RECONSIDERATION DECISION
Before: Michael Beauchesne
Licence Appeal Tribunal File Number: 23-001389/AABS
Case Name: Chung Jin Park v. Geico Insurance Company
Written Submissions by:
For the Applicant: Chung Jin Park, applicant
For the Respondent: Michael Blinick, Counsel
OVERVIEW
1On October 4, 2024, the applicant requested reconsideration of the Tribunal’s decision dated September 16, 2024 (“decision”).
2The decision dismissed the application, finding that the applicant was not entitled to an income replacement benefit (“IRB”) or interest. The thrust of the applicant’s position was that his accident-related injuries rendered him unable to perform the essential tasks of his self-employment as a marketer since the accident on September 5, 2020. The applicant relied near-exclusively on an MRI report to substantiate his IRB claim. The applicant maintained that although he performed no work post-accident, he entered into an 18-month employment contract with a law firm in 2021 as a means of being compensated for referrals of accident benefits claims he made to this law firm between 2009 and up to June 2020. As such, the applicant’s position was that the employment income he reported to the Canada Revenue Agency (CRA) for tax years after the accident was not income he actually worked to earn.
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.
4In this case, the applicant is arguing criteria (a), (b), and (c) as outlined in Rule 18.2.
5The applicant requests the hearing be redone. The respondent asks that the applicant’s reconsideration request be dismissed and the decision upheld.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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(a): The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness
8I find the Tribunal was procedurally fair throughout the hearing.
9The applicant’s reconsideration request submissions voice doubts about fairness and procedural issues. Specifically, the applicant submits the Tribunal only considered the insurance company's position without looking at the applicant's perspective. He emphasizes, both in his reconsideration request submissions and reply, that his MRI evidence was unfairly discounted by the Tribunal. He also argues that the Tribunal ignored his repeated concerns about the quality of interpretation provided during the hearing, as well as his requests for a different interpreter.
10The respondent submits the Tribunal properly evaluated the evidence and duly considered the MRI report completed by Dr. Abud Qureshi (physician), the treatment records of Polyhealth Physiotherapy and the applicant’s income and employment records. The respondent does not address the applicant’s interpretation complaints in its submission.
The Tribunal fairly considered the applicant’s evidence
11I disagree with the applicant’s position that the Tribunal did not consider his arguments and evidence (i.e., “perspectives”).
12At paragraph 24 of the decision, the Tribunal considered Dr. Quershi’s MRI report, which was relied upon heavily by the applicant to prove his claim. The Tribunal accepted the report as evidence of chronic neck and low back pain, as well as early cervical myelopathy, which does not support the applicant’s reconsideration request claim that the Tribunal denied these injuries. The Tribunal placed little weight on these medical conditions as evidence of a substantial inability to perform essential self-employment tasks because the applicant failed to point to a corresponding medical opinion offered by Dr. Qureshi—or any other of the applicant’s own treatment and assessment providers—that substantiated disability owing to these injuries. Put differently, sustaining accident-related injuries does not inescapably lead to a finding that the IRB test at section 5(1) is met; the applicant needed to prove his accident-related injuries are disabling and this is where his case failed.
13The Tribunal also considered the treatment records of Polyhealth Physiotherapy and the Lafayette Acupuncture Clinic. At paragraph 25 of the decision, the Tribunal notes that while this evidence established the applicant underwent treatment for his accident-related injuries, the records did little to prove his IRB claim because the applicant did not point to evidence in these records that establishes treatment goals and progress pertaining to his ability to work, or a medical opinion that he was unable to perform his self-employment duties since his accident.
14At paragraph 26 of the decision, the Tribunal considered the applicant’s financial and employment evidence. The Tribunal determined that the applicant’s offer of employment from a law firm (dated September 28, 2021) and CRA remuneration statements (“T4 slips”) for tax years 2022 and 2023 established he was employed and working during the pre-and-post 104-week periods of the applicant’s IRB claim. At paragraph 27, the Tribunal grappled with the applicant’s argument that these remuneration statements reflected income that was earned for work completed prior to the accident (i.e., 2009 to 2020). The Tribunal found, on a balance of probabilities, that the applicant’s post-accident employment income—as reported to the CRA—was most likely not a retroactive gesture of gratitude from the law firm for accident benefits claim referrals made by the applicant between 2009 and 2020.
