RECONSIDERATION DECISION
Before:
Ulana Pahuta
Licence Appeal Tribunal File Number:
23-004187/AABS
Case Name:
Jordan Capson v. Economical Insurance Company
Written Submissions by:
For the Applicant:
Tina D Radimisis, Counsel
For the Respondent:
Danielle Gauvreau, Counsel
OVERVIEW
1On February 6, 2024, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated January 19, 2024 (“decision”).
2In the decision I found that the applicant had not provided a reasonable explanation for his delay in notifying the respondent of his intention to apply for accident benefits within the time limits prescribed by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). As such, I found that the applicant was statute-barred from proceeding with his application pursuant to s. 55 of the Schedule.
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 Rule 18.2(a) and (b). He submits that the Tribunal committed a material breach of procedural fairness and made an error of law such that the Tribunal would likely have reached a different result had the error not been made. The respondent submits that the applicant has failed to establish grounds for reconsideration and that the request for reconsideration be dismissed.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The 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) – Breach of Procedural Fairness
7I find that the applicant has not established grounds for reconsideration under Rule 18.2(a).
8The applicant has not provided any specific submissions or cited any evidence or caselaw on the issue of a breach of procedural fairness. Rather, he makes a general argument that he was prejudiced by “having limited time to respond” and that he had been denied a fair and justifiable opportunity to address the limitation issue.
9In his reply submissions, the applicant further argues that participating in a preliminary issue hearing does not indicate his acceptance of any “procedural irregularities” and that he is still entitled to a fair and just process. However, no further submissions or evidence were provided in support of this claim.
10I agree with the respondent that the applicant consented to have the preliminary issue heard by way of a preliminary issue hearing and agreed to the timelines prescribed in the Case Conference Report and Order dated December 6, 2023. The applicant further provided submissions and evidence for the preliminary issue hearing. As such, he was provided with the opportunity to participate in the preliminary issue hearing and be heard. Although the applicant references “procedural irregularities” in his reply submissions, no details of such irregularities were provided.
11On review of the decision, and in the absence of any specific arguments or evidence, I find that the applicant has not met his onus to prove a material breach of procedural fairness.
Rule 18.2(b) – Error of Law
12I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to alleged errors of law.
13The applicant argues that I erred in law by failing to properly apply the tests set out in the Schedule and the Licence Appeal Tribunal Act, 1999, S.O., 1999, c 12, Sch 6. Specifically, the applicant submits that I erred in the interpretation and application of s. 34 of the Schedule and precedent caselaw such as Horvath v. Allstate Insurance Company of Canada, [2003] ONFSCDRS 92 (“Horvath”) and K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT) (K.H.).
14The applicant submits that I failed to comprehensively examine the reasonableness of his explanation, taking into account the unique circumstances of his case. He argues that his serious psychological and cognitive challenges, post-concussive syndrome, and external factors and stressors (such as loss of a family member, legal advice, legal proceedings, communication challenges, lack of immediate awareness, COVID-19, a subsequent motor vehicle collision, financial constraints and medical history) justify his delay in submitting his application.
15The applicant further submits that I erred in my determination that the applicant’s explanation was not credible or worthy of belief. He argues that his explanation for the delay has remained consistent since he initiated his application for accident benefits. Given such consistency, the applicant argues that it was an error in law to deem him not credible and to fail to proceed to the subsequent analysis of the reasonableness of his explanation, as required by Horvath and K.H.
16I do not find that I made an error in law in my consideration of the applicant’s explanation for delay. The applicant argues that since his stated reasons for the delay have been consistent from the time he initiated his application, he should be considered “credible”. However, I note that the first step of the test specified in Horvath is not whether the applicant himself is determined to be credible, but whether his explanation for the delay is credible or worthy of belief.
17In paragraphs 15 to 19 of my decision I reviewed the applicant’s arguments that he was unaware that he could pursue accident benefits, that he had been advised against pursuing such benefits, that he was unaware of his accident-related injuries and that his life circumstances and pre-existing medical history prevented him from pursuing his claim. I considered the evidence and provided my reasons why I did not find these explanations to be credible. Although the applicant may have consistently stated these explanations for delay, this does not automatically render such explanations credible. Rather, such a determination is made upon a review of the evidence provided by the parties. I find no error in my application of the principles set out in Horvath and K.H., my consideration of the evidence or in my determination that the applicant’s reasons for the delay were not credible or worthy of belief.
18With respect to the applicant’s argument that I failed to comprehensively examine the reasonableness of his explanation taking into account the unique circumstances of his case, I agree with the respondent that the applicant is attempting to relitigate his case. The applicant is repeating the arguments raised at the preliminary issue hearing. The reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision, or where they failed to meet their burden at first instance.
CONCLUSION & ORDER
19For the foregoing reasons, the applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 8, 2024