RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 20-013275/AABS
Case Name: Sara Calderon v. Allstate Canada
Written Submissions by:
For the Applicant: Paul Barrafato, Counsel
For the Respondent: Diana Oliveira, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated February 28, 2023 (“decision”) in which the Tribunal found that the applicant was statute-barred under s. 61 of the Schedule from proceeding with her application for accident benefits. In her 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 grounds in Rule 18.2:
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.
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.
The Tribunal did not err under Rule 18.2(b)
6In her reconsideration request, the applicant has made a series of allegations about various paragraphs in the decision. I have addressed her arguments as follows.
7The applicant submits that there is no confirmation that she was working at the time of the accident. According to her, this is only a determination that the WSIAT can make, not the Tribunal. I disagree. In the Worker’s Report of Injury/Disease (Form 6), the applicant stated that “I did not present this claim before because the accident happened on my way home and I wrongly believed that the segment from the house of my last patient and my house wouldn’t be part of a work-related incident. This was clarified by the HR representative of Acclaim Health last week after I answered more questions.” Therefore, she was considered to be working.
8The applicant submits that the Tribunal was incorrect in assuming that she suffered “workplace injuries”. I did not assume this. In fact, this reference to her workplace injuries is directly from the letter dated February 7, 2022 from the Workplace Safety and Insurance Board (“WSIB”).
9The applicant submits that section 61(1) requires that an insured person be entitled to receive benefits under the Workplace Safety Insurance Act, 1997 (“WSIA”). The applicant received only $2,527.22 from the WSIB at the outset and was denied all other benefits. She argues that she cannot be said to be entitled to receive benefits under the WSIA. In my view, the applicant is attempting to raise a new argument, which was not previously before the Tribunal.
10Moreover, the applicant’s argument is not clear or cogent. The applicant had received a payment from the WSIB because they did not know that when her claim was registered, a third party was involved in her workplace injuries. As a result, she was not asked whether she wished to claim benefits or pursue a lawsuit. The WSIB exercised its discretion to extend the time so that the applicant could make an election. The letter dated February 7, 2022 from the WSIB states “If you elect to receive WSIB benefits, the WSIB will continue to adjudicate your claim and pay any benefits you are entitled to.” I find it difficult to reconcile the applicant’s argument with what is in the letter.
11The applicant submits that she must not be entitled to an election. It was only after she retained counsel and after numerous attempts with connecting with the WSIB that they finally sent an election form. The election form itself is proof that the applicant may not have been a worker in the course of her employment and there is a real possibility of a valid tort claim against a non-Schedule 1 or 2 employer. This argument is not clear or cogent. I find that she is trying to introduce a new argument. Moreover, in my view, an election form itself is not proof that an individual may not have been a worker. Rather, it is something that individuals file where they might have concurrent entitlements to benefits.
12The applicant submits that I erroneously believed that she was “forum shopping”. She alleges that the Tribunal ignored the fact that she was unrepresented, unskilled and unaware because nobody told her she had the option of an election. This cannot be the fault of the Applicant. I disagree. The decision was based on the evidence before the Tribunal, and I provided reasons in paragraph 16 to explain why I thought that it looked like she was forum shopping.
13The applicant submits that my conclusion regarding the 10-day notice period under the Municipal Act is unfounded and outside of my jurisdiction. I disagree because challenges to successfully establishing liability in tort are a factor that the Tribunal can consider. The issue with the 10-day notice period was addressed by the respondent in their submissions as well as in the Statement of Defence by the Town of Milton. I was within my jurisdiction to consider it as part of my analysis as it was evidence that was properly before the Tribunal.
14In paragraphs 16 to 19 of the applicant’s reconsideration submissions, I find that she is trying to reargue her case.
15In paragraph 20, the applicant is relying on Thiyagarajah v Economical Insurance, 2023 CanLII 15074 (ON LAT)(“Thiyagarajah”) where the Tribunal stated that, “Litigation is complicated and financially risky, and the fact that the applicant later decided not to pursue the other driver’s liability in tort does not diminish the possibility of litigation as a valid goal for the applicant immediately following the accident.” In my view, the facts in Thiyagarajah are different and nor am I bound by it.
16In paragraph 23, the applicant submits that the Tribunal found that it was problematic that the application was filed with the Tribunal a year after she retained counsel. It is her position that an explanation for the delay is not required, and that the Tribunal should not have factored this when making this decision. I disagree. Steps taken to pursue a claim is an objective factor that the Tribunal can take into consideration. The applicant claimed that she was actively pursuing accident benefits. But the evidence suggested otherwise. In my view, it was appropriate to take the delay into consideration when conducting the analysis.
17The 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
18For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tavlin Kaur Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 30, 2023