RECONSIDERATION DECISION
Before:
Derek Grant
Licence Appeal Tribunal File Number:
21-011454/AABS
Case Name:
Donald Young v. Economical Insurance Company
Written Submissions by:
For the Applicant:
Alexandra Victoros, Counsel
For the Respondent:
Nivedita Misra, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, Donald Young (“D.Y.”). It arises out of a decision dated June 1, 2023, in which I determined that he was not involved in an “accident”.
2The remedy D.Y. seeks is that my decision be varied to deem the incident an “accident”, and that he is entitled to payment of $564.42 for replacement of his prescription glasses and medications.
RESULT
3D.Y.’s request for reconsideration is dismissed.
RECONSIDERATION CRITERIA
4The grounds for a request for reconsideration to be allowed are contained in Rule 18 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”). A request for reconsideration will not be granted unless 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.
5The following remedies are available to the Tribunal on a request for reconsideration:
a. Dismiss the request;
b. Confirm, vary or cancel the decision or order; or
c. Order a rehearing on all or part of the matter.
6D.Y. relies on Rule 18.2(b), arguing that I erred in law; that I “failed to properly consider the case law that addresses whether he was injured during the ordinary course of the use or operation of his vehicle, citing the case law provided by Economical, without addressing or distinguishing any of the case law provided by the applicant.”
7Economical submits that I “properly stated and applied the legal principles governing the application of section 3(1) of the Schedule”, therefore no error of law was made, and I would not have reached a different decision.
ANALYSIS
Causation test – no error of law
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.
9D.Y. submits that in my alleged failure to properly apply the law that determines whether he was injured during the ordinary course of the use or operation of a vehicle, that I made an error of law. On review of his reconsideration submissions, I find that his position amounts to a request to reweigh the evidence.
10For clarity, the parties agreed that the purpose test is met, as D.Y. was engaged in an activity involving the ordinary and well-known use of a vehicle (putting air in the tires), as I acknowledged at paragraph 13 of the decision. Accordingly, there is no alleged error of law as it pertains to my determination on the purpose test.
11I disagree with D.Y.’s position on reconsideration as it relates to the second part of the test on causation. First, as a trier of fact, I am not required to address every argument or piece of evidence that is put before me. Contrary to D.Y.’s argument that I failed to consider case law that he relied on, I considered Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 4520 (ONCA), which I specifically refer to at paragraph 18, as a case that D.Y. relies on. Second, as the trier of fact, I am bound by the direction from the Divisional Court/Court of Appeal, and I relied on those cases, one of which was Chisholm which D.Y. cited to. Referring to more than one case that a party relied on does not amount to an error of law. Lastly, I provided analysis on one particular case, Ritchie v. Wawanesa, 2021 CanLII 134534 (ON LAT) (“Ritchie”), at paragraphs 26-27. Accordingly, having referred to caselaw cited by both parties, and referenced that which I found to be relevant and compelling, this does not amount to an error of law.
12The Ritchie matter was very similar in fact to the subject proceeding, and I found the Vice Chair’s conclusion to be persuasive given the similarity of facts. At paragraph 27, I provided my reasons for finding that slipping on the ice was the dominant feature of the fall, creating an intervening event, which broke the chain of causation. I found this to be particularly so, when, “falling on ice is a foreseeable risk when walking in a parking lot in the winter.”
13At paragraph 28, I provided further reasons, noting that whether a vehicle was present or not, D.Y. would have fallen. The fact that a vehicle was present was not the dominant feature that contributed to the icy conditions, or more importantly, the fall. I found that the conditions created by the weather at the time of the incident resulted in the fall.
14On reconsideration, D.Y. attempts to rely on an analysis related to the need for increased car maintenance on a more frequent basis as a result of the winter weather. His position is that there is “a greater foreseeable risk in the wintertime as colder temperatures will cause tire pressure to drop, necessitating putting air in tires on a more frequent basis, without which, the vehicle cannot be operated safely.”
15I cannot consider D.Y.’s new argument of his analysis regarding the need for increased car maintenance on reconsideration. This does not amount to error of law where arguments were not brought before me at first instance.
16I note that although D.Y. was given the opportunity to refute Economical’ s position by way of reply submissions, he chose not to. The incident occurred as a result of slipping on ice, which was caused by the weather conditions at the time. The ice was the dominant feature, which created an intervening event, resulting in a break in the chain of causation. Accordingly, I find that D.Y. has not established grounds for reconsideration and I see no reason to vary my finding at first instance that he was not involved in an accident.
CONCLUSION
17D.Y.’s request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 28, 2023