RECONSIDERATION DECISION
Before:
E. Louise Logan
Licence Appeal Tribunal File Number:
20-011100/AABS
Case Name:
[M.R] by his Litigation Guardian [M.R ]v. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant:
Mohamed Elbassiouni, Counsel
For the Respondent:
Rosalind Eastmond, Counsel
OVERVIEW
1The applicant filed a request for reconsideration with supporting submissions on July 8, 2024, in respect of the Tribunal’s Motion Order dated September 27, 2022 (“Motion Order”) which dismissed the applicant’s application without a hearing.
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’s counsel is seeking reconsideration pursuant to Rule 18.2(b). He submits that the Tribunal erred when it found that it was clear that the applicant had abandoned the application and that this error likely affected the result. Although not indicated on his request for reconsideration form, in his supporting submissions applicant’s counsel also seeks reconsideration pursuant to Rule 18.2(d) and has submitted new evidence that he claims would likely have affected the result.
4The applicant seeks an order varying the Tribunal’s Motion Order and reinstating the application such that that matter proceeds to a hearing.
5The respondent submits that the request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is granted.
PROCEDURAL HISTORY
7The applicant was injured in an automobile accident on May 19, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal (“Tribunal”). The issues in dispute were the applicant’s entitlement to income replacement benefits, medical and rehabilitation benefits, an award and interest.
8A case conference was held on June 14, 2021 but the applicant did not attend and the case conference was adjourned. A case conference resumption was held on August 23, 2021 but the applicant did not attend and it was again adjourned. The applicant was put on notice that his application may be dismissed as abandoned if he did not attend the case conference resumption. A third case conference was held on October 22, 2021 with all parties in attendance and a 4-day videoconference hearing was scheduled for October 17-20, 2022.
9The applicant, who was previously represented by counsel, became self-represented on or about July 20, 2022 when his counsel removed themselves as counsel of record.
10On August 10, 2022, the respondent filed a Notice of Motion seeking a case conference resumption for case management purposes, to seek procedural directions on procedural aspects of the upcoming hearing, and to ensure the self-represented applicant was aware of his obligations in the proceedings.
11The Tribunal held a motion hearing on August 30, 2022. The applicant did not attend. The respondent advised the Tribunal that the applicant had not provided documents for the joint document brief or provided a list of witnesses. The respondent sought to dismiss the applicant’s application. On September 6, 2022, the respondent filed a Notice of Motion seeking an order dismissing the applicant’s application. The applicant did not participate in the September 16, 2022 motion hearing or make any submissions.
12By Motion Order dated September 27, 2022, the Tribunal granted the respondent’s request and dismissed the application without a hearing.
13On July 11, 2023, a new declaration of representative was filed for the applicant’s counsel and on August 10, 2023, a Notice of Motion was filed by applicant’s counsel to reinstate the applicant’s application. On November 29, 2023, the applicant’s representative followed up to determine the status of the Notice of Motion and the Tribunal advised applicant’s counsel that the applicant may wish to file a Notice of Motion for an extension of time to request a reconsideration of the Tribunal’s September 27, 2022 Motion Order.
14On April 29, 2024, the applicant’s counsel filed a Notice of Motion requesting an extension of time to file the request for reconsideration. By Motion Order dated June 10, 2024, the Tribunal had granted the applicant an extension of time until July 8, 2024 to file his request for reconsideration.
15As noted above, the applicant filed his request for reconsideration on July 8, 2024 and it is now before me along with the respondent’s submissions and the applicant’s reply.
ANALYSIS
16The 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.
Rule 18.2(b)
17I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
18Applicant’s counsel submits that the Tribunal erred in fact when it concluded that the applicant had abandoned his application based on the applicant’s failure to: file any evidence or disclose any witnesses by August 16, 2022; respond to the respondent’s attempts to contact him about his intention to proceed with the proceeding; contact respondent’s counsel or the Tribunal to provide a reasonable explanation for not meeting the Tribunal’s deadlines, and file a Notice of Motion to vary any of the previously set deadlines.
19Applicant’s counsel submits that the reason the applicant did not take these actions was not because he had abandoned his application, but because he lacked the capacity to appreciate and understand the consequences. Applicant’s counsel further submits that although the respondent was aware of the questions about the applicant’s capacity, it did not bring it to the Tribunal’s attention at the motion hearing.
20I find that these submissions do not establish an error of fact or law such that it likely affected the result. The Tribunal did not err in its findings of fact as set out in the Motion Order, and applicant’s counsel does not submit that it did. Rather, applicant’s counsel submits that the Tribunal erred in the conclusion that it drew from these facts. Namely, that the applicant had abandoned his application.
21I find that reaching such a conclusion was within the adjudicator’s discretion. The adjudicator considered the evidence and submissions before the Tribunal at the time and reached a conclusion based on that evidence. While the applicant does not agree with that conclusion, disagreement with the outcome is not grounds for reconsideration.
Rule 18.2(d)
22I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(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.
23Applicant’s counsel submits that there is evidence, in the form of a capacity assessment report and supporting affidavit from the applicant’s family members, that was not adduced at the September 16, 2022 motion hearing. He further submits that this evidence would likely have affected the result. That is, the evidence supports that the applicant lacked the capacity to appreciate and understand the consequences of his decisions with respect to his application with the Tribunal.
24The respondent submits that it is well established that there is a presumption of capacity, that compelling evidence is required to override the presumption, and that the finding of capacity is time specific. The respondent submits that whereas there had been discussions with respect to capacity in 2021, the applicant’s representative has failed to provide compelling evidence to override the presumption of capacity at the time of the September 2022 Motion Order. Further, the respondent submits that the Tribunal was privy to any concerns about the applicant’s potential capacity issues when it made the September 2022 order dismissing the application as abandoned. This is evidenced by the reference to the procedural history in the Motion Order and in prior orders of the Tribunal.
