Citation: Adeyeo v. Aviva Insurance Company, 2024 ONLAT 22-006540/AABS-R

RECONSIDERATION DECISION

Before: Michael Beauchesne

Licence Appeal Tribunal File Number: 22-006540/AABS

Case Name: Adetokunbo Adeyeo v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Adam Ridolfi, Paralegal

For the Respondent: Andrea Bandow, Counsel

OVERVIEW

1On May 27, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 6, 2024 (“decision”).

2The Tribunal decided the applicant was not entitled to a non-earner benefit (“NEB”) or an attendant care benefit (“ACB”). The Tribunal also decided the applicant was not entitled to the disputed treatment plans and no lost educational expenses, interest, or award was payable.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“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 committed a material breach 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; or

c) 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.

4The applicant makes no requests for orders on his reconsideration request submissions. In his reconsideration request reply submissions, the applicant requests the Tribunal set aside its decision and remit the matter for a new hearing by a new adjudicator.

5The respondent requests an order that dismisses the applicant’s request for reconsideration and upholds the decision.

RESULT

6The applicant’s request for reconsideration is dismissed.

PRELIMINARY ISSUES

No submissions to support a claim on criterion 18.2(c)

7The applicant’s reconsideration request form, dated May 27, 2024, identifies 18.2(c) as one of the grounds for his request. However, the applicant’s reconsideration request submissions and reply do not address Rule 18.2(c). I therefore have not addressed the grounds established at Rule 18.2(c).

The applicant’s reconsideration request reply does not comply with the Tribunal’s order.

8I find the applicant’s reconsideration request reply exceeds the ordered page limit and should be struck accordingly.

9The Tribunal’s order of June 5, 2024, limits the applicant’s reconsideration request reply to four double-spaced pages. The applicant’s reconsideration request reply, as filed with the Tribunal, is eight pages long and, in my view, appears to be formatted with 1.5 spacing as opposed to being double-spaced. Given that the applicant did not file a motion with the Tribunal to exceed the page limit set by the Tribunal’s order, I decline to consider the applicant’s reconsideration reply past page 4.

No reasonable apprehension of bias

10I find the applicant’s claim of bias is improperly before the Tribunal.

11The applicant submits in his reconsideration request reply that I should have recused or withdrawn myself from this matter because I possessed a reasonable apprehension of bias (i.e., a potential conflict of interest, bias, or lack of impartiality) towards him. The applicant bases this on my past military police experience with the Canadian Forces and later appointment to the Parole Board of Canada. He infers a nexus between my employment history and medical records filed with the Tribunal that indicate the applicant has a criminal record, was incarcerated, and had cannabis issues. The applicant adds that he made his reconsideration request with a view to “pointing to all genuine error’s potential apprehension of bias and impartiality of the Hearing Adjudicator.”

12I find the applicant is raising a new issue that could have been raised in his reconsideration request submissions. While the applicant says the purpose of his reconsideration request was to show a reasonable apprehension of bias contributed to errors in the decision, I find he failed to raise this until his reconsideration request reply. In doing so, he deprived the respondent of an opportunity to make submissions on this issue because the respondent was not entitled to a sur reply. In my view, this is improper and prejudicial to the respondent.

13Even if I were to consider the merits of the applicant’s claim, I would find it fails to meet the test for reasonable apprehension of bias. The Federal Court of Appeal had defined this test, which asks what an informed person would conclude, viewing the matter realistically and practically, and having thought the matter through. Would that person think it is more likely than not, that the adjudicator, whether consciously or unconsciously, would not decide fairly?

14The applicant does not address this test in his submissions. The applicant does not point to any examples in the decision that would give rise to a reasonable apprehension of bias. In my view, the applicant simply advances an adverse inference between my previous roles and aspects of his life circumstances. I do not agree this meets the court’s test.

ANALYSIS

15The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Aspects of the applicant’s reconsideration request submissions that I did not consider.

