RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 21-000430/AABS
Case Name: Behnaz Samadi v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Adesina John, Paralegal
For the Respondent: Diana Oliveira, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of the Tribunal’s decision released on December 23, 2022 (“decision”). In the decision the Tribunal found that the applicant is not entitled to an income replacement benefit (“IRB”) for the period claimed, is not entitled to interest, or an award under Regulation 664. The Tribunal also found the respondent is not entitled to costs.
2The 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”). 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(a) and (b). The applicant is asking the Tribunal to vary the decision to find the applicant is entitled to an IRB for the period claimed, as well as interest on overdue payment of the IRB and an award under Regulation 664.
RESULT
4The applicant's request for reconsideration is dismissed.
ANALYSIS
5The test to be met on a request for reconsideration under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The test to be met 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.
6The 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. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2 (a) – Did the Tribunal Act Outside its Jurisdiction?
7The applicant submits that the Tribunal acted outside its jurisdiction when it determined that she is not entitled to an IRB for the period claimed. She argues that the Tribunal should not have conducted its own assessment of the relevant evidence with respect to IRB entitlement. The applicant submits that it was not within the jurisdiction of the Tribunal to determine whether the applicant meets the eligibility test based on its own assessment of the evidence. She argues that that determination is made by a regulated health care professional who completes a Disability Certificate (“OCF-3”) pursuant to section 25(1)(1) of the Schedule, or by a section 44 insurers examination (“IE”). The applicant submits that by conducting its own review of the evidence regarding entitlement to an IRB, the Tribunal acted outside its jurisdiction.
8The respondent submits that the Tribunal did not act outside its jurisdiction. It submits the applicant’s submissions on reconsideration are an attempt to re-argue her case.
9I find the Tribunal did not act outside its jurisdiction when it assessed the applicant’s eligibility for an IRB for the following reasons. Pursuant to section 280 of the Insurance Act, it is the responsibility of the Tribunal to resolve disputes in respect of an insured person’s entitlement to statutory accident benefits, and/or the amount of those benefits. In this case, one of the issues in dispute as identified in the applicant’s initial application, in the Case Conference Report and Order (“CCRO”) dated June 22, 2021, and in the decision is whether or not the applicant is entitled to an IRB for the period claimed.
10The applicant argues that this determination falls to the regulated health professional who completed the OCF-3, or to the respondent’s IE assessors. This is simply not the case. While the information contained in an OCF-3 and the opinions of the IE assessors may be relevant to the Tribunal’s decision-making process, it is the Tribunal that has the jurisdiction, and responsibility, to determine entitlement to benefits under the Schedule.
11Furthermore, I find that at paragraphs 10 through 34, the Tribunal set out the correct legal test for entitlement to an IRB, and then analyzed and weighed the evidence it found relevant to this test. In so doing, the Tribunal took into account the OCF-3 and the evidence submitted by the applicant, as well as the evidence submitted by the respondent. It concluded, at paragraph 34, that the relevant evidence “does not indicate that the applicant was substantially unable to perform the essential tasks of her pre-accident employment.” As a result, the Tribunal found that the applicant was not entitled to an IRB for the period claimed.
12I find the Tribunal did not act outside its jurisdiction in making this determination. While it is clear that the applicant does not agree with the Tribunal’s analysis or conclusions, this is not grounds for reconsideration.
Rule 18.2(a) - Did the Tribunal Violate the Rules of Procedural Fairness?
13The applicant submits that the Tribunal failed to consider “relevant evidence and/or the substance of relevant evidence” in its decision, and that this amounts to a violation of the rules of procedural fairness. The applicant argues that she has a right to be heard, and that in order to meet this right the Tribunal was required to “restate” the relevant evidence submitted by the applicant. In her reconsideration submissions, the applicant reviews the evidence she gave during the hearing with respect to her depression and anxiety. She submits that the Tribunal’s failure to reference this evidence is a violation of the rules of procedural fairness.
14The respondent submits that it is well established that an adjudicator is not obliged to refer to all the evidence put before them in their reasons. In support of its position, the respondent cites the decision in Housen v. Nikolaisen 2002 SCR 235.
15I agree with the respondent. The Tribunal is not obliged to refer to all the evidence in its reasons. Furthermore, while it did not specifically refer to the applicant’s evidence-in-chief, it is clear from the decision that the Tribunal considered the question of whether the applicant had a psychological condition resulting from the accident. Under the heading “Regarding Psychological injuries/examination”, at paragraphs 27- 28, the Tribunal discusses the applicant’s arguments with respect to her psychological condition. The Tribunal concludes that the applicant did not meet her burden of proof to establish she had an accident-related psychological condition. In so doing, the Tribunal noted that there were instances where the applicant reported to medical physicians that she was depressed, and was prescribed depression and anxiety medication, but there was “no conclusive evidence indicating that her state of mind was accident related, as opposed to other life factors”. I see no violation of procedural fairness in the Tribunal’s treatment of the applicant’s evidence.
