RECONSIDERATION DECISION
Before: Timothy Porter
Licence Appeal Tribunal File Number: 22-013806/AABS
Case Name: Julia Gomez v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Nick de Koning, Counsel
For the Respondent: Brittanny K Tinslay, Counsel
OVERVIEW
1On June 10, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 15, 2024 (“decision”).
2In its decision, the Tribunal found that the applicant is not entitled to the disputed OCF-18s, and no interest is payable.
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 has submitted the request for reconsideration under s. 18.2(b) submitting that an error of law or fact was made. Specifically, the applicant submits that:
a. The Tribunal’s finding that the Trinity Long-term Care Home (“Trinity”) expenses are more akin to the services of a Form 1 (i.e., ACB in nature) rather than rent is an error.
b. The Tribunal erred by not considering the consumer protection nature of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
5The applicant also submits new arguments suggesting that the Tribunal should consider the treatment plans under rehabilitation benefits contained in s. 16(3)(i).
6The applicant requests that an order be issued establishing the applicant’s entitlement to the benefits claimed or, in the alternative, that the matter be remitted for a new hearing with different adjudicators.
7The respondent submits that there was no error of law or fact made, that the Tribunal considered the evidence as a whole and supplied cogent reasons for its findings. Finally, the respondent proposes that the applicant is rearguing the same position as well as putting forward new positions not submitted at the hearing.
RESULT
8The applicant’s request for reconsideration is dismissed.
ANALYSIS
9The 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.
An error of law or fact?
10For the reasons that follow, I find that the Tribunal did not err in fact or law.
11The applicant first submits that the Tribunal’s finding that Trinity expenses were more akin to attendant care expenses than rent was inaccurate. The applicant continues to reargue the original points about the make-up of services available and the nature of each of those services, which were made at hearing, without pointing to a specific fact missed or error in law.
12As explained in paragraphs 13-19 of the decision, the Tribunal contemplated the evidence and testimony of the applicant in consideration of the submission that the Trinity expenses were medical in nature and, in the alternative, hospital expenses. The Tribunal found that the references to “rent” in the disputed treatment plans were found not to be an accurate characterization of the expenses. These arguments were considered by the Tribunal in the decision and found not to be consistent with the intent of s. 15(1)(a) nor s. 15(1)(h) of the Schedule.
13I agree with the respondent that this submission is largely a request for a wholesale reweighing of the evidence presented at the hearing which is not the function of a reconsideration.
14Second, the applicant submits that the Tribunal erred as it did not consider the consumer protection nature of the Schedule and the decision was inconsistent with the objective of reducing the economic dislocation and hardship of the most vulnerable motor vehicle accident victims.
15The applicant did not make explicit arguments or submissions during the hearing, about the consumer protection nature of the Schedule. On reconsideration the applicant points to Arts v. State Farm, 2008 CanLII 25055 (ON SC) and submits that the Tribunal “did not apply and consider the consumer protection nature of the SABS”. In particular, the applicant submits that the Tribunal did not give a remedial construction consistent with the objective of reducing the economic dislocation and hardship of motor vehicle accident victims.
16The Schedule is consumer protection legislation.
17It is an agreed fact that the applicant receives the maximum payable, for an individual who has been found to be catastrophically impaired, within the Schedule’s provisions for attendant care services.
18As demonstrated in paragraphs 13, 14, 15, 16, 17, 18 and 19 the Tribunal considered the evidence of the applicant regarding the alternative classification of the expenses as either medical or hospital in nature and found that evidence did not support a finding that the expenses are medical nor hospital in nature.
19While the Schedule is consumer protection legislation, the legislature established categories of benefits and limits to those benefits which are specific. The Tribunal’s role is not to make novel arguments to support a party’s position when they have not made those arguments but to apply the legislation as written and intended.
20I find that the applicant has not proven on a balance of probabilities that the Tribunal made an error in fact or in law in the decision and, as a result, the reconsideration is not granted on this basis.
New Argument – Rehabilitation Benefits, s. 16 of the Schedule
21The applicant also submits that housing is not attendant care; that Trinity is providing housing, and this is akin to rehab provisions regarding home modifications contained in s. 16(3)(i) of the Schedule.
22The respondent submits that the applicant is attempting to enter new arguments that had not been identified at hearing.
23The explicit dispute outlined at paragraph 8 of the decision is and was the express request of the parties and the applicant did not reference s. 16 in any way during the hearing.
24I agree with the respondent that the applicant did not make arguments in relation to s.16 of the Schedule at hearing and is trying to enter those now. The decision explicitly states that the applicant did not argue entitlement based on s. 16 of the Schedule.
25In the request for reconsideration the applicant also submits that food could be considered rehabilitative in nature; the applicant did not advance these arguments at the hearing. The decision at paragraph’s 14 and 15 notes the wide-ranging services provided by Trinity and that the parties agreed the Trinity payments constituted payment for a wide range of services. The applicant was unable to show a breakdown of the costs associated with the assorted services and did not establish that these expenses were medical in nature.
26The 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 of the matter. As a result, the reconsideration request is not granted on this basis.
ORDER
27The applicant’s reconsideration is dismissed.
Timothy Porter
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 7, 2024