16In my view, the applicant’s reconsideration request submissions were not entirely clear. Some paragraphs were isolated recitations of evidence that were not tied to any particular argument. Other paragraphs were factually incorrect. I did not consider these paragraphs as part of my analysis, and address them below for reference:

a. Paragraph 6: The applicant refers to two disability certificates (“OCF-3”) without explaining how the OCF-3s relate to his grounds for reconsideration in terms of procedural unfairness or an error of fact or law;

b. Paragraphs 8 and 10: The applicant incorrectly asserts that a submission made by the respondent is a finding of the Tribunal;

c. Paragraph 11: The applicant presents an argument that I could not understand because it is not cogent. He says that at paragraph 11 of the decision, the Tribunal “erred when it determined said activities are ‘not’ essential elements that must be considered to satisfy the NEB own legal test as being essential and important tasks of ADL when compared to ‘uncontested’ continuous and inability to perform pre and post ADL evidence that is supported by medical evidence”; and

d. Paragraph 17: The applicant refers to the Tribunal conceding that the applicant produced medical reports about his pre-existing psychological and physical injuries without providing a nexus to his grounds for reconsideration in terms of procedural unfairness or an error of fact or law.

Rule 18.2(a): The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness.

Was it procedurally unfair to rely on the respondent’s evidence when considering the applicant’s NEB and ACB claims?

17I find the applicant has not established I unfairly relied on the respondent’s section 44 reports.

18The applicant submits the hearing was procedurally unfair because I relied on a report by Dr. Jacqueline Auguste (orthopedic surgeon) that was completed 20 months after the accident to deny his entitlement to an NEB. Similarly, the applicant submits the hearing was procedurally unfair because I relied on a report by Ms. Lisa Slapinski (occupational therapist) that was completed almost two years after the accident to deny his entitlement to an ACB. The applicant reasons that benefits should have been payable up to the dates those reports were completed as there was no medical evidence that contradicted the applicant’s entitlement to that point.

19The respondent submits that the applicant is introducing a new argument that he could have made in his written hearing submissions. The respondent specifies that the applicant did not previously argue the section 44 reports were delayed, nor that the ACB should have been payable up to the date of the reports.

20I agree that the applicant is raising a new argument in an attempt to re-litigate his case. The applicant did not show me where, in his written hearing submissions or reply, he raised the issue of benefit entitlement up to the completion of the respondent’s report on the basis of delayed section 44 reports. I therefore did not consider this argument on the merits. In my view, this applies also to paragraph 9 of the applicant’s reconsideration request submissions, where he makes the same argument about benefit entitlement up to the completion of the section 44 reports.

Was it procedurally unfair to discount the applicant’s arguments because he did not pinpoint evidence?

21I find the applicant’s claim of procedural unfairness in how I reviewed his evidence is without merit.

22The applicant submits I did not consider all the available evidence. The applicant says I adjudicated his “lack of regurgitating and pointing or directing the Tribunal ‘verbatim’ to … the ‘nexus’ of medical evidence and disabilities.” The applicant asserts I was “pointedly directed” with facts that were marked as exhibits, and that adequate evidence was submitted to adjudicate the issues in dispute. The applicant points to a list of 10 exhibits at paragraph 15 of his reconsideration request submissions that he maintains I was directed and pointed to in regard to his NEB and ACB entitlement up to when the respondent’s section 44 reports were completed.

23The respondent argues that the applicant did not consistently reference his evidence by tab and page number as required by the case conference report and order (“CCRO”) for this matter. The respondent says the CCRO is clear and specific that the parties shall specifically refer to evidence and law by tab and page number, and adds that the CCRO affords the discretion to not review evidence not so referenced.

