Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 21-012279/AABS
Case Name: Christine Howes v. CAA Insurance Company
Written Submissions by:
For the Applicant: Adam Little, Counsel Adriano Pranzitelli, Counsel Jordan Kofman, Counsel
For the Respondent: Derek Ballard, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated January 4, 2023 (“decision”) in which the Tribunal found that the applicant was not involved in an accident. In his request, the applicant alleges that the Tribunal acted outside of its jurisdiction, violated the rules of procedural fairness and made a significant error of law and fact. Moreover, there is evidence that was not before the Tribunal previously. 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;
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) 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.
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. I reject her assertion that the Tribunal violated the rules of procedural fairness and made errors of law. Additionally with her request for reconsideration, the applicant also submitted recent case law, not new evidence, to support her position.
The Tribunal did not err under Rule 18.2(a) and 18.2(d)
6On page 4 of the applicant’s reconsideration submissions, she has used the subheading “Part II-Procedural Error: The Preliminary Issue was Brought Too Late”. I take this to mean that the applicant is alleging that the Tribunal violated the rules of procedural fairness.
7The applicant submits that the respondent was late in raising the preliminary issue and that the Tribunal should have dismissed it. The Tribunal erred by failing to address the issue. To allow the respondent to raise a preliminary issue at this point disregarded the obligations imposed on it by section 32 of the Schedule. The applicant is relying on Harland-Bettany v. Aviva Insurance Canada, 2022 CanLII 78879 (ONLAT) in support of her case.
8The respondent submits that the applicant’s submissions are in relation to section 32 of the Schedule. However, the applicant made no reference to section 32 of the Schedule in her preliminary issue hearing submissions. The applicant’s “section 32 arguments” are new arguments, and the Tribunal is under no obligation to address any “section 32 argument” when it was not even mentioned by the applicant at the initial hearing. New submissions are not a proper basis for a reconsideration.”
9The applicant relies on Harland-Bettany in support of her case and states that it was not available when the parties provided their submissions to the Tribunal in this matter. It appears that the applicant is relying on Rule 18.2(d). Under this rule, an individual can bring a request for a reconsideration when 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.
10In my view, case law is not evidence. In any event, I have taken this case into consideration not as new evidence via Rule 18.2(d), but as an error of law via Rule 18.2(b). I find that Harland-Bettany is distinguishable from the facts before me and is not binding. In Harland-Bettany, the applicant also argued that too much time had passed for the respondent to now challenge whether the incident was an “accident”. As a result, the parties in Harland-Bettany were asked to provide additional submissions in relation to section 32.
11However, in this case, while the applicant’s submissions regarding the preliminary issue provided a background of what transpired between her and the respondent in paragraphs 3 and 8, she never raised the section 32 argument in her submissions. There is nothing in her submissions where she states that too much time has passed for the respondent to now challenge whether the incident was an “accident” and nor does she make any references to section 32.
12While I note that Harland-Bettany was released shortly after the parties’ submissions were due, section 32 is not a new section in the Schedule. There was nothing precluding the applicant from raising this argument. It was incumbent upon the applicant to make her case, advance all arguments that she wanted for the preliminary issue hearing, and articulate her argument clearly. It is not the Tribunal’s responsibility to advocate on the behalf of the applicant or make her case for her.
13Moreover, had the applicant thought that section. 32 was a worthwhile argument to advance for the preliminary issue hearing, she could have asked it to be added as an issue in dispute. I note that the applicant did not add it at the case conference and nor did she bring a motion to have it added as an issue in dispute. Put another way, both the applicant and the respondent can raise and advance any issue that they thought was important to the determination of the dispute between them: the difference is that the respondent did while the applicant did not.
14I find that the applicant is attempting to introduce a new argument which was not previously before the Tribunal. As such, I find that I did not err on these grounds.
Rule 18.2(b)-Error of law
Application of the legal test
15The applicant submits that the Tribunal erred because it never engaged in a principled application of the legal test in Greenhalgh. In paragraphs 8 to 41 of my decision, I provided an analysis of why I was not persuaded that the applicant was in an accident. In paragraphs 42 to 43, I explained that the purpose and causation tests are used to determine if an incident involving an insured person is an accident.
16As I found that the applicant did not meet either the (a)(i) or (a)(ii) iterations of “insured person” in section. 3(1) of the Schedule, an analysis of whether the accident meets the purpose and causation tests was unnecessary. Once it is determined that a person is not an “insured person,” whether the incident itself constitutes as an accident is immaterial because statutory accident benefits are payable by an insurer only to or on behalf of an insured person. Therefore, I find that there is no error of law.
Direct contact not required
17The applicant submits that the Tribunal made an error by placing importance on the lack of direct contact between the applicant and the automobile. In support of her case, the applicant is relying on Madore v. Intact, 2023 ONSC 11 (“Madore”). According to the applicant, the Divisional Court binds the Tribunal and was clear that direct contact was not required. As direct contact was not required, the applicant should not have been denied.
