RECONSIDERATION DECISION
Before:
E. Louise Logan
Licence Appeal Tribunal File Number:
22-002265/AABS
Case Name:
[C.B.], [T.B.], [B.B.] v. BelairDirect Insurance Company
Written Submissions by:
For the Applicant:
Gordon W Harris, Counsel
For the Respondent:
Darrell March, Counsel
OVERVIEW
1The facts of this case as set out in the preliminary issue decision are tragic, involving an impaired driver and the witnessing of the death of a friend. The applicants are the spouse and dependents of [J.G], the accident victim. In a preliminary issue decision dated July 25, 2023 (“decision”), the Tribunal found the applicants are not insured persons under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The Tribunal dismissed the application.
2On August 15, 2023, the applicants requested reconsideration of the Tribunal’s decision.
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 applicants are seeking reconsideration under Rule 18.2(a) and (b). They are seeking an order varying the Tribunal’s decision finding the applicants are insured persons, and thereby entitled to make claims under the Schedule. In the alternative, the applicants request the matter be remitted back to the Tribunal for redetermination.
5The respondent argues the request for reconsideration should be dismissed.
RESULT
6The applicants’ request for reconsideration is dismissed.
PROCEDURAL ISSUES
7The applicants filed a Notice of Constitutional Question with the Tribunal on June 26, 2023 in respect of this matter. The Notices states that in the event the Tribunal’s decision supports an interpretation of the Schedule that a physical injury must occur at the time of the accident, it was the applicants’ intention to argue that such an interpretation offends section 15 of the Charter of Rights and Freedoms. The applicants indicated in the Notice that if the Tribunal interprets the Schedule as the applicants argue in their preliminary issue submissions it should be interpreted, they intended to withdraw the Notice. The applicants sent the Notice to Tribunal counsel, with an indication that this was done so as not to influence the preliminary issue hearing adjudicator.
8As noted above, the applicants filed the Notice on June 26, 2023, which was before the Tribunal’s decision was issued on July 25, 2023. The applicants did not advance any constitutional arguments in their initial submissions for the preliminary issue hearing. They did not advance any constitutional arguments in the submissions accompanying their request for reconsideration. The only reference to the Charter in the submissions accompanying the reconsideration request is the following:
If this Tribunal seeks to interpret the SABS in a restrictive, unreasonable, inequitable way such that the spouse and dependents of a catastrophically impaired insured are excluded from benefits because the primary injury is psychological, not physical, then it must be questioned whether such an interpretation not only offends legislative coherence and purpose, but ultimately the right to equality safeguarded in the Charter.
9On reply, the applicants argue that if the Tribunal is unwilling to find in the applicants’ favour, then although outside the jurisdiction of the Tribunal, section 3(1)(a)(ii) ought to be declared unconstitutional under section 52(1) of the Constitution Act, 1982. The applicants argue that the Tribunal should also find that section 3(1)(a)(ii) inequitably excludes a special class of insureds contrary to the intent of the Schedule and Charter protections. The applicants also argue that the issue warrants review and determination by a court with proper jurisdiction.
10As set out in B.E. v. The Personal Insurance Company and the Ministry of Ontario General (Ontario), 2020 CanLII 69925 (ON LAT), the Tribunal has jurisdiction to consider constitutional arguments that arise in the course of carrying out its statutory mandate. However, I decline to consider the applicants’ constitutional arguments for the following reasons.
11I find the Notice of Constitutional Question was not filed in compliance with Rule 11. Rule 11 requires that the parties serve the Notice on the Attorney General of Canada, the Attorney General of Ontario, and all other parties. It requires that the Notice of Constitutional Question Form must be delivered as soon as the circumstances requiring the Notice become known and, in any event, at least 15 days before the question is to be argued.
12In this case, the applicants filed and served the Notice to the Attorney General of Canada, the Attorney General of Ontario and the respondent on June 26, 2023. In the Notice, they indicated they were filing it in anticipation of the Tribunal’s decision, before knowing the outcome of the decision. Accordingly, I find the Notice was not delivered “as soon as the circumstances requiring the Notice become known” as required by Rule 11. It was filed before the circumstances were known. That is, in anticipation of the Tribunal’s decision, before the decision was released on July 25, 2023. I find that the circumstances giving rise to the Notice were only known after the decision was released to the parties, a month after the Notice was filed.
13I also find the applicants’ constitutional arguments were not made in compliance with Rule 18.1 or the Tribunal’s reconsideration submissions letter dated August 21, 2023. Rule 18.1 requires that the request for reconsideration be accompanied by all submissions in support of the request. The Tribunal’s reconsideration submissions letter limited the applicants’ reply submissions to five pages. The applicants made their constitutional arguments on the sixth page of their reply. Accordingly, I find the arguments on page 6 of the applicant’s reply submissions were not made in compliance with Rule 18.1 or the Tribunal’s reconsideration submissions letter.
