RECONSIDERATION DECISION
Before: E. Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number: 21-000723/AABS
Case Name: Alexandra Franche v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Michael R Switzer, Counsel
For the Respondent: Darrell P. March, Counsel
BACKGROUND
1The applicant and the respondent are both seeking a reconsideration of the Tribunal’s decision released on October 21, 2022 (“decision”). In the decision, the Tribunal determined the applicant was not catastrophically impaired (“CAT”) pursuant to section 3.1(1) 8 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The Tribunal also awarded the applicant $2,000.00 in costs. The applicant is seeking a reconsideration of the Tribunal’s decision with respect to the CAT impairment. The respondent is seeking a reconsideration of the decision to award costs.
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). The applicant is seeking to vary the Tribunal’s decision to indicate that the applicant has a class 4 impairment of activities of daily living and is therefore CAT.
4The respondent is seeking a reconsideration pursuant to Rule 18.2(b) and is seeking to overturn the costs award.
RESULT
5The applicant's request for reconsideration is denied.
6The respondent’s request for reconsideration is denied.
ANALYSIS
Applicant’s Request for Reconsideration
7I will first address the applicant’s request for reconsideration. Before doing so, I note that the applicant’s Request for Reconsideration form indicates she is seeking reconsideration under Rule 18.2(a), (b) and (d). In her submissions, the applicant only makes arguments with respect to criteria (b) and (d). As the applicant did not provide any submissions with respect to Rule 18.2(a), I will be addressing the applicant’s submissions on criteria (b) and (d) in this decision.
8In her reply, the applicant argues that the Tribunal should assign no weight to the respondent’s responding submissions as they exceed the page limit established in the Tribunal’s November 17, 2022 letter. The November 2022 letter set an 11-page limit on responding submissions, and the respondent submitted 15 pages. Accordingly, I have considered pages 1-11 of the respondent’s submissions in relation to the applicant’s request for reconsideration, and given no weight to pages 12-15.
Rule 18.2(b) - Error of Law or Fact
9The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The test involves a high threshold. The reconsideration process 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.
10The applicant submits that the Tribunal erred with respect to its assessment of whether the applicant has a class 4 impairment in activities of daily living. Specifically, the applicant argues the Tribunal erred when it stated, at paragraph 28, that their activities of daily living “include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual functions, sleep and social and recreational activities”. The Tribunal made this statement in the context of setting out the rating system from the AMA Guides to the Evaluation of Permanent Impairment, 4th ed. (“AMA Guides”) which is adopted in section 3.1(1) 8 of the Schedule. The applicant submits that the Tribunal should have considered the complete wording of the AMA Guides as it relates to activities of daily living, and that the Tribunal committed an error by not doing so.
11The applicant further argues that the Tribunal erred by not fully considering how the applicant’s symptoms compromise her ability and her willingness to initiate and participate in her pre-accident and age-appropriate activities of daily living. The applicant argues the Tribunal also did not fully appreciate the overall degree of the applicant’s restrictions, or combination of restrictions, when making its determination. It is the applicant’s position that if the Tribunal had considered the applicant’s condition in light of the full definition in the AMA Guides, it would have found that the applicant has a class 4 impairment. The applicant also submits that the Tribunal considered the reports of experts who did not provide an expert’s duty form, and that their evidence and reports should not have been considered by the Tribunal.
12The respondent submits that the applicant has not demonstrated that the Tribunal made a significant error of law or fact such that the Tribunal would have reached a different decision. The respondent submits that the Tribunal appropriately determined the applicant’s level of impairment relating to her activities of daily living with respect to independence, appropriateness, effectiveness, and sustainability. The respondent argues that reconsideration is not a forum for re-litigating issues, and the applicant’s submission are an attempt to re-litigate her case.