The applicant’s complaints about interpretation services were addressed fairly by the Tribunal
15I find no procedural fairness issues in how the Tribunal addressed the applicant’s concerns about the quality of translation, nor his request for a different interpreter.
16While not reflected in the decision, I agree the applicant raised concerns during the hearing about the quality of interpretation and requested a different interpreter. The applicant voiced these concerns on the second day of the hearing when oral submissions were made. The applicant was concerned that his words were not being interpreted accurately, and that, resultantly, I was not correctly understanding what he was saying. I am satisfied, however, that the applicant’s concerns were addressed at the hearing to his satisfaction. As such, the Tribunal was not required to make any orders, and this is why the decision is silent on this procedural matter.
17I find the applicant’s argument is hampered because he failed to produce a copy of the hearing transcript to substantiate that his concerns and requests were ignored. In my view, the Tribunal was responsive to, and engaged with, the applicant’s complaints. When the applicant voiced his concerns about interpretation and requested a different interpreter, I offered—as an alternative to adjourning the proceeding to obtain a new interpreter—to recount my understanding of the applicant’s submissions back through the interpreter to affirm whether the applicant’s submissions had been accurately conveyed and understood. Through this process, the applicant subsequently confirmed—partway through and at the conclusion of his oral hearing submissions—that his arguments had been accurately interpreted.
18While the applicant’s reconsideration request submissions broadly indicate that paragraphs 25, 26, 27, and 28 of the decision demonstrate the Tribunal did not understand what he said, he fails to pinpoint what aspects of these paragraphs he relies on to show that poor quality interpretation led to confusion about what he said during his oral submissions.
19I am therefore satisfied that the applicant’s complaints about interpretation, and his request to replace the interpreter, were addressed in a procedurally fair manner.
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
20I find the Tribunal made a factual error in determining that the applicant’s total self-employment income on his 2020 personal income tax return was $21,969.00. However, I disagree the Tribunal would have reached a different result had this error not been made. I also disagree the Tribunal made any other factual errors in its decision as raised by the applicant.
21The applicant’s reconsideration request submissions indicate the Tribunal made errors of fact pertaining to:
a. The applicant’s sole ownership of Total Accident Paralegal in 2021;
b. The applicant’s 2020 earnings;
c. Whether the applicant went to the United States in June of 2020;
d. The applicant’s accountability for the information included on the OCF-1
22The respondent does not specifically address each of the applicant’s error claims. Rather, the respondent generally submits the Tribunal determined the applicant was most likely employed and working during the pre-and-post 104-week periods after reviewing the applicant’s income tax and employment records. The respondent goes on to say that most of the points raised by the applicant were addressed in the decision and that the applicant is improperly using the reconsideration request as an opportunity to re-litigate the same issues. The respondent also asserts that the applicant failed to establish why the Tribunal would have arrived at a different conclusion if any of the errors he claims had been made.
23The bulk of the applicant’s error-of-fact arguments in his reconsideration request submissions pertain to paragraphs 21 and 22 of the decision. Referring to paragraph 22 of the decision, the applicant submits: “The adjudicator said that I did not go (emphasis added) to the United States in June 2020, which is not true.” I disagree. At paragraph 22 of the decision, the Tribunal notes the applicant visited California in June 2020 and subsequently relocated there in December of 2020. In my view, the Tribunal articulates these facts in a way that is consistent with the applicant’s reconsideration request submissions, in which he reiterates his hearing submissions about his travels to the United States between June and December 2020, stating that he drove to California on June 29 and returned to Toronto in mid-July until December 23 when he went back to the United States to be with a family member. While I agree the new evidence introduced by the applicant with his reconsideration request (i.e., the apartment rental agreement dated July 5, 2020, and the brokerage documentation and U.S. Customs declarations dated June 26, 2020, and July 1, 2020, respectively) supports his position that he was in California in June 2020, I find this evidence is of little value because the Tribunal had accepted the applicant’s June 2020 travel to the United States as a fact in its decision.
