RECONSIDERATION DECISION
Before: Julia Fogarty
Licence Appeal Tribunal File Number: 21-014747/AABS
Case Name: Carl David v. Wawanesa Insurance
Written Submissions by:
For the Applicant: Edward S Kim, Counsel
For the Respondent: Tim Gillibrand, Counsel
OVERVIEW
1This request for reconsideration was filed by Carl David (“applicant”).
2It arises out of a July 26, 2023 decision (“decision”) in which I found that the applicant was not in an accident as defined by section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
3The applicant submits that the Tribunal made significant errors of facts such that it is likely that the Tribunal would have, and should have, reached a different result had the errors not been made.
4The respondent submits that the applicant has failed to demonstrate any reviewable errors in the decision and the request for reconsideration must be denied.
5The applicant requests a reversal of the decision where I found that he was not involved in an accident under the Schedule and therefore not entitled to Statutory Accident Benefits or in the alternative, a re-hearing before another adjudicator.
6It is alleged by the applicant that if I had found that the cardboard box was the box brought by the applicant to the recycling facility it would have demonstrated the causal nexus between the usage of the vehicle and the injury suffered by the applicant. However, after review of the parties’ reconsideration materials I still do not find that the there is enough evidence to support that the box belonged to the applicant necessitating any further analysis in line with my original decision.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The grounds for a request for reconsideration to be allowed are contained 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) amended February 7, 2019 (the “Rules”).
9The 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.
10Dissatisfaction with the result is not a ground of reconsideration. Not accepting the applicant’s submissions or evidence in the manner or with the weight that they would have preferred at the hearing is not an error of fact.
11The applicant makes his request under 18.2(b) and asserts that I made errors of fact such that I would likely have reached a different result had the error not been made.
12The applicant advances that I drew the wrong conclusions based on the factual evidence before me at the hearing of this matter. More specifically the applicant listed the following three items as factual errors I made in my decision:
a. Mr. David was not certain about the box he slipped on;
b. Mr. David slipped on some other box around the recycling bins; and
c. The facility was in “poor condition” because it was “slush-filled”.
The Box
13I see no error of fact in my decision with respect to the box. In my decision I found that the applicant established that a box was present but did not meet the burden of proof to establish any causal link between the box and his vehicle. I addressed this in paragraph 26 of my decision. There is no presumption in favour of the applicant absent persuasive evidence demonstrating his case just because he was able to show, through witness testimony, that a box was on the ground.
14The applicant states in his reconsideration submissions that the applicant testified that this TV box was unequivocally the box he brought with him and quotes the following passage in the transcript, “It was a TV box, so I’m gathering it was from my father-in-law’s place.” Where the applicant feels, that if the box was determined to be the box brought by the applicant, that it would evidence continuing use of the vehicle making the slip and fall an accident under the Schedule.
The quote proffered by the applicant is not an unequivocal assertion as to the source of the box. The phrasing “so I’m gathering” signifies a guess based on the type of box he believed it to be not an assertion.
When pressed on cross-examination the applicant admitted it was possible the box was from another source. The next question in the transcript asks the applicant “You do agree it’s possible that someone else at the dump could have thrown out a TV box that day, correct?” to which the applicant also answered, “Could have been, yes”.
On page 35 of the transcript at lines 5 to 8 the applicant is further questioned, “Do you have any evidence that that box actually came from your truck or are you just guessing that it was ---” to which the applicant responded, “No, I don’t have no evidence of that, sir”.
15The applicant’s testimony did not provide an unequivocal assertion that the box came from his truck even if I had found him to be a witness with a reliable memory of the events. Establishing the kind of box as a TV box does not also establish that it was the same box brought by the applicant and would not alter the outcome of the decision made.
In determining how much weight to place on the testimony of the applicant, though I did not include it in my decision, I did consider that the applicant’s own statement of claim against the City of Thunder Bay contradicted the applicant’s version of events during his testimony. His testimony was further contradicted by the other witnesses, which I briefly outline in paragraphs 23 to 26 of my decision.
It was my finding that the applicant did not have a reliable memory of the events surrounding his fall and as such was a poor historian due to his head injury. As a result of this, little weight was placed on his assertion that it could have been the same box or on his description around the fall, I refer to his poor memory in paragraphs 3, 8, 10, 23, 24, 26(a.)(iii.), and 26(b.)(i.) of my decision.
Poor and Slushy Conditions
16I also see no error of fact with respect to the conditions on the ground at the time of the applicant’s fall. The surveillance evidence does not show the applicant’s fall nor the area of the fall and so does not provide any characterizing information as to the condition of the ground or debris on the ground at the time of the fall. This is described in paragraphs 10, 25 and 26(b.)(ii.) of my decision.
17Both of the paramedics, Jason Webb and Lauren Swoluk, testified consistently about there being snow and slush on the ground in the area of the fall. When I used the term “slush-filled” I was commenting on the presence, not volume, of slush. I found that the area was in “poor condition” because Mr. Webb testified that the conditions on the ground were slippery, there was snow as well as slush present and multiple witness testimony placed debris on the ground, more specifically, a box under the applicant covered in slush.
a. Ms. Swoluk acknowledged that there was snow and slush present and that some of the snow and slush was on the box in pages 74 and 75 of the transcript provided by the applicant.
b. Mr. Webb was the primary drafter of the report by the two paramedics and when questioned he reliably answered the questions put to him during the hearing. It was his testimony, illustrated starting on page 80 of the transcript provided by the applicant, that the conditions on the ground around where the applicant fell were “slippery conditions. There had been snow that morning and there was a little bit of slush on the ground. You had some traction but there was a little bit of slushy snow around the bin.”
18As such, my factual conclusions were based on the evidence presented before me and I see no error of fact in the decision.
CONCLUSION & ORDER
19For the reasons noted above, I dismiss the applicant’s request for reconsideration of my decision.
Julia Fogarty
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 16, 2023