test applied because the respondent had not arranged post-104 assessments. In fact, she continues to maintain this position in her reconsideration submissions, arguing the Tribunal made an error of law in applying the post-104 test. The Tribunal’s decision at paragraph 11 correctly points out that the assessments were irrelevant.
15I see no breach of procedural fairness. The CCRO set out the applicable period of entitlement. The onus rests on the applicant to prove her case and to know the test that is to be met where she agreed to the issues in dispute at the case conference. It is not the role of the Tribunal to make the case for the parties, and, in any case, I find that the Tribunal offered the applicant the opportunity to address the post-104 test on two occasions during the hearing. The applicant had the opportunity, over the course of a four-day hearing, to present her case. During the hearing, the applicant presented medical evidence, called on witnesses and cross-examined the respondent’s witnesses. Furthermore, even when afforded the opportunity to consider and make submissions on the post-104 test, the applicant maintained her position that the pre-104 test applied. Accordingly, it cannot be said that the Tribunal conducted the hearing in a procedurally unfair manner where the applicant had sufficient notice of the hearing, knew the issues in dispute, was given the opportunity to present her case as she pleased and was advised, at the beginning and end of the hearing, of the applicable test to be met.
16Since the respondent paid IRBs to the applicant for 104 weeks, it follows that the Tribunal identified the appropriate legal test at paragraphs 7 and 9 of the decision. It would be an error of law if the Tribunal did not apply the correct legal test. The fact that the applicant made arguments on the incorrect test does not amount to a breach of procedural fairness. The fact that the Tribunal tried to get the parties to clarify the test to be applied, at the beginning and again at the end of the hearing, only for the applicant to disregard the Tribunal’s assistance, is also not a violation of procedural fairness. In fact, I find that the applicant was given ample opportunity to present her case and to make submissions and that the Tribunal attempted to assist the applicant by directing her to the appropriate legal framework.
The Tribunal did not disregard the applicant’s evidence
17The applicant also argues that the Tribunal disregarded evidence in the applicant’s document brief, stating that the Tribunal limited the exhibits to be filed by the applicant. I disagree. I find that the Tribunal directed the parties to file evidence as exhibits as they related to the issue in dispute, namely, whether or not the applicant qualifies for IRBs (transcript from April 19, 2023 at page 137). The Tribunal did not discourage the applicant from filing any documents as they related to the issue of IRBs.
18Further, the applicant submits that had she known at the outset of the hearing that the post-104 test was to be met, she would have filed significantly more exhibits in support of that test. The Tribunal suggested at the outset of the hearing that the post-104 test applied, and the applicant had four hearing days to enter evidence on that test, but failed to do so. The Tribunal advised at the outset of the hearing that it would only be considering evidence that was filed as an exhibit. Again, the onus rests on the applicant to know the test that is to be met in proving her case. It is the applicant’s onus to file evidence to prove that case.
The Tribunal did not violate procedural fairness in its weighing of evidence
19The applicant submits that the Tribunal contravened principles of natural justice and procedural fairness in assessing the medical evidence of Dr. Tenenbaum, Dr. Waisman and Dr. Ogilvie-Harris. The applicant did not provide an explanation with respect to how the principles of natural justice and procedural fairness were contravened.
20I find that the applicant has not met her onus to establish grounds for reconsideration on this issue. Assigning more or less weight or preferring certain evidence is an intrinsic function of the Tribunal. As noted above, the reconsideration process involves a high threshold. It is not an invitation for the Tribunal to reweigh evidence, or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. I am not persuaded that the Tribunal contravened principals of natural justice and procedural fairness in assessing the medical evidence in this case. In making its decision, the Tribunal assessed all of the medical evidence that was presented, including that of Dr. Tenenbaum at paragraph 27 of the decision, Dr. Ogilvie-Harris at paragraphs 28 and 29 of the decision, and Dr. Waisman at paragraphs 30 to 33 of the decision. The Tribunal explained the weight it assigned to the evidence and why.
The applicant has not established grounds for reconsideration under Rule 18.2(a)
21For the reasons indicated above, I find that the Tribunal did not violate the rules of procedural fairness. The Tribunal provided the applicant with an opportunity to present her case fully and fairly. The onus is on the applicant to establish grounds for reconsideration. I find the applicant has not met the test for granting a reconsideration under Rule 18.2(a).
Rule 18.2(b) – The Tribunal did not make an error of law such that the Tribunal would likely have reached a different result had the error not been made
22I find that the Tribunal did not make an error of law for the following reasons.
23The applicant submits that the Tribunal made an error of law when it failed to consider the pre-104 test in this case. The applicant submits that since the respondent only relied on evidence addressing the pre-104 test to terminate IRBs after the 104-week mark, the pre-104 test still applies. The applicant submits that sections 37 and 44 of the Schedule specify the ongoing obligations of the respondent to respond to medical evidence when determining continuing entitlement to benefits and that these sections must be considered when applying section 6(2) of the Schedule. I disagree and see no error of law.
24Pursuant to section 6(2) of the Schedule, since the respondent paid IRBs to the applicant for 104 weeks, the Tribunal found that the test to be met in this case is the post-104 test as the period of entitlement the parties agreed to in the CCRO is identified as “from November 30, 2019 to ongoing.” This clearly falls outside of the pre-104 period. This is set out at paragraphs 7 and 9 of the decision. As such, I find that the Tribunal applied the correct test in this case and did not make an error of law. The onus is on the applicant to establish grounds for reconsideration. I find the applicant has not met the test for granting a reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
25For the reasons noted above, the applicant’s request for reconsideration is dismissed.
___________________
Laura Goulet
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 16, 2023