RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice-Chair
Licence Appeal Tribunal File Number: 22-006618/AABS
Case Name: Aida Zeinali v. Government of the Province of British Columbia
Written Submissions by:
For the Applicant: Mikolaj T Grodzki, Counsel
For the Respondent: Debbie Orth, Counsel
OVERVIEW
1On January 23, 2024, the applicant requested reconsideration of the Tribunal’s decision dated January 8, 2024 (“decision”).
2It arises out of a January 8, 2024 decision in which the Tribunal determined that the 2022 application to the Tribunal regarding the respondent’s November 20, 2013 denial of non-earner benefits was outside of the two year limitation period, and therefore the applicant was not entitled to non-earner benefits, an award or interest.
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 submits that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness; and made errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The respondent submits that the applicant has not provided any basis for its submission that the Tribunal acted outside of its jurisdiction or that principles of fairness were breached. The respondent also submits that the Tribunal did not make an error in law and that the applicant has not identified any error of fact.
5In reply submissions, the applicant submits that the respondent’s 2013 termination of non-earner benefits was not binding because the OCF-3 founding the denial was not signed by the applicant. I find that this is beyond the scope of Rule 18.2 and that the applicant is seeking to reargue the case. In any event, it was not raised as an issue in the applicant’s request for reconsideration and is outside the scope of in reply submissions. Accordingly, it will not be addressed further in this decision.
6In reply submissions, the applicant references a letter of the respondent dated December 6, 2016, requesting that the applicant file an updated OCF-3 and submits that this shows that the applicant has a continuing entitlement to non-earner benefits. It appears that the applicant is rearguing the case and as such, this submission is beyond the scope of Rule 18.2. In any event, as this submission also goes beyond the scope of reply submissions, it will not be addressed further in this reconsideration decision.
7The applicant submits that there is a continued entitlement to non-earner benefits from September 6, 2013 and that interest attaches, as entitlement was not terminated. The applicant asks that the Tribunal’s decision be rescinded. In the alternative, the applicant asks that the matter be referred back for a new hearing before a different adjudicator, with written submissions based on the existing evidentiary record.
RESULT
8The applicant’s request for reconsideration is dismissed.
ANALYSIS
9The 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.
The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness
10The applicant sets out as a ground for reconsideration, Rule 18.2(a) – that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness. The respondent submits that the applicant has not identified any basis for this ground for reconsideration and that it is without merit.
11The applicant in the request for reconsideration has not linked any of its reconsideration submissions to this ground. I have nonetheless considered the totality of the applicant’s submissions. I find that the applicant has not demonstrated that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness.
12In the reconsideration request, the applicant submits that the matter of the applicant’s continued entitlement to a non-earner benefit had been withdrawn as an issue in dispute and that the adjudicator therefore erred in proceeding to decide the applicant’s entitlement to the benefit. The respondent submits that the applicant did not withdraw the issue of entitlement to a non-earner benefit, and that had it been withdrawn, it would have effectively ended the hearing.
13I agree with the respondent. The only substantive issue in dispute was the applicant’s entitlement to the non-earner benefit from September 6, 2013. The additional issues of award and interest were necessarily contingent on a finding of entitlement to the non-earner benefit as there were no other benefits in dispute. While the applicant states in the reconsideration request that the issue of non-earner benefits was withdrawn, the applicant continued to the conclusion of the hearing, including written closing submissions on the issue of entitlement to non-earner benefits. The applicant has not shown that the Tribunal acted outside of its jurisdiction in deciding on this issue.
14The applicant’s request for reconsideration states that a new OCF-3 had been filed by the applicant on July 18, 2023 and that the adjudicator erred in failing to address the effect of a newly filed OCF-3 on the applicant’s entitlement to a non-earner benefit. The respondent states that the applicant called no witnesses and introduced no evidence on the record of an OCF-3 having been provided in July 2023. The applicant’s reconsideration request does not suggest that a 2023 OCF-3 is part of the evidentiary record nor does it suggest the applicant had brought a motion to permit late-filing of such evidence.
15The applicant has not shown that an error was made by the Tribunal in relation to actions taken by the applicant outside of the parameters of the hearing. It is not suggested that the adjudicator erred in excluding evidence from the hearing or that the Tribunal’s decision was not based on the evidentiary record before it.
16I find that the Tribunal acted within its jurisdiction in making a decision as to the applicant’s entitlement to non-earner benefits based on the evidentiary record filed.
The adjudicator erred in interpreting sections 37(2) and (4) of the Schedule
17The bulk of the applicant’s reconsideration request simply comes down to the proper interpretation of section 37(2) and (4). This was argued at the hearing and I find that on reconsideration the applicant is rearguing the case. This is outside of the bounds of a reconsideration. I find that Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, was properly applied in the decision and that it was not necessary for the respondent to manufacture a separate medical reason when the reason for the denial was that a non-earner benefit was denied because there was no supporting OCF-3.
The adjudicator erred in substituting her own medical opinion and in finding that the applicant did not demonstrate entitlement to a non-earner benefit
18The applicant submits that the adjudicator erred in law and substituted her medical opinion for that of a psychiatrist, Dr. Sherese Ali. The respondent submits that the adjudicator did not do so.
19I find that the adjudicator did not substitute her medical opinion for that of Dr. Ali. The adjudicator addressed the opinion provided by Dr. Ali in a 2016 catastrophic impairment assessment in relationship to the issue before her - the applicant’s entitlement to non-earner benefits from 2013. The adjudicator acknowledged Dr. Ali’s finding in 2016 that the applicant met the test for catastrophic impairment but recognized that this assessment was limited in addressing the separate issue of the applicant’s qualification from 2013 for a non-earner benefit.
20The decision shows that the adjudicator determined Dr. Ali’s 2016 catastrophic impairment report was not sufficient to discharge the applicant’s onus to demonstrate entitlement to a non-earner benefit from 2013 onward. The decision references unanswered evidence about the applicant’s abilities during this period which was relevant to the test for a non-earner benefit. This is a matter of weighing of evidence and is beyond the scope of reconsideration.
CONCLUSION & ORDER
21The applicant has not established grounds for reconsideration pursuant to Rule 18.2(a) or (b).
22The applicant’s request for reconsideration is dismissed.
Avril A. Farlam, Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 31, 2024