RECONSIDERATION DECISION
Before: Ludmilla Jarda
Licence Appeal Tribunal File Number: 22-002478/AABS
Case Name: Julio Mendoza v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Justin Mariani, Paralegal
For the Respondent: Colleen Mackeigan, Counsel
OVERVIEW
1On July 18, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) decision dated June 27, 2024 (“decision”).
2In its decision, the Tribunal found that the applicant’s injuries are predominantly minor and, therefore, are subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“MIG”). The Tribunal further found that the applicant was not entitled to income replacement benefits (“IRB”), the disputed treatment plans, interest, and an award. The Tribunal dismissed the application.
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 is seeking reconsideration pursuant to Rules 18.2(a), and (b). The applicant submits that the Tribunal:
a. Violated the rules of procedural fairness; and
b. Made errors of law and fact in concluding that the applicant’s injuries can be treated within the MIG, and in finding that the respondent’s notice of termination of entitlement to IRB and the denials of the disputed treatment plans were compliant with the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
5Although the applicant is also seeking reconsideration pursuant to Rule 18.2(c), he has not identified any new evidence in support of his request.
6The applicant seeks an order confirming that the Tribunal erred in finding that the respondent’s notice of termination of entitlement to IRB and denials of the disputed treatment plans were compliant with Schedule, and that the applicant is entitled to IRB from February 13, 2020 to date and ongoing and to the disputed treatment plans. In the alternative, the applicant requests a rehearing of all the issues.
7The respondent submits that none of the criteria for reconsideration have been met in the present case. The respondent states that the applicant’s disagreement with the weight placed on his evidence by the Tribunal is not a valid ground for reconsideration. Further, the Tribunal properly considered all the evidence related to the issues in dispute, considered the arguments advanced by the parties, and applied the provisions of the Schedule. As such, the applicant’s request for reconsideration should be dismissed.
RESULT
8The applicant’s request for reconsideration is dismissed.
PROCEDURAL ISSUE
9The applicant has failed to comply with the page limit set out in Rule 18.1(c)(i) as the applicant’s page count for reconsideration submissions is over 11 pages double-spaced, and the Rule provides that submissions for a request for reconsideration must not exceed 10 double-spaced pages in length, exclusive of evidence and authorities. Although the respondent indicated in its responding reconsideration submissions that the applicant’s reconsideration submissions were non-compliant, no relief was sought in this regard. Further, the applicant did not make any submissions relating to his non-compliance, despite having the opportunity to do so.
10In the circumstances, I am prepared to consider the additional pages contained in the applicant’s reconsideration submissions. The page limit has been ignored, however, to a minor degree. Indeed, the page limit is exceeded by a little over one page, and primarily deals with the relief sought by the applicant on reconsideration. Further, the respondent did not provide any submissions as to any prejudice it sustained as a result of the applicant exceeding the page limit.
ANALYSIS
11The 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 decision, or 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(a): Material breach of procedural fairness
12I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness pursuant to Rule 18.2(a).
13The applicant submits that the Tribunal misapprehended the evidence in concluding that his injuries could be treated within the MIG. The applicant also submits that the Tribunal erred in finding that the respondent’s notice of termination of entitlement to IRB complied with s. 37(6) of the Schedule and that the respondent’s denials of the disputed treatment plans complied with s. 38(8) of the Schedule. The applicant further alleges that the Tribunal did not consider several of his submissions relating to the applicability of the MIG as well as to his entitlement to IRB and the disputed treatment plans as they were not specifically referenced in the decision. The applicant relies on Baker v. Canada (Ministry of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817.
14I do not agree with the applicant’s submissions and find no violation of the rules of procedural fairness.
15I find that the applicant’s arguments regarding an alleged breach of procedural fairness are directly tied to his submissions regarding alleged errors of law and fact.
16I further find that the applicant had the opportunity to fully argue his case at first instance, and that he is attempting to relitigate his claim for entitlement to IRB and to various medical and rehabilitation benefits beyond the monetary limits of the MIG.
17As indicated at paragraphs 18-78 of the decision, the Tribunal considered the evidence and submissions of the parties as well as the applicable law, and it provided detailed reasons for its decision. Further, while the applicant asserts that the Tribunal did not consider his reply submissions, the Tribunal expressly references his reply submissions in paragraphs 13 and 81 of the decision.
