RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 22-000947/AABS
Case Name: Colleen Buma v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Arthur Camporese, Counsel
For the Respondent: Olga Elmanova, Counsel
OVERVIEW
1On October 19, 2023, the applicant requested reconsideration of the Tribunal’s amended decision that was released to the parties on September 28, 2023 (“decision”).
2In the decision, the Tribunal found the applicant’s psychological injuries did not meet the definition of “accident” in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the applicant’s accident-related injuries are predominantly minor and therefore subject to the Minor Injury Guideline (“MIG”), the applicant is not entitled to an income replacement benefit (IRB), treatment plans for psychological services, interest or an award.
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 requests reconsideration pursuant to Rule 18.2(a) and (b). The applicant is seeking an Order:
a. cancelling paragraphs 5(i) to (iv) of the decision;
b. that the respondent’s denial letters responding to the disputed Treatment Plan[s] do not comply with sections 38(8) and 38(9) of the Schedule;
c. that the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies as a consequence of section 38(11)(1);
d. that the respondent shall pay for all goods, services, assessments and examinations described in the disputed treatment plans as a consequence of section 38(11)2 of the Schedule with applicable interest;
e. that the Tribunal shall rehear the issues of whether the applicant’s psychological impairment was caused by the accident, and whether the applicant is entitled to an IRB.
5The respondent argues the request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is granted.
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.
8I find the applicant has established grounds for reconsideration pursuant Rule 18.2(b) for the following reasons.
9By way of brief background, the applicant viewed a dashcam video of the September 11, 2021 motor vehicle accident she was involved in. While viewing the video, she recognized a house in the background where she once lived and was the victim of abuse. The applicant argues that viewing the video triggered a resurfacing of psychological trauma that exacerbated her pre-existing psychological issues. She argues that she is entitled to accident benefits for her psychological impairments.
10In her reconsideration submissions, the applicant submits that the Tribunal erred in the decision by applying the legal test for determining whether an incident constitutes an “accident” as defined by section 3(1). The applicant submits that it is undisputed that she was in an accident on September 11, 2021, and that she qualified for accident benefits for injuries sustained in that accident. The applicant argues that Tribunal erred when it applied the two-part test set out by the Ontario Court of Appeal decision in Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”) and affirmed in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226. The applicant submits that the test for determining if an insured person was involved in an accident is different from the legal test for determining if an insured person’s injuries were caused by an accident. The applicant cites the decision in Natkunaseelan v. Definity Insurance Company, 2023 CanLII 47534 (ON LAT) in support of this position.
11The respondent submits that the applicant did not advance arguments at the initial hearing about whether viewing the video of the accident constituted an accident. It argues the applicant is therefore precluded from raising this argument on reconsideration. The respondent also submits that there is no evidence that the Tribunal failed to apply the causation test, that the Tribunal was correct in concluding the psychological injuries were not caused by the accident, and that there is no error of law in the decision. The respondent argues that even if there was an error, which it denies, the Tribunal would not have reached a different decision because the applicant did not provide evidence or legal argument that her injury is related to the accident.
12I find that the applicant is not advancing a new argument on reconsideration. Rather, she is identifying a legal error with respect to both the framing of the issue before the Tribunal and the applicable legal test. Further, I agree with the applicant. There is an error of law in the decision.
13At paragraph 3 of the decision, the Tribunal indicates that the respondent raised the preliminary issue of whether the applicant’s psychological injuries meet the definition of “accident” as defined by the Schedule. No such preliminary issue was identified in the Case Conference Report and Order dated January 18, 2023, and neither party has argued that this preliminary issue was raised at the hearing. Of note, the identification of this preliminary issue is at odds with the Tribunal’s finding, at paragraph 6 of the decision, that the parties agreed that there was an accident as defined by section 3(1) of the Schedule.