14For the reasons set out above, I will not consider the applicants’ constitutional arguments in this decision.
ANALYSIS
15The 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)
16The test to be met under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. I find the applicants have not established grounds for reconsideration under Rule 18.2(a) for the following reasons.
17The applicants make a number of arguments that reference errors of fact, errors of law and violations of procedural fairness with respect to the legal framework and analysis used by the Tribunal in its decision, and the Tribunal’s interpretation of section 3(1)(a)(ii) of the Schedule. They argue that these alleged errors also result in a violation of procedural fairness.
18The respondent argues the applicants have not properly identified how the Tribunal acted outside its jurisdiction or violated procedural fairness. It argues that the alleged errors fall under Rule 18.2(b), and that the applicants conflate the concepts in Rule 18.2(a) and (b) in their submissions. The respondent argues if there was an error by the Tribunal, which it does not admit, that does not automatically result in a lack of procedural fairness as contemplated by Rule 18.2(a).
19On reply, the applicants argue that they have not conflated the concepts in Rule 18.2(a) and (b). They submit that the grounds in Rule 18.2 are interconnected and that the errors identified by the applicants in their submissions also amount to a breach of procedural fairness.
20I find that while the applicants’ submissions refer to violations of procedural fairness, their arguments identify alleged errors of law and fact, which fall under Rule 18.2(b). Therefore, I will address these arguments in my analysis under Rule 18.2(b) below.
Rule 18.2(b)
21The test to be met under Rule 18.2(b) is whether the Tribunal made an error of fact or law such that it likely would have reached a different result had the error not been made. For the following reasons, I find the applicants have not established grounds for reconsideration under Rule 18.2(b).
The Tribunal’s analysis of whether the applicants were in an accident
22The applicants argue the Tribunal erred in its analysis in paragraphs 9 to 12 of the decision, which consider whether the applicants were involved in an accident. The applicants argue there is no dispute that the applicants were not involved in the accident. They argue they bore no burden to satisfy that they were involved in the accident and the “accident” framework has no legal or factual relevance to their application.
23I agree that there is no dispute that the applicants were not involved in an accident. I find, however, that the inclusion of the analytical framework for determining whether an incident is an accident is part of the analysis required by section 3(1)(a)(ii). The inclusion of this analytical framework had no impact on the outcome of the decision as the parties agreed the applicants were not in an accident. In the decision, the Tribunal considered whether the applicants are insured persons under section 3(1)(a)(ii), which the parties agree is the analysis applicable to this case. I see no grounds for reconsideration.
The Tribunal’s analysis of whether the applicants suffered a mental or physical injury
24The applicants argue that the Tribunal’s analysis of whether the accident resulted in physical injury to [Ms.G], and psychological or mental injury to the applicants under section 3(1)(a)(ii) was restrictive, narrow and contrary to the test used by the Tribunal in Howes v. CAA, 2023 CanLII 152 (ON LAT). They argue that the Tribunal made significant errors of law and fact in its decision, and that they met the test as set out in Howes.
25The respondent argues that it is the applicants’ burden to establish that they suffered from a psychological or mental injury as required by the Schedule, and the applicants failed to meet their burden. The respondent submits that the applicants are disagreeing with the weight assigned by the Tribunal to the evidence and the decision it reached. It submits the Tribunal properly considered all the evidence and made its decision based on this evidence. It argues the applicants are attempting to re-argue their case.
26I agree with the respondent. The Tribunal considered the question of whether the applicants were insured persons under section 3(1)(a)(ii) at paragraphs 16 to 26 of the decision. At paragraphs 16 and 17, the Tribunal considered the evidence provided by the applicants in support of their position that they suffered a psychological or mental injury. Having reviewed the evidence, the Tribunal found that the medical evidence does not support a determination that the applicants have a psychological or mental injury. The fact the applicants do not agree with the Tribunal’s conclusion, or its weighing of the evidence, is not grounds for reconsideration.
The Tribunal’s analysis of whether [Ms. G] suffered a physical injury
27The applicants make several interwoven arguments in support of their submission that the Tribunal erred in its analysis of whether [Ms. G] suffered a physical injury.
28First, the applicants argue the Tribunal erred in its analysis of whether [Ms. G] sustained a physical injury because there is no legislative or evidentiary requirement for an “actual diagnosis” as referenced in paragraph 16 of the decision. The applicants submit that the operative words in section 3(1)(a)(ii) are “suffers” and “results in”, not “medically assessed” and “diagnosed with”. The applicants point to the evidentiary record of consistent reporting of physical symptoms by [Ms. G] as a result of the accident. The applicants submit that in requiring a “diagnosis”, the Tribunal made a significant error of law on a material point that goes to the core of the outcome of the case.
29Second, the applicants point to a “working diagnosis” by [Dr. P], chiropractor, on October 13, 2020, that was included in their initial submissions. The applicants argue this is evidence that [Ms. G] did receive an “actual diagnosis of a physical injury” and the Tribunal either did not consider, or misapprehended, this evidence.
