Court File and Parties
CITATION: Pinera v. Motor Vehicle Accident Claims Fund, 2023 ONSC 3155
DIVISIONAL COURT FILE NO.: 420/22
DATE: 20230526
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mew, Nishikawa and O’Brien JJ.
BETWEEN:
HUMBERTO CARREON PINERA
Appellant
– and –
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Respondent
Cary N. Schneider, for the Appellant
Andrew Choi, for the Respondent
HEARD at Toronto: 23 May 2023 (by videoconference)
Reasons for Decision
MEW J.
[1] Following the hearing of this appeal, the panel informed the parties that the appeal was dismissed, with reasons to follow. These are our reasons.
[2] The appellant, Humberto Carreon Pinera, was involved in an incident in the early hours of 17 August 2019. He had been out for the evening with friends for drinks and dinner and was proceeding to an intersection to meet an Uber Driver to get home when “something” hit the back of his leg and he fell. He was subsequently found to have suffered a clavicle fracture and soft tissue injuries. He believes that a vehicle struck him in the back of the leg while he was crossing the street; it “felt like a car”, but he did not actually see a motor vehicle striking him.
[3] Individuals who are involved in a “accident”, as that term is defined in the Statutory Accident Benefits Schedule, O.Reg. 34/10 (the “Schedule”), are entitled to claim accident benefits. The appellant filed a claim with the respondent asserting that he had been involved in an “accident” and, consequently, was entitled to receive accident benefits.
[4] The Schedule defines “accident” as: “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
[5] The respondent denied the claim on the ground that the appellant had not established that he had been involved in an accident.
[6] The appellant applied to the Licence Appeal Tribunal (“LAT”) for a determination of whether he was involved an accident as defined by the Schedule.
[7] An adjudicator rejected the application. He accepted that the appellant was credible, but found no compelling evidence to show that he was injured as a result of a motor vehicle accident: Pinera v. Motor Vehicle Accident Claims Fund (MVACF), 2021 ONLAT 19489.
[8] The appellant sought a reconsideration of that decision, asserting that it was an error for the adjudicator to have concluded that he was a credible witness, yet find that he had not proved on a balance of probabilities that his injuries were as a result of an accident. He also claimed that the adjudicator had failed to give an adequate explanation for why he accepted that the appellant was credible but not accepting that he was involved in an accident. And he submitted that the adjudicator had erred in law by the way he weighed the appellant’s medical evidence and the police notes relating to the incident.
[9] The adjudicator denied the appellant’s request for reconsideration - Carreon Pinera v Motor Vehicle Accident Claims Fund (MVACF), 2022 ONLAT 23408 - concluding, at para. 19:
My decision on the issue of whether an accident occurred is reasonable considering the evidence and submissions. As noted by the Respondent, a person can suffer injury by various means at various places and it does not amount to an error of law to require some form of corroborative evidence to support the Applicant’s claim. Here, I assessed the testimony and evidence and came to the conclusion that the Applicant did not discharge his onus to prove that his injuries are as a result of an accident.
[10] The appellant now appeals to this court pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G. The appeal is limited to questions of law only: s. 11(6). The appellate standard of review for questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[11] On appeal, the appellant repeats many of the grounds advanced by him in support of his request for reconsideration. In addition, he asserts that the Adjudicator used the reconsideration decision to bolster the original decision and make it more appeal-proof.
[12] The assessment of evidence is a core function of a finder of fact. A tribunal’s reasons must be adequate to explain the basis for the decision and to logically link this basis to the decision. But it is not necessary for decision makers to exhaustively address all possible issues and arguments in their reasons: Murray v. Human Rights Tribunal of Ontario, 2018 ONSC 2953, at para. 26.
[13] The Adjudicator’s reasons leave no doubt as to the basis for his decision. He weighed the evidence, including looking for any corroborative evidence that might support the appellant’s belief that his injuries were the result of an accident. The record before the Adjudicator amply supports his findings of fact and, in particular, his conclusion that the appellant failed to meet his evidentiary burden of proving, on a balance of probabilities, that he was injured as a result of an “accident” (as defined in the Schedule).
[14] The LAT’s Rules of Practice and Procedure grant adjudicators the power to hear reconsiderations from their own decisions: Rule 18.1. The appellant asserted that in his original decision, the Adjudicator had violated the rules of procedural fairness and made errors of law and fact by assuming the mindset of the authors of the Applicant's hospital records, by not accepting that the appellant’s “spontaneous utterances” arising in the context of a traumatic event were credible and supportive of the involvement of a motor vehicle, and by importing a legal obligation for the appellant to provide corroborating evidence in support of the fact he was involved in an accident.
[15] In his reconsideration decision the Adjudicator addressed each of these grounds methodically and dispassionately. The nature of the appellant’s challenges inevitably required him to reprise elements of his original decision. In doing so he did not, in our view, attempt to bolster his original decision. He merely provided the very explanation that the appellant’s reconsideration request had invited.
[16] The legislative intent of the Schedule was to greatly restrict access to the courts for determination of issues of fact or of mixed fact and law.
[17] This appeal disclosed no error of law. Rather, the appellant invites us to re-litigate issues that the LAT has determined, by dressing up his disagreement with the Adjudicator’s findings of fact as legal errors.
[18] Accordingly, we find that appeal is without merit.
[19] As the successful party, the respondent seeks costs on a partial indemnity basis of $3,715.80. The applicant submits that in the circumstances there should be no order as to costs.
[20] We see no reason to depart from the usual rule that costs follow the event.
[21] The appeal is dismissed with costs, payable by the appellant, fixed in the amount of $3,715.80, all inclusive, to the respondent.
Mew J.
I agree _______________________________
Nishikawa J.
I agree _______________________________
O’Brien J.
Released: 26 May 2023
CITATION: Pinera v. Motor Vehicle Accident Claims Fund, 2023 ONSC 3155
DIVISIONAL COURT FILE NO.: 420/22
DATE: 20230526
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mew, Nishikawa and O’Brien JJ.
BETWEEN:
HUMBERTO CARREON PINERA
Appellant
– and –
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Respondent
REASONS FOR DECISION
MEW J.
Released: 26 May 2023