24I agree with the respondent. The CCRO says the parties shall refer to evidence and law by both tab and page number, and that evidence not so referenced may not be considered by the adjudicator. I find the document list at paragraph 15 of the applicant’s reconsideration request submissions does not support the applicant’s argument because it refers only to calendar dates. With the exception of the last document listed, the applicant does not specify in which brief (i.e., initial submissions or reply) these documents were relied upon, what tab there were in, or what page(s) of these documents speak to the applicant’s knee injuries or offer proof of his entitlement to an NEB and ACB. In fact, the applicant included only his written hearing reply with his reconsideration request submissions, and he did not indicate where or if these documents were referenced therein. The Tribunal cannot be expected to sort through the parties’ evidence and try to figure out how to make their cases—it would be inappropriate to do so. Given that the applicant failed to show me these documents were in fact referenced by tab and page number in his submissions, as he was procedurally required to do by the CCRO, I am not convinced the applicant has demonstrated I was procedurally unfair by declining to consider improperly referenced evidence.

Was my consideration of the applicant’s knee injury procedurally unfair?

25I disagree that I was procedurally unfair in the way I considered evidence pertaining to the applicant’s right knee injury.

26The applicant submits it was unfair to afford his right knee injury little weight because he failed to point to corroborating medical evidence in his submissions; the applicant maintains that evidence of his right meniscus tear requiring surgery was plain and obvious. In paragraph 4(6) of his reconsideration request submissions—and also at paragraph 19 of his reconsideration request reply—the applicant references an “assessor” who referenced an MRI that demonstrates a medial meniscal tear, and who concluded a possible meniscal tear resulting from the accident. In paragraph 14 of his reconsideration request submission the applicant asserts I neglected to mention the April 2019 report by Dr. O’Reilly (orthopedic surgeon) that references “large horizontal oblique tear-posterior horn” that was included in the applicants’ written hearing submissions. While the applicant makes his argument about how I considered evidence in the context of both procedural fairness and error of law, I find this issue properly relates to 18.2(a) and have therefore addressed it here.

27It is well established that submissions are not evidence, and in my view, the applicant’s submissions conflate submissions and evidence. In his reconsideration request reply, the applicant indicates the Tribunal “shall find it will take the Applicants submissions into account as substantial evidence.” This is incorrect. The onus is on the applicant to point to evidence in its submissions to make its case. The CCRO requires that parties do this by pinpointing their evidence by tab and page number. This ensures procedural fairness because adjudicators are not left to presume or guess as to what aspect of which report the parties are relying on. This also promotes an efficient hearing where adjudicators do not find themselves scanning pages of evidence to find precise references made in the submissions. The applicant did not demonstrate that he pinpointed the evidence in Dr. O’Reilly’s report, saying only that it was included in his written hearing submissions. In paragraph 12 of the decision, I note the applicant did not direct me to the report of Dr. O’Reilly. To be clear, simply providing the date of a report and a physician’s name does not constitute pointing to evidence in a brief per the CCRO.

28I otherwise find the applicant is attempting to re-litigate his case here. He specifically contests the weight I placed on his right meniscal tear, which I addressed at paragraphs 12 and 13 of the decision. As noted earlier, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2. In my view, the applicant has failed to do so here.

Did I unfairly disregard the reports of Mr. Jag Dhirayain (occupational therapist) when considering the applicant’s entitlement to an NEB?

29I find the applicant has not shown that my consideration of Mr. Dhirayain’s reports was procedurally unfair.

30The applicant submits I completely disregarded Mr. Dhirayain’s October 2019 occupational therapy report, as well as his June 2020 follow-up report. The applicant adds that I also disregarded all the applicant’s psychological and musculoskeletal evidence. The applicant also says I failed to consider Dr. Auguste’s January 2020 opinion that the applicant has suffered a right knee contusion with a possible medial meniscal tear resulting from the accident.

31The respondent says the applicant is seeking to relitigate his case.

