RECONSIDERATION DECISION
Before: Tyler Moore, Vice-Chair
Licence Appeal Tribunal File Number: 20-012761/AABS
Case Name: Diana Hordo and Michael Hordo v. CAA Insurance Company
Written Submissions by:
For the Applicant: Diana Hordo and Michael Hordo, Applicants
For the Respondent: Peter Kazdan, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicants in this matter. It arises out a September 12, 2022 decision (“decision”) in which the Tribunal found that the applicants were not entitled to non-earner benefits for the period in dispute, housekeeping/home maintenance benefits, interest, a special award, or costs.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”)1. A request for reconsideration will not be granted unless 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;
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 applicants’ request for reconsideration relies on criteria 18.2(a), (b), (c), and (d). Specifically, the applicants submit that the Tribunal made several errors in fact and law that impeded procedural fairness and made improper reference to evidence not before the Tribunal. The applicants did not, however, provide any submissions specifically related to criteria 18.2(d), even though they raised it. The applicants are seeking an Order for benefits denied by the Tribunal in the Decision, costs, and an award for punitive damages.
4The respondent submits that the applicants’ reconsideration request should be denied, and costs be awarded to the respondent in the amount of $1,000.00 for responding to the improper reconsideration request. The respondent submits that the applicants have failed to disclose any justifiable reason why the decision should be set aside
RESULT
5The applicants’ request for reconsideration is denied.
ANALYSIS
6The test for reconsideration under Rule 18.2 involves a high threshold. Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
7The 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 the weight assigned to the evidence. In a similar vein, an adjudicator is not required to refer to every piece of evidence or submission before them.
8I will address the applicants’ claims of violation under Rule 18.2(a), (b), (c) below. With respect to the applicants’ alleged violation of Rule 18.2(d), however, I agree with the respondent that the applicants have not disclosed any justification that would support a violation. As a result, I will not be addressing Rule 18.2(d).
18.2(a) – Violation of Procedural Fairness
9Rule 18.2(a) sets out that a reconsideration will not be granted unless the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
10The applicants submit that Adjudicator Reilly and I violated the rules of procedural fairness for the following reasons:
a. Adjudicator Reilly did not explain or identify why she was replacing Vice-Chair Shapiro in the hearing.
b. Adjudicator Reilly ordered the applicants to cut their evidence and exhibits as well as limit their submission, which had been properly filed and served for the hearing.
c. Adjudicator Reilly exhibited bias throughout the hearing by denying their evidence but allowing the respondent to enter additional documents that had not been previously served, and by allowing the respondent to enter case-law that is under appeal.
d. The applicants also submit that they were denied access to a key witness, Ms. Polanco, claims adjuster, who was properly served.
11The respondent submits that there was no bias, that the only allegation the applicants have made is in respect of documents that were excluded at the hearing, and the reason documents were excluded was outlined in the decision in paragraphs 7 and 8 as a preliminary issue.
12I find no violation of procedural fairness for the following reasons. As noted in paragraphs 6 to 9 of the Decision, Vice-Chair Shapiro and I issued a procedural Order on June 13, 2022. The Order addressed procedural and preliminary matters only. Vice-Chair Shapiro and I did not hear any testimony on June 13, 2022. The day was spent reviewing procedural and preliminary matters with the parties. Vice-Chair Shapiro was not seized of the matter at that point. It is not a violation of procedural fairness to have the preliminary issues and the substantive issues heard separately, or by different adjudicators.
13With respect to the applicants’ submission that Adjudicator Reilly excluded certain documents that were submitted by the applicants, I concur with the respondent that the matter has already been addressed in the Decision under the heading of ‘Preliminary Issue’, specifically at paragraphs 7 and 8. Adjudicator Reilly and I did exclude a late document that was not filed by the applicants until June 15, 2022, based on Section 15 of the Statutory Powers Procedure Act (“SPPA”). Section 15 sets out that the Tribunal adjudicators have the discretion to admit or exclude evidence at a hearing. I find no violation of procedural fairness in our Decision with respect to the excluded document.
14The applicants have also submitted that Adjudicator Reilly and I considered a Divisional Court decision that is unrelated to the matter before the Tribunal. That decision, however, was only considered to the extent that it disclosed the whereabouts of the applicants on June 24, 2022. The applicants advised Adjudicator Reilly and I at the time of the hearing that they were unable to participate in the Tribunal hearing that was scheduled to proceed on June 24th for the entirety of the day because of a medical procedure. The Divisional Court decision confirms that the applicants attended a motion for an unrelated matter on that date.
