RECONSIDERATION DECISION
Before: Kate Grieves
Licence Appeal Tribunal File Number: 23-006484/AABS
Case Name: Fahed Abou Zeid v. Economical Insurance
Written Submissions by:
For the Applicant: Anne Jayatilake, Counsel
For the Respondent: Angelo Sciacca, Counsel
OVERVIEW
1On March 15, 2024 the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated February 23, 2024 (“decision”).
2In that decision, I determined that the applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule, and therefore could not proceed with his application for accident benefits.
3For reconsiderations of decisions released before August 21, 2023, the grounds for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Common Rules”), as amended. For reconsideration of decisions released on or after August 21, 2023, set out the grounds for reconsideration in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”).
4The applicant relies on Rule 18.2(b) of the Common Rules, however, given that the decision was released on February 23, 2024, the LAT Rules apply.
5To grant a request for reconsideration pursuant to the LAT Rules, 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.
6The applicant submits that I made an error of law such that I would have reached a different decision had those errors not been made. The applicant submits that I erred in the application of the elements of the causation test, that the preliminary issue decision should be set aside and the substantive issues in dispute should proceed to a hearing. The respondent submits that the decision should be upheld and the request for reconsideration dismissed.
RESULT
7The request for reconsideration is dismissed.
ANALYSIS
8The 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 (b) - Error of Law
9The applicant argues that I erred on my application of the causation test, and that I erred in applying the case law. His submissions are largely an attempt to re-litigate his case. The applicant raised the Tribunal decision of K.P. v. Aviva General insurance, 2020 CanLII 35505 (ON LAT) (“K.P.”) in support of the proposition that a slip and fall on ice constitutes an accident within the meaning of the Schedule. The applicant submits that I erred in applying the decision in Kerry Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”).
10Of note, the decision in Porter was the appeal of the Tribunal decision in K.P. The Divisional Court overturned the Tribunal’s decision in K.P. and held that the slip and fall on ice was not an accident within the meaning of the Schedule.
11At paragraphs 17 and 18 of my decision, I relied on Porter and noted that I am bound by the reasoning of the Divisional Court in that decision. I see no error with respect to my treatment of Porter. It would be an error of law if I did not give deference to Porter. I am bound by Porter, not other Tribunal decisions.
12The applicant also now relies on the Divisional Court decision in Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”), which he had not raised in his responding submissions for the initial hearing, or in his sur-reply. Reconsideration is not an opportunity to make new arguments, and not considering an argument that was not raised by the parties at the hearing is not an error. In any event, I find Madore is distinguishable. In Madore, unlike the slip and fall on ice which I found to be an intervening act in this case, the Divisional Court found no evidence of an intervening event between the cleaning of the roof of the trailer and the subsequent fall.
13The applicant is attempting to re-litigate his case, which is not the function of a reconsideration. I find no error in my application of relevant and binding case law.
CONCLUSION & ORDER
14The applicant’s request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 21, 2024