30Third, the applicants argue that the Tribunal did not give proper weight to the evidence before it, and that the Tribunal’s favouring of the respondent’s experts’ opinions, without considering their “cumulative weight”, was an error of law. The applicants argue that the Tribunal’s weighing and misapprehension of the evidence in an unduly and contradictory manner was such that the applicant’s evidentiary burden became higher than required in law.
31I will address each of these arguments in turn.
32While I agree section 3(1)(a)(ii) does not require a diagnosis, I do not find that the applicants’ arguments on this point establish grounds for reconsideration. It is the applicants’ burden to established they “suffered” from a psychological or mental injury as required by the Schedule. I find the Tribunal determined, on the basis of the evidence before it, that [Ms. G] did not sustain a physical injury as a result of the accident. Although it referenced the lack of diagnosis in its decision, it also stated it had reviewed the medical records and found the applicants were relying on [Ms. G]’s self-reporting. The Tribunal indicated it found the respondent’s evidence more persuasive, and concluded at paragraph 20, that on a balance of probabilities the applicant did not sustain a physical injury as a result of the accident. I find that even if the Tribunal erred in its reference to a “diagnosis” of physical injury, this would not have likely affected the outcome of the decision. I find the Tribunal was not persuaded, on the basis of the evidence before it, that the applicant had sustained a physical injury as a result of the accident as required by section 3(1)(a)(ii).
33I also do not find that [Dr. P]’s clinical note establishes grounds for reconsideration. In the decision, the Tribunal specifically mentions the “Medical Evidence Summary of [J.G.]’s Physical Injuries” submitted by the applicants. I have reviewed the applicants’ initial submissions and find that this “Medical Evidence Summary” includes references to [Dr. P]’s clinical notes and records, including the note from October 13, 2020 that is referred to in the applicants’ reconsideration submissions. Accordingly, I find the evidence was before the Tribunal when it made its initial decision. The Tribunal is not required to refer to every piece of evidence in its decision, and it is not an error not to do so. Furthermore, I find this evidence would not likely have changed the outcome of the decision. [Dr. P]’s clinical note does not indicate that the working diagnosis of a sprain and strain in October 2020 is related to the accident, which occurred on April 24, 2019.
34While I acknowledge the applicants’ position on reply that their submissions relate to the Tribunal’s misapprehension of the evidence, not the weighing of the evidence, I do not agree. I find that the applicants are asking the Tribunal to re-weigh evidence, which is not grounds for reconsideration.
The Tribunal erred in not drawing an adverse inference
35The applicants argue that the respondent should have conducted an assessment to determine whether [Ms. G] suffered from a physical injury. They submit there is no requirement that the applicants undergo assessments at their own expense in order to meet their evidentiary burden. The applicants argue that the Tribunal erred in not drawing an adverse inference from the fact the respondent did not conduct assessments.
36The respondent submits that there was no evidence or indication that [Ms. G] suffered a physical injury that would have warranted the respondent investigating the possibility or severity of a physical injury.
37In the decision, the Tribunal weighed the evidence before it, and found the evidence did not, on a balance of probabilities, that [Ms. G] sustained a physical injury as a result of the accident. I find the applicant are asking the Tribunal to re-weigh the evidence and re-argue their case. This does not establish grounds for reconsideration.
The Tribunal’s interpretation of section 3(1)(a)(ii)
38The applicants argue that the Tribunal erred in its interpretation of section 3(1)(a)(ii) by distinguishing and detaching the terms “injury” and “impairment’. The applicants point to the use of the term impairment in the heading “[Ms. G] did not suffer a physical impairment as a result of the accident” in support of their position. They argue that the Tribunal’s error in using the term “impairment” in a section heading, rather than “injury”, demonstrates the interconnectedness and interchangeability of the two terms, and renders the Tribunal’s interpretation of section 3(1)(a)(ii) an error of law. The applicants also argue the Tribunal failed to consider the surrounding language, broader context of related provisions, and overall goal of the legislation when it interpreted section 3(1)(a)(ii).
39The respondent submits the Schedule and case law draw a distinction between “impairment” and “injury”. It argues that there is no weight in the use of the word “impairment” in a decision heading. It argues the applicant’s interpretation would vastly increase the scope of eligibility under the Schedule.
40I see no error of law in the Tribunal’s interpretation of section 3(1)(a)(ii). At paragraph 20, the Tribunal sets out its reasons for interpreting that section 3(1)(a)(ii) requires a “physical injury” in order for person to be insured. The Schedule and case law draw a distinction between the two terms. I find that the Tribunal’s use of the word “impairment” in the heading was a mistake that does not equate to a material error that would likely have changed the outcome of the decision, as required by Rule 18.2(b).
41For the reasons set out above, the applicants’ request for reconsideration is dismissed.
CONCLUSION & ORDER
42The applicants’ request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: December 5, 2023