RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 22-001163/AABS
Case Name: Tauhid Alam v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Thirukkumar Thirunavilkarasu, Paralegal
For the Respondent: James Kolumbus, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of the Tribunal’s decision released on June 8, 2023 (“decision”). In the decision, the Tribunal determined the applicant is not entitled to an Income Replacement Benefit (IRB) or interest.
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), (b) and (d).
RESULT
4The applicant’s request for reconsideration is dismissed.
ANALYSIS
5The 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.
6I find the applicant has not established grounds for reconsideration for the following reasons.
7The applicant has submitted a request for reconsideration form that indicates he is seeking a reconsideration under Rule 18.2(a), (b) and (d). In support of his reconsideration request the applicant has submitted a personal affidavit, a psychology memo dated March 10, 2023 authored by Dr. Zakzanis, and a lab report dated December 23, 2022.
8In his affidavit the applicant indicates there are several pieces of medical evidence with respect to his psychological condition and acidosis that the Tribunal did not take into consideration, as well as expert witnesses, Dr. Zakzanis and Dr. Kamel, who were not present at the hearing to give testimony. The applicant does not address how the evidence or testimony referred to in the affidavit establish grounds for reconsideration under Rule 18.2.
9The respondent submits the request for reconsideration should be denied. It argues the applicant did not serve the respondent with its reconsideration submissions, nor was it in receipt of the applicant’s supporting materials within 21 days of the date of the decision, as required by Rule 18.1.
10The respondent also argues the applicant is attempting to relitigate the matter, and that the question of the admissibility of evidence and witnesses was adjudicated at the initial hearing. It argues the applicant has not met his burden to establish grounds for reconsideration and that he has not made any submissions with respect to the criteria in Rule 18.2(a) or (b). It further argues that he has not established grounds under Rule 18.2(d). It submits the argument that the applicant’s acidosis is relevant to the issues at the hearing was known and available at the time of the disclosure deadlines, and that there is still no information before the Tribunal that diagnoses the applicant with acidosis, or that it is linked to the accident.
11On reply, the applicant submits that he did serve a copy on the reconsideration request on the respondent, but he has not provided any supporting evidence. He also submits the Tribunal made an error of law and that he has met his burden to show the Tribunal made an error.
12With respect to the question of service and whether the applicant has met the filing requirements of Rule 18.1, I find that while the applicant has not provided the Tribunal with evidence of service, the respondent has had an opportunity to review the reconsideration request and make responding submissions. There is no prejudice to the respondent, and I decline to dismiss the applicant’s request on this basis.
13With respect to the expert witnesses, Dr. Zakzanis and Dr. Kamel, I find the Tribunal addressed the issue of their testimony at paragraphs 8 to 12 of the decision. The Tribunal determined it would allow Dr. Zakzanis to testify, although it notes at paragraph 11 that Dr. Zakzanis did not, in fact, appear before the Tribunal as a witness. At paragraph 12, the Tribunal set out its reasons why it denied the applicant the ability to call Dr. Kamal as a witness. It determined that having Dr. Kamal testify would be prejudicial to the respondent. The Tribunal stated that the respondent was not aware of the applicant’s acidosis health concerns or any report regarding the applicant suffering form acidosis. It found that as the applicant required the testimony of Dr. Kamal to provide his case, he ought to have followed the Tribunal’s order and rules to ensure proper disclosure.
14I see no error of law or fact, or violation of procedural fairness, with respect to the Tribunal’s treatment of these two witnesses.
15With respect to the December 23, 2022 lab report submitted by the applicant in support of his request for reconsideration, I find that the applicant is attempting to relitigate his case. This is not grounds for reconsideration. He made his argument with respect to acidosis at the hearing, and the Tribunal addressed it at paragraph 21 where it found that:
I have no evidence to support a diagnosis of acidosis other than the applicant’s testimony both that he has it and that the blood work lab report in evidence supports it. I also have no evidence to support the acidosis caused the accident or that the accident made it worse.
16The fact the applicant does not agree with the Tribunal’s finding and now seeks to reargue his case with evidence that is dated before the initial hearing, without indicating or providing evidence as to why or how it was not available at the time of the hearing, is not grounds for reconsideration. Reconsideration is not an opportunity to introduce evidence a party failed to introduce at the initial hearing. Parties are expected to put their best foot forward at first instance.
17With respect to Dr. Zakzanis’ March 10, 2023 psychology memo, there is no evidence before me that it meets the test under Rule 18.2(d). At the hearing, the applicant was permitted by the Tribunal to introduce a one-page letter authored by Dr. Zakzanis, despite not disclosing it in advance of the hearing. On reconsideration, the applicant has now submitted further documentation from Dr. Zakzanis. The applicant has not made submissions on how this evidence meets the test under Rule 18.2(d), namely that the evidence could not have been previously obtained by the applicant and would likely have affected the result. Accordingly, I find he has not established grounds for reconsideration in relation to the psychology memo dated March 10, 2023.
18For the reasons set out above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a), (b) or (d).
CONCLUSION
19The applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 19, 2023