RECONSIDERATION DECISION
Before:
Kate Grieves, Adjudicator
Licence Appeal Tribunal File Number:
24-004934/AABS
Case Name:
Joselia Ferreira v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Elena Fetesko, Paralegal
For the Respondent:
Alanna Pink, Counsel
OVERVIEW
1On April 3, 2025, the applicant requested reconsideration of the Tribunal’s decision dated March 14, 2025 (“decision”).
2In the decision, I 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) (the “Schedule”). I found that there was an assault that broke the chain of causation leading to the applicant’s injuries, and that the applicant’s use and operation of the vehicle was not the direct cause of her injuries.
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 relying on Rule 18.2(b) and submits that the Tribunal failed to properly consider her submission that the incident should be viewed as having two phases, and that at least one phase is an “accident” entitling her to accident benefits under the Schedule. The applicant requests that the Tribunal reconsider its conclusion that she was not involved in an “accident”.
5The respondent is seeking to have the request for reconsideration dismissed.
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.
“Two-phase” argument
8The applicant submits that the Tribunal did not consider her submissions regarding the incident occurring in two phases, along with the physical and psychological injuries that she sustained in both phases. I find that this is an attempt to re-litigate the applicant’s position from the initial hearing. In fact, the applicant included lengthy excerpts in her reconsideration submissions that are taken directly from her initial submissions.
9The applicant also re-litigates my conclusions with new arguments relying on Citadel General Assurance v. Vytlingam, 2007 SCC 46 (“Vytlingam”), where the Court found that the insureds were entitled to accident benefits as a result of injuries sustained as a result of a rock thrown from an overpass. First, this case law should have been raised at first instance if she intended to rely upon it. Second, it is distinguishable on the facts. I was not persuaded that the applicant sustained injuries as a result of the rocks, but rather the subsequent assault after she walked away from the vehicle.
10The applicant’s arguments concerning the two phases were considered and addressed in my decision. At paragraph 27 of the decision, I considered the case law raised by the applicant in support of her two-phase argument. At paragraph 28, I explained why I found the cases distinguishable. The applicant’s arguments that she sustained impairments in two phases were considered and rejected, as I explained that I did not accept that there were two phases. Further, I found that, if I did accept this position and the first phase was connected to the use or operation of the automobile, I was not persuaded that the second phase was connected to the use or operation of the automobile. I found that that the evidence supported that the impairments she sustained occurred during the second phase of the incident.
11The applicant’s arguments regarding the injuries she sustained in both phases were considered in the decision. Although the applicant may disagree with my conclusions, asking for re-litigation of these same arguments is not a proper ground for reconsideration.
Error of Fact
12The applicant submits that the Tribunal made an error of fact. At paragraph 5 of the decision, I noted “while stopped at a red light, an unknown assailant began throwing pieces of gravel at them, striking the motorcycles”. The applicant submits that what I referred to as “gravel” were rocks approximately the size of a quarter or a Loonie, according to her testimony at the examination under oath. The applicant submits that this is a key distinction crucial to understanding the physical and psychological injuries she sustained.
13The applicant has not shown how my characterization of the size of the rocks impacted my overall conclusions in the decision. I used the word “gravel” and “rocks” interchangeably throughout the decision. In fact, the applicant also described the rocks as gravel in her testimony at the examination under oath. I find that the applicant has not shown how the use of the term “gravel” constitutes an error of law or fact that would likely have resulted in a different decision.
CONCLUSION & ORDER
14The applicant’s request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 15, 2025