24Similarly, I see no error of fact with the Tribunal’s finding, at paragraph 21 of the decision, that the applicant indicated he was self-employed at Part 5 of his October 2020 OCF-1. The applicant explains, in his reconsideration request submissions, that he did not complete the OCF-1 himself (i.e., he signed a blank OCF-1 that someone at Polyhealth Physiotherapy later filled out). However, the applicant did not lead evidence that causes me to doubt the accuracy or authenticity of the information provided in the OCF-1. Moreover, I find this is a new argument that was not raised at the hearing and is therefore not properly before the Tribunal in the context of a reconsideration request. This is underscored in the applicant’s reconsideration request submissions, where he indicates only that he “already explained it to the insurance company” and does not say he argued the OCF-1 was inaccurate at the time of the hearing or produce the hearing transcript to show he voiced concerns about the accuracy of the OCF-1.
25Even if I were to find the Tribunal erred at paragraph 22 of the decision by accepting the applicant’s OCF-1 attestation as persuasive evidence of self-employment at the time of the accident, it would not lead to a different result. This is because the OCF-1 evidence was just one of several factors specified at paragraph 22 of the decision (i.e., his consistent reports to IE assessors and CRA records) that informed the Tribunal’s finding on the applicant’s self-employment status at the time of the accident.
26I agree that the Tribunal made a factual error with regards to the applicant’s 2020 tax year reassessment of his self-employment income. The Tribunal noted the applicant’s reassessment showed his total income as $21,969.00. In fact, this is the applicant’s total income on his last assessment and the total income for reassessment was indeed $35,769.00 as articulated in the applicant’s reconsideration request submissions. However, I find the Tribunal would not have reached a different result had this error not been made. This is because the applicant’s 2020 tax reassessment was weighed as evidence that demonstrated he was self-employed at the time of the accident. In this context, whether the applicant earned $21,969.00 or $35,769.00 for the 2020 tax year is immaterial and would not change the Tribunal’s finding that the applicant was self-employed at the time of the accident. While the applicant’s reconsideration request submissions also argue that the tax reporting period of the applicant’s company was from October 1, 2019, to September 30, 2020, I find this has little bearing on the total income claimed on his 2020 personal tax return.
27Given that the applicant’s reconsideration request submissions about his ownership share of Total Accident Paralegal rely on evidence that was not before the Tribunal at the time of the hearing, I have addressed this in the next section of the decision.
Rule 18.2(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
28I find the applicant has failed to produce evidence that was unobtainable prior to the conclusion of the hearing, or that would likely have affected the Tribunal’s decision.
29The applicant submits he is not the sole shareholder of Total Accident Paralegal and relies on a 2017 Instrument of Transfer document to support his position. The respondent submits the Tribunal can refuse to accept “new evidence” if it determines this evidence was readily available at the time of the hearing.
30While I agree the Instrument of Transfer—which details the purchase of common shares in Total Accident Paralegal by another party in 2017—was not before the Tribunal at the time of the hearing, the applicant’s reconsideration request submissions fail to address why this evidence could not have been obtained previously (i.e., prior to the end of the hearing). In my view, the Instrument of Transfer was presumably available since 2017 when it was completed and therefore ought to have been previously obtainable by the applicant. Even if I were to accept this evidence was unavailable to the applicant up to the time of the hearing, the applicant’s argument would still fail because his reconsideration request submissions are silent on how this evidence would likely have affected the result.
31For completeness, and given the applicant’s reconsideration request submissions argue the Tribunal was wrong to conclude the applicant was the sole shareholder of Total Accident paralegal, I shall address that here too.
32I see no error in the Tribunal’s finding. The applicant’s ownership is addressed at paragraph 21 of the decision, where it says “… shareholder information provided to the CRA (Canada Revenue Agency) for the 2021 tax year identified the applicant as owning 100 per cent of the company.” The Instrument of Transfer produced by the applicant speaks to a transaction made in July 2017 and, in my view, does not change the fact that, several years later, the applicant reported himself as the sole shareholder of Total Accident Paralegal in 2021.
CONCLUSION & ORDER
33The applicant’s request for reconsideration is dismissed.
Michael Beauchesne
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 6, 2024