RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 21-002029/AABS
Case Name: Wahida Ishak v. Intact Insurance Company
Written Submissions by:
For the Applicant: Kateryna Vlada, Paralegal
For the Respondent: Mariam Yusufi, Counsel
BACKGROUND
1On April 5, 2023, the applicant requested reconsideration of the Tribunal’s decision dated March 14, 2023 (“decision”). In the decision, the Tribunal dismissed the application and found the applicant’s injuries are predominantly minor, and that she is not entitled to the treatment and assessment plans in dispute or 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 reconsideration request, 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(a), (b) and (d). The applicant requests the matter be heard by a different member and that the Tribunal vary the decision to “conform to the applicant’s initial submissions”. The respondent requests that the applicant’s request for reconsideration be dismissed.
RESULT
5The applicant's request for reconsideration is dismissed.
ANALYSIS
Rule 18.2(a) - The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness
6I find the applicant has not established grounds for reconsideration under Rule 18.2(a) for the following reasons. The applicant’s argument with respect to Rule 18.2(a) does not relate to the decision under review. It relates to the question of who will decide the request for reconsideration. The applicant argues, prospectively, that the Tribunal’s practice of having reconsiderations heard by the same adjudicator is a violation of procedural fairness and erodes public opinion in the Tribunal and the rule of law.
7I find no violation of procedural fairness and no grounds for reconsideration under Rule 18.2(a). First, the applicant’s argument does not fall within the scope of Rule 18. Rule 18.1 provides that the Tribunal may reconsider any decision of the Tribunal that finally disposes of an appeal. The decision of March 14, 2023 is the decision that finally disposed of the appeal, and it is the subject of this reconsideration. The decision did not address, and could not have addressed, the question of who would be assigned to conduct the reconsideration of a decision that had not yet been issued. Accordingly, this argument must fail. Moreover, the assignment of cases to members is entirely within the Tribunal’s discretion, and the Tribunal’s approach has been repeatedly upheld.
8This is not grounds for reconsideration.
Rule 18.2(b) - The Tribunal made an error of fact or law
9I find that the Tribunal did not make an error of fact or law for the following reasons. The applicant submits the Tribunal misinterpreted the Schedule as it relates to the definition of Minor Injury Guideline (MIG), misconstrued the applicant’s injuries, arbitrarily preferred the respondent’s evidence, and did not make references to case law submitted by the applicant.
10I disagree and find the applicant’s arguments on reconsideration do not identify an error of law or fact. The Tribunal addressed the question of the applicability of the MIG and the relevant provisions of the Schedule at paragraph 4. In paragraphs 5 to 7 the Tribunal set out the positions of the parties in relation to whether the applicant’s injuries fall within the definition of “minor injury” in the Schedule. At paragraphs 8 to 16 the Tribunal reviewed the parties’ submissions and evidence and set out its reasons relating to the applicant’s physical injuries. At paragraphs 17 to 32 the Tribunal reviewed the parties’ submissions and evidence and set out its analysis related to the applicant’s psychological issues. At paragraphs 33 to 51 the Tribunal reviewed the parties’ submissions and evidence and provided its reasons related to chronic pain.
11I find that the Tribunal extensively considered the evidence and submissions of both parties, before concluding that the applicant’s injuries are subject to the MIG. The Tribunal assessed and weighed the evidence before it and provided reasons for the weight it assigned to it. The Tribunal is not required to cite every piece of evidence and authority submitted by the parties in the reasons for its decision.
12The Tribunal also found, at paragraph 31, that based on the evidence before it, it had reasons to question the reliability of the applicant’s reporting. While the applicant objects to this conclusion, she has not identified an error of fact or law. The assessment of credibility and the weighing of evidence is integral to the Tribunal’s role and is an exercise of its discretion. The Tribunal was entitled to make these findings in the course of rendering its decision.
13Reconsideration is not an opportunity for the applicant to reargue her case. It is not a hearing de novo. The fact the applicant does not agree with the Tribunal’s decision is not grounds for reconsideration.
Rule 18.2(d) - There is new evidence that could not have been obtained previously
14The applicant submits that there is new evidence that was not before the Tribunal when it rendered its decision, which could not have been obtained previously, and would likely have affected the result. This evidence is an application for catastrophic assessment dated February 18, 2023 and a psychiatric evaluation report completed by Dr. Shahzad Shahmalak dated March 15, 2023.
15I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(d) for the following reasons. Rule 18.2(d) requires that the new evidence, that was not before the Tribunal when it rendered its decision, could not have been obtained previously by the party now seeking to introduce it. In her submissions, the applicant simply states that the evidence could not have been obtained previously. She does not make submissions or provide any information on why this is the case. Of note, the accident occurred on July 7, 2018, four years prior to the hearing on February 14, 2022 which, as the respondent argues, provided the applicant with ample time to obtain the evidence she now seeks to have admitted on reconsideration.
16The onus is on the applicant to establish grounds for reconsideration. I find the applicant has not met the test for granting a reconsideration under Rule 18.2(d).
CONCLUSION
17For the reasons noted above, I deny the applicant’s request for reconsideration. The applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 5, 2023