RECONSIDERATION DECISION
Before: Rachel Levitsky, Adjudicator
Licence Appeal Tribunal File Number: 23-002411/AABS
Case Name: Tan Huynh v. Security National Insurance Company
Written Submissions by:
For the Applicant: Steven Sieger, Counsel
For the Respondent: Rocky Wang, Counsel
OVERVIEW
1On January 8, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 18, 2024 (“decision”). On February 7, 2025, the respondent requested reconsideration of the decision as well.
2Following a written hearing, I issued a decision where I found that the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule. I also found that his injuries were not predominantly minor, as defined in s. 3 of the Schedule, and he was therefore not subject to the $3,500.00 funding limit in the Minor Injury Guideline (“MIG”). Further, I found that the applicant was not entitled to an income replacement benefit (“IRB”), two treatment plans for physiotherapy services, interest, or an award under s. 10 of Reg. 664.
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 is requesting reconsideration pursuant to Rule 18.2(a) and Rule 18.2(b) with respect to the IRB, treatment plans, interest, and award. He also requests a decision confirming that he is entitled to have a treatment account from Total Wellness paid by the respondent. In the alternative, the applicant submits that he is entitled to a new videoconference hearing. The respondent submits that the applicant’s reconsideration request should be denied.
5The respondent is requesting reconsideration with respect to whether the applicant was involved in an “accident”, and whether the applicant’s injuries are predominantly minor. It does not specifically identify the Rule 18.2 grounds upon which it is requesting reconsideration, although it argues that my findings were incorrect and that I erred. The applicant submits that the original decisions on these issues must stand.
RESULT
6The applicant’s request for reconsideration is dismissed.
7The respondent’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.
Applicant’s Grounds for Reconsideration
9I find that the applicant has not established grounds for reconsideration.
10The applicant submits generally that I acted outside of my jurisdiction and committed a breach of procedural fairness, and that I made errors of fact and/or law which, if not made, would have likely led to a different result. However, he does not provide specific details as to why each ground of reconsideration would apply. Instead, he submits the following:
a. I failed to take the totality of the evidence before me into account, specifically an OCF-2, OCF-3, and the transcript of a sworn Examination Under Oath (“EUO”).
b. I am not a medical professional and must defer to their findings and opinions, particularly where there is no contradictory medical or other evidence from the respondent.
c. Total Wellness completed an OCF-3 and treated the applicant, which demonstrates their belief that he has suffered serious injuries as a result of the accident.
d. He provided sufficient evidence to meet his burden of proof on a balance of probabilities.
11Firstly, my decision specifically addressed the OCF-3 (paragraphs 41 and 42) and the transcript from the EUO (paragraphs 43 and 44). Although I did not specifically mention the OCF-2, it is well-settled that an adjudicator is not required to refer to every piece of evidence in their decision. Further, the applicant did not explain why not mentioning the OCF-2 in my decision amounted to an error of fact or law, such that I would likely have reached a different result had that error not occurred, or how it constituted a breach of procedural fairness or an act outside my jurisdiction.
12Secondly, the applicant has not explained how any of the criteria for reconsideration were met due to my choice to weigh the evidence before me. I am under no obligation to accept at face value the findings or opinions of the medical professionals put before me, even if they are not contradicted by evidence presented by the respondent.
13Finally, regarding the applicant’s submissions pertaining to Total Wellness and the sufficiency of the evidence, the applicant appears to be re-litigating his position by asking me to re-weigh the same evidence I already considered when rendering my decision. That is not the purpose of the reconsideration process. In this regard, the applicant has not demonstrated that I erred in fact or law such that I would have likely reached a different result in my decision if the errors had not been made. Further, he has not demonstrated that I acted outside my jurisdiction or committed a material breach of procedural fairness.
14I accordingly find that the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(a) or Rule 18.2(b), with respect to the treatment plans, IRB, interest, or award.
Respondent’s Request for Reconsideration
15I find that the respondent has not established grounds for reconsideration.
16In its submissions, the respondent did not identify or establish the criteria for reconsideration it was relying on under Rule 18.2. It does submit that I gave disproportionate weight to the applicant’s counsel’s email correcting evidence given at the EUO, which it argues was prejudicial. It also submits that the applicant presented insufficient medical evidence to causally connect the applicant’s elbow injury to the subsequent fall.
