RECONSIDERATION DECISION
Before: Ludmilla Jarda
Licence Appeal Tribunal File Number: 23-000150/AABS
Case Name: Falastin Hussein v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Ryan Naimark, Counsel Dana Yoon, Counsel
For the Respondent: Noella Thompson, Counsel Hussein Pirani, Counsel
OVERVIEW
1On May 16, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal (“Tribunal”) decision dated April 25, 2024 (“decision”).
2In its decision, the Tribunal found that the applicant had not demonstrated that the incident that occurred on June 10, 2021 constituted an “accident” as defined in section 3(1) of the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). As the applicant did not establish that she was involved in an accident, the Tribunal found that her claim for accident benefits could not succeed. As a result, the Tribunal held that it was unnecessary to consider the issue of whether the applicant submitted her application for accident benefits within the time prescribed by the Schedule. Further, the applicant was not entitled to interest, and the respondent was not liable to pay an award. The Tribunal dismissed the application.
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 seeks reconsideration pursuant to Rules 18.2(a) and (b).
5The applicant submits that the Tribunal committed a material breach of procedural fairness in concluding that the applicant’s resting place following the accident is consistent with Equerem Godaj’s and Darryl Welsh’s version of the accident without expert engineering.
6The applicant further submits that the Tribunal made the following errors of law and fact such that the Tribunal would likely have reached a different result had these errors not been made,
a. in holding that there was no property damage on Mr. Godaj’s vehicle and in placing significance on there being no property damage;
b. in failing to consider the destruction of the applicant’s wheelchair,
c. in drawing an adverse inference on Rawoof Qurbani’s testimony;
d. in its review of Mr. Qurbani’s testimony; and
e. in its review of the video of the immediate aftermath of the accident.
7The applicant initially requested that the decision be varied, that an order making a finding that the applicant was involved in an accident be issued, and that the Tribunal provide a decision with reasons on the other preliminary issue with respect to notice as well as the issues of interest and award. On reply, the applicant requested that a new hearing be ordered.
8In response, the respondent submits that the Tribunal did not commit a material breach of procedural fairness and denies that the Tribunal made any errors of law or fact such that the Tribunal would likely have reached a different result. The respondent states that the Tribunal dealt with the arguments advanced by the parties, reviewed the evidence, and rendered the correct decision. The respondent further argues that the applicant is attempting to relitigate her case, and that her request for reconsideration should be dismissed.
RESULT
9The applicant’s request for reconsideration is dismissed.
ANALYSIS
10The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to relitigate its position where it disagrees with the decision, or 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): Procedural fairness
11I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness pursuant to Rule 18.2(a).
12The applicant submits that the Tribunal committed a material breach of procedural fairness when it concluded, based on its review of a still photo taken from the video taken by Mr. Qurbani of the immediate aftermath of the accident, that the applicant’s resting place was consistent with Mr. Godaj’s and Mr. Welsh’s version of the accident. The applicant suggests that this conclusion could not have been made without expert engineering evidence. The applicant also notes that the Tribunal did not request any expert engineering evidence and neither party submitted any expert engineering evidence.
13The applicant argues that based on the evidence presented at the hearing, the Tribunal could not have made a conclusion on the mechanics of the accident and on the location where the applicant’s wheelchair came to rest after the accident.
14I do not agree with the applicant’s submissions, and I find that the Tribunal did not commit a material breach of procedural fairness.
15I find that the applicant is attempting to relitigate the Tribunal’s finding that the applicant did not demonstrate, on a balance of probabilities, that the incident that occurred on June 10, 2021 constitutes an “accident” as defined in s. 3(1) of the Schedule.
16As indicated at paragraph 11 of the decision, the applicant argued at first instance that the back of her wheelchair was struck by the front end of Mr. Godaj’s vehicle, causing her to fall out of her wheelchair to the ground, and for her wheelchair to land on her legs.
