RECONSIDERATION DECISION
Before: Tami Cogan
Licence Appeal Tribunal File Number: 22-004698/AABS
Case Name: Resende Sobrinho v. Royal & Sun Alliance
Written Submissions by:
For the Applicant: Vanessa Liang, Counsel
For the Respondent: Maryam Younes, Counsel
OVERVIEW
1On June 3, 2024, the applicant requested reconsideration of a decision released on May 13, 2024 (“decision”) in which I determined that the applicant’s injuries were predominantly minor, and he remained subject to the $3,500.00 Minor Injury Guideline (“MIG”) limit on treatment. Having found the applicant subject to the MIG, he was entitled to the benefits set out in the disputed treatment plans, if incurred, up to the MIG limit, plus interest, in accordance with s. 51 of the Schedule. The respondent was not liable to pay an award under s.10 of Regulation 664.
2The 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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2 (c). The applicant requests the decision be varied and the applicant be removed from the MIG, and the disputed treatment plans be deemed reasonable and necessary with interest payable.
4The applicant is seeking to introduce new evidence as follows:
i. Clinical notes and records from Dr. Dao, Pain Specialist, dated October 26, 2023;
ii. Prescription for pain medication from Dr. Dao, dated October 31, 2023;
iii. Clinical notes and records from Dr. Dao, Pain Specialist, dated October 31, 2023, November 16, 2023, March 18, 2024, and an x-ray report dated January 1, 2022; and
iv. A confirmation letter of a psychiatric consultation appointment scheduled on August 30, 2024.
5The respondent requests the reconsideration be denied and the decision be upheld.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7I find the applicant has not established grounds for a reconsideration under Rule 18.2(c) for the following reasons.
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. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
9As noted above, Rule 18.2(c) sets out a three-part test: 1) There is evidence that was not before the Tribunal when rendering its decision; 2) The evidence could not have been obtained previously by the party now seeking to introduce it; and 3) The evidence would likely affect the result.
10In the applicant’s submissions, he submits there is new evidence that was not available at the time of the production deadlines, which came to the applicant’s attention after the applicant’s hearing submissions.
11The respondent submits the applicant has failed to prove that the evidence is new.
12I note that the applicant has not made submissions as to when the evidence came into existence, but rather that it was not available at the time of the production deadline. The applicant has not demonstrated that the evidence was not before the Tribunal when rendering the decision.
13The applicant made further submissions in his reply. I find that even if I consider the applicant’s reply submissions, the applicant has not established grounds for reconsideration under Rule 18.2(c).
14On reply, the applicant submitted that the applicant sought to introduce the clinical notes and records of Dr. Dao at the hearing but was denied. The applicant does not specify to which of Dr. Dao’s records he is referring. My understanding is that the documents the applicant is referring to are:
i. Clinical notes and records from Dr. Dao, Pain Specialist, dated October 26, 2023; and
ii. Prescription for pain medication from Dr. Dao, dated October 31, 2023.
15I find that the applicant has not met the first part of the test in Rule 18.2(c) with respect to the October 26, 2023 clinical notes and records or the October 31, 2023 prescription. The applicant’s submissions demonstrate that these documents were before the Tribunal at the time of the hearing. This is also clear from the decision, which addresses the respondent’s Motion to exclude these records at paragraphs 6 through 12. I find that these documents were before the Tribunal at the hearing and that I excluded them because they were late-filed. Therefore, the applicant has not established grounds for reconsideration with respect to these documents.
16In his reply submissions, the applicant also makes submissions on the following documents:
i. Clinical notes and records from Dr. Dao, Pain Specialist, dated October 31, 2023, November 16, 2023, March 18, 2024, and an x-ray report dated January 1, 2022.
17The applicant submits that after the decision was released, the applicant sought legible copies of Dr. Dao’s clinical notes and records. The complete clinical notes and records were received on May 28, 2024 and included the document referred to in 16(iii) above.
18In the submissions of the respondent, it preemptively identifies that these documents were not produced during the hearing and submits that the applicant is seeking to re-litigate its position with new evidence.
19I find that the clinical notes and records of Dr. Dao, dated October 31, 2023, November 16, 2023, March 18, 2023, and an x-ray report, were not before the Tribunal when the decision was rendered. Therefore, taking into account the applicant’s reply submissions, they meet the first part of the test in Rule 18.2(c).
20Turning to the remaining parts of the test, I find that the applicant has not established that the evidence he now seeks to introduce could not have been obtained previously. Although he submits that he did not receive it until May 28, 2024, which is after the hearing date, he does not say why he could not have obtained it earlier. I find that the applicant has not established grounds for reconsideration with respect to the October 31, 2023, November 16, 2023 and March 18, 2023 clinical notes and records or the x-ray report.
21Finally, I find that I have no submissions before me regarding:
i. A confirmation letter of a psychiatric consultation appointment scheduled on August 30, 2024.
22Therefore, I find the applicant has not established grounds for reconsideration with respect to this evidence.
CONCLUSION & ORDER
23For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tami Cogan Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: August 13, 2024