18Further, the Tribunal was not required to make specific reference to all submissions made by the applicant relating to the issues in dispute in rendering its decision, and the absence of these references does not amount to a material breach of procedural fairness.
19It is well established that the Tribunal is not required to explicitly identify every piece of evidence and submissions advanced by the applicant (see: Caputo v. Aviva General Insurance Company, 2021 CanLII 124042 (ON LAT) (“Caputo”), at paras 5 and 6). Moreover, the Supreme Court of Canada held that administrative decision makers cannot be expected to respond to every argument or line of possible analysis or to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice (see: Canada (Minister Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), at para 128).
20Accordingly, I find that there is no material breach of procedural fairness. As such, I find that the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): Error of law or fact
21I find that the applicant has not established that the Tribunal made an error of law or fact in its determination of the applicability of the MIG and the applicant’s entitlement to IRB and the disputed treatment plans.
22The applicant submits that the Tribunal made several errors.
23The applicant submits the Tribunal made an “obvious error” when it determined that the applicant’s initial written hearing submissions exceeded the allotted page limit by a significant amount. While the applicant acknowledges that the Tribunal’s finding did not ultimately impact the decision, the applicant reiterates that there are three pages of heading, issues in dispute, and relief sought, and seven pages for evidence and caselaw embedded within the written submissions.
24As indicated at paragraphs 5-10 of the decision, the applicant’s written hearing submissions exceeded the page limit ordered by the Tribunal by a significant amount. Specifically, the page limit set out in the Case Conference Report and Order (CCRO) dated January 26, 2023 was 15 pages, and the applicant’s written hearing submissions page count was 25 pages. While the applicant argues on reconsideration that the 10 additional pages included three pages for headings, issues in dispute, and relief sought, and seven pages for evidence and case law embedded within the written submissions, the applicant provided the same explanation at first instance. A reconsideration is not an opportunity to reargue a position that was not accepted by the Tribunal at first instance. Further, the fact that the Tribunal considered and ruled on the applicant’s non-compliance with the CCRO does not amount to an “obvious error.”
25The applicant submits that the Tribunal made an error when it considered the evidence of Dr. Alfonse Marchie, physiatrist. The applicant argues that in considering whether the applicant’s injuries should be treated within the MIG, the Tribunal did not consider Dr. Marchie’s finding that the applicant continued to have a need for therapeutic intervention.
26The Tribunal provided detailed reasons at paragraphs 18-35 of the decision and ultimately concluded that the applicant had not proven, on a balance of probabilities, that he suffered from injuries that are not predominantly minor in nature as defined in the Schedule.
27Further, although the Tribunal did not indicate in the decision that Dr. Marchie encouraged the applicant to participate in self-directed aerobic activities, daily stretches, and core strengthening exercises, I find that the Tribunal would likely not have reached a different result had this information been expressly indicated in the decision. As noted at paragraph 29 of the decision, ultimately, it was Dr. Marchie’s opinion that, from a physical perspective, the applicant sustained predominantly soft tissue injuries consistent with the MIG. Also, as indicated above, the Tribunal is not required to address every piece of evidence and argument presented by the parties in a written decision (see: Caputo and Vavilov).
28The applicant submits that the Tribunal made an error when it incorrectly characterized the evidence as not supporting a finding of chronic pain based on the records from New Jane Medical. The applicant states that there is no reference to the applicant’s reply submissions noting references to “chronic back pain.”
29As indicated at paragraph 27 of the decision, the Tribunal found the applicant’s submissions and evidence that Dr. Jalal Alled, the applicant’s family physician at New Jane Medical, was unpersuasive. Although Dr. Alled’s handwritten notes were difficult to read, the diagnosis sections of his notes were legible, and there were no indications in the diagnosis sections to support that Dr. Alled diagnosed the applicant with chronic back pain as a result of the accident.
30The applicant submits that the Tribunal made an error when it determined that the respondent’s notice of termination of entitlement to IRB contained sufficient medical and other reasons, as required by s. 37(6) of the Schedule. The applicant states that the Tribunal did not provide sufficient reasons, and that he should not be obligated to review three detailed insurer examination reports to determine the reasons why his entitlement to IRB was terminated. The applicant alleges that he remains in the dark as to the reasons why this benefit was terminated.
