RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 22-007526/AABS
Case Name: Rosemin Cara v. TD General Insurance Company
Written Submissions by:
For the Applicant: Steven Glowinsky, Counsel
For the Respondent: Noah Shapiro, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated June 12, 2023 (“decision”) in which the Tribunal found that the applicant was not involved in an accident. In her request, the applicant alleges that the Tribunal made a significant error of law and fact. The respondent disagrees and requests that the reconsideration be dismissed.
RESULT
2The applicant's request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration to be allowed 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”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the applicant relies on the following ground:
(b) The Tribunal made an error of law or fact such that the Tribunal would have likely reached a different result had the error not been made.
4Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
5I find that the applicant’s request for reconsideration does not establish grounds for reconsideration under Rule 18.2. I find she is attempting to re-argue her case. I reject her assertion that the Tribunal made an error of law or fact.
ANALYSIS
Parties’ positions
Intervening cause
6The applicant is of the view that I have made the same error of law that was identified in Madore v. Intact, 2023 ONSC 11 (Div. Ct.) (“Madore”) when I concluded that the applicant’s right leg collapsing was the intervening cause. The applicant states that in Madore, the Divisional Court clearly and directly held that a slip or fall, regardless of the exact mechanism, is not an intervening cause by which an insurer can escape liability for no fault benefits. She also claims that I failed to reference Madore in my decision.
7Furthermore, she submits that the proper focus of the inquiry should have been on whether the risk in question was reasonably foreseeable as set out in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”). It is the applicant’s view that the risk of falling while disembarking from a motor vehicle is reasonably foreseeable. She relies on G.R. v Economical Mutual Insurance Company, 2019 CanLII 122726 (ON LAT), Saad v. Federation Insurance Co. of Canada, 2003 ONFSCDRS 66, and CKD v Wawanesa Mutual Insurance, 2020 CanLII 80305 (ON LAT) which demonstrate the correct approach to reasonable foreseeability.
8In terms of the dominant feature consideration, the applicant submits that I failed to follow a binding precedent when I ruled that the motor vehicle was not a dominant feature of her injuries. The applicant relies on Madore and asserts that I should have only considered whether she was injured in the course of disembarking from her motor vehicle. She also argues that I overstated the necessity of the dominant feature consideration.
9The respondent submits that the Tribunal properly applied the correct test set out in Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) (“Greenhalgh”). Moreover, the circumstances in Madore are different than the facts in this case because there was no evidence to suggest that the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting the trailer’s roof. Furthermore, the applicant’s position regarding reasonable foreseeability is an error of law because it would narrow the Greenhalgh test to a singular focus of reasonable foreseeability. This is not the applicable test and cannot replace the test set out in Greenhalgh. The respondent argues that the applicant's submission is concerningly misleading as the source of the term "reasonable foreseeability" is only at para 29 of V.B. v Economical Insurance Company, 2020 CanLII 87992 (ON LAT)(“V.B:”); it is not a part of the Greenhalgh test.
10With respect to the dominant feature consideration, the respondent submits that:
Whether the Court used mandatory or permissive language ("shall" vs "may") is not relevant as the analysis is expressly stated in Greenhalgh to provide "useful guidance in ascertaining whether or not [the Causation Test] has been established in a given case". The respondent respectfully submits that "useful guidance" is an available tool for the Tribunal to use and, and doing so cannot amount to being "overstated".
11I will first address the applicant’s position regarding Madore. In the first proceeding, the applicant did not refer to Madore in her submissions. Madore had been released before the applicant’s submissions were due. There was nothing precluding the applicant from raising Madore. It was incumbent upon the applicant to make her case, advance all arguments that she wanted for the preliminary issue hearing, and articulate her argument clearly. It is not the Tribunal’s responsibility to advocate on the behalf of the applicant or make her case for her. That is the responsibility of her counsel.
12I disagree with the applicant’s position regarding the intervening act. In Madore, the Divisional Court did not conclude that a slip or fall is not an intervening act as argued by the applicant. I have reviewed the decision carefully and find that the applicant is misconstruing what the Court concluded. I find Madore to be distinguishable because it is unclear whether there was an intervening act. The applicant in Madore had sustained very serious injuries and had no memory of how he fell off of the roof of the trailer. The Court stated that, “While the precise way that Madore fell may be unknown, there was no evidence to suggest the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof. The causal link therefore was not broken.”
13In the facts before me, there was evidence of the intervening act, which I identified as the applicant in paragraph 18 of my decision. The applicant’s right leg collapsing was the intervening cause.
14Contrary to the applicant’s submission, Chisholm did not hold that the proper focus of the inquiry should be whether the risk in question was reasonably foreseeable. I agree with the respondent that the term “reasonable foreseeability” is not mentioned in Chisholm, Greenhalgh or Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”). The Court of Appeal in Chisholm actually stated that an intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car -- if it is "part of the ordinary course of things". The Court did not state that factors that are reasonably foreseeable risks of operating an automobile will not break the chain of causation as noted in V.B. The first decision reflects the application of Chisholm and respectfully, I am not bound by the decisions of other tribunal members.
15As for the applicant’s position regarding the dominant feature consideration, the Tribunal and the Divisional Court did not take the dominant feature consideration into account in Madore. Nor did they provide any guidance as to why the dominant feature consideration should not be applied. I find the dominant feature consideration is a useful tool to determine whether the ordinary and well-known activity is what “most directly caused the injury”. I am not persuaded that I should depart from the test set out in Caughy. In my view, the use or operation of the automobile was not the dominant feature of the applicant’s injuries.
16In paragraphs 12 to 23, I applied the proper test that was confirmed in Caughy and considered all of the facts and evidence in determining that the applicant was not involved in an accident The onus is on the applicant to establish her grounds and she has not done so. Dissatisfaction with the result is not a ground of reconsideration. Although the applicant may disagree with the Decision, reconsideration is not an opportunity for the applicant to re-argue her position, which is what I find to be the case here.
CONCLUSION
17For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tavlin Kaur
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 18, 2023