17The Tribunal considered the evidence tendered by the parties and indicated at paragraph 28 of the decision that the still shot of the video taken by Mr. Qurbani following the accident depicting the applicant’s resting place immediately following the incident was consistent with Mr. Godaj’s and Mr. Welsh’s version of the incident. Specifically, the image depicted the applicant laying on the roadway north of the crosswalk with her wheelchair laying on top of her lower limbs, and the applicant’s wheelchair was facing Mr. Godaj’s vehicle. The positioning of the applicant and her wheelchair in this image was not consistent with the applicant’s allegation that she was struck from behind by Mr. Godaj’s vehicle.
18It was within the Tribunal’s power to consider the evidence tendered by the parties, to make findings of facts, and to make a determination regarding whether an accident occurred. While the applicant now argues on reconsideration that the Tribunal could not have made the above finding of fact without expert engineering evidence, it is well established that the burden of proving whether an accident occurred lies with the applicant. Further, the applicant, who did not tender any expert engineering evidence in support of her claim at first instance, has not directed the Tribunal to any authority to support that the Tribunal had a positive obligation to seek expert engineering evidence from the parties in the circumstances.
19Accordingly, I find that the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): Error of law and fact
20I find that the applicant has not established that 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.
21The applicant submits that the Tribunal made several errors.
22The applicant argues that the Tribunal erred in holding that there was no property damage to Mr. Godaj’s vehicle and in placing significance on there being no property damage. The applicant submits that property damage to a vehicle is not necessary for an accident and relies on Yaw Poku Dwumaah v. RBC General Insurance Company, 2005 ONFSCDRS 58 (“Dwumaah”) and on 17-009212 v. Aviva Insurance Company of Canada, 2019 CanLII 51313 (ON LAT) (“17-009212”).
23Although the applicant relies on Dwumaah and 17-009212 for the first time on reconsideration, I find that these decisions are distinguishable, and, in any event, I am not bound by these decisions. In both decisions, the Financial Services Commission of Ontario (“FSCO”) and the Tribunal held that injuries and impairments can occur without property damage to the vehicle. However, in the present case, the lack of property damage was considered in the context of whether the incident that occurred on June 10, 2021 arose out of the use or operation of an automobile.
24Further, while the applicant argues on reconsideration that an accident can occur without there being any damage to the vehicle, I note that the applicant made a similar argument at first instance when she argued that it did not take much to tip over the applicant’s wheelchair and that there would not necessarily be any damage to the vehicle. A reconsideration is not an opportunity to reargue a position that was not accepted by the Tribunal at first instance. Also, the lack of damage to Mr. Godaj’s vehicle was not the sole reason the Tribunal found that an accident did not occur. Rather, the Tribunal outlined several reasons at paragraphs 19 to 30 of the decision in support of its findings.
25The applicant argues that the Tribunal erred in failing to consider the destruction of the applicant’s wheelchair. The applicant alleges that she requested that an adverse inference be drawn of the destruction of evidence as the applicant’s wheelchair likely showed damage confirming that it had been struck by Mr. Godaj’s vehicle. She notes that there is no mention of the destruction of the applicant’s wheelchair in the decision.
26I agree that the Tribunal did not comment on the alleged destruction of the applicant’s wheelchair in the decision. However, at paragraphs 21 to 23 of the decision, the Tribunal was not persuaded by the applicant’s version of the incident. The applicant did not see Mr. Godaj’s vehicle strike her wheelchair, and she observed his vehicle for the first time after she fell on the ground. Further, Mr. Qurbani did not recall seeing the incident, and he testified that he looked away, and then he heard a noise. Also, Mr. Godaj denied striking the applicant’s wheelchair with his vehicle.