32Weighing evidence is a core function of adjudication. I explained why and how I weighed Mr. Dhirayain’s report at paragraph 26 of the decision. The applicant’s disagreement with how I exercised my adjudicative discretion is not a basis for reconsideration. The same applies to the applicant’s arguments that pertain to his psychological and musculoskeletal evidence, which he did not specify (i.e., Dr. Tham’s records) until his reconsideration reply, thereby depriving the respondent an opportunity to address his argument. I consider and weigh musculoskeletal evidence, such as the applicant’s knee injury and others, at paragraphs 12, 13, and 21 of the decision. I consider and weigh evidence pertaining to the applicant’s psychological and/or psychiatric evidence at paragraphs 15, 16, 17, 18, 19, 51, and 57 of the decision. While I agree I did not specifically consider Dr. Auguste’s January 2020 opinion in the decision, I find the applicant has not established that he pointed to or otherwise relied on this evidence in his written hearing submissions and reply. At paragraph 10 of the decision, I note the respondent relied on the May 2020 report of Dr. Auguste and there is no reference to either party relying on Dr. Auguste’s January 2020 report.

Was it unfair to find the September 2019 OCF-3 was insufficient to prove NEB entitlement?

33I find the applicant has not shown my consideration of the September 2019 OCF-3 was procedurally unfair.

34The applicant submits that I was directed to part 5 of the September 2019 OCF-3, where the assessor noted a medial meniscal tear as a cause of disability, and that surgery to repair the knee structure was recommended by an orthopedic surgeon. The applicant contends that I found this evidence insufficient and disregarded all the other medical evidence that was led by the applicant.

35The respondent did not specifically address this argument in its submissions other than to say the Tribunal does not have to consider every aspect of evidence and submissions made by the parties.

36While I agree I found the OCF-3 to be insufficient evidence to prove NEB entitlement on its own, at paragraph 12 of the decision I reason that this is because I was not pointed to corroborating medical evidence of the applicant’s knee tear or his inability to do his normal gym routine. I also note that, in any event, an injury in and of itself is not persuasive proof of being continuously prevented from engaging in substantially all pre-accident activities. The applicant’s arguments that pertain to “all the other medical evidence” are bald assertions, in that they offer little insight into which reports, physicians, etc., that I disregarded.

Did I consider the applicant’s evidence pertaining to other injuries in a way that was procedurally unfair?

37I find the applicant has not shown procedural unfairness as it pertains to my assessment of injuries other than the applicant’s right knee.

38The applicant submits that I neglected to consider that the attending ER physician would not be in a position to prematurely diagnose or recommend any limitations or restrictions on activities. The applicant also says I failed to recognize the hospital report stated the applicant should follow up with his family physician if pain was still a concern. The applicant adds that I failed to refer to his limp and the accident-related disc extrusion and herniation in his back as reported by Dr. Auguste in February 2023 and confirmed in a CT scan that was submitted as evidence.

39The respondent did not directly address this aspect of the applicant’s reconsideration request submissions.

40While I agree I did not refer to back injuries in Dr. Auguste’s report, I noted at paragraph 13 of the decision that I was not pointed to evidence of disc extrusions or herniations in the family physician’s records. Also, as earlier mentioned, the applicant did not rely on the records of the respondent’s assessors to prove his NEB claim or otherwise in this case. I therefore do not agree that I was procedurally unfair in this context. Further, the applicant did not lead evidence to convince me the CT scan he refers to was relied upon or pinpointed in his written hearing submissions for my consideration, and I see no reference to a CT scan in the decision. I accept that the attending emergency room physician might not have been in a position to diagnose or recommend activity restrictions, but in my view, this would more properly constitute an error of fact as opposed to an issue of procedural fairness. And even if I found I did make an error here, it would not have produced a different result because of all the other reasons that led to my decision. In any event, I take notice that emergency room physicians are capable of diagnosing functional limitations and recommending restrictions accordingly.

Rule 18.2(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.

