RECONSIDERATION DECISION
Before:
Stephanie Kepman
Licence Appeal Tribunal File Number:
20-000613/AABS
Case Name:
Millicent Munar v. Aviva Insurance Canada
Written Submissions by:
For the Applicant:
Tina D. Radimisis, Counsel
For the Respondent:
Catherine Zingg, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision dated November 1, 2022, in which the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) found that she was barred from proceeding with her application pursuant to section 55(1)2 of the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”) due to her alleged non-attendance at scheduled Insurance Examinations (“IE”s).
2The applicant submits that the Tribunal made significant errors of fact and law, such that the Tribunal would have reached a different decision had the errors not been made. She requests that the Tribunal’s decision with respect to the preliminary issue be reconsidered in light of her preliminary issue reply submissions, which were not before it when the Tribunal decision was issued. The applicant also submits that the Tribunal failed to correctly apply settled caselaw, and that a significant error of law was made. The applicant is seeking an order for a rehearing of the matter in its entirety.
3The respondent does not deny that the Tribunal failed to consider the applicant’s preliminary issue reply submissions, however, it submits that the applicant’s submissions, if considered, would not have changed the outcome, and therefore, a reconsideration is not required. The respondent also argues that given the Tribunal considered the correct legal test and case law, no errors of law were made.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The Applicant's request for reconsideration is granted. A new hearing shall be held regarding both the preliminary and substantive issues.
BACKGROUND
6The applicant filed an application with the Tribunal related to an income replacement benefit (“IRB”), and several medical benefits and assessments. A case conference was held on February 25, 2021, and a written hearing was scheduled. The applicant filed written submissions with respect to the substantive issues.
7The respondent filed a motion on July 15, 2021, requesting that a preliminary issue be added to the list of issues in dispute. The motion was grated, and the preliminary and substantive issue hearing schedule was set by the Tribunal. Both issues were to be heard together.
8In its decision dated November 1, 2022, the Tribunal noted that it did not have the applicant’s reply preliminary issue submissions before it, and that it was unable to determine why the applicant failed to attend the IEs requested by the respondent.
9It is not disputed that the applicant provided the respondent and the Tribunal with preliminary reply submissions. However, due to an administrative error on the part of the Tribunal, the Tribunal did not receive the applicant’s preliminary, reply submissions before considering the preliminary issue in dispute. This error was no fault of the applicant.
10The adjudicator received the applicant’s preliminary issues reply submissions on February 3, 2023.
ANALYSIS
11The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria in Rule 18.2 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.
12Reconsideration 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.
13The ground that the applicant argues applies to this case is Rule 18.2.(b).
14Since I was unable to fully consider the applicant’s preliminary issue reply submissions, I agree that this causes what the applicant describes as an “unjust outcome”. This unfortunate outcome is not the fault of the applicant, as a preliminary issue is normally addressed and assessed in the case conference prior to the hearing, but that was not done in this case.
15I did not have the benefit of the applicant’s preliminary issue submissions at the time of the hearing, and I accepted the uncontested evidence and submissions of the respondent with respect to the preliminary issue. I find that the applicant was prevented from proceeding with her application. I agree with the respondent that I did apply the correct legal test when considering the facts and information I had before me. However, since the parties agree that I did not have all the necessary information before me when making my decision, I find that the appropriate relief is to have this matter reheard in its entirety now that all documents are in the Tribunal’s possession.
CONCLUSION
16For the reasons noted above, I grant the applicant's request for reconsideration and order that both the preliminary and substantive issues be reheard, in their entirety.
Stephanie Kepman
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 11, 2023