31I find that the applicant’s argument on reconsideration is similar to the argument made at first instance. This position was previously considered by the Tribunal, and the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision. Further, as indicated at paragraphs 35-62 of the decision, the Tribunal concluded that the applicant did not demonstrate, on a balance of probabilities, that he was entitled to IRB. The Tribunal identified the relevant sections of the Schedule and the applicable case law and determined, based on the evidence and submissions of the parties, that the respondent’s notice of termination of entitlement to IRB provided sufficient medical and other reasons as required by s. 37(6) of the Schedule. While the applicant does not agree with the Tribunal’s finding, this does not give rise to grounds for reconsideration.
32The applicant submits that the Tribunal made an error when it determined that the respondent’s denials of entitlement to the disputed treatment plans were compliant with the Schedule. The applicant argues that stating that the MIG applies to the applicant’s injuries and that the monetary limit of the MIG has been exhausted are not sufficient reasons to comply with the requirement set out in the Schedule and the applicable case law. The applicant also argues that the Tribunal misrepresented the applicant’s position with respect to a missing denial letter for a treatment plan dated October 24, 2020 for chiropractic treatment in the amount of $2,569.40 by indicating that his “submissions are silent on the validity of the missing denial letter,” and that the applicant’s position was that there was no evidence that a response had been provided.
33The Tribunal provided through reasons at paragraphs 63-78 of the decision. The Tribunal concluded that the applicant had not demonstrated, on a balance of probabilities, that the respondent had breach its obligation to provide sufficient medical and other reasons when it denied the applicant’s entitlement to the disputed treatment plans pursuant to s. 38(8) of the Schedule. As a result, the applicant did not establish that the disputed treatment plans were payable pursuant to s. 38(11) of the Schedule.
34Further, while I agree that the applicant argued at first instance that no response was provided with respect to a treatment plan dated October 24, 2020 for chiropractic treatment in the amount of $2,569.40, I find that the applicant is mischaracterizing the evidence tendered at first instance. As indicated at paragraph 75 of the decision, no treatment plan matching this description was tendered as evidence. Also, given that the applicant relied at first instance on a treatment plan dated October 1, 2020, it remains unclear whether a treatment plan dated October 24, 2020, which is the disputed treatment plan, exists. In addition, the treatment plan dated October 1, 2020 was not identified as an issue in dispute in the CCRO.
35I find that the applicant’s arguments on reconsideration with respect to the validity of the respondent’s denial notices are similar to the arguments made at first instance and that the applicant is attempting to relitigate the Tribunal’s findings.
36For the reasons outlined above, I do not agree with the applicant’s submissions, and I find no error in law or fact in the Tribunal’s decision.
37The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the applicant’s submissions and evidence does not support that the Tribunal made an error of law or fact. In the decision, the Tribunal considered the parties submissions and evidence, highlighted the evidence that it considered more relevant to the issues in dispute, assigned weight accordingly, and concluded that the applicant’s injuries could be treated within the MIG, and that the respondent’s notices and denials were compliant with ss. 37(6) and 38(8) of the Schedule respectively.
38Accordingly, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(b).
Rule 18.2(c): New Evidence
39I find that the applicant has not demonstrated that there is new evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the applicant, and would likely affect the result. As such, the applicant has not satisfied the criteria of Rule 18.2(c).
40The applicant has not directed the Tribunal to any new evidence, rather, he directs the Tribunal to the Cruz v. Western Assurance Company, 2024 CanLII 67342 (ON LAT) (“Cruz”) decision. The Cruz decision was released on July 15, 2024, after the written hearing had concluded. The applicant argues that the facts in Cruz are sufficiently similar to the present case and that the Tribunal should have arrived at the same decision and concluded that the respondent’s notices and denials did not contain sufficient medical and other reasons as required by the Schedule.
41As case law is not evidence, I find that the applicant has not tendered any new evidence to satisfy the criteria of Rule 18.2(c). Accordingly, the applicant has not established grounds for reconsideration of the decision under this Rule.
CONCLUSION & ORDER
42The applicant has failed to establish grounds for reconsideration under Rules 18.2(a), (b), or (c).
43The applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 13, 2024