Did I erroneously interpret section 7(a) of an unspecified statute and fail to give adequate weight to the uncontested affidavit filed by the applicant?

41For context, the applicant advanced this argument in the section he reserved for Rule 18.2(b) issues (i.e., error of law). However, he framed this argument as a breach of procedural fairness in his reconsideration request submissions. Given the uncertainty as to how the applicant was electing to proceed here, I decided to apply both 18.2(a) and 18.2(b) to this aspect of the applicant’s reconsideration request submissions.

42The applicant submits my determination that he did not meet his onus to prove entitlement to a NEB was unfair because he “met the threshold of section 12(1)(1).” He also says I erroneously interpreted “section 7(a)” and failed to give adequate weight to his affidavit and its accompanying exhibit. He asserts an adverse inference pertaining to the respondent’s election to forgo a cross-examination.

43The respondent says the applicant’s argument is attempting to re-litigate his case. The respondent also offers that the Tribunal did not err in seeking medical record corroboration of the applicant’s self-reports of his limitations in his affidavit. The respondent disagrees that the Tribunal’s silence on the applicant’s request for an adverse inference merits consideration because the respondent has no burden of proof and therefore is not obligated to undertake a cross-examination of the applicant’s evidence.

44The applicant failed to convince me that I was procedurally unfair or made an error of fact or law pertaining to how I considered his affidavit. The applicant simply references section 7(a) in his reconsideration request submissions without specifying the statute. Section 7 of the Schedule pertains to the amount of weekly income replacement benefit (IRB) and was not addressed in the decision. There is no sub-section (a) to section 7 in the Schedule and an IRB was not in dispute. In any event, the applicant is clearly arguing the weight I afforded his affidavit at paragraphs 4(4), 13, and 16 of his reconsideration request submissions. As earlier mentioned, the applicant’s disagreement with how I exercised my adjudicative discretion is not a basis for reconsideration. Pertaining to adverse inference, I find I made no error by not addressing this in the decision because the respondent was under no obligation to undertake a cross-examination of the applicant’s affidavit.

Did I fail to recognize the applicant’s reports of functional impairment to Dr. Auguste in May 2020?

45I find no error of fact or law pertaining to my consideration of Dr. Auguste’s May 2020 report.

46The applicant submits I failed to recognize that the applicant told Dr. Auguste in May 2020 that he tried to work seasonally as a roofer but was unable due to pain because the work required a lot of squatting and kneeling. The applicant goes on to say that this exposed him to homelessness that aggravated his emotional functioning. These arguments were repeated in the applicant’s reconsideration request reply. The applicant adds that Dr. Auguste’s opinion was not informed by clinical notes and records or psychiatric evidence, and that her report went beyond her scope into attendant care.

47The respondent argues that the applicant is advancing a new argument, and never raised this aspect of Dr. Auguste’s report in his written hearing submissions.

48I agree with the respondent’s position that the applicant is introducing a new argument here that he could have made in his written hearing submissions. The applicant did not show me where, in his written hearing submissions or reply, he raised the issue of these specific self-reports to Dr. Auguste, or the resulting impact on his mental health.

Did the respondent misstate evidence?

49I find the applicant has not shown that I made an error of fact.

50The applicant submits the respondent created “obfuscation” by misstating that the applicant was continuing to play basketball in July 2020. The applicant maintains he reported regularly playing basketball prior to the accident, and that it is highly unlikely he was capable of playing basketball with a meniscal tear and wearing a knit sleeve. He reiterated this position in his reconsideration request reply.

51Th respondent argues that it did not misstate this evidence, and that its written hearing submissions pointed to the applicant’s report of playing basketball in his family physician’s records. The respondent adds that, in any event, the applicant does not address an error of fact on the part of the Tribunal.

