RECONSIDERATION DECISION
Before:
Monica Ciriello, Vice Chair
Licence Appeal Tribunal File Number:
20-006796/AABS
Case Name:
Mohamed Ali v. The Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Kwaku Bona, Paralegal
For the Respondent:
Laura Emmett, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated February 27, 2023 (“decision”), in which I found that the applicant was not entitled to receive a non-earner (“NEB”) of $185.00 per week from January 22, 2018, to date and ongoing, and no award or interest was payable.
2The applicant requested a reconsideration pursuant to Rule 18.2(a) and (b). The applicant seeks to vary the decision to find that the applicant is entitled to the NEB claim with a special award or an order for a new hearing. The respondent asks that the request for reconsideration be dismissed, providing that there is no basis for granting the reconsideration, as the applicant’s submissions are based on mere conjecture, not fact or law, and do not satisfy the criteria for granting reconsideration under Rule 18.2.
RESULT
3The applicant's request for reconsideration is dismissed.
RECONSIDERATION CRITERIA
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 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 applicant must show how or why the decision falls into one of the categories in Rule 18.2
6The applicant submits that:
a. I violated the procedural fairness by striking submissions beyond the respective page restrictions.
b. I erred in law to hold that an OCF-3 under the SABS was “insufficient” for an insured person to use to initiate and maintain an entitlement to a benefit.
c. I made an irrational decision.
ANALYSIS
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.
Rule 18.2(a) Procedural Fairness
8The applicant submits that I failed to take into account the regular practices of the Tribunal when I struck the applicant’s submissions beyond the page restrictions set out in the Case Conference Report and Order (“CCRO”). It is the applicant’s position that my ruling to strike portions of the applicant’s submissions was draconian in its worst form, giving rise to an unjust process.
9The CCRO limited the submissions to 10 pages, excluding evidence and case law. The applicant’s submissions were a total of 16 pages, the respondent raised a preliminary issue to strike the applicant’s submissions beyond page 10. Despite the CCRO being silent on the title page, and signature page I omitted these pages along with the applicant’s evidence and case law to determine that the applicant’s submissions were 12 and half pages long. Using my discretion as outlined in paragraph 3, 4, 5 and 6 of the decision, I struck the applicant’s submissions beyond the 10-page limit. I also noted in paragraph 5 that, if the applicant needed additional pages to properly state his case, he should have sought permission from the Tribunal.
10Notwithstanding the fact that I could have considered the applicant’s application in its entirety, I note that all parties participating in a Tribunal proceeding are expected to adhere to the Tribunal Rules.
11I see no violation of procedural fairness.
Rule 18.2(b) – Error of Law or Fact
12For the following reasons, I disagree with the applicant and find that I did not err in law in my decision. Further, I find that even if I had made the alleged error, I would not have reached a different outcome.
13The applicant takes the position that I erred in law finding that a Disability Certificate (OCF-3) is insufficient for a person to establish entitlement to a specified benefit. Notably, at paragraph 27 of the decision, I stated:
“Furthermore, the Tribunal has recognized that an OCF-3 is insufficient to demonstrate that the applicant is entitled to NEBs, as this information is not a diagnosis, but rather a preliminary impression of the applicant’s presentation based on what information the applicant provides and the assessors’ cursory examination. I am persuaded by the only medical evidence before me, provided by Dr. Zabieliauskas who opined that the applicant is able to resume all aspects of his pre-accident life.”
14The applicant submits that I made an irrational decision and made an error of law for failing to consider the relevant OCF-3.
15The applicant submits that I had no legal authority to hold against the sufficiency of the OCF-3, and had I considered the relevant OCF-3, I would have granted the applicant’s NEB claim.
16I disagree with the applicant. The onus remained on the applicant to prove entitlement to a specified benefit following the submission of the OCF-3. The applicant argues that I did not consider the relevant OCF-3 in my decision-making process. I disagree and find that I did consider it, and determined it was insufficient to demonstrate entitlement to NEBs.
17As outlined in paragraph 27 of the decision, I stated that the applicant “has not met his evidentiary burden of providing compelling evidence in support of his claim”, and that the applicant “provides vague submissions and evidence to the Tribunal leaving it to the adjudicator to puzzle through a document dump to decipher and then assemble an evidentiary foundation for his case”. Furthermore, at paragraph 28 I noted what was missing from the applicant’s evidence, namely the applicant did not provide evidence of the frequency and time commitments of his pre-accident activities compared to his post-accident accident activities. My analysis is consistent with SABs and applicable law.
18I find I made no error of law or fact in my decision. There is a high threshold for the applicant to prove they are entitled to NEBs, and the applicant did not submit evidence to meet that threshold. This finding is not an error of law or fact or an “irrational decision” and is consistent with previous Tribunal decisions.
CONCLUSION
19For the reasons noted above, I dismiss the applicant’s request for reconsideration.
Monica Ciriello
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 18, 2023