RECONSIDERATION DECISION
Before: Tanjoyt Deol
Licence Appeal Tribunal File Number: 23-006365/AABS
Case Name: Lyndsy Miceli v. TD General Insurance Company
Written Submissions by:
For the Applicant: Shane Henry, Counsel
For the Respondent: Jaclyn Kram, Counsel
OVERVIEW
1On March 25, 2024, the applicant requested reconsideration of the Tribunal’s preliminary hearing issue decision dated March 5, 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 her application for benefits.
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 is seeking reconsideration pursuant to Rule 18.2(a) and (b). She requests that the decision be set aside, and that the matter proceed to a substantive hearing. The respondent submits that the applicant’s request for reconsideration should be dismissed, as she has not established the criteria for reconsideration under 18.2(a) or (b) have been met.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The 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(a) – No Material Breach of Procedural Fairness
7I find that the applicant has not established grounds for reconsideration under Rule 18.2(a).
8The applicant appears to be alleging that I committed a material breach of procedural fairness in the decision by “changing the existing case law” and that the decision “overrules” the Superior Court of Ontario decision of Dittmann v Aviva Insurance Company of Canada, 2016 ONSC 6429 (“Dittmann”). The applicant also argued that the decision “overruled” additional existing decisions from the Ontario Superior Court of Justice and the Court of Appeal for Ontario but did not identify which decisions, other than Dittmann, the decision allegedly “overruled”.
9Furthermore, the applicant argues that as the hearing was in writing, the Dittmann case, as well as her case was “misinterpreted, or not interpreted at all”. She argues that an oral hearing would have allowed me to pick up on different nuances of the case that I may not be able to detect if the case was in writing. She argues that the Tribunal has materially breached the rules of procedural fairness by not allowing her to provide testimony, particulars, or answers through direct or cross examination with respect to the incident of December 6, 2020, that was the subject of the dispute.
10In response, the respondent argues that the applicant’s submissions with respect to changing/overruling Dittmann are more properly characterized as alleged errors of law and fact, not alleged breaches of procedural fairness. Moreover, the respondent argues that the parties agreed to the written hearing format of the preliminary hearing at the case conference and the applicant did not raise any objections at that time. Lastly, it argues that the applicant is improperly using the reconsideration process to deal with consequences of tactical procedural choices she made with respect to the proceeding and her decision to not adduce evidence in person.
11I agree with the respondent. With respect, the arguments pertaining to changing/overruling Dittmann, and my ruling with respect to the coffee cup lid being improperly secured are allegations of errors of law/facts, not of procedural fairness. Therefore, I will be considering these submissions below when I address the applicant’s Rule 18.2(b) arguments.
12Now turning back to whether there was a material breach of procedural fairness by having the preliminary issue hearing proceed in writing. For the following reasons, I find that there was not a material breach of procedural fairness.
13First, the format for the hearing is at the discretion of the Tribunal. In accordance with Rule 3.1, of the Rules, the Tribunal scheduled a preliminary issue hearing in writing to ensure an efficient, proportional and timely resolution of the proceeding. Furthermore, the parties agreed to proceed with the written hearing format at the case conference, and no objection was raised by the applicant at that time. Indeed, in the Case Conference Report and Order, dated January 12, 2024, at paragraph 1, it was noted that unless otherwise stated, all orders were made on consent. At paragraphs 5, and 9 to 11, it was noted that the preliminary issue hearing would proceed in writing, and the only objections raised were by the respondent with respect to the page limit.
14Additionally, if the applicant wanted to produce testimony evidence, she could have requested to file an affidavit at the case conference, instead she agreed at the case conference that none would be submitted. Therefore, I disagree with her submissions that she was denied an opportunity to share her story, which she argues is a barrier to access to justice. Contrary to these submissions, she had the opportunity to request that affidavit evidence be included for the hearing, but she chose not to do so.
15In short, I find that the applicant has not established that I committed a material breach of procedural fairness. It is the Tribunal that decides the format for the hearing, in keeping with its Rules. Significantly, the applicant did not raise any objections to the format of the hearing prior to my decision being issued and chose to forgo affidavit evidence. Also, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides a right to object to written hearings, which was not done prior to the decision being released. Thus, I find that she has not met her onus with respect to establishing grounds for reconsideration under Rule 18.2(a).
Rule 18.2(b) – No Errors of Law or Fact
16Establishing grounds for reconsideration under Rule 18.2(b) is a two-part test. First, the applicant must establish that an error was made, and second, that I would likely have reached a different result had the error not been made. I find that the applicant has established neither.
17In the decision, at paragraph 42, I determined that the improperly secured lid on the coffee cup was an intervening act that caused the applicant’s injuries and broke the chain of causation. As well, at paragraphs 54, 58 and 59, I decided that the use or operation of a vehicle was not the dominant feature of the applicant’s injuries, rather the improperly secured lid was. Based on this, I concluded that the incident was therefore not an accident.
18The applicant submits that I made an error of fact when I determined that the coffee lid was improperly secured, as there is no evidence to support this. She further argues that I erred in law by overruling/changing the existing case law of Dittmann, and that I misinterpreted this binding authority. Lastly, she argues that an inadvertent coffee spill is considered to be a normal incident of the risk created by the use of the vehicle.
