Citation: Gray v. Intact Insurance, 2023 ONLAT 21-008634/AABS - R
RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 21-008634/AABS
Case Name: Hailey Gray v. Intact Insurance
Written Submissions by:
For the Applicant: Sarah Kirshin-Neilans, Counsel
For the Respondent: Lori J. Sprott, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated January 5, 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 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 grounds in Rule 18.2:
a) 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; and
b) 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 made errors of law and fact. Additionally with her request for reconsideration, the applicant also submitted additional medical evidence in support of her position—on this point, while relying on Rule 3.1 but not Rule 18.2(d), the applicant’s reconsideration submissions clearly request the Tribunal to consider that medical evidence that was not before the Tribunal at the hearing. I shall say more about this medical evidence later.
The Tribunal did not err under Rule 18.2(b)
Failing to apply the Greenhalgh test and incorrectly presuming that only the collision constituted the accident
6The applicant submits that the Tribunal failed to apply the purpose and causation test. Moreover, the applicant submits that in paragraph 14 of the original decision, the Tribunal erred in failing to go through the purpose and causation analysis to consider whether the natural gas explosion formed a part of the chain of events that constituted the “accident”. The analysis is based on an incorrect presumption that the collision of the automobile with the neighboring house constituted the “accident”. The applicant is of the view that if the Tribunal would have reached a different result if had considered that the explosion was directly caused by the collision.
7The respondent submits that the Tribunal did not make a presumption. Rather the Tribunal correctly applied the law. The applicant’s position fails because it does not account for the fact that the automobile was no longer engaged in ordinary and well-known activities to which automobiles are put after the collision had taken place and nor was it in use or operation at the time the applicant’s impairments were established. Moreover, her involvement with the incident fails the causation test because the automobile did not directly cause her impairments.
8In paragraphs 15 to 30 of my decision, I provided an analysis of why I was not persuaded that the applicant was in an accident. In paragraphs 7 to 15, I explained that the purpose and causation tests are used to determine if an incident involving an insured person is an accident.
9As I found that the applicant did not meet either the (a)(i) or (a)(ii) iterations of “insured person” in s. 3(1) of the Schedule, an analysis of whether the incident 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.
Incorrectly finding that an impairment was not proven
10The applicant submits that the Tribunal erred in finding that the applicant did not suffer an impairment as a direct result of the accident. The statement of the applicant and the OCF-3 completed by the applicant’s family physician, Dr. Tracy Ouellet on October 3, 2019, prove that the applicant has suffered a psychological impairment. The applicant respectfully submits that the Tribunal erred in failing to consider all the evidence on this point. She also submits with her reconsideration submissions evidence that was not before the Tribunal at the hearing.
11The respondent submits that the applicant has filed new evidence which would have been available to the applicant at the time that her submissions were due. New evidence is not allowed at the reconsideration stage unless it could not have been obtained previously and would likely have affected the result. As such, tab 5 of the applicant’s reconsideration submissions should be struck. Moreover, the records do not affect the result in any event. The consideration of “impairment” is a moot point given that the applicant’s purported involvement in the incident does not satisfy either the purpose test or causation test as to whether Applicant was involved in an “accident.”
12The applicant did not specifically raise Rule 18.2(d) as a ground in her reconsideration request. Rather, she relied on Rule 3.1 (which speaks to a liberal interpretation of the Rules in order for the merits of the dispute to be decided in a fair, expeditious and cost-effective way). Rule 18.2(d) states that a party can seek a reconsideration of a decision 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. I note that, in the context of the applicant seeking to admit this evidence on reconsideration, Rule 3.1 would merely modify the application of Rule 18.2(d), but it would not be a standalone basis to admit this evidence on reconsideration. Be that as it may and while the applicant did not properly raise this ground, I will consider the evidence.
13The applicant submits these records were not filed with her initial preliminary issue submissions because the finding of an “impairment” was not disputed by the respondent. It was not disputed that the applicant has sought treatment for her impairment, as her receipts for same were submitted to the insurer via OCF-6 on January 21, 2022 and also included with the applicant’s Case Conference Summary Form, dated February 14, 2022.
14I am not persuaded by the applicant’s explanation. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her impairments. As the issue in dispute was whether she was involved in an “accident” pursuant to section 3(1) of the Schedule, she should have provided all of the evidence that was available. Claiming that the respondent did not dispute whether she had an impairment is not a reasonable explanation for her omission. The applicant’s “new” evidence could have reasonably been obtained in advance of the production deadline.
15Even if I were to consider the records from Carrier Counselling and Consulting, I find that it would not change the outcome of the decision because the automobile was no longer in use and operation by the time the applicant’s impairments were established. Therefore, she cannot be found to have been involved in an automobile accident. Accordingly, I find that the applicant has not established the ground for reconsideration set out in Rule 18.2(d).
16The 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
17For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tavlin Kaur
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 30, 2023