RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 22-011340/AABS
Case Name: Laura Soch v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Aaron S. Murray, Counsel
For the Respondent: Jeffrey E. Naganobu, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated July 27, 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. The respondent, Unifund Assurance 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. For the purposes of this request, the applicant relies on the following grounds.
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and
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.
4Under 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.
5I 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, and that I violated the rules of natural justice and procedural fairness.
Rule 18.2(a): The Tribunal did not violate the rules of procedural fairness when it relied on the applicant’s medical records
6The applicant submits that there has been a breach of the rules of procedural fairness in that the Tribunal has made a determination without providing the applicant an opportunity to address the issues raised by the Tribunal as they were not ones raised by the respondent in its submissions.
7The respondent submits that there was no breach of procedural fairness. Each party made significant submissions on the nature of how the incident occurred. The respondent asserts that the applicant was aware of the respondent’s reliance on her initial reporting of the incident to her health practitioners. If the applicant had concerns about the accuracy or completeness of those histories, she had the opportunity to address same in her responding submissions. However, she failed to do so.
8I disagree with the applicant. The respondent did make such an argument at paragraph 47 of their initial submissions where they argued that there is no reliable evidence to conclude that a vehicle was involved in such a manner sufficient to meet the definition of an accident. It was open to me to review all of the evidence in light of the respondent’s argument.
9I find that there was no breach of the rules of procedural fairness when I considered the applicant’s medical records as part of my analysis regarding whether she was involved in an accident. The medical records were before the Tribunal at tabs 3 to 5 of the respondent’s initial submissions, which were properly filed. Accordingly, it was within my jurisdiction to consider them. Pursuant to section 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, C. S.22, a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
10As noted in paragraph 17 of the decision, these records provided a timely account of what transpired as this information was documented around and after the time of the incident. The medical records were relevant for the purpose of determining whether the incident arose out of the use or operation of an automobile. As such, I find that there was no breach of the rules of procedural fairness.
Rule 18.2 (b): The Tribunal did not make an error of fact
11The applicant submits that the Tribunal made an error of fact by concluding that there was no information about a vehicle being involved in the incident. It is her position that the Tribunal ignored the sworn and uncontested evidence provided by her at the Examination Under Oath (“EUO”) as well as a statement provided to the respondent on September 3, 2021. In both instances, the applicant described the involvement of an automobile.
12The applicant also asserts that my reasons failed to address why I preferred the histories recorded in the medical records as opposed to the sworn evidence. She submits that the histories taken by the medical professionals are untested. Moreover, she suffered significant facial injuries that limited her ability to speak immediately after the accident when she was more concerned about reporting her injuries and complaints to other treating medical professionals as opposed to the exact circumstances that gave rise to them. It is her position that the Tribunal failed to consider the circumstances that the applicant was in the immediate aftermath of the incident.
13The respondent submits that the decision did address the involvement of the vehicle. I agree because it is clearly set out in paragraph 47 of the respondent’s initial submissions. The respondent asserts that the Tribunal was not satisfied that the injuries arose from the use or operation of the automobile. Based on all of the evidence, including the EUO, Statement of Claim and medical records, the applicant had failed to establish that a vehicle was involved in the incident as alleged.
14In terms of the medical records, the respondent submits that the decision provided specific reasons regarding why the medical records were preferred over the applicant’s EUO evidence. With respect to the facial injuries, it is the respondent’s position that the applicant has not tendered any evidence to support her position that she had a limited ability or desire to speak. Furthermore, this is an argument that should have been raised at the first instance and it is improper to raise it as part of the reconsideration request.
15I find that I did not make an error of fact. In paragraphs 16 to 18 of the decision, I explained why I was not persuaded by the applicant’s position. I did not ignore her account of the incident. I found that there was no evidence or witnesses to corroborate her account of the incident. Throughout the decision, I made references to her description of what transpired on the day of the incident. However, the medical records failed to establish that a vehicle was involved.
16In paragraph 17 of the decision, I provided reasons as to why I preferred the medical records. I found that the applicant’s testimony at the EUO was inconsistent with the medical records as well as her statement of claim. If I had accepted the applicant’s testimony at the EUO without considering the conflicting medical records, I would be abdicating my duty as the trier of fact. As for the applicant’s limited ability to speak, I find that the applicant is attempting to introduce a new argument which was not previously before the Tribunal. New arguments are not a proper basis for a reconsideration. For all of the reasons noted above, I find that I did not make an error of fact.
The Tribunal did not make an error of law by considering the Statement of Claim
17The applicant submits that it was an error of law for the Tribunal to consider the Statement of Claim and use the description contained therein to make a finding of fact that it does not support the involvement of a vehicle in the incident. The fact that there is no mention of the motor vehicle in the Statement of Claim is irrelevant to an analysis of whether or not the incident meets the purpose test. The applicant chose not to include a description of the involvement of an automobile in her Statement of Claim as it is irrelevant to the claims that she has commenced against the named defendants, whom she believes are legally culpable for her injuries pursuant to the law of negligence.
18The respondent submits that the applicant is attempting to relitigate her position. The Statement of Claim was raised in the respondent’s submissions at paragraphs 60 and 61 and in paragraph 16 of the reply submissions. The applicant addressed it in her responding submissions from paragraphs 55 to 58.
19I find that the applicant is attempting to relitigate this issue. The reconsideration of a decision is not an opportunity to relitigate the issues when a party disagrees with the previous decision. In any event, I find that there was no error of law or fact because the Statement of Claim was submitted into evidence and was relevant to the issue in dispute. I explained why it was relied upon in paragraph 16 of the decision.
CONCLUSION
20The 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 or fact or a breach of the rules of procedural fairness. 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.
21For all the reasons noted above, the request for reconsideration of the Decision dated July 27, 2023 is dismissed.
Tavlin Kaur
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 13, 2023