13I find no error of fact or law in the Tribunal’s assessment of whether the applicant has a class 4 impairment in activities of daily living. At paragraphs 26 - 30, the Tribunal sets out the relevant test and references both the Schedule and the AMA Guides. At paragraph 26 the Tribunal states that the Schedule provides several definitions of catastrophic impairment, and that the applicant is claiming CAT status under section 3.1(1) 8. The Tribunal then sets out section 3.1(1) 8 in full, and in paragraphs 27 and 28 provides a summary of how the definition in the Schedule relates to the AMA Guides. Paragraph 28 of the decision reads as follows:
The four functional areas are: (1) activities of daily living (“ADLs”), (2) social function, (3) concentration, persistence & pace, and (4) adaptation. As the ADL domain is particularly important in this matter, according to the AMA Guides, ADLs include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual functions, sleep and social and recreational activities.
14It is clear from this paragraph and its context within the decision that the Tribunal is setting out how the AMA Guides relate to the Schedule, identifying the four areas of function in the AMA Guides, and then providing some additional detail on the activities of daily domain. The Tribunal does not state that this is the only information from the AMA Guides definition that it will consider. At paragraphs 40 to 52, the Tribunal analyzes the evidence it found relevant to the determination of whether the applicant has a class 4 impairment in activities of daily living. In doing so, it references the medical experts’ reports and ratings. It sets out which impairment ratings it accepts and which medical opinions it relies on, along with its rationale. At paragraph 51 the Tribunal specifically references an example of a class 4 rating in activities of daily living from the AMA Guides, which it notes it finds instructive. At paragraph 53 the Tribunal sets out its finding that the applicant has functional limitations, “but the evidence does not establish that her limitations in the area of ADLs rise to the level of a class 4 impairment”.
15I find no error of fact or law in how the Tribunal has referenced the AMA Guides in the context of setting out the legal test for assessing catastrophic impairment, or in its application of the test.
16I also find no error of fact or law in the Tribunal’s treatment of the respondent’s expert evidence and reports. At paragraph 6, the Tribunal addressed the applicant’s Motion regarding the exclusion of testimony and reports and excluded one expert’s evidence. For the other assessors, the Tribunal determined it would consider the lack of expert duty forms when weighing their testimony, rather than excluding their evidence. The Tribunal has the power to control its own process including whether to admit evidence, and the weight to afford the evidence before it. I find that the applicant’s submissions are an attempt to re-litigate her case. The fact the Tribunal reached a conclusion the applicant disagrees with is not grounds for reconsideration.
17As a result, I find the applicant has not established grounds for reconsideration under Rule 18.2(b).
Rule 18.2(d) - New Evidence
18The test under Rule 18.2(d) is that 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. As noted above, the requestor must show how or why the decision at first instance falls into one of the categories in Rule 18.2.
19In support of her request for reconsideration, the applicant has submitted an affidavit containing information about her relationship with her boyfriend. The applicant argues this affidavit is new evidence which could not have been proffered at the hearing. The applicant submits that the Tribunal heard evidence from the applicant about her relationship with her boyfriend and the support he provided. On October 4, 2022, after the hearing concluded and before the decision was released, the applicant’s boyfriend ended their relationship. The applicant argues the affidavit contains information about the nature and end of the applicant’s relationship that could not have been before the Tribunal when rendering its decision.
20I find that the applicant has not established grounds under Rule 18.2(d). I find the affidavit provided by the applicant regarding her relationship with her boyfriend, the extent of her reliance on him, and the circumstances of the breakdown of their relationship is not evidence that meets the test under Rule 18.2(d). I find the details of their sexual relationship, the resentment felt at caring for the applicant, and the extent of caregiver support provided by the applicant’s boyfriend are not new evidence that could not have been obtained previously.
21Furthermore, I find the affidavit does not meet the second part of the test under Rule 18.2(d), as it would not have likely affected the result of the Tribunal’s decision. The Tribunal’s finding that the applicant was in an intimate relationship is not altered by evidence of the end of the relationship, or by further details provided after the relationship is over.
22For the reasons set out above, I find the applicant has not established grounds for reconsideration under Rule 18.2(d). I will now turn to the respondent’s request for reconsideration.
