RECONSIDERATION DECISION
Before: Melanie Malach, Adjudicator
Licence Appeal Tribunal File Number: 22-009968/AABS
Case Name: Miguel Moran v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Kathleen Mertes, Counsel
OVERVIEW
1On January 7, 2025, the applicant requested reconsideration of the Tribunal’s decision dated November 7, 2024 (“decision”).
2Stemming from the subject accident on July 5, 2018 (“subject accident”), the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2020 (including amendments effective June 1, 2016) (the “Schedule”). Following a written hearing, I found that the applicant was not entitled to the treatment plans in dispute, nor was he entitled to interest or an award.
3The applicant was involved in a previous motor vehicle accident on May 24, 2017 (“2017 accident) and made a claim for accident benefits to the respondent.
4The 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.
5The applicant relies on criteria (a) and (b) in his request for reconsideration. The applicant is asking the Tribunal to either confirm that the issues in dispute are reasonable and necessary, along with interest and an award, or to “order a rehearing”.
6The respondent opposes the applicant’s request for reconsideration.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The 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.
Rule 18.2(a) – Material Breach of Procedural Fairness
9I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a), as he did not demonstrate a material breach of procedural fairness.
10The applicant submits that the Tribunal committed a material breach of procedural fairness in not addressing the applicant’s request for relief in his Notice of Motion, dated March 1, 2024. The following are the relevant particulars:
i. On February 7, 2024, the applicant filed his initial submissions.
ii. On February 27, 2024, the respondent filed its initial submissions and a Notice of Motion to exclude evidence from the applicant’s submissions.
iii. On February 27, 2024, the Tribunal ordered that the respondent’s motion would be heard at the written hearing scheduled for March 8, 2024. The applicant was invited to file responding motion submissions by March 5, 2024. The respondent was invited to file reply motion submissions by March 8, 2024.
iv. On March 1, 2024, the applicant filed a Notice of Motion requesting that the respondent’s motion to exclude evidence from the applicant’s submissions be heard prior to submitting his reply submissions for the written hearing. The applicant filed his reply submissions on March 1, 2024.
v. By email dated March 1, 2024, the Tribunal responded to the applicant’s Notice of Motion, stating that a Request for Adjournment was required for the applicant’s request, as this was a request to change the event date. It advised that the applicant’s motion would not be processed.
vi. On March 1, 2024, the applicant submitted a Request for Adjournment.
vii. On March 4, 2024, the Tribunal responded to the applicant’s Request for Adjournment as follows:
Please resubmit the adjournment request ensuring that the applicant record the correct event date and time. Once the form is received by the Tribunal the adjournment request will be processed. If the adjournment request is not received 2 full business days prior to the scheduled event, parties will be advised to attend the event at the scheduled date/time and present the request to the residing Adjudicator.
No amended Request for Adjournment was submitted by the applicant.
viii. On March 5, 2024, the applicant submitted its responding motion submissions.
ix. On March 8, 2024, the respondent submitted its reply motion submissions.
11The applicant submits that the Tribunal never addressed the applicant’s request for the motion filed by the respondent to be heard prior to the written hearing itself. As such, the applicant argues that he was never given the opportunity to be fairly heard. The applicant further states that “the impact of the respondent’s motion on [my] decision was evident in her exclusion of several reports that were assessed in relation to the applicant’s 2017 accident”. The applicant further submits that I did not address the applicant’s relief request at paragraph 2 of his reply submissions in my decision, to have the respondent’s motion decided prior to the hearing.
12The respondent submits that no breach of procedural fairness occurred. The respondent submits that the applicant is mischaracterizing the decision and that no medical evidence submitted by the applicant in his initial submissions was excluded by the Tribunal. The respondent further submits that there can be no breach of procedural fairness when the applicant was provided with an opportunity to respond to the respondent’s Notice of Motion and subsequently did so on March 5, 2024.
13I find that the applicant has not established a material breach of procedural fairness. I find that the Tribunal communicated with the applicant and provided the direction that the applicant was seeking by advising all parties on February 27, 2024, that the respondent’s motion would be heard at the hearing. The Tribunal provided the applicant with the opportunity to provide submissions in response to the motion by March 5, 2024, which it did. The applicant was also advised to submit a revised Adjournment Request form if he still maintained that he wanted further relief. The applicant did not submit a revised request.
14Further, I do not accept the applicant’s submission that I did not address the applicant’s relief request at paragraph 2 of his reply submissions. Upon review of paragraph 2, there is no relief requested by the applicant. The applicant outlined the chronology of events and noted that a copy of the applicant’s notice of motion was attached. In my decision, I reviewed the evidence submitted by the parties and addressed the procedural issues in dispute which dealt with the respondent’s motion and the submissions of the parties.