52The applicant is arguing that I relied on evidence that was misstated by the respondent. I disagree. I address this in paragraph 24 of the decision, where I find Dr. Auguste’s medical opinion (i.e., that the applicant was not suffering a complete inability to carry on a normal life) was corroborated by a clinical note entered on July 17, 2020, which said the applicant disclosed he was continuing to play basketball. I therefore see no error of fact.

Did I err by misinterpreting the relevance of certain sections of the Schedule?

53I find the applicant has not demonstrated any error of fact or law pertaining to my interpretation of the Schedule.

54The applicant submits I erroneously interpreted the relevance of sections “19(1)3(7)(e)(1)(2)(3)” and (3)(8) of the Schedule. The applicant also submits I erred when I interpreted the relevance of the reference to “notice impecuniosity” and “continually adjusting.” As well, the applicant contends I erroneously interpreted the nexus to Pucci v. The Wawansea Mutual Insurance Company, 2020 ONCA 265 (“Pucci”), while failing to consider the nexus of Colin Veley v. Motor Vehicle Accident Claims Fund, 2014 ONFSCDRS 74 (“Veley”) and 17-001681 v. Motor Vehicle Accident Claims Fund, 2018 (“17-001681”).

55The respondent argues that the applicant failed to demonstrate that I erred in law by misinterpreting sections 19(1), 3(7)(e), and 3(8) of the Schedule. While the respondent notes I failed to apply Pucci, it asserts I nevertheless arrived at the correct outcome (i.e., that the respondent did not unreasonably withhold or delay payment of attendant care benefits) because Pucci establishes that an insured’s inability to pay for services or benefits on his or her own cannot justify the deeming of an expense to have occurred under section 3(8) of the Schedule.

56I am not persuaded by the applicant’s arguments. The applicant does not show how or why my interpretation of the Schedule constitutes an error of law or fact, which he is required to do to meet his onus. Pertaining to the authorities, I disagree that I failed to consider the connection of Veley and 17-01681 to this matter. I applied both authorities at paragraphs 34 and 36 of the decision, respectively. Further, the applicant provided no rationale to explain how I erroneously applied these authorities in my analysis. While I agree I did not address Pucci in the decision, I do not find this to be an error of fact or law because Pucci was relied upon by the respondent, and the respondent does not bear the onus to prove expenses were incurred.

Did I erroneously state the applicant claims he was diagnosed with psychological trauma at the hospital and unfairly discount the applicant’s psychological evidence?

57I find I correctly indicated the applicant said he was diagnosed with psychological trauma at the hospital.

58The applicant submits that the outpatient chart submitted as evidence does not say the applicant was diagnosed with psychological trauma at the hospital. The applicant also asserts the Tribunal gave little or no weight to Dr. Clara Bassel’s (psychologist) pre-accident report of January 2018, which diagnosed pre-existing anxiety and depression. Similarly, the applicant says I afforded little to no weight to Dr. Eugene Hewchuk’s (psychologist) report which escalated the applicant’s depression to major depression and also offered a diagnosis of somatic symptom disorder. The applicant goes on to say I focused on non-accident-related symptomology in Dr. Juliana Li’s (psychiatrist) report, such as a cannabis disorder, but failed to address Dr. Hewchuk’s diagnosis of “aggravated exacerbation of depression developing to a ‘major depression’.”

59The respondent argues that, at paragraph 3 of the applicant’s written hearing submissions, the applicant claimed he was diagnosed with psychological trauma at the hospital.