16For the reasons set out above, I find that the applicant has not established grounds for reconsideration under Rule 18.2 (a).
Rule 18.2(b) – Did the Tribunal make an error of fact or law?
17The applicant argues that the Tribunal misapprehended evidence and misinterpreted and misapplied relevant sections of the Schedule such that the Tribunal would have likely reached a different result had the error not been made. Although her lengthy submissions on this point are not always clear, it appears that the errors argued by the applicant fall into two categories: errors relating to the legal test for IRBs; and errors in the Tribunal’s treatment of evidence.
18With respect to the legal test for IRBs, the applicant argues the Tribunal erred:
at paragraph 12 when it set out the applicant’s burden of proof;
with respect to the legal test for IRB entitlement, duration, and quantum;
by misinterpreting and misapplying sections 7 and 11 of the Schedule; and
in considering the applicant’s return to work after the accident when assessing her entitlement to an IRB.
With respect to the treatment of evidence, the applicant argues the Tribunal erred because it:
did not consider evidence relevant to the applicant’s psychological condition;
determined the evidence before it established the applicant’s accident-related injuries are only physical in nature;
did not “give proper effect to MRI evidence”;
failed to consider evidence about the payment of income replacement benefits beyond the stoppage date in relation to the question of whether the respondent improperly stopped payment of the applicant’s IRB; and
preferred the evidence of the respondent’s IE assessor, Dr. Soric.
19The respondent argues that the applicant has not established grounds for reconsideration. It argues her submissions do not identify an error of fact or law, that she does not substantiate her arguments, and is trying to re-litigate her case. With respect to the question of evidence related to the stoppage of the IRB, the respondent submits that this is not an argument made at the hearing, and the applicant is not permitted to make new arguments on reconsideration. With respect to the MRI evidence, the respondent submits that the Tribunal’s decision indicates it considered the MRI reports. The respondent also submits that it is the function of the Tribunal to weigh evidence, and that the applicant did not provide any evidence to refute its expert’s opinion.
20I find no error of fact or law in the Tribunal’s decision for the following reasons. I find that the Tribunal correctly set out the test for entitlement to an IRB, and correctly identified that the applicant bears the burden of proving, on a balance of probabilities, that she is entitled to the benefit. While the applicant argues that the Tribunal erred in its analysis because the issue in dispute is not entitlement to an IRB, but rather ongoing eligibility to an IRB, I find this is not the case. The applicant’s application, the CCRO, and the decision all state that the issue in dispute is entitlement to an IRB. The applicant and the respondent made submissions with respect to IRB entitlement at the hearing, and the Tribunal determined IRB entitlement in its decision. The applicant now argues that the issue was not entitlement, but rather whether the respondent’s “stoppage” of the IRB was proper and whether she had “ongoing eligibility despite returning to work” after the accident. However, I agree with the respondent that this is not the issue identified in the CCRO or at the hearing. I find that the applicant’s reconsideration submissions are an attempt to reframe the issue in dispute in order to re-argue her case.
21I also see no error of fact or law in the Tribunal’s decision with respect to the treatment of evidence. As noted above, the Tribunal is not obliged to refer to all the evidence in its reasons. While the applicant submits that the Tribunal incorrectly preferred some evidence over other evidence and did not give sufficient weight to her evidence, it is the function of the Tribunal to consider and weigh the evidence and to reach a conclusion based on the evidence. This is what was done in this case. Specifically, the Tribunal considered the MRI evidence at paragraphs 19, 20 and 23 of the decision. As noted above, it also considered the evidence related to the applicant’s psychological condition. At paragraphs 23 through 25, the Tribunal set out the evidence of Dr. Soric, and at paragraph 28 the adjudicator noted that the applicant had “failed to provide me with any evidence that would indicate she sustained or was diagnosed with psychological injuries as a result of the accident”. I see no error in the Tribunal’s treatment of the evidence, or its conclusions based on the evidence. The fact the applicant does not agree with the Tribunal is not grounds for reconsideration.
22Finally, the applicant argues she is entitled to an award under Regulation 664. In her reconsideration submissions, the applicant does not identify an error in the Tribunal’s decision with respect to the award. She simply outlines her arguments in support of an award.
23For the reasons set out above, I find that the applicant has not established grounds for reconsideration under Rule 18.2(b). I find that the applicant is attempting to re-argue her case. As noted above, a reconsideration is not an opportunity for a party to re-litigate its position, and disagreement with the Tribunal’s decision is not grounds for reconsideration.
ORDER
24For the reasons noted above, I deny the applicant’s request for reconsideration. The applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: March 29, 2023