Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Mary Henein Thorn
Licence Appeal Tribunal File Number: 21-004183/AABS
Case Name: Simone Augillera v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Mohamed Elbassiouni, Counsel Michelle Velvet, Counsel
For the Respondent: Benjamin Hutchinson, Counsel Noura Bagh, Counsel
OVERVIEW
1A reconsideration request was filed by the applicant regarding a decision dated October 25, 2023, in which I found the applicant is not catastrophically impaired (“CAT”) as defined by the Schedule, is not entitled to an income replacement benefit, that she is not entitled to three treatment plans in dispute, a CAT assessment, interest or an award.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Licence Appeal Tribunal Rules. A request for reconsideration will not be granted unless 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
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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(a) and (b) of the LAT Rules. She is seeking to have the decision cancelled, and a new decision issued finding her CAT, entitled to income replacement benefits from December 10, 2018 to date, entitled to two treatment plans and a CAT assessment, plus interest and a section 10 award.
4The respondent submits the request for reconsideration should be dismissed.
RESULT
5The applicant’s request for reconsideration is granted. The decision dated October 25, 2023 is cancelled, and a new hearing is ordered.
PROCEDURAL ISSUES
6The applicant filed a motion to extend the deadline for reply submissions for this reconsideration based on the fact that the respondent sent its response submissions via secure message on December 13, 2023 and the applicant did not receive them. The applicant submits that the responding submissions sent by the respondent to the applicant were in the applicant’s spam folder and went unnoticed by the applicant’s counsel until the respondent’s counsel alerted applicant’s counsel that the message had not been accessed.
7The respondent does not consent to the extension of the response deadline.
8The reply submissions are accepted. The applicant has provided a reasonable explanation for the delay and the respondent has not persuaded me that it has been prejudiced if I accept the reply submissions past the deadline of December 21, 2023.
Rule 18.2(a) – Adding causation as an issue in dispute
9Pursuant to Rule 18.2(a), the applicant submits that I made a significant error, acted outside my jurisdiction, and committed a material breach of procedural fairness which would likely have reached a different result had the error not been made. She submits that I erred by inserting causation as an issue in dispute and then considered causation as an issue, which was not reflected in the Case Conference Report and Order (“CCRO”) dated March 7, 2022, and as agreed to as an issue in dispute between the parties. Specifically, the applicant submits I erred when I analyzed the issue of causation pertaining to two accidents which occurred in 2015 and 2017. She submits that I ought to have only inquired as to whether the applicant sustained an “impairment” as a result of the subject accident despite having ongoing knee pain from the previous 2015 accident.
10The respondent disagrees and submits that the applicant’s position would mean that an adjudicator can never address or decide on the threshold issue of causation unless it is formally listed as an issue in dispute in the CCRO.
11Upon considering the submissions of both parties, I find that I erred by factoring the 2015 accident into my decision and I committed a material breach of procedural fairness which would likely have reached a different result had the error not been made. There is no dispute the respondent had already paid $65,000 in medical benefits, which were incurred by the applicant, as a “result of the accident” and which the respondent had deemed reasonable and necessary. Accordingly, the questions before me at the hearing, as agreed to by the parties and as outlined in the CCRO, were as follows: does the applicant meet the test to be deemed catastrophically impaired, does she meet the test for an income replacement benefit and is she entitled to the treatment plans and a catastrophic assessment based on the evidence from the 2017 accident?
12I find that it was a breach of procedural fairness to insert the issue of causation into the issues in dispute section of my decision and to make this a central issue in my analysis, as this was not identified as an issue in dispute by the parties nor was it listed as an issue in dispute in the CCRO which set this matter down for a hearing. See: Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546 (Div. Ct.).
13I considered the respondent’s submission that an adjudicator can then never address or decide on a threshold issue of causation unless it is expressly stated in the CCRO, and in this case, I disagree. The issue is not that a question must be posed in the CCRO to be adjudicated, but rather, posing a new question in the decision without notice to the parties denied the applicant the right to fairly put forward relevant evidence and argument for the hearing. Here, the respondent removed the applicant from the MIG and paid benefits up to the non-MIG non-CAT threshold. It was not for me to decide in this case whether the applicant’s injuries were caused by the 2015 or the 2017 accident, at least not without proper notice to the applicant and an opportunity to make submissions. It was only to determine if the applicant met her onus to prove that she is entitled to the CAT designation, to income replacements benefits, the treatment plans in dispute and to an award and interest. On reconsideration, while I find the respondent raised credibility issues at the hearing, it did not raise causation. It follows that neither party requested that causation be added as an issue in dispute.
14As I have found the applicant has established grounds for reconsideration under Rule 18.2(a), it is not necessary for me to consider the additional arguments under Rule 18.2(b), as only one ground is required.
15The applicant’s request for reconsideration is granted. The decision dated October 25, 2023 is cancelled, and pursuant to Rule 18.4(b)(ii), a rehearing will be granted on a date to be set by the Tribunal.
ORDER
16The applicant’s request for reconsideration is granted; the decision dated October 25, 2023 is cancelled. The parties are directed to contact the Tribunal on receipt of this decision to canvass case conference dates in order to discuss the parameters of the rehearing.
Mary Henein Thorn Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 6, 2024