RECONSIDERATION DECISION
Before: Stephanie Kepman
Licence Appeal Tribunal File Number: 21-001493/AABS
Case Name: Mahmoud Said v. Pembridge Insurance Company
Written Submissions by:
For the Applicant: Kiro Soliman, Paralegal
For the Respondent: Diana Oliveira, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated July 5, 2023, in which the Tribunal found that the applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and that he was not entitled to a non-earner benefit (“NEB”) or interest.
2The applicant submits that I acted outside its jurisdiction and violated the rules of procedural fairness and made errors of law.
3The applicant is seeking an order:
a. Varying my decision to entitle him to the NEB, as well as entitlement to bring forth an application disputing the applicability of the MIG without res judicata applying or;
b. For a rehearing on all or part of the matter
RESULT
4The applicant’s request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Common Rules”). A request for reconsideration will not be granted unless 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.
6Reconsideration is only warranted in cases where an adjudicator has made a jurisdictional, procedural, or significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
The Tribunal did not make an error of law
7The applicant submits that I erred in determining that the applicant’s entitlement to an NEB depended on the applicability of the MIG. Instead, he submits that the appropriate test is that found in section 12(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
8The applicant also submits that I erred in determining that the applicant did not provide evidence or submissions that he is entitled to an NEB. He submits his submissions are his application to the Tribunal and his disability certificate (“OCF-3”).
9The respondent submits that the applicant has failed to direct me to any evidence that the applicant’s entitlement to an NEB was dependent on the applicability of the MIG, nor was this contained in my original decision.
10The respondent argues that the applicant did not make submissions with respect to his entitlement to an NEB, and he bears the onus of proving entitlement.
11The respondent also argues that the applicant’s representative is fully aware of what the Tribunal considers to be submissions and not evidence, and that forms such as OCF-3s and applications do not constitute such.
12The respondent also submits that the applicant’s OCF-3, which he argues supports his entitlement to an NEB, indicates that the applicant did not suffer a complete inability and does not support his argument.
13I did not make an error of law in the original decision. I was not directed to, nor could I find a paragraph or part of the decision that stated that the applicant’s entitlement to an NEB depended on the applicability of the MIG. I was generally confused by this argument and am unsure how the applicant came to this conclusion.
14I also did not make a mistake of law when stating that the applicant did not make any submissions with respect to the issue of NEB. When the Tribunal refers to submissions, it is with respect to written arguments, often from a representative.
15Evidence, on the other hand, is accepted to be documents or other written information that supports a party’s position. Submissions are not evidence and evidence is not a submission.
16In this case, the applicant provided evidence to support his entitlement to an NEB via his application to the Tribunal and his OCF-3. However, the written arguments or submissions did not address if the applicant was entitled to an NEB and on what basis, nor direct my attention to such.
17I also did not err in determining that the applicant was not entitled to an NEB because he failed to provide submissions. This issue was addressed in the decision at paragraphs 23 to 30 of the original decision.
The Tribunal did not act outside its jurisdiction and violate the rules of procedural fairness
18The applicant submits I acted outside my jurisdiction by adjudicating the issue of the applicability of the MIG without a disputed treatment plan (“OCF-18”). The applicant relies on A.S. v Aviva Insurance Canada, 2019 CanLII 51335 (ON LAT), where the Tribunal found that without an underlying dispute relating to a benefit which depends on MIG entitlement, the Tribunal did not have jurisdiction to determine if the MIG applied.
19The respondent submits that the applicant has brought forward a new argument regarding the MIG being a stand-alone issue. The respondent relies on Rule 18.2(4) and submits that this is barred, as the applicant did not raise it in his original submissions. Instead, the respondent submits that the applicant is trying to relitigate much of his original application.
20The applicant also submits that I erred in determining the applicant’s entitlement to an NEB by drawing an adverse inference and that I preferred the respondent’s submissions regarding NEB entitlement without referring to which submissions or providing a legal analysis and failed to analyze the findings of the respondent’s Insurer’s Examination (“IE”).
21The respondent submits that the applicant carries the burden to prove their entitlement to an NEB. It also submits that it is well established that an adjudicator is not obliged in their reasons to refer to all evidence before them, and that if they do not refer to something in their reasons, that is not determinative. The respondent relies on G.I. v. The Guarantee Company of North America, 2021 CanLII 111185 (ON LAT), where the Tribunal found that an adjudicator is not required to reference all evidence before them, only evidence that has an impact on their findings or decision.
22I did not act outside my jurisdiction or violate the rules of procedural fairness by adjudicating the issue of the MIG without a disputed OCF-18. I agree with the respondent’s argument that this is a new issue that was not raised during the original hearing. Had the applicant wished to advance this argument, he had an obligation to raise it during his submissions but did not do so. Therefore, it would be inappropriate to consider this argument during the reconsideration.
23I also did not err in determining that the applicant bears the burden of showing he is entitled to the NEB. I am not aware of what adverse inference the applicant is referring to, as he failed to support his argument with evidence from the original decision. Instead, I refer the applicant to the original decision, which at paragraphs 23 to 30 address the issue of evidentiary burden.
24I found the matter of G.I. v. The Guarantee Company of North America persuasive, as it addressed a similar original decision where not all of the evidence relied upon by a party was referred to.
25Given my comments regarding the applicant’s evidentiary burden and the fact that his OCF-3 does not support the applicant’s entitlement to an NEB, I fail to see how referring to this document would have likely changed the outcome of the decision.
26I also remind the applicant that the original decision did not prefer the evidence from the respondent’s IE but stated that since the applicant did not meet his evidentiary burden, he was not entitled to an NEB, as seen at paragraph 30 of the original decision.
Costs
27The respondent asked that the applicant pay costs to the respondent, based on Rule 19.1 of the Common Rules.
28Rule 19.1 states that when a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. Rule 19.2 states that a request for costs can be raised any time before my decision is released. Rule 19.3 states that a submission on costs shall set out the amount being requested.
29I will not be awarding costs to the respondent. Though I understand it’s frustration with the applicant’s decision to reconsider my original decision, I have not been provided persuasive evidence that this amounts to unreasonable, frivolous, vexatious, or bad faith actions on the part of the applicant. I also was not provided with an amount for costs or provided with fulsome submissions related to ordering costs. Therefore, costs will not be awarded.
CONCLUSION
30For the reasons noted above, I deny the applicant’s request for reconsideration.
31The respondent is not entitled to costs.
Stephanie Kepman
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 27, 2023