Fawzi Abboud v. Intact Insurance Company, 2023 CanLII 123464

RECONSIDERATION DECISION

Before: E. Louise Logan Licence Appeal Tribunal File Number: 21-015103/AABS Case Name: Fawzi Abboud v. Intact Insurance Company

Written Submissions by: For the Applicant: Frank McNally, Counsel For the Respondent: Tessie Kalogeras, Counsel

OVERVIEW

1On August 31, 2023, the applicant requested reconsideration of the Tribunal’s decision dated August 11, 2023 (“decision”).

2The 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.

3The applicant is seeking reconsideration under Rule 18.2(a) and (b). He is seeking that the decision be set aside, and the applicant be awarded the relief in his application. In the alternative, the applicant requests that the matter be reheard by a different adjudicator.

4The respondent seeks dismissal of the request for reconsideration.

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

6The 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)

7The 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 applicant has not established grounds for reconsideration under Rule 18.2(a) for the following reasons.

8The applicant argues that the Tribunal’s decision contains reasons that are inadequate and constitute a denial of procedural fairness. Specifically, he argues the Tribunal ignored key evidence, baldly stated conclusions without explanation, and failed to reflect the main relevant factors in evidence. In his request for reconsideration, he lists issues relating to the treatment of Dr. Reesor’s testimony and reports; the testimony of the applicant and his spouse; the findings of Dr. Ofokanski and the reasons Dr. Ofokanski was not called as a witness; lack of consideration of the applicant’s change of function post-accident; lack of consideration of Janet Becker’s evidence and report; and ignoring the evidence of Sebastian Ferland and Dr. Matousek. The applicant cites a number of decisions in support of his position that the Tribunal’s reasons are inadequate, including J.T. and Aviva Canada Inc., 2018 CanLII 8097 (ON LAT) and D.M. v. Aviva Insurance Canada, 2019 CanLII 94040 (ON LAT).

9I find, however, that the Tribunal’s reasons are adequate. At paragraphs 9 to 20 the Tribunal considered the issue of whether the applicant is catastrophically impaired under Criterion 7 or 8. The Tribunal considered the evidence before it and provided reasons for its findings that he was not catastrophically impaired. At paragraph 17, the Tribunal referenced expert testimony and reports as well as witness testimony and gave reasons why it assigned this evidence little weight. I find the Tribunal’s reasons address the major points in issue, summarize the positions of the parties, and set out the findings of fact and the principal evidence upon which its findings were based. I see no violation of procedural fairness or grounds for reconsideration with respect to the adequacy of reasons.

10The applicant also submits that the Tribunal decided the case because of a perceived belief that the initial OCF-19 was inadequate. He argues this issue was not raised during the hearing either by the respondent’s counsel or the adjudicator. He submits the applicant was denied procedural fairness when he was not provided an opportunity to address this issue before the Tribunal made its decision.

11I disagree. The applicant had the opportunity to put forward his arguments at the videoconference hearing. Upon assessing the submissions of the parties and the evidence before it in light of requirements of the Schedule, the Tribunal found the applicant had not met his burden. This is the Tribunal’s role, and it is not a violation of procedural fairness.

Rule 18.2(b)

12The 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.

13The applicant argues the Tribunal made substantial errors of law and fact and misapprehended the evidence. He submits the Tribunal erred when it ignored the evidence presented at the hearing and relied solely on the information in the OCF-19 application. In support of his arguments, he cites D.P. v. Chieftan Insurance, 2019 CanLII 83888 (ON LAT), 16-001144 v. Aviva Insurance Company, 2017 CanLII 69236 (ON LAT), and 17-005168 v. TD Insurance Meloche Monnex, 2019 CanLII 58142 (ON LAT).

14The applicant also argues that at paragraph 10 of the decision, the Tribunal referenced a requirement that is not in section 45(2) of the Schedule when it stated that “there are no complementary reports or analyses prepared by Dr. Ofokanski that speak to what Dr. Ofokanski relied on to conduct the determination”. The applicant argues there is no requirement to submit a complementary report with the application, and that the Tribunal has set a high bar requiring such a report to even consider the application for catastrophic assessment. He submits setting the bar so high would have a chilling effect on access to justice as complementary reports could be expensive and time-consuming. The applicant also submits that it is not consistent with standard practice at LAT hearings to prevent the applicant from presenting expert evidence from other experts that is not mentioned in the initial OCF-19. The applicant argues that despite this, the Tribunal ignored evidence at the hearing that is not mentioned or included in the OCF-19.

15The applicant also argues that the Tribunal did not properly consider the evidence of Dr. Reesor, psychologist, as well as other expert evidence put forward by the applicant. The applicant submits the determination of catastrophic impairment is based on function rather than symptoms or diagnosis, and the expert evidence at the hearing clearly showed the applicant met the threshold. He argues the Tribunal misapprehended the evidence and erred in taking issue with the fact that Dr. Reesor’s findings “straddled the line” between moderate and marked impairments.

16I find the applicant has not established grounds for reconsideration under Rule 18.2(b) for the following reasons.

17The Tribunal set out its assessment of the applicant’s expert evidence as it related to catastrophic impairment at paragraphs 10 to 20 of the decision. In these paragraphs, the Tribunal stated why it found the applicant had not met his burden. These reasons include that the OCF-19 only contained one sentence in support of the determination of catastrophic impairment on the basis of criterion 7 and 8, and that Dr. Ofokanski had provided no medical evidence to explain why the applicant’s impairments preclude useful functioning. The Tribunal found that it was not clear what evidence Dr. Ofokanski relied on for his determination.

18At paragraphs 12 to 15, the Tribunal set out its reasons for why it did not give much weight to Dr. Reesor’s opinion. At paragraph 12, the Tribunal noted that Dr. Reesor is not a physician and is therefore precluded from making a catastrophic determination under the Schedule. The Tribunal noted there was no evidence Dr. Reesor assisted Dr. Ofokanski in the determination of catastrophic assessment as required by section 45(2)1. At paragraph 16, the Tribunal stated that given the inconsistencies between the findings of Dr. Reesor and Dr. Ofokanski, Dr. Reesor’s confusing application of the impairment ratings, and the lack of testimony at the hearing to clarify the OCF-19 evidence, it could only conclude, on a balance of probabilities, that the applicant had not met his burden.

19At paragraph 17, the Tribunal noted that as there was no evidence that Dr. Ofokanski relied on the assistance of Dr. Reesor’s report, or any other medical report put forward by the applicant during his hearing, it assigned little weight to those reports. The Tribunal went on to note that “without establishing a medical basis for catastrophic impairment, the applicant’s testimony about his medical symptoms, complaints, and difficulties, in and of itself, is insufficient to meet his burden of proof”.

20I find that the Tribunal did not ignore the evidence at the hearing, rely solely on the OCF-19 application in reaching its conclusion, or require the submission of complementary reports before consideration the applicant’s request for catastrophic assessment. It accepted and weighed the evidence in light of the requirements of the Schedule and found that the applicant had not met his burden. While the applicant disagrees with the decision, this is not grounds for reconsideration.

CONCLUSION & ORDER

21The applicant’s request for reconsideration is dismissed.

E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal