RECONSIDERATION DECISION
Before:
E. Louise Logan
Licence Appeal Tribunal File Number:
22-005385/AABS
Case Name:
Ralph Jackson v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Tanzeela Ansari, Counsel
For the Respondent:
Jason H Goodman, Counsel
OVERVIEW
1On February 12, 2024, the applicant requested reconsideration of the Tribunal’s decision dated January 22, 2024 (“decision”). In the decision, the Tribunal found the applicant did not sustain a catastrophic impairment. The Tribunal also denied the applicant’s application for income replacement benefits, attendant care benefits, medical and rehabilitation benefits, interest and a section 10 award.
2Although the applicant references the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended, it is the Licence Appeal Tribunal Rules, 2023 (“Rules”) that apply to this request for reconsideration. This is because pursuant to Rule 18.6, the Rules apply to any request for reconsideration or order issued on or after August 21, 2023. In this case, as noted above, the decision was issued on January 22, 2024.
3The grounds for a request for reconsideration are found in Rule 18.2. 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(b), which is unchanged from the Common Rules. The applicant is seeking the relief the Tribunal may deem just.
5The respondent argues the applicant’s request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7For the following reasons, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
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.
9The applicant submits that the Tribunal made a number of findings of fact that were not supported by, or were contrary to, the evidence before the Tribunal. Alternatively, he argues the Tribunal did not give due weight to the evidence of the applicant or his assessors.
10The applicant argues that the Tribunal erred in its assessment of the medical evidence, the testimony of the applicant and his witnesses, and the video surveillance evidence. He argues that the Tribunal neglected to consider the applicant’s current health status, his rapid deterioration, and the impact of his accident and chronic pain. The applicant submits that he has various diagnosis which demonstrated, at the very least, the possibility that the applicant suffered a criterion 7 and criterion 8 impairment. The applicant argues that the catastrophic impairment executive summary of June 14, 2021 from Dr. Herschorn was created post-accident, but he does not substantiate this argument or explain how it establishes grounds for reconsideration.
11The applicant also argues the Tribunal erred in the application of the law with respect to the treatment plans in dispute. He cites Sabadash v. State Farm et al., 2019 ONSC 1121 and B.M. v. Unica Insurance Inc., 2020 CanLII 72512 (ON LAT) in support of his position that he was not required to establish that the accident alone caused his impairments or his requirement for treatment.
12The applicant also argues the Tribunal erred when it made no mention of whether the treatment plans were reasonable and necessary and merely focused on the catastrophic impairment designation. With respect to the treatment plan for psychological services, the applicant argues that he was not required to establish that he suffers from a psychological impairment, only that it is reasonable and necessary that the possibility be explored, citing 17-003735/AABS v. Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT). He submits the Tribunal cannot disregard precedent, and that it was sufficient that the applicant demonstrated a “possibility” that he has suffered an injury to warrant treatment.
13The respondent submits the evidence was heard over the course of a seven-day hearing, and the Tribunal did not make an error of fact or law. It submits that the applicant’s grounds for reconsideration go to the weight assigned to the evidence and the fact that he disagrees with the decision. The respondent argues the only legal issue raised by the applicant is that the Tribunal disregarded precedent in reaching a conclusion different than the one reached by the Tribunal in 17-003735/AABS with respect to payment for a psychological assessment. It argues the Tribunal decision was not binding on the adjudicator, and further that it is not applicable to the current case as the issue in this case was entitlement to psychological treatment, rather than an assessment.
14I find that the applicant’s arguments are an attempt to re-litigate his case and do not establish an error of fact or law. In the 21-page decision, the Tribunal set out clear and cogent reasons for why it found the applicant was not catastrophically impaired under criterion 7 or criterion 8 and why he was not entitled to the disputed benefits, interest or award. In the decision, the Tribunal directly addressed the applicable legal tests and evidence before it, including the medical evidence submitted by both parties, and the surveillance evidence. It set out its reasons for preferring the medical evidence submitted by the respondent, including the interplay between the medical evidence, the video surveillance, and the totality of the evidence before it. I see no error of fact or law with respect to the Tribunal’s understanding or assessment of the evidence in the decision.
15While the applicant argues the Tribunal made no mention of the treatment plans and instead focused on the issue of catastrophic impairment, I find that the Tribunal addressed the treatment plans at paragraphs 66 to 76 of the decision.
16With respect to the treatment plan for psychological services, at paragraph 69 the Tribunal found the applicant had not made submissions on this plan. The applicant does not argue on reconsideration that he made submissions on the treatment plan. Rather, he argues the Tribunal erred in law, citing 17-003735/AABS and the need for the Tribunal to follow precedent. I agree with the respondent that 17-003735/AABS is not binding on the Tribunal and is also not applicable to this case. Tribunal decisions are not binding on adjudicators, and the decision in 17-003735/AABS is about a treatment plan for a psychological assessment, not a treatment plan for psychological services. Accordingly, I see no error in the Tribunal’s decision with respect to the disputed treatment plan for psychological services.
17For the reasons set out above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
CONCLUSION & ORDER
18The applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Released: June 18, 2024