RECONSIDERATION DECISION
Before:
Teresa Walsh
Licence Appeal Tribunal File Number:
22-012094/AABS
Case Name:
Reheleh Pourkhodayar v. The Personal Insurance Company
Written Submissions by:
For the Applicant:
Adam R. Little, Counsel
Karen Vigmond, Counsel
For the Respondent:
Philippa G. Samworth, Counsel
OVERVIEW
1On December 22, 2023, the applicant requested reconsideration of the Tribunal’s decision dated December 6, 2023 (“decision”).
2The decision followed a two-day videoconference hearing on October 30 and 31, 2023. In the decision, the Tribunal determined as a preliminary issue that on October 10, 2020, the applicant was not involved in an “accident” as defined by s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). As a result, the application was dismissed.
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). She submits that the Tribunal:
i. Engaged in a material breach of procedural fairness by permitting the respondent’s expert, Dr. Abdalla Shamisa, to provide opinion evidence not outlined in his reports, to which the applicant’s expert Dr. Mahmood Fazl was unable to respond.
ii. Erred in its application of the legal tests in determining whether the applicant was involved in an accident, made inconsistent findings of fact, and failed to consider relevant evidence.
5The applicant requests that the decision be overturned, resulting in a finding that on October 10, 2020, the applicant was involved in an accident as defined by s. 3(1) of the Schedule.
6The respondent submits that the applicant’s materials do not support the granting of a request for reconsideration as none of the criteria set out in Rule 18 have been established.
RESULT
7The applicant’s reconsideration request is dismissed.
PROCEDURAL ISSUES
8Rule 18.1 states that the submissions in support of the reconsideration request must not exceed 10 double-spaced pages in length, exclusive of evidence and authorities. In this case, the applicant’s submissions are 13 pages long, and therefore exceed the page limits in Rule 18.1.
9The respondent did not provide a position on the applicant exceeding the page limits for her submissions. As the adjudicator addressing the request for reconsideration, I exercise my discretion to allow the applicant’s submissions that exceed the page limits.
ANALYSIS
10The 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.
No material breach of procedural fairness under Rule 18.2(a)
11Contrary to paragraphs 32 to 38 of the applicant’s reconsideration submissions and paragraphs 3 to 8 of her reply, I find no material breach of procedural fairness in the Tribunal’s acceptance and reliance on hearing evidence of the respondent’s neurosurgeon expert, Dr. Shamisa.
12As noted at paragraphs 17 and 24 of the decision, there was no dispute at the hearing between the parties’ respective neurosurgeon experts that, on October 10, 2020, either the applicant’s spinal arteriovenous malformation (“AVM”) or spinal aneurysm ruptured, causing spinal hemorrhaging and resulting paraplegia in the applicant’s legs. The applicant relied on the opinion of its expert Dr. Fazl, submitting that events that occurred while the applicant was a vehicle passenger or driver that day were an accident because they caused an increase in blood pressure leading to the ruptured aneurysm. The respondent relied on Dr. Shamisa’s opinion, submitting it was more likely that the AVM ruptured and the vehicle was just the location, not the cause, of the rupture.
13The applicant submits that in violation of the expert disclosure requirements in Rules 10.2 and 10.3 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version 1 (October 1, 2017), which applied to this appeal, Dr. Shamisa did not include in his reports his hearing testimony that the onset and gradual progression of the applicant’s lower limb symptoms were more in keeping with an AVM rupture than an aneurysm rupture. The applicant further submits that its expert Dr. Fazl did not have an opportunity to respond to this new and untested evidence, resulting in a material breach of procedural fairness.
14As set out at paragraphs 6 to 8, 24 to 31 and 43 of the decision, both experts were examined in chief and cross-examined at the hearing. The respondent had an opportunity to cross-examine Dr. Fazl on hearing evidence not disclosed in his reports. The applicant had an opportunity to test Dr. Shamisa’s hearing evidence that the nature and timing of lower limb symptoms were more consistent with an AVM rupture than an aneurysm rupture. In my view, Dr. Shamisa’s hearing evidence flowed from his reports, wherein he consistently opined that the applicant’s AVM likely ruptured. For the reasons set out in paragraph 43 of the decision, the Tribunal ultimately preferred Dr. Shamisa’s evidence to that of Dr. Fazl.
15In summary, I find there was no procedural unfairness to the applicant by the Tribunal allowing and relying on Dr. Shamisa’s evidence, as the foundation for that evidence was set out in his reports and the applicant had the opportunity to challenge the evidence on cross-examination.
16The applicant has not established grounds for reconsideration pursuant to Rule 18.2(a).
