RECONSIDERATION DECISION
Before: Sandeep Johal, Vice Chair
Licence Appeal Tribunal File Number: 21-012430/AABS
Case Name: Josef Coban v. Allstate Insurance
Written Submissions by:
For the Applicant: Joseph Obagi, Counsel
For the Respondent: Jennifer Griffiths, Counsel
OVERVIEW
1On May 23, 2023, the respondent requested a reconsideration of the Tribunal’s decision dated May 3, 2023 (“decision”).
2It arises out of a decision in which the Tribunal found the applicant to be employed at the time of the accident and entitled to an income replacement benefit (“IRB”).
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 respondent seeks a reconsideration of the decision under Rule 18.2(b), arguing that 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.
5The respondent seeks that the original decision be reconsidered and replaced with a finding that the applicant was not “employed” and therefore he is not eligible to receive an IRB. Or in the alternate, the respondent requests this matter be referred back to another adjudicator for a rehearing based on the agreed statement of facts.
RESULT
6The respondent’s request for reconsideration is granted. The matter shall be reheard by way of a written hearing before a different adjudicator.
ANALYSIS
7The 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.
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
8The respondent has established that the original decision had errors of law or fact such the Tribunal would likely have reached a different result for the following reasons.
9The respondent submits there were significant errors of law and or fact in the original decision in coming to the finding that the applicant was “employed” at the time of the accident and therefore entitled to an IRB. According to the respondent, those errors include the following:
a. The decision did not make reference to the eligibility criteria for an IRB as set out in s. 5 of the Schedule. Instead, the decision incorrectly makes reference to s. 4(5) of the Schedule.
b. The decision did not follow the binding case law from the Divisional Court in Kawa Arab v. Unica Insurance, 2022 ONSC 5761 (“Kawa Arab”) for the correct interpretation and application of s. 5(1) of the Schedule.
c. The income the applicant was receiving was from the Workers Safety and Insurance Board (“WSIB”) and not his work placement.
d. The decision failed to consider s. 47(3)(e) of the Schedule, that any benefits being received pursuant to s. 43(3) of the Workplace Safety and Insurance Act (“WSIA”) shall be deemed to be a “temporary disability benefit”.
10The applicant takes the position that a reconsideration under Rule 18(2)(b) is a high bar and a mere disagreement with a factual finding is not sufficient to merit reconsideration. The applicant further submits that a reconsideration is not for the purpose of reweighing the evidence or an opportunity for a party to re-litigate its position.
11The applicant’s submissions discuss the interplay between s. 43(3) of the WSIA and s. 47(3)(e) of the Schedule, however, I find the submissions are an attempt to re-litigate his position and do not refer to whether there was an error in the decision such that the Tribunal would or would not have reached a different result. The applicant’s submission with respect to the Kawa Arab case is that the decision correctly identified the proper test from that case.
12I agree with the respondent. There was no mention of s. 5(1) of the Schedule to determine eligibility of an IRB or the test that had to be met by the applicant, but the finding was that the applicant was entitled to an IRB.
13Although the decision did mention s. 43 of WSIA, there was no discussion of what the effect of that section would be, nor was there any discussion of s. 47(3)(e) of the Schedule. Furthermore, there was no discussion of whether the payments being received by the applicant are, or could be considered “temporary disability benefits”.
14I find that the Tribunal erred in law when it found the applicant was entitled to an IRB without reference to s. 5(1) of the Schedule and whether the applicant had a substantial inability to perform the essential tasks of his employment. Furthermore, without an analysis of what impact, if any, s. 43(3) of the Schedule may have on the applicant’s claim, I find that the decision made errors of law and fact, such that the Tribunal would likely have reached a different result had the errors not been made.
15As a result of the above, the respondent’s request for a reconsideration is granted.
Remedy
16The appropriate remedy for this reconsideration is a rehearing by way of written submissions for the following reasons.
17The respondent requests that the decision be replaced with a finding that the applicant was not “employed” at the time of the accident, however that would be a factual finding and I find that given the nature of the errors, it would be beyond the scope of this reconsideration to be making factual findings or re-weighing the evidence from the original decision.
18As a result, I find that the appropriate remedy in this instance is for a re-hearing in writing to take place before a different adjudicator, based on the agreed statement of facts which were already provided in the original hearing.
CONCLUSION & ORDER
19The respondent’s request for reconsideration is granted. The original decision is cancelled, and a rehearing by way of written submissions is ordered before a different adjudicator with the agreed upon statement of facts already filed.
20This matter will proceed to a written hearing on a date to be set by the Licence Appeal Tribunal. The Tribunal will contact the parties to set the date(s) and time(s).
21The parties will serve their written submissions, evidence and authorities on each other and file with the Tribunal according to the following timetable:
| Due Date | Page Limit | |
|---|---|---|
| Applicant’s submissions, evidence and authorities: | 30 calendar days prior to scheduled hearing | 10 pages |
| Respondent’s submissions, evidence and authorities: | 14 calendar days prior to scheduled hearing | 10 pages |
| Applicant’s reply submissions or written notice that no reply submissions will be filed: | 7 calendar days prior to scheduled hearing | 5 pages |
(i) The page limits are exclusive of evidence and case law. All submissions, evidence and authority briefs filed with the Tribunal must be double-spaced, 12-point, Arial, or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.
(ii) The hearing adjudicator may choose not to consider submissions which exceed the page limits.
(iii) No affidavits are permitted.
Sandeep Johal Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: November 30, 2023