Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Monica Ciriello, Vice Chair
Licence Appeal Tribunal File Number: 21-002335/AABS
Case Name: Donatas Antonkunathas v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Michael Ferrante, Paralegal
For the Respondent: Stanislav Bodrov, Counsel
BACKGROUND
1This request for reconsideration was filed by the Respondent.
[2] It arises out of a decision dated May 2, 2023 ("decision"), in which I found that: a. The applicant's injuries are not predominately minor, and he should not be subject to the $3,500.00 limitation of the MIG. b. The applicant is entitled to $92.87 for physiotherapy services, proposed by Mississauga Active Physiotherapy in OCF-18 dated November 19, 2019. c. The applicant is entitled to $2,252.00 for physiotherapy services, proposed by Mississauga Active Physiotherapy in OCF-18 dated March 11, 2020. d. The applicant is entitled to $3,142.40 for physiotherapy services, proposed by Mississauga Active Physiotherapy in OCF-18 dated September 17, 2020. e. The applicant is entitled to the $2,200.00 for a chronic pain assessment proposed by Mississauga Active Physiotherapy in OCF-18 dated July 22, 2020. f. The applicant is entitled to interest on any overdue payment of benefits.
3In the request for reconsideration, the respondent argues that the Tribunal mishandled the respondent's submissions such that the submissions were not provided and considered by me when I issued the decision. The respondent also argues that the Tribunal failed to properly request that the respondent re-submit the submissions. It is the respondent's position that reconsideration of these findings is necessary for preservation of the rules of procedural fairness.
4The respondent is seeking an order for a rehearing on all issues in dispute.
5The applicant submits that there is no basis for granting the reconsideration, as the decision was based upon the evidence, including medical information, reports and clinical notes and records available.
RESULT
6The Respondent's request for reconsideration is granted.
RECONSIDERATION CRITERIA
[7] Rule 18.2 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review, and Fire Safety Commission ("Rules") states that 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 it would likely have reached a different result had the error not been made; c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or d) There is new evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce if, and would have affected the result.
8In this instance, the respondent is seeking reconsideration of the decision under Rule 18.2(a) on the basis that the Tribunal violated the rules of procedural fairness as the respondent's submissions were not considered as part of the hearing, despite the respondent filing submissions in a timely manner.
ANALYSIS
9The test to be met on a request for reconsideration under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The respondent submits that the Tribunal violated the rules of procedural fairness.
It was procedurally unfair to proceed without the benefit of the respondent's submissions which were properly submitted.
10I did not have the benefit of the respondent's submissions in rendering my decision. This resulted in a determination being made on the merits of the dispute without hearing from a party.
11The respondent provided evidence that it submitted the required submissions via the Tribunal's Enterprise Attachment Transfer Service (EATS) system on June 13, 2022, the day they were ordered to have been filed by the Case Conference Report and Order. The respondent provided evidence that it received a confirmation from the Tribunal confirming that the documents were submitted. By following the Tribunal's submission process via EATS, the respondent submits that its expectation was that the Tribunal had in fact received the submissions and provided them to me, the adjudicator, for consideration.
12I am persuaded by the respondent's evidence that its submissions were properly submitted through EATS on June 13, 2022, in compliance with the Tribunal's Order. I agree that it was procedurally unfair to proceed with the hearing without the respondent's submissions.
The naming conventions between the Tribunal and the respondent was procedurally unfair
13The respondent further submits that the Tribunal failed to follow its naming procedure when the Case Management Officer (CMO) requested a copy of the respondent's missing submissions. On March 27, 2023, the CMO requested the respondent file "reply submissions" when the respondent sought clarification, as submissions were already filed on June 13, 2022. On March 28, 2023, adding further to the confusion, the CMO, advised the respondent to "ignore my email" and that a decision was forthcoming.
14The respondent submits that "reply submissions" hold a very different meaning from "responding submissions" and when the Tribunal requested "reply submissions" it failed its obligation of procedural fairness. The respondent filed a sur-reply on the assumption this is what the Tribunal was seeking, as submissions were already filed.
15I find that the communication between the Tribunal and the respondent on March 27, 2023, and April 4, 2023, particularly the use of the word "reply" was unclear, and the Tribunal did not request the correct documentation. I note that the respondent did take all steps to satisfy the Tribunal's request and even provided an additional "reply" submission on the assumption this is what the Tribunal was requesting.
16I am persuaded that the Tribunal violated the rules of procedural fairness, and the respondent has met the test for reconsideration under Rule 18.2(a).
ORDER
17The respondent's request for reconsideration is granted.
[18] I order that: a. The Tribunal will conduct a re-hearing on the matter based on the following: i. The applicant's February 7, 2022 submissions; ii. The respondent's June 13, 2022 submissions; and iii. The applicant's June 27, 2022 reply submissions. b. The respondent submit its original June 13, 2022 submissions to the Tribunal within 10 business days of the date of this decision.
Monica Ciriello Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: October 17, 2023