RECONSIDERATION DECISION
Before: Robert Rock
Licence Appeal Tribunal File Number: 21-009175/AABS
Case Name: Petar Cvetkovski v. Belair Insurance Company Inc.
Written Submissions by:
For the Applicant: Loreto Scarola, Counsel
For the Respondent: Michael Courneyea, Counsel
OVERVIEW
1On November 8, 2024, the applicant requested reconsideration of the Tribunal’s decision dated October 22, 2024 (“decision”).
2In the decision, I found that the applicant was not removed from MIG, he was not entitled to the disputed treatment plans, and was also not entitled to non-earner benefits (NEBs).
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 is seeking a reconsideration pursuant to Rules 18.2 (b). The applicant is requesting the decision be varied or cancelled.
5The respondent submits that the applicant has no legitimate grounds for reconsideration, and the request for reconsideration should be denied.
RESULT
6The applicant’s 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.
Reconsideration under Rule 18.2(b).
8I find the applicant has not proven on a balance of probabilities that I made errors of law or fact, and as a result has not established grounds for reconsideration under Rule 18.2(b).
9The applicant submits I made six errors of law or fact in the decision as follows:
a. Suggesting the applicant was not consistently complaining of pre-accident impairments to his family physician;
b. Failing to consider the totality of the evident surrounding the applicant’s impairments;
c. Preferring s. 44 examinations over treating professionals;
d. Failing to consider evidence confirming the respondent’s violations of sections 8, 9, 10, and 11, of the Schedule and lack of evidence to the contrary;
e. Failing to consider the respondent’s inaccurate and misleading arguments; and
f. Failing to apply adverse inferences regarding the respondent’s evidence.
a) Suggesting the applicant was not consistently complaining of pre-accident impairments to his family physician beyond July 28, 2019
10I find that while the applicant has proven that I erred in the decision, the applicant has not proven on a balance of probabilities that I would have reached a different outcome had the error not been made such that a reconsideration should be granted on this basis.
11In the decision, I erred by stating that there were no pre-accident complaints regarding impairment by the applicant beyond July 28, 2019, at paragraph 13. I find that the applicant did visit his family doctor beyond July 28, 2019, which was prior to the accident. The evidence from those visits, however, would not have led me to reach a different result regarding a pre-existing condition.
12As I outlined in my decision, there was ample reporting by the applicant that all of his physical and psychological pre-existing conditions had resolved prior to the accident. For example, in the April 28, 2021, assessment report by Dr. Pilowsky, psychologist, Dr. Pilowsky noted, “At the time of the subject accident, Mr. Cvetkovski’s psychological qualms relative to the 2016 accident had resolved, and he was no longer taking anxiolytic.” In the July 27, 2021, orthopedic assessment by Dr. Ogilvie-Harris, orthopedic surgeon, Dr. Ogilvie-Harris noted that the applicant was active in household chores and walked a lot, at times “an hour or more”. On April 30, 2021, the psychological assessment by Dr. Saunders, psychologist, Dr. Saunders noted the applicant reported to the doctor that he was responsible for household chores, including snow-clearing, grass cutting, laundry, and shopping. Later in Dr. Saunders report, the doctor notes in past medical history, “he reports that at the time of the subject accident, these symptoms were resolved.” Finally, in the January 22, 2022, general practitioners assessment Dr. Mula, pain management evaluator, Dr. Mula notes in reference to that applicant prior medical history, “he was involved in a prior motor vehicle accident with no remaining issues at the time of the subject motor vehicle accident”.
13I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2(b) and an error in law or fact regarding the suggestion the applicant was not consistently complaining of pre-accident impairments to his family physician. While this was a factual error, I find that such an error in fact would not likely have changed the outcome of the decision on the applicant’s pre-existing condition as required by Rule 18.2(b). This is because this was not the basis for the Tribunal’s decision. Rather, the Tribunal found that the applicant did not prove that he suffered a pre-existing condition at the time of the accident.
14In my view, the remaining alleged errors of facts and law do not actually point to errors, but instead either propose a re-weighing of the evidence as alleged in b & c, or allege that evidence was “ignored” by the Tribunal as alleged in e & f, or the introduction of a new argument as presented in d. It is well established that re-weighing the evidence is not the proper role of reconsideration and that the Tribunal is not required to address or reference every piece of evidence or case law that is put before it at a hearing.
15For all these reasons, I find that even if the Tribunal did err in fact or law in the decision, the outcome would not have been affected. As a result, the applicant’s request for a reconsideration under Rule 18.2(b) is dismissed.
CONCLUSION & ORDER
16The applicant’s request for reconsideration is dismissed.
Robert Rock
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 25, 2025