RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 20-015148/AABS
Case Name: Saba Dawood v. Nordic Insurance Company of Canada
Written Submissions by:
For the Applicant: Daniel D'Urzo, Counsel
For the Respondent: Kendall Andjelkovic, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of the Tribunal’s decision released on April 19, 2023 (“decision”). In the decision, the Tribunal determined the applicant is not entitled to a physiotherapy treatment plan, medication expenses, interest or a special award.
2The grounds for a request for reconsideration are found 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”). 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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(a) and (b).
RESULT
4The applicant’s request for reconsideration is dismissed.
ANALYSIS
5I find the applicant has not established grounds for reconsideration for the following reasons.
6The test for reconsideration is a high one. It 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. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Section 10 Award
7The applicant submits that the Tribunal made significant errors in law and fact, acted outside its jurisdiction, and violated the rules of procedural fairness with respect to entitlement to an award under section 10 of Regulation 664. Specifically, the applicant argues that entitlement to a section 10 award on her non-earner benefit was a “live issue” at the written hearing. The applicant argues it was an error for the Tribunal to find, at paragraph 13 of the decision, that the non-earner benefits were not an issue in dispute before the Tribunal. The applicant submits this is an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The applicant also argues the Tribunal erred in not considering the applicant’s submissions in relation to the section 10 award for the non-earner benefit.
8The respondent submits that the Tribunal clearly recognized the issue of a special award was in dispute, as reflected in paragraph 2(iii) of the decision. The respondent argues the applicant had an opportunity to address the issue at the hearing, and the Tribunal properly assessed the submissions and evidence and concluded there was no entitlement to a special award. The respondent submits that the applicant is simply disagreeing with the weight assigned by the Tribunal to the evidence before it, and this is not a valid ground for reconsideration.
9I disagree with the applicant. I find it is clear from the decision that the issue of entitlement to a section 10 award on non-earner benefits was before the Tribunal, and that it addressed this issue in its decision.
10The issue of entitlement to a section 10 award was listed under the heading “Issues in Dispute” and set out at paragraph 2(iii) of the decision. The Tribunal addressed the question of a section 10 award at paragraphs 12 to 19 of the decision under the heading “Section 10 Award”. At paragraph 12, it set out the legal test. At paragraph 13, the Tribunal specifically noted that the applicant was seeking an award in relation to her non-earner benefits. At paragraphs 13 to 17 the Tribunal reviewed the parties’ submissions in some detail, including with respect to an award on the non-earner benefits. I find that despite the applicant’s argument that the Tribunal did not consider its submissions on entitlement to a section 10 award for the non-earner benefits, it is clear from the decision that the Tribunal did consider them.
11Following a review of the parties’ submissions, the Tribunal set out its conclusion that the respondent’s conduct did not reach the stringent level of “excessive, imprudent, stubborn, flexible, unyielding or immoderate” that would justify awarding the applicant a special award. The Tribunal also stated that since no benefits were payable, there was no basis for an award.
12I see no error in the Tribunal’s analysis. While I agree with the applicant that at paragraph 13 the Tribunal noted that “non-earner benefits are not an issue in dispute in the current case”, I find this statement is factually correct. Non-earner benefits were not in dispute at the hearing. As indicated at paragraph 16 in the decision, and in the applicant’s reconsideration submissions, the respondent paid the applicant non-earner benefits shortly before the case conference on May 31, 2021. The issue before the Tribunal at the hearing was entitlement to a section 10 award in relation to the non-earner benefits, which was specifically addressed by the Tribunal as noted above.
13I also find the Tribunal did not act outside its jurisdiction or violate procedural fairness. The applicant had an opportunity to make her arguments with respect to the section 10 award. The Tribunal heard and considered these arguments, and reached its conclusion based on the evidence and the law. The Tribunal found that the respondent’s conduct did not meet the legal test for a section 10 award. The fact the applicant does not agree with the Tribunal’s decision is not grounds for reconsideration.
Physiotherapy Treatment Plan and Prescription Expenses
14The applicant argues the Tribunal erred and violated the rules of procedural fairness in not reviewing her evidence in relation to the physiotherapy treatment plan and prescription expenses, and by not providing adequate reasons for its denial of the treatment plan and prescription expenses.
15I disagree. I find the Tribunal addressed the issue of the applicant’s entitlement to a physiotherapy treatment plan at paragraphs 4 to 9. It set out the legal test, the submissions of the parties, and its reasons for finding the treatment plan was not reasonable and necessary. At paragraphs 10 and 11, the Tribunal addressed the issue of entitlement to prescription expenses. It found that the applicant did not meet her onus for entitlement to these expenses as “she failed to provide documentation to support that these medications were prescribed as a result of the accident”.
16I see no error in the Tribunal’s analysis and no violation of procedural fairness. The Tribunal is not required to refer to every piece of evidence in the course of its decision. I find the Tribunal considered and addressed the issues in dispute and reached its conclusion based on the evidence and the law.
17Accordingly, I find the applicant has not established grounds for reconsideration with respect to the treatment plan or prescription expenses.
CONCLUSION
18For the reasons set out above, the applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 19, 2023