RECONSIDERATION DECISION
Before: Terry Prowse, Adjudicator
Licence Appeal Tribunal File Number: 20-006023/AABS
Case Name: Aynoush Biniaz-Sarabi v. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant: Aynoush Biniaz-Sarabi, Applicant
For the Respondent: Peter Durant, J.D., Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated January 20, 2023 (“decision”), in which I found that she was not entitled to an attendant care benefit (ACB), an income replacement benefit (IRB), various treatment plans, an award or costs.
2The applicant submits that I made several errors that if corrected, would lead to a different outcome. She requests that the decision be reconsidered and varied, to order the respondent to:
a. reinstate all of the appellant’s benefits beyond 260 weeks post-accident;
b. pay all past unpaid benefits, with interest pursuant to s.51 of the Statutory Accident Benefits Schedule (“Schedule”);
c. pay an award pursuant to s.10 of Reg. 664;
d. pay an equivalent amount of legal costs to the applicant that it paid to the respondent’s legal representatives;
e. pay $1,000,000 for pain and suffering, emotional distress, loss of income, and loss of amenities that the applicant sustained as a result of the respondent’s unjust denials of benefits and unreasonable prolonging of all disputes; and
f. pay $350,000 to the applicant for aggravated and exemplary damages, for acting in bad faith.
RESULT
3The Applicant's request for reconsideration is dismissed.
ANALYSIS
4The criteria for granting a 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 (the “Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following four 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.
5A reconsideration is not an opportunity to reargue a case.
No grounds for reconsideration under criteria c or d
6In her request for reconsideration form, the applicant indicates that she was seeking the reconsideration based on the four criteria listed above. However, none of her written submissions speak to the Tribunal hearing false evidence or to the applicant submitting new evidence that would likely have changed the result. In the absence of relevant arguments/evidence, I am unable to conclude that a reconsideration is called for under these two criteria.
No grounds for reconsideration under criteria a or b
7I also find it difficult to understand what the applicant’s specific arguments are, in relation to criteria a or b. She references several statutory provisions and/or LAT Rules related to the accident benefits she seeks. She then simply alleges in the majority of instances, that I did not consider them when analysing her claim.
8The applicant appears to be making allegations of errors in law; the inference being that because I denied her claim, I must not have considered the statutory provisions and Tribunal Rules related to the benefits she seeks. If that is indeed her argument, she offers no evidence to support her claim that I did not consider the relevant statutory provisions or rules.
9Nevertheless, to provide the applicant with a fulsome response, I will try to determine and answer her concerns. She makes the following assertions:
a. The applicant alleges that I did not consider s.280 of the Insurance Act and its interpretation in Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615. S. 280 of the Insurance Act sets out the Tribunal’s jurisdiction over the resolution of disputes and its statutory powers when doing so. Stegenga affirmed the Tribunal’s jurisdiction when dealing with accident benefit disputes. The applicant does not offer evidence to support her claim or specify how I erred when determining her eligibility to benefits (applicant’s reconsideration submission paragraph 9);
b. The applicant states that she was self-representing and unable to retain another lawyer after her previous lawyer resigned. At the start of the hearing, the applicant explained that she had difficulties retaining and maintaining legal representation. I specifically asked if she was able to continue, and she responded that she was. While I appreciate the difficulties she faced as a self-represented person, the applicant had the right to represent herself and chose to do so. This does not constitute an error on behalf of the Tribunal or grounds for reconsideration. (applicant’s reconsideration submission paragraph 11);
c. The applicant alleges that I did not consider sections 7 and 12.1 of the Rules, when she requested a written hearing in her January 18th, 2022, case conference summary. Section 7 of the Rules identifies that participants in Tribunal proceedings are entitled to an accommodation of Ontario Human Rights Code-related needs, and should notify the Tribunal if an accommodation is required. Section 12.1 of the Rules identifies the available Tribunal hearing formats. I first note that in her application, the applicant indicated “no” to the question of whether she required an accommodation under the Ontario Human Rights Code. While I acknowledge that she requested a written hearing in her January 2022 Case Conference Summary, the subsequent Case Conference Order clearly recorded that she stated a desire to question witnesses and withdrew the request. A decision by the applicant for a videoconference hearing format does not constitute an error being made by the Tribunal (applicant’s reconsideration submission paragraph 12).
