Citation: Carpenter v. Intact Insurance Company, 2025 ONLAT 22-011554/AABS - R
RECONSIDERATION DECISION
Before: Rachel Levitsky, Adjudicator
Licence Appeal Tribunal File Number: 22-011554/AABS
Case Name: Richard Carpenter v. Intact Insurance Company
Written Submissions by:
For the Applicant: Paul Oddi, Counsel
For the Respondent: Mikhail Shloznikov, Counsel
OVERVIEW
1On December 18, 2024, the respondent requested reconsideration of the Tribunal’s decision dated November 27, 2024 (“decision”).
2Following a written hearing, I issued a decision where I found that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, as he was struck by an automobile. I also found that the respondent was not liable to pay an award.
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.
4According to its reconsideration form, the respondent seeks reconsideration pursuant to Rule 18.2(a), Rule 18.2(b), and Rule 18.2(c). It requests that the decision be varied to conclude that the applicant was not involved in an “accident” as defined by the Schedule.
5The applicant submits that the respondent’s request for reconsideration should be dismissed.
RESULT
6The respondent’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.
The Tribunal did not act outside its jurisdiction or commit a material breach of procedural fairness – Rule 18.2(a)
8I find that the respondent has not established that I acted outside my jurisdiction, nor has it established that I committed a material breach of procedural fairness, in accordance with Rule 18.2(a).
9During the hearing, the respondent argued that the vehicle that struck the applicant, a wheel loader, was not an “automobile” under s. 3(1) of the Schedule. At paragraph 7 of my decision, I set out the three-part test from Adams v. Pineland Amusement Ltd. et al., 2007 ONCA 844 (“Adams”) for determining if a vehicle is considered an “automobile”:
a. Is the vehicle an “automobile” in ordinary parlance?
b. If not, then is the vehicle defined as an “automobile” in the wording of the insurance policy?
c. If not, then does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?
10The respondent acknowledges that I set out this test correctly. However, it submits that my decision was based solely on the first part of the test, whereas the applicant made arguments in support of his position based on the third part of the test. The respondent submits that if I believed the first part of the Adams test was determinative, I had an obligation to seek clarification or further submissions from the parties. Citing Scarlett v. Belair Insurance, 2015 ONSC 3635, the respondent argues that I denied it procedural fairness by failing to do so, as the parties should have an opportunity to argue all of the issues in consideration.
11I accept that, at paragraph 26 of his submissions for the hearing, the applicant stated that the vehicle “would not normally be considered an automobile in ordinary parlance”. However, the applicant also relied on Grummett v. Federation Insurance Co. of Canada, 1999 CanLII 15103, which dealt with the “ordinary parlance” test and explained that it was appropriate to consider the purpose and function of the vehicle in making that determination. The applicant then made extensive submissions regarding the purpose and function of the vehicle.
12The respondent argued in its submissions for the hearing that “there are no ancillary or saving provisions for any further inquiry regarding purpose, function, and/or indicia of a vehicle, outside the first part of the test.” The respondent then made submissions regarding the purpose, function, and indicia of the vehicle, stating: “the fact that a wheel loader can have, inter alia, wheels, doors, signal lights, GPS, and can travel on roads does not make it an automobile or akin to one.” I find that the respondent had an opportunity at the hearing to respond to the applicant’s submissions on the first part of the test, and it did so. I then addressed these submissions at paragraph 12 of my decision.
13Overall, I find that the respondent has not established that I committed a material breach of procedural fairness by not reaching out to the parties to invite further submissions. Instead, I find that this was an issue that both parties addressed at the hearing, and these submissions were considered when I rendered the decision.
14The respondent also submits that I acted outside my jurisdiction in deciding the issue solely on the first part of the Adams test. It did not elaborate further. I am satisfied that the respondent has not demonstrated how it was outside my jurisdiction to determine whether the vehicle was an “automobile” and apply the first part of the Adams test in order to do so.
The Tribunal did not make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made – Rule 18.2(b)
15I find that the respondent has not established that I made an error of law or fact such that I would likely have reached a different result had this error not been made, in accordance with Rule 18.2(b).
16The respondent submits that I made the following errors of law and fact:
a. I misinterpreted and misapplied the first part of the Adams test; and
b. I misinterpreted and improperly weighed evidence concerning the preparation of the motor vehicle accident report.
17The respondent submits that my analysis of the Adams test was confined to only two considerations: that the wheel loader was being driven on a street at the time of the accident, and that it had an assortment of automotive or car-type features. According to the respondent, I did not consider the broader purpose, function, and design of the wheel loader. It argues that, by narrowly focusing on its momentary use at the time of the accident and its features, as opposed to completing a holistic analysis, I misapplied the “ordinary parlance” test.
18At paragraph 10 of my decision, I looked at the features of the vehicle as well as its purpose and function. The respondent has not shown how I erred in doing this analysis. Further, I find that this argument is largely a request for a reweighing of the evidence presented at the hearing, which is not the function of the reconsideration process.
19The respondent also submits that I erred in my analysis of the “ordinary parlance” test by not establishing or discussing a basic definition of the term “automobile”. It relies on CAA v. Turner, 2000 ONFSCDRS 30, where the Director’s Delegate was referred by the insurer to dictionary definitions of the word “automobile”. This decision is not binding on me, and the respondent has not pointed me to any binding authority that establishes a requirement to consider dictionary definitions, especially where one was not put before me during the hearing. The reconsideration process is not an opportunity to advance new arguments that a party could have but did not make during the hearing, which is what I find the respondent is attempting to do.
20Additionally, the respondent takes issue with paragraph 11 of my decision, where I wrote:
I am further persuaded by the fact that the police officer who attended the scene of the accident asked the driver for his license and automobile insurance and prepared a motor vehicle accident report. Although this is not determinative of the issue, I find that it illustrates how someone else on the roadway viewed the vehicle, which gives credence to the fact that it was an automobile in ordinary parlance.
21It submits that this inference was unfounded as there was no evidence or discussion within the report to explain the officer’s decision to prepare a motor vehicle accident report instead of another type of document or form. It also submits that a police officer is a public official with special duties and obligations that set them apart from the average person or “someone else on the roadway”, and the administrative decision to prepare a report is not indicative of whether a typical person would consider a wheel loader to be an “automobile”.
22Again, this is an attempt to reweigh the evidence. One of the applicant’s arguments at the hearing was that the police officer asked the operator of the vehicle for his license and automobile insurance because he was operating an automobile at the time of the accident. The respondent did not address this argument in its responding hearing submissions. I found that the officer’s actions were a relevant consideration in my decision. The respondent has not established how I erred in doing so.
23Finally, the respondent argues that I failed to consider that the vehicle was unplated or whether the operator required a driver’s license or insurance to operate it. Although I did not expressly reference these points in my decision, I considered all of the information and evidence presented by the parties. I am not required to cite every piece of evidence or refer to every argument submitted by the parties in the reasons for my decision. In any event, these facts were not solely determinative of the issue before me.
24I accordingly find that the respondent has not established that I erred in law or fact. As such, the respondent has not met the criterion for reconsideration under Rule 18.2(b).
No new evidence has been introduced – Rule 18.2(c)
25Although the respondent checked the box in its reconsideration request form to indicate that Rule 18.2(c) was one of the reasons for its request, it did not make arguments pertaining to that ground in its submissions. Further, it did not argue that new evidence should be introduced.
26As such, I find that the respondent’s request for reconsideration on this ground is dismissed.
CONCLUSION & ORDER
27The respondent’s request for reconsideration is dismissed.
Rachel Levitsky
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 24, 2025