RECONSIDERATION DECISION
Before: Clive Forbes
Licence Appeal Tribunal File Number: 22-006565/AABS
Case Name: Dodridge Baker vs. Wawanesa Insurance
Written Submissions by:
For the Applicant: Michelle Velvet, Counsel
For the Respondent: Stanislav Bodrov, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated November 6, 2023 (“decision”), in which I found 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) (“Schedule”). Therefore, I also found the applicant is not entitled to any of the benefits in dispute.
2The applicant has requested a reconsideration pursuant to Rule 18.2(a) and (b). The respondent asks that the request for reconsideration be dismissed.
RESULT
3The applicant's request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rule”). The applicant’s request relies on the following criteria: 18.2(a) that I acted outside my jurisdiction or committed a material breach of procedural fairness; and 18.2(b) that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
[6] The applicant submits that I: i. Committed a material breach of procedural fairness. ii. Erred in law or fact.
7I find that the applicant is asking the Tribunal to reweigh evidence. His arguments on reconsideration essentially ask me to reconsider the evidence that was presented at the initial hearing. The applicant is asking me to reweigh the evidence and come to a different decision. This is not grounds for reconsideration.
No material breach of procedural fairness.
8I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) with respect to my treatment of key issues and central arguments advanced for the following reasons. The applicant submits that I committed a material breach of procedural fairness because I failed to consider his viva voce testimony at the hearing; I failed to respond to the arguments concerning the reasons why his answers at the EUO were entitled to little or no weight; and failed to consider evidence relating to his back issues, sitting and standing tolerance and psychological impairments. He relies on the Supreme Court’s decision in Baker v Canada (Minister of Citizenship and Immigration) 2 S.C.R. 817 to support his position.
9I respectfully do not agree with the applicant for the following reasons. In my decision from paragraphs 12 to 26, I provided a detailed analysis of the reasons why I found the applicant was not in an accident as defined by section 3(1) of the Schedule, and therefore the applicant was not entitled to the benefits claimed. As stated in the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at para 128, administrative decision makers are not expected to respond to every argument or line of possible analysis, or to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion.
10Furthermore, I find that my decision fell well inside the requirements set out in Vavilov at para 126 with respect to the importance of making a reasonable decision. The fact that the applicant disagrees with the findings in my decision does not mean that I failed to grapple with key issues. Throughout my decision, I highlighted the evidence that I considered relevant to the issues in dispute and assigned weight accordingly. In fact, at paragraph 21 of my decision I referenced the applicant’s testimony at the hearing. In addition, at paragraphs 15 and 18 of my decision, I specifically addressed the applicant’s back pain and at paragraphs 23 to 25 of my decision I addressed his standing tolerances and psychological impairments and concluded that those injuries were not directly caused by the use and operation of a motor vehicle. On this basis, I found that the applicant is not entitled to the benefits claimed.
11I find the applicant has not established that I breached the rules of procedural fairness. His submissions consist of broad and unfounded assertions. Furthermore, I agree with the respondent that I conducted the hearing following the principles of procedural fairness giving the applicant ample opportunity to present his case.
12I see no material breach of procedural fairness and no grounds for reconsideration under Rule 18.2(a).
No errors of law or fact such that the Tribunal would likely reach a different result had the errors not been made.
13I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to alleged errors of law or fact.
14The applicant submits that I made errors of law by providing inadequate reasons for my decisions which I have addressed above. He also submits that I made errors of law in failing to explain how his automobile use or operation was ancillary to his psychological injuries; in failing to consider whether the causation test was met in relation to his psychological impairments; and in failing to explain how his slip and fall was an intervening act in relation to his claim of vehicular anxiety as a result of the accident. He relies on Vavilov at para 127 to argue reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
15I disagree with the applicant that any such errors exist. Furthermore, I find the applicant’s submissions are largely an attempt to use the reconsideration process as an opportunity to reargue the merits of her case. As mentioned earlier, the Tribunal has long recognized that a reconsideration is not an opportunity to simply reargue one’s case or to present new arguments. Reconsideration is not a forum for reweighing evidence, unless grounds for reconsideration under Rule 18.2 have been established.
16Furthermore, it is well-established that the reasons of the Tribunal are not to be measured against a standard of perfection. As the Supreme Court of Canada stated in Vavilov, at paragraph 91, the fact that a tribunal’s reasons do not include all the arguments, statutory provisions, jurisprudence or other details that a reviewing judge would have preferred does not on its own create a basis to set aside the decision. Nor is assigning less or more weight or preferring certain evidence an error; it is an intrinsic function of the Tribunal. As mentioned earlier, throughout my decision I highlighted the evidence that I considered relevant to the issues in dispute and assigned weight accordingly. On this basis, I found that the applicant was not involved in an” accident” and therefore not entitled to the benefits claimed.
17Firstly, from paragraphs 12 to 18 of my decision, I addressed the purpose test and considered the testimony of the applicant and the medical and documentary evidence and concluded that the applicant’s slip and fall at the Collison Reporting Centre (“CRC”) was not due to the ordinary and well-known activities to which automobiles are put. But rather, it came about because he climbed an icy hill. Moreover, at paragraph 21 of my decision, I addressed why the applicant’s automobile use or operation was ancillary to his psychological injuries.
18Secondly, from paragraphs 19 to 26 of my decision, I addressed the causation test and specifically considered the applicant’s psychological impairments from paragraphs 23 to 25. I found that based on the evidence, the applicant did not suffer from vehicular anxiety, and it is unlikely that the applicant’s depression is from the guardrail collision because there is limited contemporaneous evidence to support same. But rather, the depression that he was diagnosed with was caused by the physical injuries that he sustained in a slip and fall at the CRC, which was not found to be an “accident” according to s. 3(1) of the Schedule.
19Lastly, I made no error in law when I stated at paragraph 21 of my decision, that the fact that the guardrail collision was the reason why the applicant was at the CRC does not create a causal link between the use or operation of an automobile and the applicant’s injuries. The applicant’s automobile use was ancillary to his injuries because the direct cause of his injuries was the intervening act of the applicant climbing the snow-covered hill and slipping and falling, which he has admitted caused his physical injuries. The applicant also submits that the Tribunal likely made errors of fact without stating what the alleged “errors of facts” are.
20As a result, I do not see any error of law or fact such that I would likely have reached a different result had the error not been made.
21I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a) and (b).
CONCLUSION
22For the reasons noted above, I dismiss the Applicant's request for reconsideration.
Clive Forbes Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: January 23, 2024