No errors of fact or law under Rule 18.2(b), absent which a different result likely would have been reached
(i) No errors of fact or inconsistencies regarding AVM finding
17Contrary to paragraphs 39 to 41 of the applicant’s reconsideration submissions, I disagree that there are any errors of fact or inconsistencies in the Tribunal’s finding that a spontaneous rupture of her AVM likely caused the applicant’s injury.
18The applicant submits that in making the finding on the AVM rupture, the Tribunal failed to consider relevant evidence. It is well established that the Tribunal is not required to cite every piece of evidence in its reasons. I find that the Tribunal considered and weighed the evidence that it found to be relevant to the issues in dispute. At paragraphs 24 to 31 and 43 of the decision, the Tribunal’s reasoning regarding an AVM versus an aneurysm rupture is set out. The reconsideration process is not meant to be a reweighing of the evidence presented at first instance. I find that the applicant’s reconsideration submissions are an attempt to reargue her case.
19Further, I disagree with the applicant’s submission that the Tribunal’s finding at paragraph 44 of the decision, which acknowledges that the aneurysm may have ruptured due to high blood pressure, is inconsistent with the earlier finding that the AVM more likely ruptured. The earlier finding that the AVM more likely ruptured was based on the Tribunal’s analysis of the factual and medical opinion evidence. Separate and distinct from the earlier analysis, paragraph 44 of the decision was part of the Tribunal’s analysis that addressed the cause of the injury. The Tribunal found that regardless of whether the AVM or the aneurysm ruptured, the vehicle was simply the location where the injury occurred. The pre-existing AVM, not the vehicle, was determined to be the “but for” cause of the injury.
20Therefore, I find that the Tribunal made no factual errors or factually inconsistent findings that, had they not been made, would likely have led the Tribunal to reach a different result.
(ii) No errors in intervening act analysis
21I do not find, as submitted at paragraphs 4 to 24 of the applicant’s reconsideration submissions and paragraphs 11 to 14 of her reply, that the Tribunal made any of the following legal errors in applying the intervening cause aspect of the causation test:
i. In finding that the incident was similar to cases involving assault;
ii. In finding that the incident was “not in the ordinary course of things”; and
iii. In finding that the injury itself (the ruptured AVM/aneurysm and paraplegia) had to be reasonably foreseeable.
22In her reconsideration submissions related to this aspect of causation, the applicant references multiple Tribunal cases, many of which were also relied on by her at the initial hearing, as well as new cases. In doing so, the applicant is re-arguing her case. This is not a proper basis for reconsideration.
23The Tribunal considered the cases cited by the applicant at the initial hearing. Tribunal decisions are not binding, and therefore do not establish legal principles that I am required to follow. The introduction of new case law does not provide grounds for reconsideration under Rule 18.2(b).
24In sum, I find that the applicant has not demonstrated any errors of fact or law regarding the Tribunal’s intervening act analysis, such that the Tribunal would likely have reached a different result had the error(s) not been made.
(iii) No errors in dominant feature analysis
25Contrary to paragraphs 25 to 31 of the applicant’s reconsideration submissions, I find no legal error in the Tribunal’s analysis of the evidence and law and its conclusion that the use or operation of the vehicle was not a dominant feature of the applicant’s injury. As set out at paragraph 55 of the decision, the Tribunal found that the pre-existence of the applicant’s congenital AVM, and the consensus opinions of the parties’ experts that it (or the associated aneurysm) would eventually rupture, was the dominant feature of the applicant’s injury; the use or operation of the vehicle was ancillary.
26The applicant submits that in its analysis and conclusion, the Tribunal erred in viewing causation from a medical perspective and prematurely ending its analysis at the presence of the applicant’s pre-existing condition. The applicant further submits, as she did at the hearing, that there can be more than one direct cause or dominant feature of an applicant’s injury. The applicant submits that here, the use or operation of the vehicle during the sequence of events triggered by the arrival of the motorcyclists and continuing over approximately 30 minutes, was a dominant feature of the applicant’s AVM/aneurysm rupture and resulting paraplegia.
27Once again, the applicant submits that Tribunal cases relied on at the hearing should be re-considered to produce a different result here – that, even though the applicant had a pre-existing condition, the use or operation of the vehicle on October 10, 2020, was a dominant feature of her injury. The applicant’s submission does not accord with the reconsideration process. A reconsideration is not a re-argument of the initial hearing. Tribunal cases are not binding and do not demonstrate an error of fact or law.
28In arriving at its finding on the dominant feature of the applicant’s injury, the Tribunal carefully considered the evidence and law. I find that the applicant has not identified any factual or legal errors absent which the Tribunal likely would have found that the use or operation of the vehicle was a dominant feature in the applicant’s injury.
29The applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
CONCLUSION
30The applicant’s request for reconsideration is dismissed.
Teresa Walsh
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 6, 2024```