Licence Appeal Tribunal Decision
RECONSIDERATION DECISION
Before: Clive Forbes
Licence Appeal Tribunal File Number: 20-001934/AABS
Case Name: Ka Yee Chu v. Unica Insurance Inc.
Written Submissions by:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Amanda Lennox, Counsel Nicole Dowling, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated February 28, 2023 (“decision”), in which I found the applicant is not catastrophically impaired and that the maximum amounts for medical and rehabilitation benefits for non-catastrophic impairments have been exhausted, no benefits are payable, no award is payable pursuant to section 10 of Regulation 664, and the applicant is not entitled to any interest pursuant to s. 51 of the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
2The applicant has requested a reconsideration pursuant to Rule 18.2(a) and (b). She seeks to vary the decision to find the applicant is catastrophically impaired, and requests that the Tribunal reconsider its decision and provide findings of fact in relation to causation given her pre-existing disability. The respondent asks that the request for reconsideration be dismissed.
RESULT
3The Applicant's request for reconsideration is dismissed.
ANALYSIS
4The 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 1 (October 2, 2017) as amended (“Rules”). The applicant’s request relies on the following criteria: 18.2(a) that I acted outside my jurisdiction or violated the rules of procedural fairness; and 18.2(b) that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
6The Applicant submits that:
i. I failed to indicate or apply the correct causation test given her pre-existing disability.
ii. I cherry-picked evidence in support of my conclusion, ignoring and failing to mention significant evidence that ran contrary to my conclusion.
iii. I failed to account for the evidence in support of her claim, such that the reasons become legally insufficient and unfair to her.
Rule 18.2(a) and (b) – No violation of procedural fairness or error of fact or law
7The test to be met on a request for reconsideration under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The test to be met under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. Both involve a high threshold.
No violation of procedural fairness or error of law or fact in not failing to consider causation given the applicant’s pre-existing disability.
8I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) and (b) with respect to my analysis of causation for the following reasons. The applicant argues that in review of my decision no mention is made of the word causation and no explicit causation test is set out. She submits that without the appropriate, articulated causal analysis, we are left with cherry-picked, often non-specific quotes taken from the record, driven to a conclusion rather than an intelligible detailed analysis. The applicant relies on the Court of Appeal decision in Pastore v Aviva Canada Inc., 2012 ONCA 642 and the Divisional Court decision in Fordjour v Royal and Sun Alliance Ins. Co. of Canada, 2019 ONSC 6268, to support her position.
9The applicant also argues that failing to set out and follow a causal analysis based upon the binding directions of appellate courts is both an error of law and a deprivation of justice, which is something she should have been afforded given her constitutional right to have her pre-accident disability accommodated with any causal analysis.
10I disagree with the applicant that any such error exists. Furthermore, I find the applicant’s submissions are largely an attempt to use the reconsideration process as an opportunity to reargue the merits of her case. The Tribunal has long recognized that a reconsideration is not an opportunity to simply reargue one’s case or to present new arguments. Reconsideration is not a forum for reweighing evidence, unless grounds for reconsideration under Rule 18.2 have been established.
11I agree with the respondent that in my decision at paragraphs 12, 14, 19, 28, 32, 33, 38 and 39, it is clear that consideration was given to the applicant’s pre- and post-accident functional abilities and factual findings were made in respect of the impact of the accident on her life and activities. Also, I agree with the respondent position, that I appreciated the applicant’s pre- and post-accident impairments and their severity. In addition, the fact that my decision does not contain a specific “causation” heading does not negate the analysis I conducted of the impact of the motor vehicle accident on the applicant’s condition, which is present throughout my decision. I also agree with the respondent that when my decision is read in its entirety, it demonstrates a robust analysis of the evidence. It also includes a clear comparison of the applicant’s pre- and post-accident impairments and function in each of the four relevant spheres of function as outlined in the American Medical Association’s Guide to the Evaluation of Permanent Impairment 4th Edition, 1993 (“Guides”), at Chapter 14, due to a mental or behavioural disorder (“Criterion 8”).
12Throughout my decision I reviewed and considered the evidence of the applicant, the expert and lay witnesses, and the documentary record. On this basis, I found that the applicant did not sustain a marked impairment in at least three of the four spheres as required under Criterion 8.
13Notwithstanding the fact that I conducted the review and consideration of the evidence described above, having found that the applicant was not catastrophically impaired, even if I misapplied the causation test, which I respectfully reject, such an error would not have changed the outcome of my decision.
14I see no procedural unfairness or error of law or fact that would have affected the outcome of my decision. Lastly, since the applicant did not meet the test for catastrophic impairment under Criterion 8, the cause of any impairments that she may have is not relevant to the outcome.
No violation of procedural fairness or error of law or fact in treatment of evidence
15I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) and (b) with respect to my treatment of the evidence for the following reasons. The applicant submits that I cherry-picked evidence in reaching my conclusion and suggests that the inclusion of some specific examples in my decision and the exclusion of others makes the reasons insufficient and therefore unfair to her. She further submits that I missed or misapprehended some of the evidence that she deems significant. In her reconsideration submission she also included quotations from the medical records of Dr. Rockman and Dr. Sivasubramanian as examples to support her position.
16I disagree with the applicant. Assigning less or more weight or preferring certain evidence is not an error; it is an intrinsic function of the Tribunal. The reconsideration process involves a high threshold. It is not an invitation for the Tribunal to reweigh evidence, or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence. Throughout my decision I highlighted the evidence that I considered more relevant to the issue in dispute and assigned weight accordingly.
17I also do not agree with the applicant that I violated procedural fairness by cherry- picking and misapprehending the evidence. The fact that the applicant would have preferred that I reached a different conclusion based on the review of the evidence renders the reasons neither insufficient nor unfair. Also, in my decision at paragraphs 17 to 29; 30 to 33; 36 to 38 and 41 to 43, I reviewed, considered and gave weight to the reports of Dr. Rockman, Dr. Sivasubramanian and the various other experts. In addition, I provided explanations as to why I gave greater weight to some of the evidence.
18Lastly, it is well-established that the reasons of the Tribunal are not to be measured against a standard of perfection. As the Supreme Court in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 stated at paragraph 91, the fact that a tribunal’s reasons do not include all the arguments, statutory provisions, jurisprudence or other details that a reviewing judge would have preferred does not on its own create a basis to set aside the decision.
19I see no procedural unfairness or error of law that would have affected the outcome of my decision. As a result of the above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a) and (b).
CONCLUSION
20For the reasons noted above, I dismiss the Applicant's request for reconsideration.
Clive Forbes Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 13, 2023