25The respondent submits that the evidence confirms that the applicant was served with the respondent’s motion materials for the September 16, 2022 motion hearing personally and was also served with the Notice of Motion to Dismiss. It submits that the Tribunal was aware of questions related to the applicant’s capacity at the time of the August and September 2022 motion hearings. It submits that its motion materials included submissions it made in support of an earlier motion which referred to the respondent’s request that applicant’s counsel investigate whether the Office of the Public Guardian and Trustee (OPG&T) was involved in managing the applicant’s affairs. The materials also referred to a voice message from the OPG&T advising that they were not involved in the applicant’s case. The respondent submits that the Tribunal’s awareness of potential capacity issues can also be inferred from the adjudicator’s reference in the September 2022 Motion Order to a June 2021 Order which adjourned the case conference so that applicant’s counsel could contact the OPG&T. The respondent further submits that the applicant and his representative did not in any clear and definitive way, inform the Tribunal that the capacity issue would be an ongoing “live, material and central” issue on September 16, 2022 and the references are only to a potential capacity issue.
26I find that there is evidence that was not before the Tribunal that could not have been obtained previously. I find that although there were references in the evidentiary record and prior Tribunal Orders to questions about the applicant’s capacity, the evidence that has now been submitted by applicant’s counsel is new evidence that was not available at the time of the September 27, 2022 Motion Order, namely the capacity assessment dated May 2, 2023.
27The capacity assessment dated May 2, 2023 by [I.S], Designated Capacity Assessor, indicates that the applicant lacks capacity to retain and instruct counsel. This capacity assessment is the basis for the uncontested Order of the Superior Court of Justice dated July 7, 2023 which appoints [M.R], the applicant’s sister, as his litigation guardian for the tort claim in relation to the applicant’s May 2018 accident. This evidence was not before the Tribunal at the time of the hearing, and I find that it could not have been obtained previously because the applicant refused to consent to a capacity assessment until January 2023 and the assessment was conducted in May 2023.
28Turning to the question of whether the evidence would likely have affected the result, I find that it would. While I agree with the respondent that there is a presumption of capacity, in this case the record shows that the applicant was unrepresented at the time of the hearing. I therefore do not agree with the respondent’s argument that the applicant and his representative were somehow remiss in not advising the Tribunal about the issue of capacity earlier. Given the applicant’s lack of representation, it is unclear to me who would have raised the issue and adduced relevant evidence at the motion hearing if the applicant did lack capacity to participate. While the respondent submits that the applicant’s counsel could have raised it when withdrawing as the applicant’s counsel in July 2022, I find that this argument is not relevant to whether there is new evidence that meets the test under Rule 18.2(d) because the evidence in question did not exist at that time.
29I find that the evidence before me shows that questions about the applicant’s capacity were raised in June 2021 when the case conference was adjourned so that the applicant could find out if the OPG&T was involved. They were also raised in October 2021 when the applicant’s counsel requested funding for a capacity assessment in emails dated October 14 and 15, 2021. The applicant’s counsel subsequently removed themselves as counsel of record in July 2022 due to a breakdown in the communication. No capacity assessment was conducted so there was no evidence before the Tribunal relating to capacity. At that point, the applicant simply stopped participating in the Tribunal’s proceeding and the application was dismissed without a hearing in September 2022. It was not until January 2023 that the applicant’s family convinced him to undergo a capacity assessment and applicant’s counsel agreed to represent him again.
30While the respondent submits that the test for capacity is time specific and cites the decision in V. G. v. Western Assurance Company, 2020 CanLII 87985 (ON LAT) (“V.G.”) in support of its position. I am not bound by that decision and I find that it is distinguishable. In this case, the question is whether the applicant has established grounds for reconsideration and whether the new evidence would likely have changed the decision to dismiss the application as abandoned. In V.G., the question was whether the applicant, who had a mild traumatic brain injury, had the capacity to enter into a settlement agreement. The adjudicator determined that there were no reasonable grounds to believe the applicant was incapable of giving or refusing consent at the time he entered into the settlement agreement. In reaching this conclusion, the adjudicator looked to the evidence of a vocational assessment conducted shortly before the settlement agreement was signed, as well as a report by an occupational therapist and notes from other health professionals who were aware of his brain injury but had not raised a question of capacity. Three months after the settlement was signed, the applicant underwent a capacity assessment that concluded he lacked capacity. It was in that context that the adjudicator concluded that the subsequent capacity assessment did not negate the presumption of capacity at the time of signing the agreement.
31In this case, I find that if the capacity assessment had been available at the time of the hearing, which it was not, it would likely have changed the result of the decision to dismiss the application as abandoned because it sheds light on the questions being raised about the applicant’s capacity before the September 2022 motion hearing. In my view, the new evidence goes to the heart of the question of whether the applicant’s lack of participation and responses meant he had abandoned his application, or not.
32For the reasons set out above, I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(d).
33Turning now to the outcome of the reconsideration, pursuant to Rule 18.4, I am varying the Tribunal’s September 27, 2022 Motion Order which dismissed the applicant’s application without a hearing and vacated the videoconference hearing.
34I order that the matter proceed to a hearing and that a case conference be scheduled within 30 days of the release of this reconsideration decision so that the Tribunal may issue procedural and administrative directions as necessary for the conduct of the hearing.
CONCLUSION & ORDER
35The applicant’s request for reconsideration is granted.
36I order that the matter proceed to a hearing.
37A case conference will be scheduled within 30 days of the release of this reconsideration decision so that the Tribunal may issue procedural and administrative directions as necessary for the conduct of the hearing.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 28, 2024