RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 21-000275/AABS
Case Name: Ferrez v. Economical Mutual 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 her injuries fall outside the minor injury definition and that she is entitled to the treatment and assessment plans in dispute. In the alternative, she 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 a passenger in a vehicle that struck the rear end of another vehicle while driving on an urban roadway. She sought no medical attention at the time of the accident but later claimed that she 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 she 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 her 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 she sustained a minor injury. She further submits that the Tribunal would have concluded differently had such evidence been considered. However, in her submissions for her request for reconsideration, she does not expressly state which evidence was not considered and does not direct me to any document or thing to support her submissions.
11The Respondent submits that the Applicant is attempting to re-litigate her case. It further submits that the Applicant provided no reasons or evidence to support her claim that an error of law occurred, and requests costs in the amount of $500.00.
12In reply, the Applicant clarifies her position and 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.
13The Respondent wrote to the Tribunal to object to the Applicant’s reply submissions, 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 her reply submissions. The Applicant’s initial reconsideration request never mentioned Dr. Ogilvie-Harris or the November 2, 2020 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 she submits I failed to consider
16The Applicant’s initial submissions are excessively broad and silent on the evidence that she submits that I failed to consider. She never identified any report, document, or opinion that I failed to consider at the initial hearing. Instead, contrary to rule 18.1, the Applicant provided her detailed reasons for the request in her reply submissions. This alone is sufficient 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. She presents Dr. Olgilvie-Harris as an expert and submits that I never mentioned, discussed, or reviewed the medicolegal research brief in the report.
18I find that this is an attempt to relitigate the case. I addressed the overall persuasiveness of Dr. Ogilvie-Harris’ report at paragraph [21] of the initial decision. I found that Dr. Ogilvie-Harris’ conclusions were anomalous to the balance of the Applicant’s medical records, were based entirely on the Applicant’s self-reported medical history without conducting any objective functional testing on the Applicant. This too is sufficient grounds to dismiss the Applicant’s request for reconsideration.
19The Applicant never presented Dr. Ogilvie-Harris as an expert at the initial hearing. The evidence for the initial 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 her submissions in the initial hearing. The onus is on the Applicant to make her case and it was incumbent upon her to direct me to that aspect of Dr. Ogilvie-Harris’ report if it was important to her case. The Applicant has not identified any information in the medicolegal research brief that I neglected to consider in the initial hearing. Instead, she states that a review of the medicolegal research brief would lead to a different conclusion. This, too, 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 Dr. Olgilvie-Harris’ 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 it is unpersuasive in light of the Applicant’s condition as outlined in the balance of her medical records.
22Accordingly, I find that the Applicant has not demonstrated that an error of law or fact 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 explanation 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 Assurane Company, 2020 CanLII 12759 (ON LAT). Unlike in the present case, that case involved a frivolous request by an insurer, whose bargaining power is significantly greater than that of an insured person. The power granted to award costs pursuant to rule 19.5 includes consideration to 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