17The respondent is, in effect, asking me to re-weigh the evidence that I already considered. Again, this is not the purpose of the reconsideration process. I find that, in its initial reconsideration submissions, the respondent did not establish grounds for reconsideration pursuant to any of the criteria under Rule 18.2 with respect to whether the applicant was involved in an “accident”, or whether he belongs in the MIG.
18I note that the applicant initially argued that the respondent’s reconsideration request should not be allowed to proceed. By way of an order dated March 10, 2025, the Tribunal allowed the respondent’s reconsideration request, as detailed in the submissions it had already filed, to proceed. The applicant was invited to file additional responding submissions, and the respondent was invited to file submissions in reply.
19The applicant chose not to file additional responding submissions. However, the respondent filed reply submissions which contained new arguments. The purpose of reply submissions is not to make new arguments. Further, where no responding submissions are filed, there is nothing to reply to.
20In any event, I find that the respondent has not established grounds for reconsideration in its reply submissions.
21Firstly, the respondent argues that I made an incorrect assumption that the applicant was closing the door when he started to fall. It submits that the applicant’s evidence at the EUO was that he was closing the door, made one step, and then slipped and fell, meaning that the fall occurred after he made a step. It argues that the two actions of closing the door and starting to fall were separated by the act of making a step.
22At paragraph 22 of my decision, I noted that the Ontario Court of Appeal in Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), stated that an intervening act may not absolve an insurer of liability for accident benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car. I addressed this further at paragraph 26:
I accept that operating a vehicle in a winter climate includes a risk that the ground surrounding the vehicle will be slippery. I find it reasonably foreseeable that someone might slip while in the process of operating their vehicle in slippery conditions. The applicant was in the process of closing his door and unloading boxes from his vehicle when he fell, both of which in my view involved using his vehicle. Like in Madore, the applicant slipped in the process of using his vehicle, there was no significant lapse of time between the slip and the use, and the slip was not an unforeseen event disconnected from the risk associated with operating a vehicle in the winter. I accordingly find that the applicant slipping was not an intervening act separate from the use or operation of his vehicle.
23I find that the respondent has not established that I erred in this regard.
24Secondly, the respondent argues that the applicant’s action of holding the door was not part of closing the door, but was an act of supporting his weight. It argues that the Divisional Court ruled in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), that the insured’s hand on the hood of the car to support herself before falling did not satisfy the test set out in Chisholm.
25The respondent did not make the argument at the initial written hearing that the applicant was merely supporting his weight. The purpose of the reconsideration process is not to make new arguments that were not raised during the initial hearing.
26In any event, the Court in Porter did not state that the Chisholm test was not satisfied because the insured stabilized herself on the vehicle. I explained at paragraph 24 that the Court did not engage in an analysis with respect to whether there was an intervening act. At paragraphs 28 and 29, I addressed how Porter dealt with the dominant feature test, and that the Court found that the dominant factor that led to the insured’s injuries was the icy, snow-covered driveway. I find that the respondent has not established that I erred in my interpretation of Porter.
27Finally, the respondent states that I did not elaborate on why Porter does not apply to this case, or why Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”), prevails over Porter. It argues that the law requires further clarification from the Tribunal and the Court about what delineates the “pass” and “fail” of the Chisholm test in cases where slip and falls involve vehicles.
28During the hearing, I allowed the parties to make additional submissions with respect to the application of Davis, as the decision was released after the parties’ submissions were filed. In paragraphs 29 to 31 of my decision, I addressed Davis and Porter. I also addressed why I felt that the facts before me were more in line with those in Davis. I find that the respondent has not established that I erred in that analysis.
29Finally, the respondent’s reply repeated its argument that the applicant failed to demonstrate that his injury was connected to the accident, and only relied on one x-ray report from over a year post-accident. As indicated above, the purpose of the reconsideration process is not to reweigh evidence that I already considered at the hearing.
30For those reasons, the respondent’s request for reconsideration is dismissed.
CONCLUSION & ORDER
31The applicant’s request for reconsideration is dismissed.
32The respondent’s request for reconsideration is dismissed.
Rachel Levitsky
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 1, 2025