RECONSIDERATION DECISION
Before:
Adjudicator Tavlin Kaur
Licence Appeal Tribunal File Number:
21-003013/AABS
Case Name:
Asfaha v. RSA Insurance, 2023 ONLAT 21-003013/AABS
Written Submissions by:
For the Applicant:
Andrew Franzke, Counsel
For the Respondent:
Katherine Kolnhofer, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated February 17, 2023 (“decision”) in which the Tribunal found that the applicant did not provide a reasonable explanation for the delay in reporting his intention to seek accident benefits. In his 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:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
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 he is attempting to re-argue his case. I reject his assertion that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
Rule 18.2(a):
6The applicant submits that the Tribunal violated the applicant’s right to procedural fairness by rendering legally insufficient reasons in its application of the Horvath test.
7The respondent submits that the Tribunal did not act outside of its jurisdiction or violate the rules of natural justice or procedural fairness in rendering the
decision of February 17, 2023. Furthermore, the Tribunal did not make any error of law or fact.
ANALYSIS
8The applicant stated that “while the Tribunal’s reasons seemingly refer implicitly to aspects of the Horvath test, its failure to be explicit was an error of law in this case. The Tribunal’s decision refers to the test in Horvath but does not make any further mention of it in rendering its decision. The result, in the Applicant’s respectful submission, is a decision based on reasons which are legally insufficient.”
9I disagree. My decision provided clear and cogent reasons outlining why he did not meet the Horvath test in paragraphs [10] to [14] of my decision. My decision addressed all of the explanations that were provided by the applicant for the delay and the reasons why I did not find them persuasive.
10In his submissions, the applicant addresses the findings I made in paragraphs 10 and 13 of the original decision. He submits that it is unclear whether these findings went to his explanation of being ‘credible or worthy of belief’ or whether it was an objective assessment of what would have been ‘reasonable in the circumstances.
11I disagree. In paragraphs 10 and 13, I accepted the applicant’s explanations regarding being preoccupied with his son’s criminal matter and how those circumstances impacted him psychologically. There is no ambiguity. I then addressed the next stage of the analysis and provided detailed reasons as to why I did not find these explanations to be reasonable. It was the applicant’s onus to establish a reasonable explanation. The Tribunal was not persuaded by the information that was provided by the applicant at the Examination Under Oath (“EUO”). Moreover, the Tribunal found that there was a lack of evidence that supported his position. The applicant failed to meet his onus.
12Furthermore, he purports that the Tribunal did not make any references to the content of the objective standard informing the Tribunal’s assessment of “reasonableness”. I do not find that this argument makes sense. As noted in the original decision, the applicant failed to provide evidence to substantiate his explanation. Based on the limited evidence that was provided to the Tribunal, I took his personal circumstances and the “reasonable person standard” into account in my decision. While I may have not used the exact words from Horvath, my analysis addressed this principle in paragraphs 10 and 13.
13The applicant submits that in the context of assessing objective factors, the applicant requested that the Tribunal take judicial notice of the COVID-19 pandemic as it pertains to constraints imposed on access to public healthcare. My reasons in paragraph 13 addressed the COVID-19 pandemic and why I was not persuaded that it had limited his ability to get access to healthcare.
14The onus is on the applicant to establish his grounds for reconsideration, and he has not done so. Dissatisfaction with the result is not a ground for reconsideration. Not accepting the applicant’s submissions or evidence 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 his 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 5, 2023