14In the decision, the Tribunal drew a distinction as to whether there was an accident that resulted in the applicant’s physical injuries, versus her psychological impairment. At paragraphs 9 to 20, the Tribunal conducted an analysis of whether there was an “accident” that resulted in the applicant’s psychological impairment. It concluded that there was not. However, the question before the Tribunal was not whether there was an accident on September 11, 2021. The question before the Tribunal was whether there was a causal relationship between the accident and the applicant’s psychological impairment. These are separate and distinct issues, with different legal tests. The Tribunal misidentified the issue. Consequently, it applied the wrong legal test in the decision.
15In sum, I agree with the applicant that the issue of whether there was an “accident” as defined in section 3(1) was not before the Tribunal. Therefore, I find that the Tribunal erred when it applied the two-part test set out in the Ontario Court of Appeal in Greenhalgh to determine if there was an accident.
16I also find that the Tribunal’s error is such that the Tribunal would likely have reached a different result had the error not been made.
17At paragraph 20, the Tribunal concluded that the incident that caused the applicant’s psychological impairment does not meet the definition of an “accident” under section 3(1), and therefore the applicant is not entitled to accident benefits related to her psychological impairment. The findings flowing from the Tribunal’s determination of this “preliminary issue” are set out in paragraphs 21 to 34 of the decision, namely, that the applicant is subject to the MIG and is not entitled to an income replacement benefit, treatment plans, interest or an award. All these findings are based on the Tribunal’s analysis that the incident of viewing the dashcam was not an “accident”. Therefore, I find the outcome of the decision would likely have been different had the error not been made. For clarity, I make no finding as to whether the applicant is entitled to the benefits in dispute. My finding is that the Tribunal’s error of law is such that the Tribunal would likely have reached a different result had the error not been made.
18The applicant has established grounds for reconsideration under Rule 18.2(b). Having found grounds for reconsideration, I do not need to consider the applicant’s additional reconsideration arguments.
19Rule 18.4(b) provides that upon reconsidering a decision, the Tribunal may confirm, vary, or cancel the decision or order, or order a rehearing on all or part of the matter. As noted above, the applicant is requesting that the Tribunal cancel the findings in relation to the MIG and treatment plans. She is also requesting that the Tribunal make an order in her favour regarding the application of section 38. She is seeking a rehearing of the issues of whether the applicant’s psychological impairment was caused by the accident and whether she is entitled to an IRB.
20I am ordering a rehearing of all the issues in dispute in this matter by a different adjudicator. In my view, given the nature of the Tribunal’s error, a rehearing of the matter is required.
21The decision does not indicate that a court reporter was present at the initial hearing. If a recording and/or transcript of the initial hearing was made, then the rehearing will take place based on the evidentiary record and the recording and/or transcript of the hearing. If a court reporter was not present at the initial hearing, then the rehearing will take place based on the evidentiary record and a new videoconference hearing.
CONCLUSION & ORDER
22The applicant’s request for reconsideration is granted.
23I am ordering a rehearing of all the issues in dispute. The rehearing will be conducted by a different adjudicator.
24Within 14 days of the release of this reconsideration decision, the parties shall advise the Tribunal whether a recording and/or transcript of the initial hearing was made.
25If a recording and/or transcript of the initial hearing was made, then the rehearing shall be based on the evidentiary record and the initial hearing recording and/or transcript. Within 21 days of the release of this reconsideration decision, the respondent shall file with the Tribunal and serve on the applicant:
i. a copy of the recording of the hearing, and
ii. if a hearing transcript has been made, a copy of the hearing transcript.
26If a recording and/or transcript of the initial hearing was not made, then the rehearing shall be based on the evidentiary record and a four-day videoconference hearing.
27If a new videoconference hearing is required, the Tribunal will reach out to the parties within 21 days of the release of this reconsideration decision to canvass for dates for the videoconference hearing.
28The rehearing shall take place within 90 days of the date of the release of this reconsideration decision.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: March 22, 2024