60While I agree the applicant’s outpatient hospital chart does not indicate any psychological diagnoses, I find the applicant’s written hearing submissions did indeed claim he was diagnosed with psychological trauma at the hospital at paragraph 3 of his written submissions (i.e., “… was taken to ‘hospital.’ He was diagnosed with … psychological trauma. He followed up with his family physician.”) Concerning the psychological and psychiatric reports, I find these go to weight. At paragraph 17 of the decision, I assign less weight to the diagnoses offered in Dr. Beissel’s report because I was not pointed to evidence of aggravated or exacerbated psychological symptoms that resulted from the accident. In that same paragraph, I explained I gave less weight to Dr. Hewchuk’s report because the applicant only referenced diagnoses of somatic symptom disorder and major depressive disorder, which was not persuasive because diagnoses, in and of themselves, do not speak to how or what degree the symptomology affects the applicant’s ability to engage in pre-accident activities. I did not accept the explanation of somatic symptom disorder as included in the applicant’s reconsideration request submissions because he did not refer me to where, or confirm if, that information was included in his written hearing submissions. In any event, the information was generic and not a medical opinion of the applicant’s symptomology or his functional limitations owing to symptomology associated with his diagnoses.

61At paragraph 18, I address the psychiatric evidence of Dr. Li and concluded it did not support accident-related psychological issues because she did not arrive at the diagnoses claimed by the applicant. Dr. Li attributed her impressions of ADHD and complex PTSD to pre-accident factors, and she characterized her impression of the cannabis disorder as a “past event” that “significantly reduced over the years.” I reject the applicant’s claim that I focused on non-accident-related symptomology; it was Dr. Li’s own conclusion that all her impressions of the applicant’s psychiatric symptomology were not accident-related.

Did I err by failing to recognize that evidence is a natural assumption that flows from the filed medical reports and the applicant’s affidavit?

62I find no error of law in putting the onus on the applicant to prove his case as opposed to making his case for him.

63The applicant submits I erred by stating the applicant did not point to evidence of chronic sleep problems, racing thoughts and worries, and poor concentration affecting his engagement in life activities. The applicant reasons that I should have naturally assumed these symptoms flowed from medical reports and his affidavit. The applicant says he addressed difficulties at lines 45 to 53 of the affidavit exhibit. The applicant also asserts I erred by noting Dr. Li did not note school difficulties when she documented difficulties pertaining to attendance and coursework. The applicant then goes on to say I erred in finding the applicant did not point to Dr. Ali Ghouse’s (physiatrist) in his written hearing submissions on the NEB. The applicant contends that Dr. Ghouse’s opinion, supplemented by the applicant’s affidavit, is a “natural point and direction of judicial evidence and conclusion/assumption that flows” to address the applicant’s claim for NEB and ACB.

64The respondent argues that while a copy of Dr. Li’s report was attached as an exhibit to the applicant’s written hearing submissions, the applicant did not direct the Tribunal to the relevant evidence or make persuasive arguments related to such evidence. The respondent disagrees with the applicant’s position that “The medical is a natural assumption that flows from the medical reports and affidavit submitted.” The respondent emphasizes the applicant bears the onus of proof, and that it would be procedurally unfair and an error of law for the Tribunal to make his case for him. The respondent adds that the Tribunal was correct in stating the applicant did not point to Dr. Ghouse’s report in the NEB section of his written hearing submissions. However, the respondent says the applicant’s position is moot because the Tribunal proceeded to consider the evidence and found it was not persuaded by his medical opinion.

65I see no error of fact or law here. The applicant all but acknowledges he did not point to evidence as required by the CCRO. The applicant’s failure to do so is made out in paragraphs 19, 20, 21, and 22 of the decision. I refer back earlier in this reconsideration decision to paragraph 27 where I provide a detailed rationale pertaining to evidence and the applicant’s responsibility to pinpoint references in his submissions. The same applies here. The Tribunal cannot be expected to make natural assumptions that link submissions to evidence on behalf of the parties. Put differently, I agree that the role of the Tribunal cannot extend to making a case on behalf of one party or the other. This speaks to the impartiality that is anchored in procedural fairness. Rather, the Tribunal sits squarely at the intersection of the parties’ arguments where it assesses the supporting evidence led by the parties, assigns weight, and ultimately arrives at a finding.

CONCLUSION & ORDER

66The applicant’s request for reconsideration is dismissed.

Michael Beauchesne

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal