RECONSIDERATION DECISION
Before: Adjudicator Tavlin Kaur
Licence Appeal Tribunal File Number: 21-003797/AABS
Case Name: Jiang v The Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Aline Avanessy, Counsel and Zoe Meditskos, Paralegal
For the Respondent: Jamie Pollack, Counsel and Serena Gohal, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated February 6, 2023 (“decision”) in which the Tribunal found that the applicant was not involved in an accident. In her request, the applicant alleges that the Tribunal made a significant error of law and fact. The respondent disagrees and requests that the reconsideration be dismissed.
RESULT
2The applicant's request for reconsideration is dismissed.
ANALYSIS
3The 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”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the applicant relies on the following ground:
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.
4Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
5I find that the applicant’s request for reconsideration does not establish grounds for reconsideration under Rule 18.2. I find she is attempting to re-argue her case and reject her assertion that the Tribunal made a significant error of law and fact.
Rule 18.2(b): Error of law or fact
6The applicant submits that the Tribunal made a significant error of fact or law by failing to properly apply the causation test as set out in Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA) (“Chisholm”) and Greenhalgh v. ING-Halifax Insurance Co, 2004 CanLII 21045 (ONCA) (“Greenhalgh”). The applicant submits that there was no intervening cause as there was in Chisholm.
7Moreover, it is the applicant’s position that that the automobile was the dominant feature of her injuries. It was used as the very instrument of the assault and cannot be characterized as ancillary.
8The applicant argues that the circumstances in this case are captured by both exceptions outlined in Irving v CGU Insurance Co. of Canada, 2004 CarswellOnt 6505 (“Irving”).
9The respondent submits that the Tribunal did not make a significant error of law or fact that the Tribunal would have likely reached a different decision.
ANALYSIS
10The applicant has not provided any particulars as to what the errors of law or fact were. I find that no error of law or fact was made, let alone an error of fact or law such that I would likely have reached a different result. Her submission that I incorrectly applied the causation test is a position that is not supported. There was no error made by the Tribunal in its application of the correct legal test for causation. I applied that test to the facts before me, which was addressed in paragraphs 10 to 28 of the decision.
11With respect to the dominant feature test, it should be noted that the applicant did not address this in her preliminary issue submissions. I find that she is attempting to introduce a new argument that was not previously raised. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. While there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, this is not such a case. The applicant had an opportunity to address this in her preliminary issue submissions.
12Furthermore, I am not persuaded by the case law that the applicant has submitted in support of her reconsideration request. The applicant is relying on Irving. The applicant’s submissions do not clearly articulate how this case is applicable in determining whether the Tribunal made an error of law or fact. She submits that the circumstances in this case are captured by both exceptions outlined in Irving. These exceptions are (a) the automobile was the instrument of the injury and (b) the assault caused an automobile to lose control and the claimant was injured in the subsequent collision. She asserts that her circumstances are analogous to her assailant intentionally running down the applicant with the vehicle, in the same way that her assailant intentionally used the car window to cause her injury.
13I find that the applicant is attempting to introduce a new argument and case law that she did not raise at the preliminary issue hearing. I am not bound by cases decided by other adjudicators and Tribunals such as the Financial Services Commission of Ontario. In any event, Delegate Makepeace found that throwing a bottle was not part of the “use or operation” of the truck. Rather, it constituted an intervening event. It was also found that the dominant character of the incident was that of an assault, not of an accident.
14I applied that test to the facts before me. The onus is on the applicant to establish her grounds and she has not done so. Dissatisfaction with the result is not a ground of reconsideration. Not accepting the applicant’s submissions, evidence or case law at the hearing is not an error of law. Although the applicant may disagree with the Decision, reconsideration is not an opportunity for the applicant to re-argue her position, which is what I find to be the case here.
CONCLUSION
15For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tavlin Kaur Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 1, 2023