d. The applicant lists sections of the Schedule, without descriptions, claiming that I did not consider them when reaching my decision that she was not entitled to the benefits sought. Likewise, she cites sections of the Schedule, Insurance Act and the Rules which describe the powers of the Tribunal and instances when various benefits may be available. The inference is that I erred by not granting entitlement to the benefits that the Schedule potentially offered, or that I denied benefits that I had the statutory authority to grant. She provides no evidence to support her submission. Denying benefits that are described in the Schedule, regardless of the statutory authority to grant them, is not evidence that relevant information was overlooked. These submissions are not proper grounds for a reconsideration but are more reflective of a disagreement with my findings and an attempt to re-argue the case (Applicant’s reconsideration submission paragraphs 10, 13, 18, 20, 21, 26, 27, 31, 30).
e. The applicant argues that the Tribunal erred in law by not ordering five assessors to re-evaluate their assessments of her. While the applicant may believe that the assessments were not accurate, it is not an error of law for the Tribunal to conclude otherwise (Applicant’s reconsideration submission paragraph 29).
f. The applicant alleges that I made an error of law by not considering section 8.1 of the Rules, to summons several medical professionals on my own initiative, who completed assessment reports that substantiated her claim. Section 8.1 permits the Tribunal to issue summonses on its own initiative or at the request of a party. There was no need for me to take the initiative to issue summonses in this matter, as the applicant already summonsed the witnesses she wished to question. This is not a ground for reconsideration (Applicant’s reconsideration submission paragraphs 15 and 16).
g. The applicant appears to allege that I erred by making a statement in the decision which was similar to one made by the respondent during its opening, both dealing with the requirement for attendant care benefit (ACB) expenses to be incurred to be payable. Making a statement that is similar to one made by the respondent, or by the applicant for that matter, is not an error or ground for reconsideration (Applicant’s reconsideration submission paragraph 17).
h. The applicant alleges that the Tribunal erred in law by not ordering the respondent to pay damages, punitive damages or damages for pain and suffering. She seeks $1,000,000 for pain and suffering, emotional distress, loss of income and loss of amenities. She also seeks $350,000 from the respondent for “…aggravated and exemplary damages for acting in bad faith”. Notwithstanding the applicant being told on several occasions, prior to and during the hearing, that the Tribunal does not possess the authority to grant the types of damages she seeks, she continues to repeat the request. Nevertheless, declining to award damages that I have no authority to make, does not constitute grounds for reconsideration (Applicant’s reconsideration submission paragraphs 22, 23 and 24).
i. The applicant alleges that I erred by not ordering the disclosure of various reports that were necessary for the determination of her impairments, treatment requirements and entitlement to benefits. I do not believe this constitutes an error on my part. During the hearing, the respondent affirmed that it provided the applicant with all available documents sought and the applicant did not submit objective evidence to show that wasn’t the case (Applicant’s reconsideration submission paragraphs 25, 28, 32, 33, 35 and 36).
j. The applicant alleges that the Tribunal erred by not considering s.13.2 of the Rules, to grant her with authorization to record the hearing. S.13.2 identifies that a party may request that the Tribunal record all or part of a hearing, and the requesting party must pay for it. However, as stated in the 31 August 2022 Motion Order, the applicant withdrew the request during that motion hearing. An applicant’s informed decision to seek an order, or not, does not constitute an error by the Tribunal or ground for reconsideration (Applicant’s reconsideration submission paragraph 34).
10After carefully reviewing the parties’ submissions, I find that the applicant has largely confused the intent of a reconsideration with an opportunity to state her disapproval with the result and re-argue her case. Respectfully, I cannot conclude that her written submissions established that errors were made during the hearing or when making my determinations. There is nothing in the applicant’s materials that would change the result of my January 20, 2023 decision.
CONCLUSION
11For the reasons noted above, I deny the Applicant's request for reconsideration.
Terry Prowse
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 20, 2023