RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 21-000276/AABS
Case Name: Bessemer Ferrez v. Economical Insurance Company
Written Submissions by:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Thulasi Kandiah, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter. It arises out of a decision dated March 2, 2023 in which I found that the Applicant sustained a minor injury and was not entitled to certain treatment and assessment plans in dispute.
2The Applicant seeks a cancellation of the decision and a finding that his injuries fall outside the minor injury definition and that he is entitled to several treatment and assessment plans in dispute. In the alternative, he asks that the decision be set aside, and a new hearing be ordered to proceed with a different adjudicator.
RESULT
3The Applicant’s request for reconsideration is dismissed.
BACKGROUND
4The Applicant was involved in a motor vehicle accident when he drove his vehicle into the rear end of another vehicle while driving on an urban roadway. He sought no medical attention at the time of the accident, but later claimed that he developed chronic pain syndrome and psychological injuries as a result of the accident. The Respondent disagreed and maintained that the Applicant sustained a minor injury as a result of the accident.
5I agreed with the Respondent and concluded that the Applicant sustained a minor injury and that he was not entitled to the benefits claimed because they fell outside the Minor Injury Guideline and the $3,500.00 funding limit for a minor injury.
ANALYSIS
6The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless 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.
7Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. Reconsideration of a decision is not an opportunity to relitigate the issues when a party disagrees with the previous decision. Reconsideration is not a venue to tender new evidence unless the evidence was unavailable for the initial hearing and would likely affect the result if admitted, which would fall under criterion (d).
8Pursuant to Rule 18.1 of the Rules, a request for reconsideration from a party must include all submissions in support of the request and the criteria for the request for reconsideration.
9The Applicant advances his request for reconsideration pursuant to criteria (b).
10The Applicant submits that I erred in law and fact by failing to consider evidence when determining whether he sustained a minor injury. He further submits that the Tribunal would have concluded differently had such evidence been considered. However, in his submissions for his request for reconsideration, he does not expressly state which evidence was not considered and does not direct me to any document or thing to support his submissions.
11The Respondent contends that the Applicant has provided no arguments or evidence to support his assertion, and that it is entitled to costs because the request for reconsideration is frivolous and an improper attempt to re-try the case.
12In reply, the Applicant never addressed the Respondents submissions directly. Instead, he submits that I failed to properly and judiciously deal with the qualifications of Dr. D. J. Ogilvie-Harris, orthopaedic surgeon and the contents of his report, dated November 2, 2020.
13Following the Applicant’s reply submissions, the Respondent wrote to the Tribunal to object to their inclusion, submitting that they contain new arguments and exceed the page limit for submissions. It asked that the reply submissions be struck entirely.
The Applicant raised new arguments in reply
14I agree with the Respondent and find that the Applicant raised new arguments for reconsideration in his reply submissions. The Applicant’s initial reconsideration request never mentioned Dr. Ogilvie-Harris or his report. Despite this, I will address the submissions and evidence because they are uncompelling and have no influence on the outcome of this decision.
15This is not to be seen as acceptance of the Applicant’s improper submissions but, rather, an effort to resolve the dispute effectively and efficiently and provide the Applicant with clarity regarding my decision-making.
The Applicant never identified the evidence that he submits I failed to consider
16The Applicant’s initial submissions are excessively broad and silent on the evidence that he submits that I failed to consider. Initially, he never identified any expert, report, document, or opinion that I failed to consider at the initial hearing. Instead, contrary to rule 18.1, the Applicant provided his detailed reasons for the request in his reply submissions. This alone is sufficient grounds to dismiss the Applicant’s request for reconsideration.
The Applicant’s additional arguments made in reply are unpersuasive
17The Applicant’s new arguments on reply state that I failed to consider the qualifications of Dr. Ogilvie-Harris and the contents of his report. He presents Dr. Ogilvie-Harris as an expert and submits that I never mentioned, discussed, or reviewed the medicolegal research brief in the report.
18I find that this in an attempt to relitigate the case. I briefly referred to the medicolegal brief at paragraph [21] of the initial decision. I addressed the orthopaedic surgeon’s comments on how chronic pain affects one’s ability to remain employed and commented on how that statement undermined Dr. Ogilvie-Harris’ findings considering that the Applicant maintained full-time employment following the accident.
19The Applicant never presented Dr. Ogilvie-Harris as an expert at the initial hearing. The evidence for that hearing did not include a signed statement from Dr. Ogilvie-Harris that acknowledges his duty to provide a fair, objective, and non-partisan opinion within their expertise.
20The Applicant never mentioned or directed me to the medicolegal research brief in his submissions in the initial hearing. The onus is on the Applicant to make his case, and it was incumbent upon him to direct me to that aspect of the Dr. Ogilvie-Harris’ report if it was important to his case. Additionally, the Applicant has not identified any information in the medicolegal research brief that I neglected to consider in the initial hearing. Instead, he states that a review of the medicolegal research brief would lead to a different conclusion. This is an attempt to relitigate the case and is sufficient grounds to dismiss the Applicant’s request for reconsideration.
21Nevertheless, the medicolegal research brief is uncompelling. A URL of the medicolegal brief was included in the report to give additional information on studies regarding chronic pain patients in Canada and the United States. My assessment of the document is that it is background information to consider together with the report, and is unpersuasive in light of the Applicant’s condition as outlined in the balance of his medical records.
22Accordingly, I find that the Applicant has not demonstrated that an error of law or facto occurred.
COSTS
23I find no costs are payable to the Respondent.
24Pursuant to Rule 19 of the Rules, costs may be ordered where a party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 permits me the authority to deny or grant the request for costs or award a different amount.
25The Respondent requested $500.00 in costs associated with the reconsideration. It submits that the Applicant’s request for reconsideration was frivolous because it was based on conjecture and included no reasons or evidence as to how an error of law or fact occurred. The Applicant never addressed the Respondent’s request for costs.
26I dismiss the Respondent’s request for costs because, although the Applicant improperly raised new arguments on reply, the behaviour did not interfere with my ability to carry out a fair, efficient, and effective process. The Applicant’s reply submissions provided an explanation for the request for reconsideration that the Respondent’s submissions noted was deficient. I find it reasonable for the Applicant to want to address that issue on reply rather than let it go uncontested.
27I find that this case is distinguishable from the reconsideration decision of [The Applicant] v. Unifund Assurance Company, 2020 CanLII 12759 (ON LAT). That case involved a frivolous request by an insurer, whose bargaining power is significantly greater than that of an insured person. The issue is the opposite in this case. Consider, the power granted to award costs pursuant to rule 19.5 includes contemplation of the potential impact an order for costs would have on individuals accessing the Tribunal system. A cost award would have a disproportional impact on the Applicant here as it did to the insurer in [The Applicant] v. Unifund Assurance Company.
CONCLUSION
28For the reasons noted above:
a. the Applicant’s request for reconsideration is dismissed; and
b. no costs are payable to the Respondent.
Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: July 11, 2023