RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 20-007243/AABS
Case Name: Ebrahim Goralwalla v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Agal Lankeswaran, Paralegal
For the Respondent: April Snow, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of the Tribunal’s decision released on November 18, 2022 (“decision”). In the decision, the Tribunal determined the applicant’s injuries are not predominantly minor, and therefore not subject to the limit in the Minor Injury Guideline (“MIG”). The Tribunal also determined the applicant is not entitled to a non-earner benefit (“NEB”), treatment plans (“OCF-18s”) for medical and rehabilitation benefits, or interest. The applicant is seeking a reconsideration of the Tribunal’s decision with respect to the NEB and the OCF-18s.
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 a reconsideration pursuant to Rule 18.2(b). He requests that the Tribunal vary the decision to grant his claims.
4The respondent argues that the applicant has not established grounds for reconsideration, and that the applicant’s request should be dismissed.
RESULT
5The applicant's request for reconsideration is denied.
ANALYSIS
6The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The test involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision, or where it failed to meet its burden at first instance.
7The applicant submits that the Tribunal made a number of errors in the decision. Upon review, I find the applicant has not established grounds for reconsideration under Rule 18.2(b) for the reasons set out below.
OCF-18s
8The applicant argues the Tribunal erred when it concluded the applicant had not submitted four of the five OCF-18s that were the subject of his claim. The applicant submits that the evidence shows the OCF-18s were submitted to the respondent and denied by the respondent. The applicant also argues that the Tribunal did not look at the totality of the evidence when determining whether the OCF-18s are reasonable and necessary. In his submissions, the applicant points to medical reports from the family physician and an orthopedic surgeon which he argues demonstrate the applicant met his evidentiary burden. In his reply submissions, the applicant reiterates that he has met his burden based on the totality of the evidence, and that the Tribunal’s reliance on the insurer’s examinations had a negative impact on his case.
9The respondent argues the applicant misconstrues and misunderstands the respondent’s hearing submissions and the decision. The respondent submits it did not argue the OCF-18s were not submitted to the respondent, but rather that they were not put into evidence before the Tribunal. The respondent submits that in the Case Conference Report and Order (CCRO) dated January 27, 2021, the Tribunal specifically advised the parties that documents previously filed with the application, response, or for the case conference must be resubmitted for the hearing. By failing to submit the OCF-18s, the applicant did not meet his evidentiary burden. The respondent also argues that the applicant has not properly articulated the test in Rule 18.2(b), and that his reconsideration request is an attempt to advance arguments he failed to advance at first instance.
10I find no error of fact or law in the Tribunal’s decision for the following reasons. At paragraph 31, the Tribunal found that the applicant’s claim for four of the OCF-18s fell short “under both procedural/technical and substantive grounds”. The Tribunal considered the evidence before it, and stated that:
Procedurally, Allstate points out E.G. has not submitted the four treatment plans being sought. Although E.G. had the right to file a reply or perhaps simply file the missing treatment plans, E.G. has chosen not to do so. Similarly, the submissions did not argue why the treatment or assessment requested in the plans is necessary, such as identifying the goals of treatment, etc.
11I agree with the respondent that the applicant seems to have misunderstood the decision and is now attempting to re-litigate his case, which is not grounds for reconsideration. I also agree that the applicant has not provided the Tribunal with the OCF-18s. The Tribunal determined the applicant did not demonstrate that the treatment plans were reasonable and necessary. The applicant did not submit the OCF-18s with his initial submissions, on reply, or with his reconsideration submissions.
12With respect to the fifth OCF-18, at paragraph 33, the Tribunal noted that while the CCRO identified the OCF-18 as a treatment plan for psychological services, the parties’ submissions referred to it as an assessment. Regardless, the Tribunal found that the applicant did not establish that he has a psychological condition, or that it was necessary to investigate whether he has a psychological condition. As a result, the Tribunal found the applicant had not established that the OCF-18 was reasonable or necessary. In reaching this conclusion the Tribunal noted, at paragraph 16, that the evidence the applicant relied on to support his claim for psychological impairment was excluded by the Tribunal for non-compliance with the production timelines in the Tribunal’s CCRO. Furthermore, at paragraph 17, the Tribunal stated that even if it had considered the applicant’s medical evidence with respect to psychological impairment, it was not persuasive.
13I find the Tribunal considered and weighed the evidence properly before it with respect to the OCF-18s. The applicant has not established grounds for reconsideration under Rule 18.2(b).
Non-Earner Benefit (NEB)
14The applicant makes several arguments with respect to the Tribunal’s decision related to his claim for an NEB. First, he argues the Tribunal made an error in paragraph 20 when it stated that because it found the applicant’s knee injury is not minor, it made no finding on the applicant’s chronic pain complaint. Second, although his submissions are not clear, he seems to argue that having concluded that the applicant’s injuries did not fall within the MIG, the Tribunal should have granted the applicant’s claim for an NEB based on the “totality” of the evidence. Third, he argues that the Tribunal erred by not giving sufficient weight to the evidence of the applicant’s family doctor, and by putting too much weight on the report of the respondent’s expert, Dr. Khan.
15The respondent submits that the applicant confirmed in writing that he was withdrawing his NEB claim on November 4, 2020. The respondent submits that this is evidenced by the CCRO which does not list NEB as an issue in dispute. The respondent also submits that it was open to the Tribunal to accept some, all, or none of the evidence before it. It submits that most of the evidence the applicant sought to rely on at first instance was struck by the Tribunal for failure to comply with the CCRO production deadlines, and that the applicant is seeking to reargue his case on reconsideration.
16The applicant does not address the issue of the withdrawal of the NEB claim in his reply submissions in this reconsideration but does reiterate his position that the Tribunal’s failure to look at the totality of evidence affected the result.
17I find the applicant has not established grounds for reconsideration for the following reasons. After setting out the legal test for entitlement to an NEB, at paragraph 12 the Tribunal determined that the applicant’s claim failed on both procedural and substantive grounds. The Tribunal found that the applicant had withdrawn his NEB claim, and that the CCRO did not list the NEB as an issue in dispute. The Tribunal concluded that without the parties’ consent, it could not decide the NEB claim as doing so would violate the CCRO and principles of natural justice. In addition, at paragraph 13, the Tribunal found that the applicant had not met the substantive legal test for an NEB as no medical opinion supported his claim, and he had not provided “a meaningful pre- and post-accident picture of his activities”. The Tribunal determined that the evidence only showed some changes in the applicant’s “ordinary activities”, which did not meet the legal test for an NEB.
18I find that the Tribunal’s decision determined that the applicant’s NEB claim was not an issue in dispute. The applicant has not argued that the Tribunal made an error in reaching this conclusion. Furthermore, I find that the Tribunal reviewed the medical evidence and determined that, even if the NEB had been properly before it, the applicant did not meet his evidentiary burden. Finally, I find that the Tribunal’s analysis at paragraph 20, which the applicant argues contains an error related to his NEB claim, relates to the OCF-18s in dispute, not the NEB. The fact the applicant does not agree with the Tribunal’s assessment or conclusions is not grounds for reconsideration.
19I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
CONCLUSION
20For the reasons noted above, I deny the applicant's request for reconsideration and confirm the Tribunal’s decision.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: February 16, 2023