RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 21-001983/AABS
Case Name: Hanna Barkho 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 a reconsideration of the Tribunal’s decision dated March 14, 2023 (“decision”). In the decision, the Tribunal dismissed the application and found the applicant is not entitled to the treatment plan 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 asks that the matter be heard by a different member than conducted the initial hearing, and that the Tribunal vary its 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 that the applicant has not established grounds for reconsideration under Rule 18.2(a) for the following reasons. The applicant argues that the Tribunal violated the rules of natural justice and procedural fairness. However, in his submissions, the applicant makes arguments about the reconsideration process, not the decision under review. Specifically, 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.
7Rule 18.1 provides that if a request is made within 21 days of the date of the decision, the Tribunal may reconsider a decision that finally disposes of an appeal. In this case, it is the Tribunal’s decision of March 14, 2023 that finally disposed of the appeal and that is the subject of reconsideration. The decision did not address, and could not have addressed, the question of who would be assigned to conduct the reconsideration. Accordingly, the applicant’s argument on this point is erroneous. Furthermore, the assignment of cases to members is entirely within the Tribunal’s discretion, and the Tribunal’s approach has been repeatedly upheld.
8I find that the applicant’s arguments do not establish grounds for reconsideration pursuant to Rule 18.2(a).
Rule 18.2(b) - The Tribunal made an error of fact or law
9The applicant submits the Tribunal erred when it: misinterpreted MRI results showing varying injuries pre- and post-collision; omitted reference to the cervical spine MRI from the decision; arbitrarily preferred the evidence of the respondent’s assessor; and misconstrued the surveillance report.
10I find that the Tribunal did not make an error of fact or law for the following reasons.
MRI Results
11I find the applicant’s arguments do not identify an error of law or fact with respect to the MRI results. The Tribunal addressed the medical evidence and submissions with respect to causation at paragraphs 10 to 24 of the decision. Upon review of the submissions and evidence, which included the MRI reports, the Tribunal concluded that the applicant’s pre-existing back pain was not exacerbated by the accident because his pain complaints before the accident were consistent with those after the accident.
12The fact the applicant disagrees with the Tribunal’s assessment and weighing of the evidence is not grounds for reconsideration. I find that the Tribunal considered the medical evidence and submissions before reaching its conclusion. In the decision, the Tribunal provided reasons for the weight it assigned to the evidence, including to the MRI reports. The assessment and weighing of evidence is integral to the Tribunal’s role. Furthermore, the Tribunal is not required to cite every piece of evidence submitted by the parties in the reasons for its decision. I see no error of fact or law in the decision.
Reliance on Respondent’s Assessors and Evidence
13The applicant argues that the Tribunal erred when it relied on the respondent’s assessors and preferred the respondent’s evidence over that submitted by the applicant.
14I find the applicant is attempting to reargue his case, which is not grounds for reconsideration. In his submissions, he takes issue with the Tribunal’s reasoning in the decision, calling it “speculative”, “not based on any significant review of the considerable amount of medical evidence” and “not reconciled with other medical evidence that confirmed that the Applicant’s impairments were chronic and disabling”. I find, however, that this is not the case. As noted above, the Tribunal addressed the medical evidence in its decision. In its reasons for its decision, it addressed medical evidence put forward by both parties, and provided clear and cogent reasons for preferring the respondent’s evidence and experts. I see no error of fact or law with respect to the weight assigned to the insurer’s examinations, or in the Tribunal’s preference for the evidence put forward by the respondent.
Video Surveillance
15The applicant submits the Tribunal “grossly misinterpreted the surveillance report” and argues the Tribunal agreed with the respondent that the surveillance was sufficient evidence to conclude the applicant had returned to his day-to-day activities. I find this is not the case. At paragraph 25, the Tribunal did not agree with the respondent that the surveillance was conclusive evidence that the applicant had returned to his pre-accident condition. The Tribunal stated that the surveillance was a point in time indication of the applicant’s overall condition. The Tribunal found that while the surveillance showed the applicant was able to undertake certain activities on a certain day, the Tribunal concluded that the surveillance “does not provide any context as to how the applicant was feeling that day or after these events.”
16I see no error in the Tribunal’s treatment of the surveillance evidence, or the weight it assigned to it.
Rule 18.2(d) – There is new evidence that could not have been obtained previously
17Pursuant to Rule 18.2(d), the 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. The applicant identifies three such pieces of evidence.
18The first piece of evidence is a treatment plan dated October 11, 2022 for ten sessions of psychological counselling, which the applicant indicates “was approved”. The respondent submits the psychological counselling is “no longer a live issue, and any submissions relating to the treatment plan are no longer necessary”.
19The applicant also submits that an IE report by Dr. Debra Mandel, psychologist, dated January 11, 2023, and an application for catastrophic assessment dated December 13, 2022, both constitute new evidence pursuant to Rule 18.2(d). The respondent argues the applicant is erroneously attempting to enter new evidence, and that he provides no reasonable explanation for why these reports could not have been obtained earlier, particularly as the accident occurred on July 7, 2018 and the hearing was on February 14, 2022.
20I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(d). It is not clear, from the submissions of either party, what relevance the October 11, 2022 treatment plan has to either the reconsideration request, or the issues in dispute in the initial hearing. Furthermore, the applicant has not indicated how this treatment plan is evidence that meets the test set out in Rule 18.2(d).
21With respect to the January 11, 2023 IE report and the December 13, 2022 application for catastrophic assessment, I find the applicant has not made submissions or provided any information about why this evidence could not have been obtained earlier, as required by Rule 18.2(d). While I accept that the CAT application and IE report are dated after the submission deadline for the initial hearing, I find that this is not sufficient, in and of itself, to establish grounds for reconsideration. Rule 18.2(d) requires the applicant to demonstrate that he could not have obtained the evidence previously, not simply that he did not obtain the evidence until after the hearing, without any further explanation.
22The onus is on the applicant to establish grounds for reconsideration, which includes showing that the new evidence could not have been obtained previously and would likely have affected the result. I find the applicant has not addressed the test as set out in Rule 18.2(d) in his submissions, and therefore has not established grounds for reconsideration.
CONCLUSION
23For 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 20, 2023