Respondent’s Request for Reconsideration
Rule 18.2(b) – Error of Fact or Law
23The respondent argues that the Tribunal committed an error of fact and law in awarding costs. The respondent makes two arguments in support of its position. First, it argues that no instances of “unreasonable, frivolous, vexatious or bad faith” conduct were cited in the decision. It submits that the Tribunal’s decision focused on the length of time taken for objections advanced by respondent’s counsel but did not establish that these objections met the test for awarding costs in Rule 19. It cites 16-000449 v. State Farm Mutual Automobile Insurance Company, 2017 CanLII 62164 (ON LAT), which found that a party may act in a manner that hinders the efficiency of the Tribunal’s process, but without the action being unreasonable, vexatious, in bad faith or an abuse of process, the party’s actions will not merit a costs award.
24Second, the respondent argues that the awarding of costs for counsel’s conduct will have a chilling effect on the ability of counsel to zealously advocate. The respondent cites H. A-R v. Aviva Insurance, 2017 CanLII 26929 (ON LAT) in support of its position. In that case, the respondent withdrew their application at the last minute and the Tribunal found this did not warrant costs. The respondent also cites Law Society of Ontario v. Groia, 2018 SCC 27 (“Groia”), which recognizes the importance of lawyer’s expressive freedoms and the critical role of zealous advocacy in the legal system. The respondent submits that during the hearing, respondent’s counsel was carrying out his professional obligations to zealously represent the respondent, which is not grounds for awarding costs.
25The applicant argues that the Tribunal did not make an error of fact or law, and that respondent’s counsel engaged in conduct warranting costs. The applicant submits that no transcript has been provided by the respondent to support its position. The applicant argues that the decision in Groia does not authorize misconduct, or any of the actions for which costs were awarded in this case.
26I find no error of law or fact in the Tribunal’s award of costs for the following reasons. Each side requested costs in this case. At paragraph 55, the Tribunal set out the test for awarding costs under Rule 19. At paragraphs 56 to 66, the Tribunal set out, in detail, its reasons for awarding costs to the applicant, and its rationale for the quantum of costs. In so doing, the Tribunal provided specific examples that it found met the test in Rule 19. The respondent has not argued that the specific examples cited by the Tribunal were factually incorrect, nor has it submitted a transcript of proceedings as evidence of same. I find that while the Tribunal did not use the specific Rule 19 wording in its description of these examples, it is clear from the decision that it adopted and applied the correct test.
27I find the respondent’s arguments with respect to costs having a “chilling effect” to be an attempt to re-litigate its case. The parties made submissions on costs and the Tribunal addressed them in its decision. At paragraph 62 of the decision, the Tribunal acknowledged that there are “many different styles of the degree to which counsel assert objections” and still found that at many points the respondent’s objections were “significantly over the line and delayed the hearing”. It found “substantial merit” in the applicant’s submission that “constant and lengthy objections and interruptions” by respondent’s counsel delayed the matter and warranted an award for costs. It is not grounds for reconsideration that the respondent does not agree with the Tribunal’s decision.
28Furthermore, I do not agree that awarding costs limits counsel’s ability to advocate on behalf of their client. Rule 19 mirrors the language of section 17.1(2) of the Statutory Powers Procedures Act (“SPPA”). Neither section 17.1 nor Rule 19 exclude the conduct of counsel, and the respondent has not pointed me to any caselaw in support of his position that an award for costs cannot be made due to the conduct of counsel. Section 17 must be read in conjunction with section 25.0.1 of the SPPA, which provides that a tribunal has the power to control its own process. To suggest that Rule 19 should not apply to the conduct of counsel would mean the Tribunal is not able to control its own process.
29I find the respondent has not established grounds for reconsideration under Rule 18.2(b).
Issues 2-22
30In paragraph 67, the Tribunal noted it did not address issues 2-22 as listed in the decision as it was the Tribunal’s understanding that the non-CAT benefit limits had been exhausted. The Tribunal directed the parties to advise the Tribunal within 14 business days if that was not the case. The applicant has advised the Tribunal that issues 2-22 still require determination by the Tribunal.
CONCLUSION AND ORDER
31For the reasons noted above, I deny:
a. the applicant's request for reconsideration; and
b. the respondent’s request for reconsideration.
32The Tribunal shall schedule a case conference for issues 2-22 as listed in the decision. If the parties resolve these issues, the applicant shall immediately advise the Tribunal in writing.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: February 10, 2023