RECONSIDERATION DECISION
Before:
Rachel Levitsky, Adjudicator
Licence Appeal Tribunal File Number:
23-003494/AABS
Case Name:
Ryan Gutierrez v. Security National Insurance Company
Written Submissions by:
For the Applicant:
Ryan Gutierrez, Applicant
For the Respondent:
Michael Kennedy, Counsel
OVERVIEW
1On April 8, 2025, the applicant requested reconsideration of the Tribunal’s decision dated March 28, 2025 (“decision”).
2The applicant was involved in an accident in Quebec and elected to receive benefits available under the law of Quebec, pursuant to s. 59(2) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
3Following a written hearing, I issued a decision. I found that the applicant was not entitled to an income replacement indemnity or interest, and the respondent was not liable to pay an award. I also declined the applicant’s request to add a claim for a pain and suffering indemnity to the hearing.
4The 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.
5The applicant is seeking reconsideration under Rule 18.2(b), as he alleges that material errors of law and fact were made. Further, in his reply submissions, he alleges that there was a breach of procedural fairness pursuant to Rule 18.2(a).
6The respondent submits that no errors of law or fact were made that would have changed the outcome of the decision, and that the decision should be upheld.
RESULT3
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.
9The applicant submits that I made errors of law and fact in my decision with respect to the income replacement benefit, the pain and suffering indemnity, and privileged information.
10For the following reasons, I 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.
Income Replacement Indemnity
11The applicant submits that I erred in determining that he was not entitled to an income replacement indemnity for two reasons.
12Firstly, the applicant alleges that, at paragraph 20 of my decision, I incorrectly cited the applicable legislation as Quebec’s Automobile Insurance Act, CQLR, c. A-25 (“AIA”) as Title IV, when the correct citation was Title II.
13In my decision, I did not reference a specific Title of the AIA as part of a citation. At paragraph 20, I referred to s. 31 of “subdivision 4”. Title II is described as “Compensation for Bodily Injury”. Under that Title, there is a chapter entitled “Income Replacement Indemnity and Other Indemnities”. Under that chapter, there are four divisions, and Division I is identified as “Entitlement to an Indemnity”. Division I is broken into subdivisions denoted by the symbol “§”, and s. 31 falls under a subdivision entitled “§ 4 – Victim 16 years of age or over in full-time attendance at an educational institution”.
14The applicant has not established that I erred in how I cited the AIA. I also note that the applicant referred to s. 31(3) of the AIA in his written materials for the hearing, and at paragraph 20 of my decision, I explained that as there was no indication that the applicant was attending school full-time at the time of the accident, it appeared that s. 31(3) was not applicable. Further, even if I had erred in my citation of the AIA, the applicant did not address the substance of my decision in his reconsideration submissions, and he has not established that I would likely have reached a different result had this alleged error not been made.
15Secondly, the applicant alleges that, at paragraph 22 of my decision, I did not address material facts related to bad faith and unfair dealing, and I instead indicated that not enough medical evidence was provided to indicate benefit eligibility.
16At paragraph 21 of my decision, I explained that the applicant has the burden of proving, on a balance of probabilities, that he is entitled to an income replacement indemnity. I noted that, according to the requirements of the AIA, he must prove that the accident caused him to be “unable to hold employment”. At paragraph 22, I stated the following:
The only documents that mention the applicant’s medical condition are a two-page form dated October 18, 2021, which is largely illegible and so I am not able to glean from it any information about his functional status, and the OCF-1 where he self-reported a whiplash injury and does not explain why he was unable to work. There is accordingly no compelling evidence before me that the applicant was unable to hold employment as a result of the accident, and I find that he has not proven, on a balance of probabilities, that he is entitled to an income replacement indemnity.
17The applicant has not explained why the respondent’s conduct would be relevant to whether he is entitled to an income replacement indemnity, which was the question before me. He has not established that I erred by not addressing the respondent’s conduct in my analysis with respect to that issue.
18I accordingly find that the applicant has not established that I made an error of law or fact with respect to the income replacement indemnity such that I would likely have reached a different result had the error not been made.
Pain and Suffering Indemnity
19The applicant submits that, at paragraph 12 of my decision, I erred in finding that there was insufficient evidence provided for him to claim eligibility for the pain and suffering indemnity. He argues that he explained in his hearing submissions that the respondent falsely and obtusely equivocated his benefit eligibility, and that he was denied any reasonable opportunity to correct the equivocation and proceed with the statutory process to indicate eligibility. He submits that “the issue of law already precluded the reasonable ability of the Claimant to meet the incorrect rationale of the previous decision”, and that this was a mixed error of law and omission of fact.
20At the hearing, the applicant requested to add, as an issue in dispute, whether he was entitled to a pain and suffering indemnity. The respondent opposed the applicant’s request. At paragraph 10 of my decision, I explained that the AIA allows for the payment of non-pecuniary damages, however not all injuries or impairments qualify for compensation and different calculations are used depending on the permanency of the impairment. As such, I explained that evidence is required to establish the entitlement and amount of compensation.