18The respondent submits that Madore has no bearing on the subject claim of this applicant and there is no basis to conclude the Tribunal is bound by the wholly distinguishable and inapplicable decision in Madore. The applicant relies on Madore for the principle that “direct contact between the applicant and the automobile was not required”. The applicant is mischaracterizing the ratio decidendi of Madore. In Madore, the Tribunal was found to have erred by concluding there was no “direct contact” with the trailer after the claimant fell from its roof. In this case, the Tribunal correctly followed and applied the relevant Divisional Court decision of P.F. v. Economical, 2021 ONSC 7847 (“Francia”).
19I find Madore to be of limited assistance to the facts before me. In Madore, the applicant was injured in the course of cleaning and inspecting the roof of his trailer. The Divisional Court found that the link to be drawn is between the “use and operation” of the automobile and the “impairment”. The applicant in Madore did not need to prove a direct physical connection between the cause of the injury and an automobile.
20In the case before me, the applicant was sleeping at the time of the incident. The automobile was no longer in use or operation when the applicant saw the aftermath of the collision. Therefore, I find that there is no link between the “use and operation” of the automobile and the applicant’s impairments. In Madore, there was a link between the “use and operation” of the automobile and the applicant’s impairments. Moreover, in Madore, the applicant was an insured person whereas in this case, I found that the applicant was not.
21In my view, I correctly applied the Francia case to the facts before me. Moreover, my reasons clearly articulated why I concluded that the applicant’s physical and psychological impairments did not stem from the accident.
The applicant sustained a shoulder impairment
22The applicant submits that the Tribunal erred by requiring the applicant to prove chronic shoulder pain in order to be entitled to accident benefits. The applicant’s shoulder was lacerated as a direct consequence of the accident and there was evidence of an ongoing impairment. There is no requirement in the Schedule or elsewhere that an initial impairment (in this case, a laceration) be the same as the impairment that eventually disables the applicant and requires the ongoing treatment (in this case, ongoing shoulder pain and psychological impairment). The shoulder laceration alone entitled the applicant to accident benefits.
23The respondent submits that the applicant is attempting to relitigate the fact that a mirror fell on her causing a shoulder impairment. According to the respondent, the applicant has argued throughout her written submissions that she sustained a physical injury as a result of the mirror falling on her left shoulder. However, in the evidence, she specifically stated that, “I did not feel any physical injury from the impact with the mirror” and “I did not suffer from any physical injuries from the vehicle”.
24In paragraph 37, I addressed the physical injury and the issue of the mirror falling on her. I found that she did not sustain a physical impairment. In her original submissions, the applicant stated that, “however, it should also be noted that Dr. Hannah Rockman, diagnosed Christine with chronic pain and headaches due to the subject motor vehicle accident. Thus, she did not sustain solely psychological injuries.”
25I provided clear and cogent reasons for my decision. I reviewed all of the medical evidence and found that chronic pain was a pre-existing condition. Moreover, the clinical notes and records did not document any complaints in relation to the mirror falling on her. Based on the evidence before me, I was not persuaded by the applicant’s position. As such, I find that I did not make an error.
Witnessing the accident was not required
26The applicant submits that the Tribunal erred in concluding that the applicant had to witness the accident in order to qualify for accident benefits for a psychological injury. The applicant asserts that the Tribunal incorrectly decided that because the psychological impairments stemmed from the aftermath of the accident, and the automobile was inoperable when witnessed by the applicant, that the applicant was therefore not “involved” in an accident. It is her position that she did not need to witness the accident. Her impairments flowed directly from the use or operation of an automobile and as such, was involved in an accident.
27The respondent submits that the applicant’s argument is misplaced, and that while the Tribunal found that the applicant did not witness the accident, this was not a key finding grounding the conclusion that the applicant was not “involved” in an accident. The Tribunal made specific references to decisions in which claimants did witness an accident but were still rightly found not to have been “involved” in an accident.
28The respondent asserts that there is no tenable basis for the argument that the Tribunal sought to require that the applicant to witness the accident to be “involved”, because witnessing an accident is not sufficient to make one “involved” in an accident in the first place. Moreover, the Tribunal did not err by stating the undisputed fact that the applicant did not witness the accident in contextualizing the overall correct finding and conclusion that the applicant was not “involved” in an accident, but instead, witnessed the aftermath. Moreover, the applicant is attempting to relitigate the case by trying to distinguish Francia.
29I provided a very thorough analysis as to why the applicant did not meet the (a)(i) and (a)(ii) iterations of the definition of “insured person” found in section 3(1) of the Schedule. In paragraphs 18 to 26, I addressed the applicant’s position in relation to her psychological injury/nervous shock claim. I provided reasons as to why she did not meet the criteria under iteration (a)(ii) and addressed the jurisprudence in similar cases.
30My decision did not conclude that the applicant has to witness the accident in order to qualify for accident benefits for a psychological injury. That is an incorrect characterization of my decision. In paragraphs 27 to 43, I explained why the applicant did not fall within iteration (a)(i). I found that the jurisprudence has established that the respondent should not be responsible for any impairments that arise out of the aftermath of an accident that has already occurred. The automobile was no longer in use and operation by the time the impairments were established. Therefore, I found that she was not in an accident. Moreover, I am bound by Francia as it is a Divisional Court case. I did not make an error of law. In my view, the applicant is attempting to relitigate her case.
31The onus is on the applicant to establish her grounds for reconsideration, and she 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 her position, which is what I find to be the case here.
CONCLUSION
32For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tavlin Kaur Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 17, 2023