RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 20-006329/AABS
Case Name: Jean Hilaire v. Sonnet Insurance Company
Written Submissions by:
For the Applicant: Nicholas Whelan, Paralegal
For the Respondent: Lisa Armstrong, Counsel
BACKGROUND
1On October 28, 2022, the applicant requested reconsideration of the Tribunal’s decision dated October 11, 2022 (“decision”). In the decision, the Tribunal determined that the applicant sustained predominantly minor injuries and is not entitled to non-earner benefits (NEBs), the treatment plans in dispute, or interest. The Tribunal also determined that the respondent is entitled to repayment of NEBs in the amount of $6,105.00, plus interest.
2The grounds for a request for reconsideration 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 is seeking a reconsideration pursuant to Rule 18.2(b). The applicant seeks a determination that he is not subject to the Minor Injury Guideline (MIG), and that he is entitled to the treatment plans in dispute, NEBs, and related interest. The applicant also seeks a determination that he is not required to repay the NEBs. The respondent seeks an order denying the request for reconsideration.
RESULT
5The applicant's request for reconsideration is denied.
ANALYSIS
Removal from the MIG
6The applicant argues his injuries are not predominantly minor and he should not be subject to the MIG. The applicant argues that the Tribunal made an error when it stated that he had failed to submit any evidence that his pre-existing conditions would prevent him from achieving maximal recovery within the MIG. The applicant submits the Tribunal also erred in finding that the evidence supported a determination that his injuries are predominantly minor. The applicant argues the Tribunal did not consider the full weight of the medical evidence when making its determination.
7The respondent submits that the mere existence of a pre-accident condition is not enough to warrant removal from the MIG, and that the applicant has failed to adduce any evidence or reports by a health practitioner that he has a pre-existing condition that would prevent his recovery within the MIG. It argues the applicant has not identified an error in the decision and is improperly attempting to re-argue his case on reconsideration.
8I find that the applicant has not established grounds for reconsideration for the following reasons. The decision addressed the question of whether the applicant should be removed from the MIG at paragraphs 7 to 31. The Tribunal reviewed the applicant’s arguments and supporting evidence with respect to soft tissue and pre-existing injuries. The Tribunal determined that the applicant failed to meet his onus to demonstrate, on a balance of probabilities, that his pre-existing conditions prevent maximal recovery in the MIG. While the applicant argues the Tribunal did not take into consideration or give proper weight to its evidence, I see no error in the Tribunal’s analysis. It is the Tribunal’s role to consider and weigh the evidence before it, and I find the Tribunal properly reviewed and weighed the evidence before arriving at its conclusion.
9I find the applicant is asking the Tribunal to reweigh evidence in order to re-argue his position, which is not grounds for reconsideration.
NEBs
10The applicant argues that he should be entitled to NEBs, and that the respondent should not be entitled to repayment of NEBs. These two arguments are inextricably linked. That is, the applicant argues that if the Tribunal had not erred in determining he was not entitled to NEBs, it would not have found the respondent was entitled to a repayment of NEBs.
11At the heart of both arguments are two OCF-3s, dated July 24, 2018 and July 28, 2018. The applicant argues the Tribunal relied on the wrong OCF-3 in reaching its determination with respect to entitlement to NEBs. He argues the Tribunal should have referenced the July 24, 2018 OCF-3 in its decision, not the July 28, 2018 OCF-3, which was incomplete. The applicant submits that while the July 28, 2018 OCF-3 does not indicate the applicant sustained a complete inability to carry on a normal life, the July 24, 2018 OCF-3 does. The applicant argues that if the Tribunal had reviewed the July 24, 2018 OCF-3, it would have determined he was entitled to NEBs. The applicant cites F.C. v. Aviva Insurance Canada 2019 CanLII 130383 (ON LAT) in support of his position. The applicant also submits the Tribunal should have considered all the medical evidence and documents submitted by the applicant to the respondent with respect to NEBs, and by not doing so, it made a significant error.
12The respondent submits that the applicant has not identified any legal or evidentiary mistake that would have resulted in a different decision. It submits the applicant is asking the Tribunal to re-weigh evidence and is attempting to re-litigate his position. It argues the applicant’s submissions in the initial hearing included both OCF-3s and made similar submissions to those made on reconsideration.
13I find the applicant has not established grounds for reconsideration with respect to entitlement to NEBs for the following reasons. On reconsideration, the applicant appears to argue that the July 24, 2018 OCF-3 establishes entitlement to an NEB. He also argues that the respondent never responded to the July 24, 2018 OCF-3, while the respondent submits that it did respond. Regardless, I find it is clear from the Tribunal’s analysis that it considered the relevant evidence, which included both OCF-3s, and concluded that the applicant had not met his burden to demonstrate entitlement. Specifically, at paragraphs 32 to 44 the Tribunal addressed the question of the applicant’s entitlement to NEBs. The Tribunal noted, at paragraph 40, that it was hindered by a lack of evidence and particulars regarding the applicant’s pre and post-accident activities and functioning. At paragraphs 42 to 44, the Tribunal noted the evidence fell short of establishing entitlement to NEBs and the Tribunal was unable to conclude he met the test of having a “complete inability to carry on a normal life”.
14It is clear from the decision that the Tribunal’s determination did not hinge on the specifics of the OCF-3s, but rather on the totality of the evidence in relation to the legal test set out in Heath v. Economical Mutual Insurance Company 2009 ONCA 391. The applicant’s arguments with respect to which OCF-3 should have been considered do not change the fact that the Tribunal found he had not tendered sufficient evidence to support an application of the Heath principles, and thus did not meet his evidentiary burden to demonstrate entitlement.
15I find the applicant is attempting to reargue his case on reconsideration. The fact the applicant does not agree with the Tribunal’s decision is not grounds for reconsideration.
16I also find the applicant has not established grounds for reconsideration with respect to the repayment of NEBs, for the following reasons. The applicant’s argument on this ground again focuses on which OCF-3 the Tribunal should have referenced and relied on. In addition to the arguments addressed above, the applicant submits that the Tribunal made an error at paragraph 49 of the decision when it referred to the wrong OCF-3 in considering the question of repayment of NEBs. I disagree. I find that paragraph 49 sets out the sequence of events submitted by the respondent in support of its position. In setting out this sequence of events, the Tribunal referenced both OCF-3s, which were both in evidence before the Tribunal. Following this, at paragraphs 50 to 54, the Tribunal analyzed the notice sent by the respondent with respect to repayment of the NEBs and found the notice to be valid. Based on this analysis, the Tribunal was persuaded that the payment of NEBs was made in error, and determined the respondent is entitled to a repayment, with interest.
17I find it is clear from the decision that the Tribunal considered all the evidence in reaching its decision with respect to the repayment of NEBs, including the July 24, 2018 OCF-3, and not just the July 28, 2018 OCF-3 as argued by the applicant. I agree with the respondent that the applicant has not identified any legal or evidentiary mistake that would have resulted in a different decision with respect to the repayment of NEBs. Accordingly, the applicant has not established grounds for reconsideration under Rule 18.2(b).
CONCLUSION
18For the reasons noted above, I deny the applicant's request for reconsideration. The request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 8, 2023