RECONSIDERATION DECISION
Before: Tyler Moore
Licence Appeal Tribunal File Number: 24-002624/AABS
Case Name: Layla Abdel Hamad v. Security National Insurance Company
Written Submissions by:
For the Applicant: Mohamed Elbassiouni, Counsel
For the Respondent: Mr. Matthew Samuels, Counsel
OVERVIEW
1On February 6, 2025, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated January 16, 2025 (“decision”).
2In that decision, I found that the applicant was not an “insured person” for the purposes of s. 3(1) of the Schedule, because she had not established that she was a dependant of the named insured or her spouse at the time of the accident.
3Given that this decision was released after August 21, 2023, this reconsideration is governed by the Licence Appeal Tribunal Rules, 2023 (“Rules”). The grounds for a request for reconsideration are found in Rule 18.2 of the 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 seeks reconsideration under Rule 18.2(a) and 18.2(b) on the basis that the Tribunal acted outside of its jurisdiction or committed a material breach of procedural fairness; and, in the alternative, made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The applicant seeks an order granting her request for reconsideration and that she be considered an insured person. Alternatively, the applicant requests a virtual hearing where she can testify and provide viva voce evidence. The respondent opposes the reconsideration request.
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.
Did the Tribunal act outside its jurisdiction or commit a material breach of procedural fairness?
8I find that the applicant has not demonstrated that the Tribunal acted outside its jurisdiction of committed a material breach of procedural fairness under Rule 18.2(a).
9The applicant submits that the Tribunal did not address in the decision the fact that she requested a virtual hearing to decide the preliminary issue during the case conference. According to the applicant, she was denied procedural fairness when the Tribunal refused to arrange a virtual hearing at the case conference, and that a virtual hearing would have given her an opportunity to respond to some of the concerns raised by the Tribunal in the decision regarding financial dependency on the named insured.
10I acknowledge that at paragraph [13] of the applicant’s preliminary issue hearing submissions, the applicant noted that “during the case conference, she requested a virtual arbitration hearing to decide the preliminary hearing where she would be in a position to call witnesses to testify and give evidence that will help the Tribunal determine whether the applicant is an insured person. Unfortunately, the Tribunal did not entertain the applicant’s request and ordered the preliminary hearing to be decided in a written format.” The applicant has not, however, pointed me to any remedies that she sought after the case conference. The applicant did not bring a Motion to have the preliminary issue hearing converted to a full hearing, or request that affidavit evidence be considered. According to the case conference report and order, it was decided that the preliminary issue was to proceed to a hearing in writing and that no affidavit evidence would be filed. It is well-settled that the Tribunal is entitled to control its own processes, and the Tribunal’s process for conducting Preliminary Issue Hearings is laid out in a public-facing practice direction on its website.
11The applicant further submits that the Tribunal did not consider the nature of the examination under oath (“EUO”) questions. I find, however, that the nature of the EUO questions was not raised by the applicant in her preliminary issue submissions. Despite the respondent’s opposition to admitting the EUO transcripts, I allowed them into evidence and considered them in their entirety. I find that this request for reconsideration represents an attempt by the applicant to re-litigate her position. I relied on the evidence before me when rendering the decision. I also find that the applicant could have objected to a separate preliminary issue hearing at the case conference or filed a motion to have all of the issues in dispute considered at a single videoconference hearing, but she did not.
12I find that the applicant has not established that I acted outside of the Tribunal’s jurisdiction or committed a material breach of procedural fairness.
Did the Tribunal make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made?
13I find that the applicant has not established grounds for reconsideration based on an error of law or fact under Rule 18.2(b).
14The applicant submits that I made an error of law or fact in my analysis of the applicant’s dependence on the named insured. Specifically, the applicant argues that I misinterpreted the dependency facts set out in Miller v. Safeco Insurance Co. of America, (1984) CanLII 2019 (ON SC) (“Miller”), and Allstate Insurance v. ING Insurance, 2015 ONSC 4020 (“Allstate”) in that I did not address all of the dependency questions or the personal history of the applicant. Specifically, the applicant submits that the decision provided insufficient reasons in the analysis and did not address the argument raised by the applicant regarding her dependency on the insured person for emotional support or her ability to be self-supporting.