15The respondent submits that adjudicator Reilly and I considered a Divisional Court decision of Justice Nishikawa only to the extent that it disclosed the whereabouts of the applicants on June 24, 2022. An appeal of that decision does not alter the applicants’ physical location, and consideration of that decision did not deny the applicants procedural fairness. I find no violation of procedural fairness.
16With respect to the production of Ms. Polanco, claims adjuster, as a witness, Vice-Chair Shapiro and I considered this matter in our Preliminary Order dated June 13, 2022, at paragraph 5. We found that Ms. Erikson, the applicants’ current claims adjuster who is quite familiar with the file was made available for cross-examination by the applicants. I find that having only one adjuster, Ms. Erikson, testify at the hearing did not impede or violate the rules of procedural fairness.
17While I am alive to the arguments made by the applicants in their submissions, I find that the applicants have not met the criteria for reconsideration under Rule 18.2(a).
18.2(b) – Errors of Fact and Law
18Rule 18.2(b) sets out that a reconsideration will not be granted unless 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.
19The applicants submitted that Adjudicator Reilly and I made several errors of law and of fact. I disagree and find no error of fact or law for the following reasons.
20The applicants submit that Michael Hordo was not properly served with the respondent’s post-hearing motion material. The respondent submits that the post-hearing motion material was served on all parties on July 26, 2022 and a Certificate of Service was filed before the Tribunal.2 The respondent submits that this is not grounds to vacate the Decision. The respondent did not receive any return bounce back email indicating that the documents were not served on Michael Hordo.
21There is a certificate of service confirming that the motion material was properly filed with the Tribunal and served upon both Michael Hordo and Diana Hordo via email, pursuant to Rule 15 of the License Appeal Tribunal Rules of Practice and Procedure, on July 26, 2022. I accept the respondent’s submission that they did not receive any bounce back email after serving the post-hearing motion material from Michael Hordo’s email account. The applicants have not submitted that Diana Hordo was not properly served. There is also no indication that Michael Hordo made any request for the respondent’s motion material after his spouse, whom he resides with, was properly served. I find that this does not constitute an error of fact or law.
22The applicants have also submitted that the decision of Justice Nishikawa in a matter unrelated to the matter before this Tribunal on June 24, 2022 was distributed illegally and improperly by the respondent’s lawyers to bias the Tribunal.
23The respondent submits that the applicants admit that they were able to attend before the Divisional Court on June 24, 2022 via videoconference. This is despite their claims that they were unable to attend the Tribunal hearing on the same date due to an alleged medical appointment. According to the respondent, the applicants mislead Adjudicator Reilly and I, as well as the respondent because they failed to disclose the motion before the Divisional Court until it was discovered by the respondent.
24As I have previously outlined, Adjudicator Reilly and I did not consider the contents of the Divisional Court decision. The decision simply provided confirmation that the applicants were able to participate in a videoconference hearing for an unrelated matter when they had previously disclosed to Adjudicator Reilly and I that they were unable to participate in the Tribunal hearing for the entirety of the day on June 24, 2022. The respondent simply brought this to our attention. Again, I do not find that this constitutes an error or fact or law.
25Based on the submissions put forth by the applicants, I find that they have not established grounds for reconsideration under Rule 18.2(b).
18.2(c) – False Evidence
26Rule 18.2(c) sets out that a reconsideration will not be granted unless the Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result.
27The applicants submit that they were not provided with a copy of the hearing transcript by the respondent. They submit that the transcript would support their contemporaneous notes and demonstrate entitlement to the benefits in dispute. The respondent submits that the applicants have not established grounds for reconsideration under Rule 18(c). I agree with the respondent. I find that the applicants’ submission that a hearing transcript was not provided to them by the respondent is not grounds for reconsideration under Rule 18.2(c).
28I do agree with the applicants in that they were only ordered to produce tax assessments for the years 2018 and 2020 by Adjudicator Marshall. Paragraph 53 of the Decision states only that “they did not provide tax assessments for 2019”, referring to the applicants. The applicants, however, have provided no justification as to how that note at paragraph 53 could have negatively affected the Decision result.
29Finally, the applicants submit that the OCF-3 completed by Dr. Wong did not correspond with the OCF-3 form of the Financial Services Regulatory Authority. Again, the applicants failed to provide adequate justification as to how Dr. Wong’s completed OCF-3 constitutes a breach of Privacy Rights and why paragraphs 35, 36, 38, 50, and 51 of the hearing Decision, where reference is made to Dr. Wong’s findings, should be disallowed. I fail to see the justification in the applicants’ submissions as to how Dr. Wong’s report provides misinformation, or how disregarding it would likely have led to a different decision outcome.
CONCLUSION
30For the reasons noted above, I deny the applicants’ request for reconsideration.
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 13, 2023