Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Rachel Levitsky, Adjudicator
Licence Appeal Tribunal File Number: 23-001365/AABS
Case Name: Min Guo v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Vanessa Liang, Counsel
For the Respondent: Yalda Aziz, Counsel
OVERVIEW
1On January 16, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 18, 2024 (“decision”).
2Following a written hearing, I determined that the applicant was not entitled to a non-earner benefit (“NEB”) or interest.
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 requests reconsideration under Rule 18.2(b) and Rule 18.2(c). She argues that I made errors of law and fact in failing to apply the principles set out in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), and failing to compare the applicant’s pre- and post-accident activities. She also submits that there was evidence that was not before me when I rendered my decision which could not have been obtained previously and would likely have affected the result.
5The applicant seeks an order to vary my decision and determine that she is entitled to a NEB and interest.
6The respondent submits that the applicant’s request for reconsideration should be dismissed.
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.
No error of fact or law - Rule 18.2(b)
9I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
10The applicant submits that, throughout my analysis, I ignored the guiding principles in Heath, failed to compare the applicant’s pre- and post-accident activities of daily living, and instead focused on causation.
11I determined that causation was an important component of my analysis and was directly relevant to establishing the applicant’s pre- and post-accident activities. The applicant was involved in accidents on June 1 and September 24, 2022, the latter of which is the subject of her application. In her hearing submissions, the applicant stated that both accidents caused her to suffer a complete inability to carry on a normal life, but that the September accident impaired her even more. I explained in paragraph 7 of my decision that I must apply the Heath test in light of any new impairments sustained by the applicant in the September accident. I proceeded to analyze the evidence and what it said about her pre- and post-accident activities. I did not ignore Heath or fail to compare her activities. At paragraph 23, I indicated that the applicant had not provided compelling evidence of what her ordinary activities were in the months after the June accident and leading up to the September accident, or the extent to which the September accident caused her impairments to worsen. I find that the applicant has not demonstrated that I committed an error of law or fact by pointing out that she had not met her onus of proof.
12The applicant makes a number of arguments about her pre- and post-accident condition and activities, including the fact that she continued to drive after the June 2022 accident. She does not point to specific errors of fact in my decision. I find that she is instead seeking to relitigate the issue of causation and entitlement to NEBs. Reweighing the evidence is not the purpose of a reconsideration.
13The applicant also submits that, during the s. 44 assessments, she did not understand which accident the assessors were questioning her about due to a language barrier. This is a new argument that was not raised in her submissions at the hearing. In any event, I note that an interpreter was present during these assessments. The applicant has not established that I erred in relying on the s. 44 assessments.
14I further disagree with the applicant’s assertion that I only considered her activities from June 1, 2022, onward as her pre-accident activities of daily living. I also looked at the applicant’s activities and condition prior to the June accident. For example, in paragraph 9, I addressed the applicant’s longstanding history of depression and social withdrawal. In any event, I find that the applicant has not established that it was an error for me to assess which impairments were caused by the September accident as opposed to the June accident, and what her level of functioning was in the months leading up to it.
15I find that the applicant has not established that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
No new evidence that could not have been obtained previously, or would have likely affected the result - Rule 18.2(c)
16I find that the applicant has not established grounds for reconsideration under Rule 18.2(c).
17In order to establish that a reconsideration is warranted, the applicant must prove that there is evidence that was not before the Tribunal when rendering its decision, it could not have been obtained previously by the party now seeking to introduce it, and it would likely have affected the result.
18The applicant submits that the following documents are new evidence that were not before the Tribunal when I rendered my decision, could not have been obtained previously, and likely would have affected the result:
a. Summary of Accident Benefits Payments for the June 1, 2022, accident;
b. Complete Ontario Disability Support Program (“ODSP”) file;
c. Section 44 report of Dr. Ian Smith dated September 20, 2024; and
d. Occupational therapy catastrophic determination reports of Justin Moy dated January 1, 2025.
Summary of Accident Benefits Payments
19Rule 18.2(c) requires the applicant to show that the new evidence she is seeking to introduce could not have been previously obtained. The applicant did not explain why this evidence could not have been obtained previously, despite it being comprised of a list of payments from 2022 only. As such, I find that she is unable to establish grounds for reconsideration under Rule 18.2(c) based on this piece of evidence.
ODSP File
20The applicant applied for ODSP in May 2020 and January 2024. Her first application was denied, and her second application was approved. In May 2020, her family physician, Dr. Kwan, indicated that she had depression with poor concentration, poor energy, and poor sleep. She was unable to concentrate at work and unable to complete tasks. In January 2024, the applicant’s psychiatrist, Dr. Law, noted that she had Major Depressive Disorder and Post-Traumatic Stress Disorder. She had poor socialization, concentration, sleep, appetite, and problem solving. She was having significant mental health struggles, had low mood, was socially withdrawn, and was irritable. She also had difficulty driving, focusing, and engaging.
21I am not persuaded that the ODSP file would likely have affected the outcome of the hearing. Although it shows that her condition was worse in 2024 than it was in 2020, it does not address the extent that this was caused by the September 2022 accident, as opposed to stemming from the June 2022 accident or longstanding issues. The only mention of an accident was when Dr. Law stated: “head pain from concussion from Motor Vehicle Accident”. However, Dr. Law’s report of July 5, 2023, which the applicant relied on during the hearing, indicates that she had a “possible concussion through the 2 collisions”. The ODSP file does not shed further light onto whether the applicant sustained a concussion in the June or September accidents, or both, or the extent to which her head pain was impacting her daily activities.
Section 44 Report of Dr. Smith
22The applicant submits that Dr. Smith’s September 2024 report paints a picture of her current life after the accident which is limited, unproductive, and avoidant. While that may be the case, Dr. Smith’s report does not address the extent to which the applicant’s daily activities were worsened as a result of the September 2022 accident. As I explained at paragraph 22 and 23 of my decision, there is still a lack of compelling evidence of what the applicant’s ordinary activities were leading up to the September accident, and to what degree her impairments worsened as a result of that accident. I accordingly find that the applicant has not established that this report would likely have affected the outcome of the hearing.
Occupational Therapy Reports
23Within his catastrophic assessment reports from January 2025, Mr. Moy opined that the applicant suffered a complete inability to carry on a normal life. He also discussed the applicant’s condition and activities between the June and September 2022 accidents. The applicant submits that these reports cure the issues of the prior s. 25 reports.
24I find that the applicant has not met her burden in establishing that reconsideration is warranted. The reports were prepared after the decision was released. The applicant did not provide any submissions as to why Mr. Moy’s opinion regarding the NEB was obtained so late, or why it could not have been obtained prior to a decision being rendered. Despite the respondent raising this component of Rule 18.2(c) as an issue, the applicant did not address it in her reply. A reconsideration is not an opportunity to bolster the evidence presented at first instance. Without any explanation, I am not satisfied that the applicant has demonstrated that this evidence could not have been obtained previously in accordance with Rule 18.2(c).
CONCLUSION & ORDER
25The applicant’s request for reconsideration is dismissed.
Rachel Levitsky Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: April 1, 2025