George Kaloczi v. Wawanesa Mutual Insurance Company, 2023 CanLII 91466

Citation: Kaloczi v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-000458/AABS -R

RECONSIDERATION DECISION

Before: Terry Prowse, Adjudicator

Licence Appeal Tribunal File Number: 21-000458/AABS

Case Name: George Kaloczi v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Jeffrey A Preszler, Counsel

For the Respondent: Jason H Goodman, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant. It arises out of a decision dated March 31, 2023, in which the Tribunal found that the applicant did not sustain a catastrophic impairment from an October 30, 2016 automobile accident.

2The reconsideration of a Tribunal decision involves a high threshold, only warranted in cases where an adjudicator has made a 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. To that end, Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, version I, effective October 2, 2017 as amended (the “Rules”) describes the criteria for granting a reconsideration, as follows:

a. The Tribunal acts outside its jurisdiction or violates the rules of procedural fairness;

b. The Tribunal makes 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 hears false evidence from a party or witness, which was discovered only after the hearing and would likely affect the result; or

d. There was evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.

3A reconsideration request is not an opportunity for a party to ask the Tribunal to re-weigh the evidence or to reargue their case.

4The applicant submits that the Tribunal violated procedural fairness and seeks a reconsideration under Rule 18.2(a). He also submits that the Tribunal made errors of fact or law, and seeks reconsideration under Rule 18.2(b), contending that I would have reached a different conclusion if the error had not been made.

5The applicant seeks a rehearing of the matter.

RESULT

6After carefully considering the submissions of the parties, the applicant's request for reconsideration is dismissed.

ANALYSIS

There was no violation of procedural fairness

7The Tribunal did not violate procedural fairness by not providing reasons relating to the applicant’s catastrophic impairment claim.

8The applicant submits that he had a legitimate expectation of receiving an answer from the Tribunal, as to whether he sustained a catastrophic impairment because of the accident. The applicant referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) [“Baker”] and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, as important decisions in support of the importance of written decisions in the context of procedural fairness. In that context, because I did not specifically deal with the question of catastrophic impairment, the applicant submits that I:

a. did not consider the applicable issues;

b. failed to meaningfully grapple with the key issues and arguments raised; and,

c. was not alert and sensitive to the matter before me.

9The respondent disagrees. He submits that recent court decisions, including those cited by the applicant, have found that adequacy of reasons is contextual and need not be perfect. He submits that the applicant’s reconsideration request is broad and contains no details of the errors allegedly made.

10I disagree with the applicant. It is well-established that administrative decision-makers are not expected to respond to every argument a party makes or make explicit findings on each element leading to a conclusion. As the Court in Vavilov observed, this would have a “…paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice.”

11The Court decisions referenced above clearly support the need for adjudicators to provide reasons for their decisions, to allow claimants to understand how and why they were made. However, the Tribunal does not agree, and neither does the Court, that this equates to providing an analysis of every piece of evidence that an applicant submits and refers to during an administrative hearing. It also does not equate to giving reasons for answering a disputed issue in the negative, when the claimant fails to meet a necessary precondition. For example, if a claimant fails to demonstrate, on a balance of probabilities, that there was an automobile accident, it would then be unnecessary to continue to analyze the severity of the claimant’s injuries to determine their entitlement to the highest tier of automobile accident benefits, when the injuries were clearly not related to the automobile accident.

12Further, according to Baker, a breach of procedural fairness will generally arise only when an administrative decision-maker fails to provide any reasons when reasons are required. In this case, there was no requirement to provide reasons specific to the applicant’s catastrophic impairment claim because the evidence had already shown that the applicant did not sustain injuries as a result of the automobile accident.

13The process followed in reaching the decision included several steps to first confirm general entitlement to accident benefits, and if the criteria were met, to then consider whether any impairments were of an extent to be deemed catastrophic. The Tribunal’s decision followed that process, commencing at paragraph 15 of the decision. The evidence clearly showed that the 2016 accident was minor and did not cause an injury, let alone an impairment, to the applicant. There was no need for a further, detailed analysis of whether he met the criteria for a CAT determination. It was intrinsic in the decision that he did not sustain an injury in the accident and therefore, was not entitled to any automobile accident benefits, let alone the highest tier of benefits, because of it.

There was no error of fact or law

14The applicant submits that the Tribunal made an error of fact, which amounted to an error of law. Specifically, he states that the Tribunal’s finding that the applicant did not sustain any injuries during the accident (decision paragraphs 17, 18 and 21) was in contradiction to the clinical notes and records of Dr. You. He claims that is an indication that the Tribunal ignored Dr. You’s notes and records, and therefore did not consider important facts. He further argues, as Dr. You’s clinical notes should have been accepted for the truth of their contents, that such evidence discharged his burden of proving that he sustained a head injury warranting a CAT determination.

15The respondent contends that the applicant’s submission is akin to disagreeing with the weight that the Tribunal gave to the evidence, and its subsequent conclusions. The respondent states that if the applicant wished to place significant emphasis on Dr. You’s records, he should have called the doctor to testify. The respondent submits that Dr. You’s records were contradicted by an abundance of evidence from other sources.

16I agree with the respondent. The applicant has failed to show that the Tribunal made an error of fact or law. His statement inferring that Dr. You’s notes were ignored is incorrect. At paragraphs 11 and 12, the Tribunal discussed the parties’ submissions, as they pertained to Dr. You. At paragraph 17, the Tribunal discussed why it rejected the statement that Dr. You had diagnosed the applicant with a concussion. At paragraph 21, the Tribunal noted discrepancies in the mother’s reporting of the applicant’s condition, as compared with the medical reports, and stated that the confusion could have been resolved by asking Dr. You to testify.

17Contrary to the applicant’s submission, the decision reflects that the Tribunal carefully considered Dr. You’s clinical notes and records, ultimately concluding that they did not contain an objective, clinical diagnosis of a concussion. The Tribunal’s decision also preferred the competing evidence from the respondent and gave reasons for the preference. There was no error made, in fact or law.

CONCLUSION

18The applicant has not established any of the grounds for reconsideration set out in Rule 18.1 of the Common Rules. For the reasons noted above, I dismiss the request for reconsideration.

Terry R. Prowse

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal