RECONSIDERATION DECISION
Before: Julian DiBattista, Vice-Chair
Licence Appeal Tribunal File Number: 22-012717/AABS
Case Name: Caralyn Foisey v. Belairdirect
Written Submissions by:
For the Applicant: Richard R. Nolin, Counsel
For the Respondent: Robbie Brar, Counsel
OVERVIEW
1On January 6, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 12, 2024 (“decision”).
2Following a written hearing, I released the decision, wherein I found that the applicant was not entitled to an Income Replacement Benefit (“IRB”). I found that the applicant’s self-reporting to assessors was inconsistent and therefore not credible.
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.
4Though she only selected Rule 18.2(b) on the request for reconsideration form, the applicant appears to be seeking reconsideration under both Rule 18.2(a) and Rule 18.2(b). Specifically, her supporting submissions indicate that she is seeking reconsideration on the basis that the Tribunal committed a material breach of procedural fairness; and the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
5The applicant seeks the reinstatement of her IRB at $258.47 per week from December 7, 2020 to date and ongoing, plus interest.
6The respondent opposes the request for reconsideration.
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.
Rule 18.2(a) – The Tribunal did not commit a material breach of procedural fairness
9I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness, pursuant to Rule 18.2(a).
10The applicant submits that a breach of procedural fairness occurred as the Tribunal appears to have ignored medical records and documents which would have supported her entitlement to benefits. Specifically, the applicant submits the Tribunal overlooked the medical reports of her treating physicians and providers, including an MRI report from September 4, 2021 and a psychiatric consultation note dated November 7, 2022.
11The respondent submits that the applicant is making a false assumption that, if an order does not specifically list all the documents considered by the hearing adjudicator, they were not considered or given any weight.
12In assessing the application before me at the initial hearing, I reviewed all documents submitted. In fact, there were documents referenced in the applicant’s written submissions that were not provided to the Tribunal. When this was discovered, the Tribunal contacted the parties to request certain missing documents so they could be reviewed. The missing documents were received shortly thereafter.
13It is well settled that every document reviewed as evidence need not be referenced in the written decision. For this reason, I find that the applicant has not shown that a material breach of procedural fairness occurred.
Rule 18.2(b) – The Tribunal did not err in fact or law
14I find that the applicant has not established that the Tribunal committed an error in fact or law which would likely have led to a different result had the error not been made.
15The applicant submits that I incorrectly assigned weight to expert evidence. The applicant further submits that I did not take into account the education and experience of the assessors when assigning weight to their opinions. Specifically, the applicant submits that expert evidence from a psychiatrist should be given more weight than evidence from a psychologist, and that Dr. Robert Fera’s evidence should be given less weight as he is a chiropractor and not a medical doctor.
16The respondent submits that the designation of the assessor does not define the weight their assessment is given, but rather it is the factual and observable distinctions across reports.
17The applicant’s submission focuses on the weight I assigned to certain pieces of evidence over others. As mentioned above, this is not grounds for reconsideration. Reconsideration is not an opportunity to re-litigate the claim made at first instance.
18As the trier of fact, it is my role to weigh the competing reports and then decide what evidence I find is probative for the issues in dispute. There have been no submissions that any expert who has provided evidence in this matter has acted outside their scope of practice. As mentioned above, all evidence referenced in the parties’ submissions was reviewed, and the evidence relevant to my decision was referenced.
19I found, in paragraph 15 of the decision, that the applicant’s presentation of her pain and impairments were inconsistent between assessments. This led me to a finding that the applicant’s self-reports of her impairments were not credible. As I found that the applicant was not credible in her reports of pain and impairment, there was no need to address her ability to perform the essential tasks of her employment.
20I do agree with the applicant that an expert’s scope of practice is defined by their education and registration with their professional college. However, I do not agree with her assertion that an expert’s opinion should be discounted against another expert who has more education, so long as the experts are acting within their scope of practice. Again, there have been no allegations made that any expert was acting outside of their scope of practice.
21I also note that there were no authorities cited to support the applicant’s position that a psychiatrist’s evidence be given more weight than a psychologist.
22Therefore, I find that the applicant has not established an error in fact or law which would likely have led to a different result had the error not been made.
CONCLUSION & ORDER
23The applicant has not established grounds for reconsideration under Rule 18.2(a) or Rule 18.2(b).
24The applicant’s request for reconsideration is dismissed.
Julian DiBattista
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 4, 2025