15I find that at paragraph [18] of the applicant’s reconsideration submissions, the applicant indicates that I explained how I considered the factors required for a holistic assessment of dependence. I also find that at paragraphs [41] and [43] of the decision, I addressed the applicant’s argument regarding dependency on the named insured and her spouse for care and support, I considered their personal/familial history, and the guidance the spouse of the named insured provides for the applicant’s children. At paragraph [33] of the decision I addressed that “the applicant’s EUO reflects that she has not worked since coming to Canada in 2015 and has no other income besides government assistance that included Ontario Works and child assistance.” At paragraphs [42] and [43] of the decision, I analyzed the monthly financial government assistance the applicant receives and the monthly amounts she receives from the named insured and the spouse of the named insured based on their EUO testimony in assessing and weighing the applicant’s financial dependency. I find that the decision does not reflect a narrow analysis of the financial evidence and personal history of the applicant, as alleged, and find no error of law or fact.
16The applicant also submits that I did not fully consider the applicant’s EUO testimony. At paragraphs [33] to [43] of the decision, I considered the EUO testimony from the applicant, the named insured, and the spouse of the named insured in detail when analyzing the applicant’s financial and emotional dependence. I relied on both a holistic and mathematical approach, and the applicant has not pointed me to any section of the decision where I did not engage with her central arguments. Rather, on reconsideration I find that I considered the applicant’s arguments both in the context of the EUO testimony and a holistic, “big picture”, assessment.
17I find that paragraphs [23] to [25] of the applicant’s reconsideration submissions represent an attempt by the applicant to re-litigate her position because she disagrees with the decision. The applicant submits that I did not consider the fact that the named insured resided on a part-time basis with her, and that there was no credible evidence that the named insured was on the applicant’s residential lease agreement to support the rental application. The applicant also submits that my analysis of her expenses is incomplete in that I did not account for expenses such as housing costs and household maintenance.
18At paragraphs [34] and [42] of the decision, I relied on the EUO testimony and financial evidence presented in assessing the applicant’s monthly expenses. Paragraph [32] of the decision sets out that according to the applicant’s EUO testimony “her average monthly expenses in the year leading up to the accident were approximately $5,500.00.” Paragraph [42] sets out that “according to the applicant’s bank records her average monthly expenses were approximately $5,475.341 in the 12-month period leading up to the accident. These amounts are consistent with the applicant’s EUO testimony.” Then, at paragraph [43] of the decision, I note that “if I accept the applicant’s submission that her lease payments were not reflected in her bank records, her average monthly expenses increase to $8,025.31. Again though, this is not consistent with her EUO testimony that her average monthly expenses were $5,500.00. According to the EUO testimony of the named insured and her spouse, they provided the applicant with $1,500.00 to $2,000.00 in addition to a few hundred dollars for groceries and incidentals for the children each month.” This reflects that I did account for the applicant’s housing costs, and I relied on her own EUO testimony for what her monthly expenses amounted to.
19Further, at paragraph [40] of the decision, I also set out that “the EUO testimony of the named insured reflects that she co-signed the lease application so that the applicant could get her own place to live with her five children, and not because she was or would be residing with the applicant.” In that same paragraph, I considered that “both the named insured and her spouse testified that they might have stayed with the applicant and her family one or two nights per week along with their own three children in the year leading up to the accident, but I find that this does not establish the applicant’s principal dependence on them.” I find that this analysis does not constitute an error of law or fact that would have changed the outcome of the decision. In the decision, I relied on the evidence before me and addressed the applicant’s position.
20I find that the applicant has not established that I made an error of law or fact such that the I would likely have reached a difference result had the error not been made. As such, the applicant has not established grounds for reconsideration based on Rule 18.2(b).
CONCLUSION & ORDER
21The applicant has not established grounds for reconsideration under Rule 18.2(a) or Rule 18.2(b).
22The applicant’s request for reconsideration is dismissed.
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 10, 2025