Licence Appeal Tribunal
RECONSIDERATION DECISION
Before:
Timothy Porter
Licence Appeal Tribunal File Number:
23-005721/AABS
Case Name:
David Charles Armstrong v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Tanzeela Ansari, Counsel
For the Respondent:
Jeffery Booth, Counsel
OVERVIEW
1On November 27, 2024, the applicant requested reconsideration of the Tribunal’s decision dated November 7, 2024 (“decision”).
2Following a videoconference hearing held on August 6-8, 2024, I released the decision. In the decision, I found that the applicant was statute barred from proceeding with a claim for income replacement benefits. I further found the applicant had not suffered a catastrophic impairment because of the subject accident, and they were not entitled to the 3 treatment plans in dispute.
3The grounds for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023. 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 obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant submits that I committed a material breach of procedural fairness, erred in law and fact and/or mixed law and fact such that the Tribunal would likely have reached a different result had the error not been made. The respondent disagrees and argues that the Tribunal acted properly and within its jurisdiction.
5The applicant seeks an order reversing my decision, or, in the alternative, an order for a new oral hearing.
6The applicant has applied to the Tribunal under their legal name at the time of the accident but subsequently changed their name to “Tally”. The applicant identifies as gender fluid and prefers the pronouns they and them. Much of the documentation received is written with a male pronoun. Efforts have been made to honour their requests for preferred pronouns within this decision.
RESULT
7The applicant has not established grounds for reconsideration on the basis that the Tribunal committed a material breach of procedural fairness or made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
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.
The Tribunal did not commit a material breach of procedural fairness.
10I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal committed a material breach of procedural fairness.
11The applicant submits that I committed a material breach of procedural fairness by: (1) neglecting their current health status, (2) failing to consider their pre-accident trauma, (3) not providing the appropriate weight to their testimony, the testimony and records of Dr. Katz and Dr. Perelman, as well as the testimony and report of Dr. Yaroshevsky.
12The respondent disagrees and submits that there is nothing in my reasons or decision that implies procedural fairness was breached. Instead, the respondent contends this reconsideration is a request to reweigh the evidence.
13The applicant points to their current health status and their pre-accident trauma as underlying reasons that the applicant was not able to entertain certain lines of questioning. In addition, the applicant submits that the weighing of their testimony and witnesses’ evidence was discounted without clear justification. These assertions are being made without supporting facts.
14The hearing was centered on the applicant’s pre- and post-accident health status. The assessment and weighing of the evidence in this dispute were done and reasons were provided in the decision. The applicant was provided the opportunity to outline their pre-accident life and health, the accident, and the impact of the subject accident on their functionality. Their testimony was considered in the decision, as outlined at paragraphs 13, 19, 27, and 36.
15I am not persuaded by the argument that the applicant was unable to fully testify and provide sufficiently specific evidence to avoid traumatizing and triggering themselves. The applicant testified regarding experiences of past physical and emotional trauma over several decades prior to the subject accident. The applicant has the burden of submitting sufficient, persuasive evidence that they were entitled to the disputed benefits that they claimed from the respondent.
16As support for the proposition that certain evidence was not considered, the applicant specifically references another accident that occurred six weeks after the subject accident. The applicant testified they were not involved. The short-term disability claim outlined at paragraph 49 of the decision details that the reason for short-term disability is the second accident which occurred in November 2018. This reference shows that the applicant’s perspective on the second accident was considered and demonstrates that the evidence submitted, and testimony of the applicant are not in agreement.
17The applicant’s witnesses were provided the opportunity to testify, and their diagnosis of mental disorders, testimony regarding the impact to daily life and assessments of the severity of limitations the applicant is experiencing were considered and are outlined at paragraphs 26, 28, 34, 41, 47, 52, and 65. The reconsideration process requires a high threshold and is not an opportunity to argue a reweighting of the evidence.
18I find that the applicant has not established that reconsideration is warranted by Rule 18.2(a).
The Tribunal did not commit an error of law or fact.
19I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal committed an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
20The applicant submits that I made an error in fact or law by not appropriately considering Sabadash v. State Farm et al., 2019 ONSC 1121, 17-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT) and L.P-C. v. Aviva Insurance Canada, 2022 CanLII 94806 (ON LAT) and thereby dismissed subjective evidence in favor of objective evidence. Further, they argue that I did not appropriately consider that the applicant only needs to prove on a balance of probabilities that it is reasonable and necessary that they explore the possibility that they suffer from a psychological impairment.
21In contrast, the respondent cites HS v RBC General Insurance Company, 2018 CanLII 83519 (ON LAT) highlighting that the applicant has submitted no material for the respondent to respond to.
22The caselaw proposed by the applicant is not enlightening in this situation because these cases do not consider whether the applicant’s injuries are as a result of the subject accident, an issue very much in question for this applicant who has a decades-long, well documented psychiatric history. The multi-decade long objective evidence demonstrates a functional presentation which is considerably similar to the current presentation and is not aligned with the applicant’s subjective view. Where causation is at issue, as the respondent contended, Sabadash required me to be satisfied that, but for the subject accident, the applicant’s impairments would not have occurred. The applicant bore the burden of proving causation and they did not satisfy their burden.
23The applicant’s position regarding the catastrophic impairment assessment was considered in my decision. The position of the applicant was determined not to be reasonable as outlined in the decision at paragraphs 71-75 of the decision.
24I agree with the respondent and their caselaw that nothing material has been submitted by the applicant. The applicant has not established that reconsidered is warranted by Rule 18.2(b).
CONCLUSION & ORDER
25The applicant has not established grounds for reconsideration on the basis that the Tribunal committed a material breach of procedural fairness or made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
26The applicant’s request for reconsideration is dismissed.
Timothy Porter
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 18, 2025