RECONSIDERATION DECISION
Before:
Tavlin Kaur
Licence Appeal Tribunal File Number:
22-010342/AABS
Case Name:
Katarina Macko v. Aviva Insurance Company
Written Submissions by:
For the Applicant:
Shannon Kelly, Counsel
Gus Triantafillopoulos, Counsel
For the Respondent:
Maggie Morgan, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision dated August 1, 2023 (the “Decision”) where I determined that the applicant is not an insured person under section 3(1) of the Schedule and is therefore not eligible for benefits. In her request, the applicant alleges that the Tribunal made significant errors of law and fact and violated the rules of procedural fairness. Furthermore, the request for reconsideration form also notes that there is evidence that was not before the Tribunal when rendering its decision that would have affected the result. The respondent, Aviva General Insurance Company, disagrees and requests that the reconsideration be dismissed.
RESULT
2The applicant’s request for reconsideration is dismissed.
ANALYSIS
3The 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), as amended (“Rules”). A request for reconsideration will not be granted unless one or more of the 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 applicant is seeking a reconsideration pursuant to Rule 18.2(a), (b) and (d).
5Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
6I find that the applicant’s request for reconsideration is an attempt at re-litigating her case, and I reject her assertions that I made significant errors of law, or that I violated the rules of natural justice and procedural fairness by ordering the hearing to proceed. Moreover, I find that the applicant did not submit new medical evidence that would have affected the result of my decision.
Rule 18.2(a): The Tribunal did not act outside its jurisdiction or violate the rules of procedural fairness
7It is the applicant’s position that the Tribunal provided no reasons as to why the arguments raised in her submissions in relation to section 2.1(6) of Ontario Regulation 283/95 were not considered. Furthermore, the applicant submits that the Tribunal failed to comment on any of the binding case law relied upon by the applicant.
8The respondent submits that the Tribunal correctly exercised its jurisdiction and followed procedural fairness throughout the proceedings. The decision was consistent with its mandate and the applicable legal framework. Moreover, the respondent submits that the applicant is attempting to have the Tribunal address an issue that is outside of its jurisdiction, namely who is required to pay accident benefits and dispute priority. The case conference adjudicator declined to grant the applicant’s request to add this as an issue in dispute as part of this hearing.
9At the case conference, Adjudicator Levine declined to add the following issue: If the applicant is not an insured person under section 3(1), is Aviva required to pay accident benefits and dispute priority in accordance with section 6 of Ontario Regulation 283-95? He declined to grant the applicant’s request on the basis that “The LAT can only adjudicate issues pertaining to the Schedule and accident benefit dispute [sic]. Accordingly, the LAT does not have jurisdiction to adjudicate a priority dispute between insurers. This request is denied.”
10The applicant filed a request for reconsideration with the Tribunal on August 17, 2023. The applicant’s supporting submissions requested a reconsideration of both the case conference report and order (“CCR/O”) dated June 9, 2023 and the preliminary issue decision dated August 1, 2023. On September 8, 2023, Vice-Chair Logan dismissed the applicant’s request for reconsideration of the CCR/O because the request was not filed in compliance with Rule 18.1 because it was not filed within 21 days. The temporal requirement for reviewing the CCR/O was not met. Therefore, the only issue that can be validly reconsidered is whether the Tribunal was correct in finding that the applicant is not an “insured person”. I decline to consider the applicant’s arguments regarding section 2.1(6) of Ontario Regulation 283/95 as this issue is not properly before me.
Rule 18.2 (a) and Rule 18.2(b): The Tribunal did not make an error of law or fact nor did it breach procedural fairness when it declined to consider section 2.1(6) of Ontario Regulation 283/95
11The applicant submits that the Tribunal made an error of law or fact, such that the Tribunal would have likely reached a different decision, when it refused to determine whether the respondent was required to pay accident benefits and dispute priority in according with Ontario Regulation 283/95 because it lacked jurisdiction. It is the applicant’s position that the Tribunal was required to analyze section 2.1(6) and provide an analysis on whether the respondent failed to adjust this claim in line with the regulatory requirements, and that the failure to do so is a breach of procedural fairness.
12The respondent submits that the Tribunal did not make any error of law or fact. The Tribunal correctly applied section 3(1) of the Schedule and found that the applicant was not an insured person. The findings were based on the applicant’s own records.
13As noted in paragraphs 9 to 10, this issue is not properly before the Tribunal. As such, I decline to consider the applicant’s submissions on this point.
Narrow approach
14The applicant submits that the Tribunal made a significant error in law in its narrow approach to statutory interpretation. She argues that the Divisional Court’s decision in Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423 (“Kellerman-Bernard”) supports that a remedial and inclusive approach is more appropriate such that the Tribunal would have likely reached a different decision. She asserts that the Tribunal failed to consider the words “involved in an accident involving the insured automobile if the accident occurs in Ontario” in their entire and relevant context, which includes the government’s intent to provide universal accident benefits coverage.
15In my view, Kellerman-Bernard is distinguishable from the facts before me. Kellerman-Bernard dealt with the specific issue of who can apply for a catastrophic impairment determination. It was found that every insured person can. The applicant in Kellerman-Bernard was an insured person. However, the applicant in the facts before me is not an insured person because she did not meet any of criteria in the definition of an insured person.
16In paragraph 11 of the decision, I explained why the applicant did not meet the criteria in the other sections of the definition. She was not involved in an accident involving the insured automobile. While an inclusive approach is appropriate, it does not stand for the proposition that the Tribunal should go beyond the confines of the Schedule. I reviewed the facts and evidence and found that the applicant did not meet the definition in section 3(1). While the circumstances are quite unfortunate, I am unable to go beyond the definition set out in the Schedule. To do so would amount to an error of law.
The Tribunal did not err under Rule 18.2 (d)
17The applicant’s submissions did not address this ground. The respondent submits that there is no false, misleading or new evidence. I find that the applicant failed to demonstrate that there is evidence that was not before the Tribunal when rendering its decision which would have likely affected the result.
CONCLUSION
18The onus is on the applicant to establish her grounds and she has not done so. Dissatisfaction with the result is not a ground of reconsideration. Not accepting the applicant’s submissions, evidence or case law at the hearing is not an error of law. Although the applicant may disagree with the Decision, reconsideration is not an opportunity for the applicant to re-argue her position, which is what I find to be the case here.
19For all the reasons noted above, the applicant’s request for reconsideration of the Decision dated August 17, 2023 is dismissed.
Tavlin Kaur
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 5, 2023