AMENDED RECONSIDERATION DECISION
Before:
Lindsay Lake, Vice-Chair
Licence Appeal Tribunal File Number:
23-005058/AABS
Case Name:
Nivarsan Sooriyaperuman v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant:
Serena Rhyman, Paralegal
For the Respondent:
Jonathan Schrieder, Counsel
OVERVIEW
1On September 5, 2024, the applicant requested a reconsideration of the Tribunal’s decision dated August 15, 2024 (decision). In the decision, the Tribunal:
a) Found that the applicant was not involved in an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (Schedule);
b) Ordered the applicant to repay $2,315.00 plus interest to the respondent for medical and rehabilitation benefits; and
c) Found the respondent was not entitled to repayment of $250.00 for pre-payment for medical records.
2The 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.
3The applicant submitted that a reconsideration of the decision is warranted in this matter under Rule 18.2(b).
4The respondent’s position is that the applicant is attempting to reargue various issues from the hearing, that the Tribunal made no errors and did not breach procedural fairness, and it asks that that the decision be affirmed.
RESULT
5The applicant’s request for a reconsideration is granted. The decision is cancelled and a new hearing is ordered.
ANALYSIS
6The 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.
a) Rule 18.2(b) – The Tribunal erred in law
7I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(b). I find that the Tribunal erred in law in the decision and, had that error not been made, the Tribunal would likely have reached a different result.
8In its analysis of the preliminary issue decision of whether the applicant was in an “accident,” the Tribunal referred to the Ontario Court of Appeal decision of Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA) (Greenhalgh).
9In considering Greenhalgh, the Tribunal found that the applicant had met the purpose test and found that the applicant was a front seated passenger in a Honda Civic that was struck from rear.
10The Tribunal then proceeded to consider the causation test, which it set out at paragraph 12 of the decision as follows:
In order for the applicant to succeed on the causation branch of the test, he must convince me of the following:
a) that an impairment exists,
b) that the impairment was caused by the incident, and
c) that the cause is direct.
11The Tribunal found that the applicant did not meet the causation test as the applicant did not prove that he sustained an impairment as a result of the incident.
12At paragraph 15 of the decision, the Tribunal stated, in part, that that “[t]he applicant failed to direct me to any medical evidence that the incident caused any impairment.” The Tribunal also found that the applicant’s testimony was difficult to accept as it related to any alleged impairment because, as set out in paragraphs 16 to 19, there were discrepancies regarding the applicant’s account of his injuries and whether he was wearing a seatbelt at the time the vehicle was rear-ended.
13The applicant submitted that a reconsideration is warranted under Rule 18.2(b) as the Tribunal made the following errors of fact and/or law:
a) The Tribunal made a significant error in law and/or fact as it accepted that the applicant was a front seat passenger in a vehicle at the time that it was struck from the rear, but the Tribunal went on to find that the applicant was not involved in an accident. In doing so, the applicant submitted that the Tribunal focused on the applicant’s retelling of the events and not on the fact that the applicant sustained injuries as a result of the accident; and
b) The Tribunal erred in fact and/or law by not considering documentation included in the applicant’s hearing document brief from Markham Stouffville Urgent Care, Alexmuir Wellness Centre, and Midland Wellness Centre. The applicant submits that this documentation shows that the applicant was in an accident on July 11, 2022.
14In sum, the applicant submits that the Tribunal erred by not accepting the applicant’s testimony regarding his injuries due to inconsistencies and by not considering the applicant’s 610-page document brief. The document brief, according to the applicant, contained “sufficient documentation,” including evidence that he sought out medical attention on the day of the incident, to support a finding that the applicant sustained injuries as a result of the incident. The applicant submits that the failure of the Tribunal to consider his document brief amounts to an error in law. In this respect, the applicant relies upon the Tribunal’s reconsideration decision in R.K.K. v. Cooperators General Insurance Co., 2021 CanLII 18934 (ON LAT).
15The respondent submits that an error of law was not made in the decision. In its reconsideration submissions, the respondent focuses on whether the applicant was wearing a seatbelt, was under the influence of cannabis at the time of the incident, and basis its position on the fact that the applicant was attempting to reargue his case.
16I find that the Tribunal did make an error of law in its analysis of the issue of whether the applicant was in an “accident.” I find that the Tribunal erred in its treatment and analysis of the causation test as set out in Greenhalgh. While the causation test requires an analysis of the “but for” test, whether there was an intervening act, and dominant feature considerations, the Tribunal instead considered the consistency of the applicant’s testimony about the nature of his injuries and whether he was wearing a seatbelt or not. I find that these considerations are not determinative of the question of whether the applicant was in an accident as defined in s. 3(1) of the Schedule.
17I find that the second part of the test in Rule18.2(b) has also been met. I find that the Tribunal’s error in finding that the applicant was not in an accident based on a consideration of evidence that is not determinative of this issue would likely have changed the outcome of the decision.
18As I have found that the applicant has established grounds for reconsideration, I do not need to consider the applicant’s other reconsideration arguments.
19The applicant’s request for reconsideration is granted under Rule 18.2(b).
CONCLUSION & ORDER
20The applicant’s request for reconsideration is granted. The decision is cancelled.
21I am ordering a rehearing before a new adjudicator on both the preliminary and substantive issues in dispute. The rehearing will proceed in writing.
22The parties will serve their written submissions and evidence on each other and file with the Tribunal according to the following timetable:
Submissions
Due Date
Page Limit
Respondent’s Applicant’s submissions, evidence, and authorities:
30 calendar days after the release of this amended reconsideration decision
12 pages
Applicant’s Respondent’s submissions, evidence, and authorities:
45 calendar days after the release of this amended reconsideration decision
12 pages
Respondent’s Applicant’s reply submissions or written notice that no reply submissions will be filed:
60 calendar days after the release of this amended reconsideration decision
6 pages
(i) The page limits are exclusive of evidence and case law. The hearing adjudicator may choose not to consider submissions which exceed the page limits.
(ii) No affidavits will be submitted as evidence. Expert evidence will be submitted by reports.
23Submissions and document/authority briefs shall be double-spaced, 12-point, Arial or Times New Roman font with 1.5 inch margins and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number. The hearing adjudicator may choose not to review evidence not so referenced.
24The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.
25If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
___________________
Lindsay Lake
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: February 4, 2025```