Citation: Naji v. Unifund Assurance Company, 2024 ONLAT 22-006157/AABS - R
RECONSIDERATION DECISION
Before: Kate Grieves
Licence Appeal Tribunal File Number: 22-006157/AABS
Case Name: Tamou Naji v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Michael Switzer, Counsel
For the Respondent: Damien Van Vroenhoven, Counsel Katherine Kolnhofer, Counsel
OVERVIEW
1On June 26, 2024, the applicant requested reconsideration of the Tribunal’s decision dated June 18, 2024 (“decision”).
2In the decision, I found that the applicant was non-compliant with her obligation to attend insurer’s examinations (“IEs”) pursuant to section 44 of the Schedule, and therefore she was barred from proceeding with her claim before the Tribunal pursuant to section 55.
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 requests reconsideration under Rule 18.2 (b) and (c).
5The applicant requests that I reconsider my findings that (i) she had returned to Canada since March 2021, and (ii) that she refused to attend IEs while in Ontario. She also requests an order with respect to who must bear the costs of travel expenses to attend insurer’s examinations.
RESULT
6The request for reconsideration is dismissed.
ANALYSIS
7The 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. A reconsideration is a limited, error-correcting exercise.
There was no error of law or fact and no new evidence that could not have been obtained previously
8The applicant submits that I made an error when I noted at paragraph 20 that: “The evidence suggests that she has in fact returned to Canada at least three times since March 2021 but made no attempt to make herself available for IEs.”
9The applicant submits that was an error, that she had not returned to Canada, and purports to explain why the prescription and OHIP summaries do not prove that the applicant had returned to Ontario after March 2021. These submissions are submissions without any evidence and it is well settled that submissions are not evidence.
10At the initial hearing, the applicant had the opportunity to respond to the respondent’s submissions and evidence that suggested that she had returned to Ontario but chose not to. The applicant has not demonstrated why she could not have obtained this “new” evidence before the preliminary hearing date. She ignored the arguments and evidence raised by the respondent at the hearing and is now attempting to do so on reconsideration. Reconsideration is not an opportunity for a party to raise arguments or introduce evidence that was available to it at the time of the hearing but did not.
11It was reasonable for me to point out that the evidence suggested that she had returned to Canada, given that no submissions or evidence were provided by the applicant to the contrary.
12Further, even if it was an error, it would not have altered the result. I found that the insurer had made reasonable efforts to schedule the examinations for a day, time, and location that were convenient for the applicant, and she had not attended examinations on two occasions.
The request for an order as to who should bear the costs of attending the assessment
13The applicant requests that the Tribunal issue an order as to who should assume the cost of paying the applicant’s travel expenses to attend an in-person assessment. That was not identified as an issue to be decided in the preliminary issue hearing. The applicant did not direct me to any law or jurisprudence as to whether I have the authority to make such an order. The applicant has not satisfied me that I have the authority to make such an order, nor that it would be appropriate to issue such an order on reconsideration.
CONCLUSION & ORDER
14The applicant has not established that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
15The applicant has not established that there was evidence not before me that could not previously been obtained by the applicant that would likely have affected the result.
16The request for an order as to who should bear the costs of the applicant’s travel expenses to attend an assessment is dismissed.
17The request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 23, 2024