15In addition, I find the applicant has not satisfied me that he was never given the opportunity to be fairly heard. I further do not accept the applicant’s submission that the impact of the respondent’s motion was that I excluded several reports that were assessed in relation to the 2017 accident. At paragraph 17 of my decision, I found that, “The respondent’s request to exclude paragraphs 42, 56 and 74 of the applicant’s submissions and the reports of Dr. Weinberg, Dr. Vitelli and Dr. Yee is denied.” The respondent was not successful in its motion to exclude the medical reports in dispute.
16Accordingly, I do not find that the applicant has demonstrated that the Tribunal committed a material breach of procedural fairness. As a result, the applicant’s request for a reconsideration under Rule 18.2(a) is dismissed.
Rule 18.2(b) – Error of Law or Fact
17I find that the applicant has not demonstrated that I erred in law in my decision. As such, the applicant’s request for reconsideration, under Rule 18.2(b), is dismissed.
18The applicant submits that I made several errors of law which impacted my analysis of the issues in dispute. Specifically, the applicant submits that I erred by:
a. Finding that the respondent did not have a right under the Personal Information Protection and Electronic Documents Act (“PIPEDA”) to access documentation submitted in relation to another one of his claims, without his express waiver and striking paragraph 11 of the applicant’s written submissions;
b. Excluding medical documentation in the applicant’s reply submissions;
c. Not applying the test for causation;
d. Finding that the respondent’s denial notices were compliant with s. 38(8) of the Schedule; and
e. Finding that the applicant is not entitled to an award.
a. Access to Documentation
19I find that the applicant has not established grounds for reconsideration under Rule 18.2(b), with respect to my finding that the respondent did not have a right, under PIPEDA, to access documentation submitted in relation to another one of his claims, without his express wavier.
20In the respondent’s notice of motion, it submitted that it was legally prohibited by PIPEDA from accessing or relying on any personal or medical documentation submitted by the applicant in respect of his 2017 accident, absent the applicant providing a signed waiver to the respondent and/or directly serving the medical documentation arising from the prior claim to the respondent. The respondent submitted that the applicant had not provided the respondent with the requisite waiver to allow it legal access to the 2017 claims file and had not otherwise served any medical documentation obtained in relation to the 2017 accident as part of the subject accident benefits file, The respondent therefore submitted that it is prejudicial to the respondent for the applicant to submit that the respondent’s failure to consider documentation that it was not legally allowed to review is evidence of bad faith handling of the subject claim, entitling the applicant to an award. In its notice of motion, it requested I strike paragraph 11 of the applicant’s written submissions.
21The applicant submits that my conclusions at paragraph 15 of my decision are not valid and my decision to strike paragraph 11 of the applicant’s written submissions was an error in law. At paragraph 15 of my decision, I found,
…the fact the respondent is handling both the 2017 and 2018 claims does not negate the respondent’s obligations under PIPEDA and its inability to review and consider medical evidence from a different claim until it has been properly served or a waiver has been provided.
22At paragraph 16 of my decision, I granted the respondent’s request to exclude paragraph 11 of the applicant’s submissions in determining the applicant’s entitlement to a s. 10 award pursuant to Reg. 664.
23The applicant submits that I made an error in law by failing to consider the report of the Office of the Privacy Commissioner of Canada, dated April 14, 2015, and the Tribunal decision in Mansuri v. The Dominion of Canada General Insurance Company (“Mansuri”), 2022 CanLII 138547 (ON LAT). I find that the report of the Privacy Commissioner and the decision in Mansuri, were not previously before the Tribunal in relation to the motion or the written hearing. The 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 process. The applicant had an opportunity to raise these arguments in his submissions for the motion and the initial hearing, but he did not do so. For this reason, I will not consider them at this stage.
24Further, I find the applicant has not satisfied me that he could not have anticipated the arguments raised by the respondent and the decision made by the Tribunal. The applicant received the motion submissions of the respondent and provided a response to these submissions. My decision was based on both parties’ submissions and the evidence presented to me.
25The applicant further submits that I neglected his argument that the respondent had access to and had considered the impact of the 2017 when adjusting the subject claim. In support of this submission, the applicant points to correspondence from the respondent dated May 19, 2022. The Tribunal is not required to include every argument in its reasons, nor is it required to make explicit findings on each constituent element leading up to its conclusion. The applicant has not demonstrated how not referencing the May 19, 2022 letter that the respondent sent to him meets the standard of Rule 18.2(b). Further, I agree with the respondent’s submission that this email correspondence was the respondent confirming that it was not interested in settlement. This email does not support the applicant’s position that the respondent had access to, and had considered the impact of, the 2017 accident when adjusting the claim for the subject accident.
26For these reasons, I find that the applicant has not demonstrated that I erred in law in my decision. As such, the applicant’s request for reconsideration, under Rule 18.2(b), is dismissed as it relates to this ground.
b. New Evidence in Reply
27I find that the applicant has not established grounds for reconsideration under Rule 18.2(b), with respect to the exclusion of medical documentation in the applicant’s reply submissions.
28The applicant submits that I made an error in law by excluding medical evidence referenced at paragraphs 6, 12 and 19 of his reply submissions.
