RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 20-003051/AABS
Case Name: Shiyamini Antony v. Security National Insurance Company
Written Submissions by:
For the Applicant: David S. Wilson, Counsel
For the Respondent: Crystal Law, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of the Tribunal’s decision released on June 12, 2023 (“decision”). In the decision, the Tribunal determined the applicant is not entitled to a post-104 week Income Replacement Benefit (IRB) from February 28, 2022 onwards, and that maternity benefits are deductible from the applicant’s pre-104 week IRB. The Tribunal also determined that the applicant is not entitled to interest, and the respondent is not liable to pay an award under section 10 of Reg. 664.
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). The respondent argues the request for reconsideration should be dismissed.
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.
6As noted above, the Tribunal determined four issues in its decision, but in her 37 pages of reconsideration submissions the applicant has not explicitly stated which issue or issues she wishes reconsidered. On page 4 of her submissions, the applicant references the remedy she is seeking on reconsideration. She states that she is seeking “a rehearing of the matter” based on a violation of procedural fairness. In context, “the matter” appears to be the issue of entitlement to post-104 week IRB. There is no other reference to the remedy the applicant is seeking in her submissions.
7For certainty, I find that the applicant has not made submissions with respect to reconsideration of the Tribunal’s finding that maternity benefits are deductible from the applicant’s pre-104 week IRB, that the applicant is not entitled to interest, and that the respondent is not liable to pay an award. Accordingly, I find the applicant has not established grounds for reconsideration under Rule 18.2(a) or (b) with respect to these issues. The remainder of my decision pertains only to the applicant’s request for reconsideration of the Tribunal’s decision regarding entitlement to a post-104 week IRB.
Rule 18.2(a)
8The applicant argues the Tribunal violated the rules of procedural fairness with respect to the respondent not calling Dr. Amena Syed as a witness. The applicant submits that when the respondent did not call Dr. Syed, who had been included in the respondent’s list of witnesses, the applicant was extremely prejudiced. The applicant submits that the respondent’s conduct was an attempt to shield Dr. Syed from cross-examination. She submits that she was denied the right of cross-examination and should be granted a rehearing of the matter. As noted above, although not explicitly stated in the applicant’s submissions, I assume that the “matter” in question was the post-104 week IRB, as this was the subject of Dr. Syed’s report and anticipated testimony.
9In its responding submissions, the respondent argues there was no violation of procedural fairness. It submits that the applicant knew the case to be met. This was evidenced by the fact the applicant obtained addendum reports in response to the respondent’s IE reports, including Dr. Syed’s February 2, 2022 report. The respondent submits that the applicant’s addendum reports responded to and made comments on the report of Dr Syed. In addition, the respondent notes that the applicant brought a motion to strike the respondent’s post-104 IRB reports, which was dismissed by the Tribunal in a Motion Order dated August 16, 2022.
10I find no violation of procedural fairness for the following reasons. I find the issue of Dr. Syed’s testimony and evidence were properly addressed in the Tribunal’s Motion Order dated November 29, 2022, which the applicant does not refer to in her reconsideration submissions. I find that on November 14, 2022, the applicant brought a motion seeking an order requiring the respondent to produce Dr. Syed for cross-examination, or in the alternative, an order striking Dr. Syed’s reports from the record of the proceeding. The Tribunal dismissed the motion, setting out its reasons in paragraphs 14 to 18 of the Motion Order. Referencing Rule 3.1, the Tribunal found that not every witness on a party’s witness list needs to testify, and the admission of the reports into the record was sufficient. It also noted that the Rules do not provide a remedy for failure to call a witness. With respect to Dr. Syed’s report, the Tribunal noted it falls within its discretion to determine whether or not to strike evidence. It declined to strike the report as there was no prejudice to the applicant.
11I see no violation of procedural fairness. I find that the applicant had an opportunity to make submissions on the question of Dr. Syed appearing as a witness, and on the admission of her report into evidence. The Tribunal considered the parties’ submissions on the motion and set out its reasons for dismissing the motion.
12For the reasons set out above, I find the applicant has not established grounds for reconsideration under Rule 18.2(a).
Rule 18.2(b)
13The applicant argues that the Tribunal made errors of law or fact such that the Tribunal would likely have reached a different result had the errors not been made. I disagree and find the applicant has not established grounds for reconsideration under Rule 18.2(b).
