21-001623/AABS - R

RECONSIDERATION DECISION

Before:

E. Louise Logan

Licence Appeal Tribunal File Number:

21-001623/AABS

Case Name:

Wosilat Olaleye v. The Commonwell Mutual Insurance Group

Written Submissions by:

For the Applicant:

Omar Makhatadze, Counsel

For the Respondent:

Cecil Jaipaul, Paralegal

BACKGROUND

1On February 10, 2023, the applicant requested reconsideration of the Tribunal’s decision dated January 19, 2023 (“decision”). In the decision, the Tribunal determined that the applicant’s injuries fall within the Minor Injury Guideline (MIG), and that the applicant is not entitled to the medical benefits in dispute, or interest. The Tribunal also found the respondent was 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.

3Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

4The applicant has indicated she is seeking a reconsideration pursuant to Rule 18.2 (a) and (b). The applicant requests that the decision be overturned and that she be removed from the MIG. The respondent requests that the request for reconsideration be dismissed.

RESULT

5The applicant's request for reconsideration is dismissed.

PROCEDURAL ISSUES

6The respondent filed a Notice of Motion on March 23, 2023, seeking to have the applicant’s reply submissions dated March 22, 2023 struck on the basis that they improperly contained new information, and new and reformulated arguments. The respondent submits it is well established that it is unfair to the opposing party to raise new issues and arguments in reply as there is no opportunity to respond. The respondent seeks an order that the applicant’s reply submissions be struck in full.

7The applicant asks the Tribunal to deny the respondent’s motion and allow her reply submissions to be considered. The applicant submits that the reply submissions address issues raised in her initial submissions and the request for reconsideration form. The applicant submits that no new evidence was introduced on reply. She states that the evidence cited was available to both parties at the time of initial hearing, and therefore cannot be considered new evidence. The applicant argues it would be unfair and prejudicial to exclude the submissions and asks the Tribunal to deny the motion, or in the alternative, allow the respondent to file a sur-reply to cure any prejudice.

8I agree with the respondent that the applicant’s reply submissions contain new arguments not raised in the request for reconsideration and submissions filed on February 10, 2023 in compliance with Rule 18.1. However, I have reviewed the submissions and find they do not establish grounds for reconsideration. As a result, there is no prejudice to the respondent, and I decline to grant the motion on this basis.

ANALYSIS

Rule 18.2(a) - The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness

9The applicant’s arguments pursuant to Rule 18.2(a) are that the Tribunal did not reference the applicant’s case law or follow or consider the cases cited by the applicant in its decision. The applicant lists the cases she submits the Tribunal failed to consider. In her submissions, the applicant appears to conflate the tests in Rule 18.2(a) and (b) and argues that the Tribunal would likely have reached a different result if it had considered the case law outlined in her submissions.

10I find the applicant has not established grounds for reconsideration with respect to the Tribunal’s treatment of the case law for the following reasons. In its decision, the Tribunal set out the evidence and authorities that it relied upon in reaching its conclusion. Specifically, at paragraphs 43 to 54 the Tribunal set out its analysis and findings related to the parties’ arguments with respect to sections 38 and 54 of the Schedule. In paragraphs 59 to 76 the Tribunal addressed the question of whether or not the applicant’s injuries fall within the MIG and referenced the parties’ submissions, relevant evidence and authorities, and provided reasons for its findings.

11I agree with respondent that the applicant is attempting to re-argue her case. It is well established that the Tribunal is not required to cite every piece of evidence or authority. The fact the applicant does not agree with the decision is not grounds for reconsideration. I find she has not met her onus to demonstrate how or why the decision falls under the criteria in Rule 18.2(a).

Rule 18.2(b) - The Tribunal made an error of law or fact

12The applicant argues the Tribunal erred in law or fact (she does not say which) when it failed to correctly interpret and apply sections 38 and 54 of the Schedule. She argues that the Tribunal failed to consider the fundamental principle of proper denial of benefits and submits that the respondent’s denial letters did not meet the notice requirements. In her submissions, she includes a list of the ways in which the denial letters were inadequate.

13I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) for the following reasons. I find the Tribunal addressed the question of the adequacy of the denial letters in its decision. Specifically, at paragraphs 50 to 54 the Tribunal addressed the contents of the denial letters, whether they gave adequate reasons, and whether they advised the applicant of her right to dispute. In the course of its analysis, the Tribunal addressed the applicant’s arguments and concluded that the respondent’s notices were sufficient. The reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision, or where they failed to meet their burden at first instance.

14Furthermore, I find that even if the applicant had identified an error of fact or law in the decision, she has not satisfied the second part of the test under Rule 18.2(b). Her submissions do not address how the Tribunal would likely have reached a different result had the error not been made beyond the general statement that “had the tribunal, did not err [sic] in law and correctly interpreted the statute it would likely have reached a different decision”.

15For the reasons outlined above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).

CONCLUSION

16I deny the applicant's request for reconsideration. The request for reconsideration is dismissed.

E. Louise Logan

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal