Kaloczi v. Wawanesa Mutual Insurance Company, 2023 CanLII 77322
RECONSIDERATION DECISION
Before: Sandra Driesel, Adjudicator
Licence Appeal Tribunal File Number: 20-005672/AABS
Case Name: Mary Kaloczi v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Jeffrey Preszler, Counsel Aron Zaltz, Counsel
For the Respondent: Jason Goodman, Counsel Nicole A. Dowling, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision released on December 12, 2022 (“decision”), in which the Tribunal found that the applicant did not sustain a catastrophic impairment as a result of the accident, as defined in the Schedule.
3The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Rules”). To grant a request for reconsideration, 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.
4The applicant is seeking a reconsideration pursuant to Rule 18.2(b).
5The applicant is seeking an order:
a. Cancelling the Tribunal’s order/decision
b. A rehearing of this matter under Rules 18.4(b) (ii) of the Rules.
6The respondent submitted that there is no basis for granting the reconsideration.
RESULT
7The applicant's request for reconsideration is dismissed.
ANALYSIS
8The applicant’s request for reconsideration is on the grounds set out under Rule 18.2 (b) of the Tribunal Rules. The applicant submits that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
9The respondent replied that there is no evidence that the adjudicator applied the causation test incorrectly and the applicant has not established that the Tribunal would have reached a different result if this supposed error wasn’t made.
10The threshold for a reconsideration is high, and the onus is on the requestor to establish how or why the decision falls within Rule 18.2 grounds for reconsideration.
Rule 18.2(b) - Error of Law or Fact
“But for” test not applied in error
11The applicant submits the ‘but for” test was incorrectly applied in the decision as to whether the applicant sustained catastrophic impairment (“CAT”).
12For the applicant to establish grounds for reconsideration, there must be an error and the error must materially affect the result. I do not find the concerns raised by the applicant establish grounds for reconsideration under Rule 18.2(b) for the following reasons.
13The applicant states that while I identified the correct legal test at paragraph 43, I applied the wrong test in the course of my decision. The applicant states that reasons, specifically as to why I found that the accident “was not a necessary cause bringing about the applicant’s psychological or behavioral impairments” are articulated in paragraphs [37] to [48] of the decision as subsisting in “other factors noted in evidence”. The applicant claims I failed to find the accident did not contribute at all to the applicant’s condition.
14I disagree. I find that I both set out and applied the correct legal test. The applicant admits in paragraph 7 of their reconsideration submissions that “causation is a gating issue for the purpose of Criterion 8”. As noted in the respondent’s reconsideration submissions (paragraph 11) the applicant referenced in closing submissions at the initial hearing that the test as outlined in Pastore v Aviva Canada should be applied in this matter. The first of a three-part test in Pastore is ‘did the accident cause the applicant to suffer a mental or behavioral disorder?’. As much as I agree my decision could have been clearer if I had correctly referenced “Pastore”, I did mention the requirement of a test for ‘causation’ to determine if the applicant meets the test for a criterion 8 impairment. Furthermore, even if I did make an error in this reference, I find it would not have changed the outcome as it is clear from paragraphs [42] and [43] of my decision that I was not satisfied the applicant met her burden of proof to show the accident was a necessary cause of her psychological impairments.
No error in finding on catastrophic impairment
15The applicant has also not demonstrated ground under Rule 18.2(b) with respect to my CAT finding. The applicant has not shown there to be an error of law or fact such that I would likely have reach a different result had the error not been made.
16The applicant suggests that my finding related to causation resulted in my neglect in reviewing evidence and making a determination of criterion 8 CAT based on the AMA Guides1 used for such assessment. Beginning at paragraph [8] of my decision I review the evidence regarding the applicant’s alleged CAT impairments related to mental and behavioral impairments. The test is noted and both the applicant’s and respondent’s ratings of impairment in the four spheres of functioning are noted and addressed by me in paragraphs [37] to [41].
17The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to meet its burden at first instance. I see no error in my analysis and do not find that the applicant has established ground for reconsideration with respect to the decision on catastrophic impairment under criterion 8.
ORDER
18The applicant’s request for reconsideration is dismissed.
Sandra Driesel
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 25, 2023