14The applicant argues the Tribunal’s reasons are inadequate, and that the Tribunal either overlooked, ignored, or rejected a large number of significant submissions and evidence put forward by the applicant. The applicant argues the Tribunal erred by:
a. Focusing on the contents of assessor reports and ignoring oral evidence of the assessors. She argues the Tribunal either overlooked or rejected the submissions of the applicant with respect to the assessors. She argues the applicant is entitled to an analysis or explanation, which was not provided in the decision.
b. Making little reference to the evidence of the applicant and no reference to the evidence of the applicant’s spouse. On reply, the applicant argues that the omission of his evidence is significant as it relates to the applicant’s professed inability to work in any capacity.
c. Failing to make any finding with respect to the occupations for which the applicant was suited by reason of education, training and experience. In her reconsideration submissions the applicant goes through the evidence in support of her position that she is entitled to post-104 week IRBs in detail, arguing that had the Tribunal reviewed the evidence and undertaken the appropriate analysis, it would have found the applicant was entitled to post-104 week IRB.
15The applicant argues the Tribunal’s errors would likely have changed the outcome of the decision.
16The respondent submits that the applicant has not identified any error of law or fact that would have led to a different result. It argues the applicant’s submissions are an attempt to relitigate the issues and are a repetition of her written closing submissions. The respondent cites 16-000929 v. TD Home and Auto Insurance Company 2017 CanLII 69293 (ON LAT) in support of its submission that the Tribunal is not obliged to refer to every piece of evidence. It argues the applicant’s submissions are a request to reweigh the evidence, and it is a proper exercise of the Tribunal’s discretion to consider and weigh the evidence before it. The respondent argues the reasons provided by the Tribunal were logical and adequate, consistent with the requirements for adequacy of reasons set out in Murphy v. Murphy 2013 ONSC 7015.
17The respondent submits that there is no basis for the applicant’s position that the Tribunal failed to make any findings with respect to suitable occupations for the applicant. It points to paragraphs 38 and 43 of the decision where the Tribunal accepted the occupations of customer service representative, front desk clerk (except hotel) and general office clerk, as proposed by the respondent’s assessor. It also argues that the Tribunal conducted the required legal analysis and set out the reasons for its conclusion that the applicant did not meet her evidentiary burden with respect to entitlement to post-104 week IRB.
18On reply, the applicant again identifies examples of evidence she submits the Tribunal failed to note in its analysis, noting that there are multiple further examples. She argues her reconsideration submissions are not about the Tribunal being required to refer to every piece of evidence, but that the Tribunal failed to reference what is arguably crucial and significant evidence. The applicant submits the Tribunal’s decision does not meet the standard for adequate reasons required by Murphy. She reiterates that the Tribunal made errors which are grounds for reconsideration.
Adequacy of Reasons
19With respect to the adequacy of reasons, I find the Tribunal’s reasons are adequate, in keeping with the standard set out in Murphy. The Tribunal set out its analysis related to the post-104 week IRB at paragraphs 9 to 67. In the course of its analysis, it set out the correct legal test, reviewed the submissions and evidence of both parties, provided reasons for the weight it assigned to the evidence, acknowledged and accepted the applicant’s testimony regarding her experience of pain, applied the correct legal test, and set out its reasons for reaching the conclusion that the applicant did not meet the test for entitlement to a post-104 week IRB.
20Specifically, at paragraphs 9 to 14, the Tribunal set out the background to the dispute over entitlement to a post-104 week IRB. At paragraphs 15 to 16 it set out the legal test. At paragraphs 17 to 27 it set out the applicant’s education and employment background. At paragraphs 28 to 35, the Tribunal addressed the applicant’s functional capacity. In so doing, it reviewed the section 25 report of Mr. Atila Balaban submitted by the applicant, as well as the section 44 report of Ms. Sherri Corriero submitted by the respondent. At paragraph 35, the Tribunal stated that, having reviewed the evidence of both sides, it accepted the opinion in Ms. Corriero’s report regarding the applicant’s functional abilities. In the same paragraph it provided the reasons why it preferred this report.
21At paragraphs 36 to 43, the Tribunal reviewed the vocational evaluation of Mr. David Antflick submitted by the applicant, and the vocational evaluation of Ms. Ruth Billet submitted by the respondent. At paragraphs 38 and 43, the Tribunal set out its reasons why it gave little weight to the evaluation of Mr. Antflick. At paragraphs 39 to 41, the Tribunal reviewed the evidence of Ms. Billet noting that she offered several alternative suitable occupations based on the applicant’s education, training and work experience: customer service representative, front desk clerk, general office clerk. At paragraphs 42 to 43, the Tribunal referenced the applicant’s testimony at the hearing, acknowledging the applicant’s experience of pain, but concluding that she does not meet the test for a post-104 week IRB as set out in section 6(2)(b) of the Schedule.