29In my decision, at paragraph 9, I determined that,
I find that the applicant’s evidence and reliance on new medical documentation in his reply submissions that was not previously mentioned in his initial submissions, will not be considered in rendering my decision. Specifically, I will not consider the additional medical documents referred by the applicant in paragraphs 6, 12, and 19 of his reply submissions.
30The applicant submits that I erred in not considering paragraphs 6, 12 and 19 of the applicant’s submissions. The applicant submits that it did not provide new medical evidence in his reply but merely highlighted evidence and responded to the respondent’s submissions. The applicant further submits that the respondent already had this evidence prior to the hearing.
31I find that it is clear from paragraph 9 of my decision, that it was the additional new medical documentation referred to in paragraphs 6, 12, and 19 that were not considered in rendering my decision, not the submissions made by the applicant. At paragraph 8, I found,
In addition, in his reply submissions, the applicant refers to multiple medical documents from different providers, expecting the Tribunal to go through the records independently to find support of his position. There are not any specific references or summaries of what the records state, but a mere list of the documents. It is not the responsibility of the Tribunal to read through pages of medical records to make the applicant’s case.
32For these reasons, I do not find that the applicant has demonstrated that I erred in law in my decision. As such, the applicant’s request for reconsideration under Rule 18.2(b) is dismissed as it relates to this ground.
c. Test for Causation
33I find that the applicant has not established grounds for reconsideration under Rule 18.2(b), with respect to the application of the test for causation.
34The applicant submits that I made an error in law by not applying the “but for” test” for causation. The applicant submits that I disregarded the impact of the subject accident on the applicant’s condition, and instead attributed his injuries entirely to the 2017 accident. The applicant further submits that I excluded and/or placed little weight on reports that should have been given more significance in the decision.
35I find that the applicant’s request for reconsideration is largely an attempt to re-argue his position that he is entitled to the treatment plans in dispute.
36First, as stated above, the respondent was unsuccessful in its motion to exclude various medical reports from the applicant’s submissions. At no point in my decision were medical reports excluded from the applicant’s initial submissions. As the adjudicator deciding this hearing, it is my decision to assign weight to certain reports based on the evidence and arguments provided.
37Second, I find that the applicant has not provided any evidence or arguments in his reconsideration submissions to show that I disregarded the impact of the subject accident on the applicant’s condition, and instead attributed his injuries entirely to the 2017 accident. My decision outlines the evidence reviewed, and it provides the reasons why I did or did not accept the arguments and evidence presented by both parties. Inclusive of these reasons was that some of the reports pre-dated the subject accident, or made no reference to the subject accident, instead attributing the existing impairments directly to the 2017 accident.
38Third, I do not agree with the applicant’s submissions that my handling of this evidence put causation into play. I find that the applicant did not make any causation arguments and did not raise the causation test for my consideration. Had the applicant wanted to argue that but for the 2017 accident, he would not have suffered injuries in the subject accident, he was entitled to provide these submissions. My decision was based on the submissions and arguments put before me.
39For these reasons, I do not find that the applicant has demonstrated that I erred in law in my decision. As such, the applicant’s request for reconsideration under Rule 18.2(b) is dismissed as it relates to this ground.
d. Section 38(8)
40I find that the applicant has not established grounds for reconsideration under Rule 18.2(b), with respect to my findings regarding s. 38(8) of the Schedule.
41The applicant submits that I made an error in law in finding that the respondent’s denial notices were compliant with s. 38(8) of the Schedule.
42I find that the applicant has not established grounds for reconsideration under Rule 18.2(b). Specifically, I find that the applicant is raising the same s. 38 arguments previously raised in the initial hearing. In my decision, I considered the evidence and submissions presented by the parties, and I addressed the question of the adequacy of the notices. The reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision.
43For these reasons, I do not find that the applicant has demonstrated that I erred in law in my decision. As such, the applicant’s request for reconsideration, under Rule 18.2(b), is dismissed as it relates to this ground.
e. Award
44I find that the applicant has not established grounds for reconsideration under Rule 18.2(b), with respect to an award.
45The applicant submits that I made an error in law in not ordering an award. The applicant submits that he is entitled to an award on the payment of benefits on account of the respondent unreasonably withholding and delaying the same. In his reply reconsideration submissions, he submits that I concluded the applicant was not entitled to an award on the flawed basis that he was not entitled to any of the disputed medical and rehabilitation benefits.
46I find that the applicant’s request for reconsideration makes no allegation of an error of law or fact, and he is instead re-arguing his position that he is entitled to an award. Having found that the applicant is not entitled to any of the benefits in dispute, I further find that the applicant has not demonstrated that I committed an error by not granting an award.
47For these reasons, I do not find that the applicant has demonstrated that I erred in law in my decision. As such, the applicant’s request for reconsideration under Rule 18.2(b), is dismissed as it relates to this issue.
CONCLUSION & ORDER
48For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Melanie Malach Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: March 18, 2025