27Further, although the applicant made submissions and tendered evidence at first instance regarding the alleged destruction of the applicant’s wheelchair, it was not necessary to detail the alleged destruction of the applicant’s wheelchair as her version of the incident was not accepted, and there was no objective evidence to support a finding that Mr. Godaj’s vehicle came into contact with the applicant’s wheelchair. Additionally, in Weir v. Unifund Assurance Company, 2021 CanLII 117359 (ON LAT) at paragraph 10, the Tribunal held that “[t]here is no requirement for a decision-maker to exhaustively list every item in evidence when rendering its reasons for decision.”
28The applicant argues that the Tribunal erred in drawing an adverse inference on the fact that Mr. Qurbani opted not to communicate his evidence to the Toronto Police Service. The applicant further argues that the Tribunal made an adverse inference from the fact that Mr. Qurbani provided an unsworn statement to the applicant’s former counsel. However, it was within the Tribunal’s purview to weigh Mr. Qurbani’s evidence and to provide reasons for disagreeing with the applicant’s submissions that Mr. Qurbani was the “best witness” in the present case.
29As indicated at paragraph 22 of the decision, although the applicant argued that Mr. Qurbani was the “best witness,” the Tribunal did not agree. Mr. Qurbani asserted that he had knowledge of the incident, but he opted not to communicate this information to the Toronto Police Service. Rather, Mr. Qurbani provided an unsworn statement to the applicant’s former counsel on July 9, 2021. In his unsworn statement, Mr. Qurbani reported that Mr. Godaj was travelling on Dixon Road, that he turned left without stopping, that he struck the applicant’s wheelchair, and that she was thrown from her wheelchair and fell on the ground. When he testified before the Tribunal, it was his evidence that he did not recall seeing the incident. He remembered looking out his window and seeing Mr. Godaj’s vehicle travelling east on Dixon Road, about to make a left-hand turn at the intersection, and he saw the applicant crossing the street in her wheelchair, facing a green light. He looked away, and then he heard a noise. Although it was his belief that Mr. Godaj’s vehicle struck the applicant, he maintained that he did not recall seeing what happened.
30The applicant argues that the Tribunal erred in its review of Mr. Qurbani’s testimony. The applicant states that the Tribunal noted that Mr. Qurbani’s evidence was that he did not recall seeing the incident and submits that this is incorrect. The applicant alleges that Mr. Qurbani testified that he recalled the incident but that he did not recall seeing the moment of impact as his attention was drawn elsewhere momentarily. While the applicant is attempting, on reconsideration, to nuance Mr. Qurbani’s evidence with the Tribunal’s finding of fact set out at paragraph 22 of the decision, Mr. Qurbani’s undisputed evidence remains that he did not witness Mr. Godaj’s vehicle strike the applicant’s wheelchair.
31The applicant argues that the Tribunal erred in its review of the video of the immediate aftermath of the accident. The applicant also suggests that the video corroborates Mr. Qurbani’s version of the event as opposed to Mr. Godaj’s and Mr. Welsh’s version of the event. The applicant’s argument on reconsideration is similar to the argument she made at first instance. This position was considered by the Tribunal, as indicated at paragraph 28 of the decision, and the Tribunal made a different finding of fact. The Tribunal concluded that the video corroborated Mr. Godaj’s and Mr. Welsh’s version of the event as opposed to the applicant’s version of the event.
32For the reasons outlined above, I do not agree with the applicant’s submissions, and I find no error in law or fact in the Tribunal’s decision. Further, as previously indicated, I find that the applicant is attempting to relitigate the Tribunal’s findings that the incident that occurred on June 10, 2021 does not constitute an “accident.”
33The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the applicant’s submissions and evidence does not support that the Tribunal made errors of law or fact. In its decision, the Tribunal considered the parties’ submissions and evidence, highlighted the evidence that it considered more relevant to the issues in dispute, assigned weight accordingly, and came to the conclusion that the applicant had not established on a balance of probabilities that an accident occurred.
34Accordingly, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(b).
CONCLUSION & ORDER
35The applicant has not established grounds for reconsideration under Rules 18.2(a) or (b).
36The applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 8, 2024