22Having already identified the reasons for not striking Dr. Syed’s report in its November 29, 2022 Motion Order, the Tribunal reviewed the expert reports of Dr. Syed and Dr. Kanagaratnam at paragraphs 44 to 53 of the decision. At paragraphs 54 to 62, the Tribunal reviewed the reports of Dr. Kekosz and Dr. Gwardjan.
23At paragraph 63, the Tribunal again acknowledged the applicant’s testimony with respect to the pain she experiences. The Tribunal stated that the applicant’s self-reports of pain were not sufficient to persuade it, on a balance of probabilities, that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. At paragraphs 66 to 67 the Tribunal stated that it was persuaded by the respondent’s evidence, and that the applicant does not meet the test for a post-104 week IRB.
24As noted above, I find that the decision meets the standard for adequate reasons in Murphy. It informs the parties of the Tribunal’s determination, provides public accountability, and permits appeal or judicial review. The Tribunal’s reasons explain why the decision was reached, establish a logical connection between the evidence, the law, and the decision reached by the Tribunal. It sets out the findings of fact upon which the Tribunal reached its decision, the conclusion of the Tribunal, and the reasoning process that led to that conclusion.
25I also do not agree with the applicant’s submissions that by not referring to evidence submitted by the applicant including oral testimony of her spouse and testimony of the respondent’s witnesses on cross-examination, the Tribunal failed to deliver rational and complete reasons.
26I have already addressed the adequacy of the Tribunal’s reasons above. With respect to the applicant’s arguments about the Tribunal failing to refer to critical evidence, the principle that the Tribunal is not obliged to refer to every piece of evidence is well established: 16-000929 v. TD Home and Auto Insurance Company, citing Avery v. Pointes Protection Association, 2016 ONSC 6463 (Div. Ct.). Moreover, in Avery, at para 94, the Divisional Court is clear: “The mere failure to mention a piece of evidence is not sufficient proof that a decision-maker failed to consider it. Where a party contends that a decision-maker failed to consider a particular piece of evidence, there will be no error in law committed unless the reasons demonstrate this is the case.”
27While the applicant argues that this principle “becomes somewhat hollow” in the context of the Tribunal’s decision, I disagree. The Tribunal’s reasons are extensive, referring to the evidence it found relevant to its analysis and conclusions. The applicant has not established, and the reasons do not demonstrate, that the Tribunal failed to consider a particular piece of evidence. The applicant’s argument is that the Tribunal failed to refer to evidence she believes was critical to the issue of entitlement to a post-104 week IRB. However, the fact the applicant believes the Tribunal should have referred to specific testimony or evidence does not mean that it was an error that it did not do so. The law on this point is clear. Furthermore, the submissions and evidence for the 6-day hearing were extensive, and it is the proper exercise of the Tribunal’s discretion to hear, weigh and determine what evidence that it finds relevant to its decision. I find the applicant has not established grounds for reconsideration with respect to the treatment of the evidence.
Finding with respect to occupations for which the applicant is suited
28The applicant argues that the Tribunal erred when it failed to make findings with respect to post-104 week IRB test of entitlement. I disagree.
29Despite the applicant’s argument to the contrary, I find the Tribunal explicitly made a finding with respect to the occupations for which the applicant was suited by reason of education, training and experience. It did so at paragraph 43 of the decision when it referred to the occupations identified in Ms. Billet’s report and concluded that:
On balance, I am satisfied that the sedentary nature of the occupations identified in Ms. Billet’s report are suitable for the applicant based on her education, training and experience and that they reflect her current functional abilities.
As noted above, at paragraphs 66 to 67 the Tribunal also stated that it was persuaded by the respondent’s evidence, and that the applicant does not meet the test for a post-104 week IRB.
30Accordingly, I find the applicant has not established an error of fact or law with respect to the post-104 week IRB test of entitlement.
31For the reasons set out above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b). I find the applicant’s submissions on reconsideration are an attempt to reargue her case. While it is clear she does not agree with the Tribunal’s decision, this is not grounds for reconsideration.
CONCLUSION
32I deny the applicant's request for reconsideration. The request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 27, 2023