RECONSIDERATION DECISION
Before: Matthew Frontini, Adjudicator
Licence Appeal Tribunal File Number: 21-006975/AABS
Case Name: Nino Abasolo v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Jane Conte, Counsel
For the Respondent: Yann Grand-Clement, Counsel
OVERVIEW
1On August 9, 2024, the applicant requested reconsideration of the Tribunal’s decision dated July 22, 2024 (“decision”).
2In the decision, I found that the applicant is not entitled treatment plans for physiotherapy services, assistive devices, an attendant care assessment. I did find that the applicant was entitled to a driver evaluation assessment plus interest.
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’s request for reconsideration is grounded in Rule 18.2(c). The applicant has submitted as part of his reconsideration request over 180 pages of clinical notes and records (CNRs) and assessment reports that were not before me when I rendered the decision.
5The respondent opposed the request for reconsideration on the basis that the applicant has not established that the new evidence meets the test set out in Rule 18.2(c). Specifically, the respondent’s position is that the applicant has not established that the new evidence could not have been previously obtained or that it would have likely affected the result.
RESULT
6The applicant's request for reconsideration is dismissed.
ANALYSIS
The applicant has not established is the new evidence could not have been obtained previously
7I find that the applicant has not established that the new evidence that has been tendered with the request could not have been previously obtained and has therefore not demonstrated that reconsideration is warranted.
8The 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.
9In this matter, the applicant is seeking a reconsideration under Rule 18.2(c) which requires the applicant to demonstrate:
a. The new evidence was not before the Tribunal in rendering the decision;
b. The new evidence could not have been previously obtained; and
c. The new evidence would likely have affected the result.
10The applicant’s request does not explicitly argue that the new evidence could not have been previously obtained. However, the applicant appears to suggest that they were “prohibited” from filing any additional materials in this application by a February 7, 2023 Motion Order. This is incorrect.
11The February 7, 2023 Motion Order arose from a motion filed by the respondent for an order dismissing the application as abandoned on the basis that the applicant had not filed his written submissions in accordance with the deadline established in the May 26 2022 Case Conference Report and Order. As part of the motion, the applicant argued that he was late in filing his hearing submissions because he recently discovered important new medical evidence, an MRI report, dated December 28, 2022. The applicant also noted that the MRI report included a referral for a possible follow-up assessment by a neurologist and sought a timetable to accommodate this potential assessment as evidence for the hearing. The respondent opposed the applicant’s reliance on the MRI report on the basis that it was served outside the production deadlines.
12In denying the Respondent’s motion, the Tribunal allowed the December 28, 2022 MRI report in the hearing evidence, ordered a brief adjournment to allow the respondent time to address the MRI Report, and set a new timetable for written hearing submissions. However, the February 7, 2023 Motion Order specifically stated that a new hearing timetable would not be based on a hypothetical neurological assessment that had not been scheduled at the time of the motion. For the applicant to assert that this specific ruling was a blanket prohibition on their ability to file any further evidence in this application, for example with proper notice by motion, is a misstatement of the February 7, 2023 Motion Order.
13The balance of the applicant’s reconsideration submissions describes the over 180 pages of new evidence appended thereto. This new evidence consists of clinical notes and records which span a period of time beginning prior to the deadline for the applicant’s submission and ending after the hearing; as well as reports of assessments conducted after the hearing. The applicant asserts that this evidence establishes that the treatment plans disputed at the hearing are reasonable and necessary.
14The respondent argues that the applicant could have provided the productions it now relies on in connection with the original submission deadlines. In particular, the respondent notes that the Tabs 4, 5, 6 and 8 were received by counsel for the applicant or contain records that pre-date the deadline for the applicant’s submissions. The respondent notes the procedural history of this application, specifically the February 7, 2023 Motion Order, provided the applicant with the opportunity to admit new evidence outside of originally ordered production deadlines. In the respondent’s submission, the applicant could have, but did not, choose to file a motion to allow for the filling of this new evidence prior to the release of the decision.
15I find that the applicant has not met his burden in establishing that reconsideration is warranted. The test is not simply whether the new evidence was not before the Tribunal, but whether it could not have been obtained previously. The applicant’s reconsideration submissions do not make any arguments regarding this component for reconsideration pursuant to Rule 18.2(c despite the respondent raising it. The applicant also did not file reply submissions, which was a further opportunity to address this key deficiency in the request for reconsideration.
16I also find the applicant’s lack of submissions on whether the new evidence could have been previously obtained relevant to his reliance on new assessments that were not before the Tribunal in rendering the decision. The medical legal opinions of Dr. Wong and Dr. Badhiwala and the “Future Care Costs Assessment” (Tabs 10-12), which the applicant seeks to have considered in this request, were prepared in 2024. This medical evidence was created after the deadline for submissions but before the decision was released. As with the other new evidence, the applicant does not provide any submissions as to why these opinions and the assessment were obtained so late, after the hearing date, or why they could not have been obtained earlier. A reconsideration is not an opportunity for parties to correct the shortcomings of their submissions and evidence once highlighted by the Tribunal. Again, as stated in the decision, the parties are required put their best foot forward when first called upon to do so.
17In finding that the applicant has not met their onus in establishing that the new evidence could not have been obtained previously, there is no need to consider whether this new evidence would have likely affected the result. Therefore, the applicant has not proven that a reconsideration is warranted under Rule 18.2(c) for the reasons set out above.
CONCLUSION & ORDER
18For the reasons noted above, I dismiss the applicant's request for reconsideration.
Matthew Frontini
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 28, 2024