RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 18-012511/AABS
Case Name: Jennifer Forsythe v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Ian Drong, Counsel
For the Respondent: Marcin J. Panasewicz, Counsel
OVERVIEW
1This request for reconsideration was filed by Jennifer Forsythe (“the Applicant”). It arises out of a preliminary issue decision dated January 31, 2020 (the “preliminary decision”). In the preliminary decision I struck the issue of entitlement to non-earner benefits (“NEBs”) from the application because the Applicant failed to attend properly scheduled insurer’s examinations (“IEs”), pursuant to section 55 of the Schedule.
2The Applicant seeks an Order permitting her to attend the IEs so that her claim can be properly adjudicated.
RESULT
3The Applicant’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “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;
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.
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
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.
Background
7This matter involved a long and complicated history of scheduling and rescheduling IEs pertaining to the Applicant’s claim to NEBs. Both parties contributed to delays in scheduling the IEs. Eventually, the Respondent scheduled the IEs to occur over a course of about four weeks in April and May 2019.
8During the period of delay, the Applicant applied to the Tribunal to resolve the dispute over her entitlement to NEBs and certain medical and rehabilitation benefits. The case conference for this matter happened to be scheduled on the day after the third IE and about two weeks prior to the last IE.
9The Applicant refused to attend the rescheduled IEs. Her position was that it would be counterproductive and wasteful to attend IEs on the eve of a case conference. At paragraph [16] of the preliminary decision, I found no legislative or precedential basis for the Applicant’s position regarding her non-attendance at the IEs.
10At paragraph [20] of the preliminary issue decision, I concluded that the Applicant’s position does not compel me to grant her permission to dispute entitlement to NEBs pursuant to section 55(2) of the Schedule. I concluded that the Respondent’s adjusting of the claim did not permit the Applicant to avoid attending the IEs and that the Respondent would be prejudiced at a hearing on the issue of NEBs because it was never afforded an opportunity to exercise its rights under section 44 of the Schedule and seek an insurer’s examination by a qualified medical professional.
11At paragraph [22] of the preliminary issue decision I concluded that the dispute over entitlement to the other benefits should not be further prolonged and that the Applicant was permitted to dispute her claims for medical benefits because those claims were not subject the subject of the IEs.
12The Applicant submits that I erred in law and fact by concluding she had not complied with section 55 of the Schedule and erred in law in my application of section 55. She further submits that I erred in law in distinguishing the Tribunal’s decision in 17-007683 v. Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT) (the “Aviva preliminary issue decision”). She submits that reconsideration should be granted because the Tribunal would likely have reached a difference conclusion had these errors of law or fact not occurred.
13Further, the Applicant submits that I consider the consequences of my determination and that it is a disproportional sanction for the rescheduling requests she made. She submits that a more appropriate remedy would be to permit her to attend the IEs prior to proceeding with a rescheduled case conference for this Application.
14The Respondent submits that this request for reconsideration is an improper attempt by the Applicant to relitigate the preliminary issue hearing.
The Applicant failed to comply with section 44 of the Schedule, not section 55
15I note that the Applicant’s submissions on the issues misstate the applicable law and the section of the Schedule as referred to in the preliminary issue decision. In the preliminary issue decision, I found that the Applicant failed to attend a properly scheduled IE and, by operation of the compulsory language in section 55 of the Schedule, was barred from proceeding with her claim for NEBs.
16The Applicant was in breach of section 44(9)(2) of the Schedule. That section compels the Applicant to attend a properly scheduled IE. At paragraph [14] of the decision, I noted that the Applicant does not dispute the substance of the Respondent’s IE notices. This remains the case to-date.
17As noted in paragraph [17] of the preliminary issue decision, the Applicant’s breach of section 44 of the Schedule engages section 55. Section 55 of the Schedule is compulsory and states that the Applicant shall not apply to the Tribunal if she is not compliant with section 44. Subsection 55(2) of the Schedule permits the Tribunal with the discretion to permit the application, and subsection 55(3) provides that the Tribunal may impose terms and conditions on such permission.
The Applicant is attempting to relitigate the preliminary issue hearing
18The Applicant’s arguments pertaining to the application of the Aviva preliminary issue decision were addressed in the preliminary hearing decision. At paragraph [19] of the preliminary hearing decision I distinguished the case at hand from the Aviva preliminary issue decision and noted that only one of the Applicant’s issues was subject to the IEs. Accordingly, I find that this is an attempt to relitigate the preliminary issue hearing.
19Despite the above, I find that it would not be an error of law or fact to not follow the reasoning from another decision at this Tribunal. It is trite law that adjudicators at administrative tribunals are not bound by the decisions of their peers. Therefore, failing to follow the logic of another decision at the Tribunal is not an error of fact or law, let alone one that would result in a different outcome had the error not occurred.
20The Applicants submissions regarding the proportionality of my determination are also an attempt to relitigate the preliminary issue hearing. Section 55 of the Schedule is clear in that a person who fails to comply with section 44 shall not apply to the Tribunal for resolution of the dispute. If the Applicant wished to seek an exception, as provided in sections 55(2) and 55(3), it was incumbent upon her to make those submissions at first instance. Reconsideration is not the avenue to advance new arguments.
21Accordingly, I find that striking the issue of entitlement to NEBs from the Applicant’s Application was not a violation of procedural fairness and not an error of fact or law that the Tribunal would have reached a different result had it not occurred.
CONCLUSION & ORDER
22For the reasons above, I find no violation of procedural fairness and no error of law or fact occurred such that the Tribunal would likely have reached a different result had the error not been made.
23The Applicant’s request for reconsideration is dismissed.
Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: September 6, 2024