RECONSIDERATION DECISION
Before:
Brian Norris
Licence Appeal Tribunal File Number:
22-015198/AABS
Case Name:
Bird v. Definity Insurance Company (formerly Economical Mutual Insurance Company)
Written Submissions by:
For the Applicant:
Kriti Sachdeva, Counsel
For the Respondent:
Jessica Meyerovich, Counsel
OVERVIEW
1This request for reconsideration was filed by Dennis Bird (“the Applicant”). It arises out of a decision released August 16, 2024 (“the initial decision”) in which I found that the Applicant did not notify the Respondent of the accident in accordance with section 32(1) of the Schedule and had not provided a reasonable explanation for the delay. As a result, the Applicant was barred from proceeding with his application pursuant to section 55(1)1 of the Schedule.
2The Applicant submits that the Tribunal made an error of law of fact when considering the context of his personal circumstances, specifically his pre-existing psychiatric condition, at the time of, and in the months following, the accident, and that the Tribunal would likely have reached a different result had the error not been made. He further submits that the Tribunal erred when interpreting the reasonable explanation test outlined in Horvath v Allstate Insurance Company, 2003 ONSFCDRS 92 (“Horvath”). In the alternative, the Applicant submits that additional evidence in the form of his family physician’s clinical notes and records (“CNRs”) that was not before the Tribunal when rendering the decision would likely affect the result. He seeks a finding that he is not barred from proceeding with his application and is entitled to proceed to a hearing for a determination of the substantive issues in dispute.
RESULT
3The Applicant’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “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;
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.
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
6The 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.
The Applicant’s claims of an error of law are an attempt to relitigate the initial decision
7I find the Applicant’s submissions regarding an error of law are an attempt to relitigate the initial decision.
8The Applicant’s pre-existing psychiatric condition was considered in the initial decision, and I found no evidence that the condition impacted his ability to notify the Respondent of the accident. The impact of the Applicant’s pre-existing psychiatric condition was considered in paragraphs [15] and [16] of the initial decision. The analysis provided in those paragraphs is the objective and subjective test that takes account of both the personal characteristics and a “reasonable person” standard, as outlined in Horvath. The conclusion in the initial decision was that there was no evidence to suggest that the Applicant’s condition prevented him from notifying the Respondent of the accident. It was further noted that the Applicant’s condition was managed well enough at the time of the accident to enable him to engage in full-time employment at the time of the accident and thereafter. On reconsideration, I see no basis to interfere with the initial findings.
9The Applicant’s submissions on this ground amount to no more than an attempt to relitigate the initial dispute. The Reconsideration process is not the venue to engage in the re-weighing of evidence. Accordingly, I dismiss the Applicant’s request on the ground that an error of law or fact occurred that the Tribunal would have reached a difference decision had the error not occurred.
The updated medical records do not affect the results of the initial decision
10I find that the Applicant’s updated medical records, specifically the updated records of his family physician, Dr. M. Harbinson, do not affect the results of the initial decision.
11The updated CNRs do not affect the results of the initial decision because the initial decision turned on whether the Applicant had a reasonable explanation for the eight-month delay in reporting his accident to the Respondent. The CNRs provided by the Applicant post-date the period of delay, thus, they provide no additional insight into the Applicant’s circumstances immediately following the accident. At issue in the initial decision is not what transpired after the Applicant notified the Respondent of the accident, rather, what transpired after the accident but before the Applicant gave the Respondent notice. As I found in the initial decision, there is no evidence in the Applicant’s medical record that his pre-existing psychiatric condition affected his ability to notify the Respondent of the circumstances of the accident. Accordingly, the Applicant’s request on the grounds that new evidence would affect the outcome of the initial decision is dismissed.
CONCLUSION & ORDER
12For the reasons above, I find no error of fact or law such that the Tribunal would likely have reached a different result had the error not been made. Similarly, I find that the evidence produced by the Applicant would not have an affect on the outcome of the initial decision.
13The Applicant’s request for reconsideration is dismissed.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 5, 2024