21At paragraph 11, I explained that the applicant had not adduced medical evidence to establish his entitlement to a pain and suffering indemnity, and that he instead requested a deferral of the valuation of the benefit pending a full medical assessment and submission of documents. This would have effectively resulted in an adjournment of the hearing. I indicated at paragraph 12 that the applicant had not provided a compelling explanation as to why an adjournment would be required. Further, at paragraph 13, I noted that the applicant had not explained what kind of evidence he required, why he had not been able to obtain it, or how long it would take to do so.
22My decision with respect to whether this issue should be added to the hearing was independent of any decision made by the respondent. The applicant has not persuaded me that his disagreements with the respondent resulted in him not being able to provide medical evidence to the Tribunal in time for the hearing. I find that he has not established that I erred in fact or law when I did not exercise my discretion to add the issue and effectively adjourn the hearing.
23The applicant also submits that, at paragraph 14 of my decision, I questioned why an additional application was not submitted in regard to this benefit. The applicant submits the following: “the Claimant here indicates that paragraph 6 of his Written Hearing Factum had already indicated that a previous Case Conference change motion was not specifically and sufficiently addressed by the Case Conference Briefing and that the remedy sought here would be in correction to the previous proceedings.”
24At the case conference on November 16, 2023, the applicant requested that non-pecuniary damages be added as an issue in dispute at the hearing. The Tribunal denied his request on the basis that the Tribunal is directed by the Schedule and has no jurisdiction to award damages. The applicant submits that the request to add the pain and suffering indemnity as an issue was not sufficiently addressed by the Tribunal at the case conference. However, even if this issue had been added at the case conference or I had added the issue at the hearing, the outcome would have been the same as the applicant did not provide medical evidence at the hearing to prove his entitlement to the indemnity.
25In the applicant’s reply submissions, he notes that the only recourse to address the issue that he submits was not properly dealt with at the case conference would be to bring a motion. He submits: “The Adjudicator did not indicate any additional requirement by motion, as such, omission to include the specified claim scope/benefit would be indicated as a breach of procedural fairness, pursuant to Rule 18.2(a), if required.”
26The applicant does not appear to be referring to my decision. In any event, it is not appropriate to raise an entirely new ground for reconsideration in reply submissions, as the respondent has no ability to file additional submissions to address it. Again, even if the issue was added by the Tribunal at the case conference or at the hearing, the result would have been the same given the lack of medical evidence.
27At paragraph 14, I stated the following:
In addition, I have not been provided with an explanation as to why the applicant is unable to submit a fresh application to the Tribunal for a resolution of the dispute pertaining to the issue he is attempting to add, as opposed to adding it to this hearing at this late stage which would unduly delay the adjudication of the issues currently before me.
28The applicant has not explained why he believes I erred at paragraph 14 of my decision. I see no error in pointing out that the applicant had an alternative means of disputing the issue that he was seeking to add.
29I accordingly find that the applicant has not established that I made an error of law or fact with respect to the pain and suffering indemnity such that I would likely have reached a different result had the error not been made.
Privileged Information
30The applicant submits that, at paragraph 6 of my decision, I excluded documents from the hearing which did not contain privileged information, as there was “no litigious dispute” at the time the documents were created. Relying on Himalainen v. Sippola, 1991 CanLII 440 (BC CA), and Canada Southern Petroleum Ltd. v. Amoco Canada Petroleum Co., 1995 CanLII 9236 (AB KB), he argues that communications made before a cause for legal action is identified are not considered to be privileged. He also submits that only specific sections, and not the entirety of the evidence, should have been excluded.
31At paragraph 6, I indicated that only the penultimate paragraphs of two exhibits would be excluded from the hearing. This determination was made on the basis of settlement privilege.
32Even if the applicant is correct that these paragraphs did not attract settlement privilege, he has not explained how information related to settlement would have impacted the outcome of my decision. The applicant has accordingly not established that the exclusion of the paragraphs in these documents would likely to have led to a different result had I not excluded them.
Bad Faith and Unfair Dealing
33The applicant submits generally that my decision avoided his claim of bad faith and unfair dealing. He submits that “when properly considering the primary issue of law claimed, as well as the applicable law and material facts indicated in support, the given rationale of law for the decision is fundamentally incorrect”. He argues that the basis for the denial mainly regarded procedural documents and evidence required to indicate eligibility, but his ability to engage in the submission process for medical evidence was obstructed by the respondent’s bad faith and unfair dealing.
34In his hearing submissions, the applicant claimed an award under s. 10 of Reg. 664, and indicated that the insurer’s denials were subject to s. 439 of the Insurance Act, R.S.O. 1990, c. I.8, which prohibits deceptive and unfair practices.
35At paragraph 27 of my decision, I explained that, under s. 10 of Reg. 664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The conduct of the respondent would have been relevant if I had found that the applicant was entitled to benefits. However, as I found that no benefits were payable, I concluded that the respondent was not liable to pay an award.
36The applicant does not argue that I erred in my application of s. 10 of Reg. 664. I find that he has not established that I made an error of law or fact with respect to an award under s. 10 of Reg. 664 such that I would likely have reached a different result had the error not been made.
CONCLUSION & ORDER
37The applicant’s request for reconsideration is dismissed.
Rachel Levitsky
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 23, 2025