19I do not agree. First, I find that the applicant’s arguments with respect to there being no evidence that the lid was improperly secured are an attempt to advance new arguments, which she did not raise in her initial submissions. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. The applicant had an opportunity to raise this argument in her submissions for the initial hearing but did not do so.
20In her hearing submissions, as noted at paragraph 49 of the decision, the applicant conceded that the series of events leading up to the burn as outlined at paragraphs three to six of the respondent’s hearing submissions were undisputed. In other words, during the hearing, the applicant did not dispute the fact that the lid was not properly secured when it was provided to her, rather she argued there is no evidence of when it became improperly secured. This argument was addressed at paragraph 50, and I provided reasons on why I disagreed. I noted that the applicant had sent a notice letter to McDonalds, and that she had settled her Tort claim subject to the statutory deductible, which in my view supported a finding that there was evidence of negligence against McDonalds.
21In a similar vein, a summary of the evidence supporting that the lid was improperly secured was outlined at paragraph 49 of the decision. In its initial submissions, the respondent produced a recording of the phone call between the applicant and the respondent’s employee, which took place on January 7, 2021. In this recorded phone call, the applicant spoke with the employee and when describing the incident, advised that the coffee lid was not secured properly.
22While I didn’t refer to this recorded phone call explicitly in my reasons, I referred to the date of this phone call in listing the instances in which the applicant had conceded that the lid was not secured properly as outlined at paragraph 49 of the decision. Furthermore, the applicant had conceded to these series of events in her initial hearing submissions. Thus, I see no error of law or fact here, as there was sufficient evidence to arrive at the conclusion that there was an improperly secured lid, and this fact was undisputed by the applicant in her submissions.
23Next, I disagree that I overruled, changed the existing case law or misinterpreted Dittmann. In the decision, at paragraph 43, I outlined the applicant’s position that the lid coming off the coffee was not the “triggering event”, but rather a running car combined with a seatbelt restraint was. At paragraphs 45 to 47, I summarized both the Superior Court of Justice and Court of Appeal decisions of Dittmann, and the two intervening acts that were considered and mentioned. Critically, from paragraph 47 to 53, I provided reasons on why this matter was distinguishable from Dittmann.
24Significantly, I provided reasons on why the factual matrix before me was similar to other Tribunal decisions, where it was held that an improperly secured lid was distinguishable from Dittmann and an intervening act. Also, as noted above, I outlined the evidence that supported the conclusion of an improperly secured lid by an employee of McDonalds. Lastly, I agree with the respondent that the two intervening factors mentioned in Dittmann, are not an exhaustive list, and at paragraph 52 of the decision, I noted:
The Court of Appeal also made clear in its decision to dismiss the appeal, that there was no intervening act, in the “circumstances of that case”. However, once again, there was no mention of the lid being improperly secured to the cup or that a restaurant employee was negligent in the securing of the lid, here there are difference circumstances, (the improperly secured lid), thus, in my view, there was an intervening act.
25As such, I provided reasons on why I found there was an intervening act, despite it not being listed as one in Dittmann, which was due to the different fact scenario before the Court. Accordingly, I did not overrule or change the existing case law, instead, I provided reasons on why this matter was distinguishable. I see no error of law or fact in doing so.
26The applicant also argues that as held in Dittmann, the running motor vehicle and the seatbelt restraint were the dominant features, not the lid. Once again, these arguments were considered by me in the decision. At paragraphs 54 to 60 of the decision, I provided reasons on why I disagreed with the applicant’s position that the seatbelt and running vehicle were the dominant features of the incident. Therefore, I agree with the respondent that reconsideration is not meant to act as an opportunity for a party to change their arguments, facts, and evidence to conform with the authority of Dittmann, because they disagree with the outcome.
27The applicant’s reconsideration submissions with respect to the incident arising from an inadvertent spill, and therefore being an “accident”, are also an attempt to raise new arguments for the first time. Notably, in the applicant’s hearing submissions, there were no submissions with respect to the incident arising out of an inadvertent spill. Instead, again, the applicant made submissions that the facts were similar to Dittmann, and that the lid coming off the coffee was not a triggering event of the incident, but rather a running car combined with a seatbelt restraint was. Additionally, the applicant in her initial hearing submissions argued that Dittmann was not silent with respect to the lid being improperly secured, and she took the position that the lid was not the dominant feature of the incident, but her being restrained by a seatbelt was.
28Finally, the applicant also argues that she held the coffee lid in a similar manner to the Plaintiff in Dittmann. As noted above, at paragraphs 51 to 53, I provided reasons on why this matter was distinguishable, which was due to the improperly secured lid. To expand further, in my interpretation, a cup that is held by its lid which resulted in a spill, is not akin to a lid that was improperly secured.
29In conclusion, I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to alleged errors of law and fact.
CONCLUSION
30For the foregoing reasons, the applicant’s request for reconsideration is dismissed.
Tanjoyt Deol
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 30, 2024