Reconsideration at the LAT is Not For Re-litigating Issues

By Jennifer Singh

In Sidiura v Aviva General Insurance, 2021 CanLII 100863, the Licence Appeal Tribunal (“LAT”) found that the Applicant was not entitled to income replacement benefits, a treatment plan for physiotherapy or an award for interest.

The Applicant sought to have the Tribunal’s decision reconsidered on the basis that the Tribunal erred when it failed to apply the appropriate test correctly. The Applicant’s request for reconsideration was denied.

The grounds for a request for reconsideration are outlined in Rule 18.2 of the Common Rules of Practice & Procedure (“LAT Rules”) , as follows:

1. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
2. 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;
3. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
4. 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.

The following remedies are available to the Tribunal on a request for reconsideration:

1. dismiss the request;
2. confirm, vary, or cancel the decision or order; or
3. order a rehearing on all or part of the matter.

In Sidiura, the Applicant submitted that there were six specific errors made by the Tribunal in the July 14, 2021 decision:

1. it determined that the applicant was not entitled to income replacement benefits within 104 weeks of the accident and post-104 weeks;
2. it did not consider the exacerbation of the Applicant’s pre-existing psychological impairments;
3. it considered only the evidence of Dr. F. Khan and Dr. H. Khan and failed to consider the clinical notes and records of the Applicant’s other treating family doctor, Dr. M. Khan;
4. it did not consider the evidence and diagnosis contained within Dr. Karmy’s Chronic Pain Assessment Report;
5. it reached the determination that the TD Bank employment file failed to confirm that the claimant’s termination was because of impairments sustained in the accident, causing a substantial inability to perform her pre-accident job duties; and
6. it determined the Applicant was not entitled to the claimed medical benefit for physiotherapy treatment.

Adjudicator Kimberly Parish decided that for issues 1, 2, 4, and 6, the Applicant was re-litigating the same evidence and arguments which were advanced at the hearing. Therefore, issues 1, 2, 4, and 6 did not satisfy any of the grounds for reconsideration in Rule 18.2 of the LAT Rules.

In regards to issue 3, Adjudicator Parish concluded that an adjudicator is not required to refer to every piece of evidence when reaching a determination on the disputed issues. On this issue, the respondent referenced several decisions, including G.I. v. The Guarantee Company of North America [1] and E.M. v. The Guarantee Company of North America [2], wherein the Tribunal held that a failure to cite every piece of evidence filed at a hearing does not equate to a significant error of law that would entitle a party to a reconsideration.

In regards to issue 5, Adjudicator Parish concluded that the Applicant failed to establish that a different analysis or evidentiary weight attributed to the employment file would have resulted in a different outcome. The original decision specifically outlined why the employment file was not persuasive and the basis for why alternate evidence  was preferred. Accordingly, Adjudicator Parish held that the Applicant failed to establish that the Tribunal made an error of fact such that the Tribunal would have likely reached a different result had the error not been made.

New Evidence

The Applicant also sought reconsideration based on new evidence. Although the Applicant did not submit into evidence a copy of the pre-accident employment file at the hearing, she included with her reconsideration submissions email correspondence which outlined the requests made for the employment file. This was the first time that these requests were produced to the Respondent. While the correspondence was new evidence, almost all of it predated the hearing submission deadline. As such, the adjudicator found that there was no reason  this evidence could not have been presented at the hearing.

Similarly, the Applicant also submitted two Tribunal decisions that supported the Applicant’s position on income replacement benefits. However, the applicant failed to provide an explanation as to why these decisions were not produced for the hearing.

Therefore, although the applicant presented new evidence, she failed to establish that it could not have been obtained previously. To the contrary, the evidence was available and could have clearly been presented at the hearing.

Adjudicator Parish concluded that the Applicant was attempting to re-litigate her case through the reconsideration process and denied the request for reconsideration.

Key takeaways

According to this decision, an Applicant cannot use the reconsideration process to re-litigate a position which failed at their hearing. Further, if the Applicant seeks to rely on new evidence on reconsideration, the Applicant must show that the evidence was unavailable at the time of the hearing and it is of such a significance that it would have impacted the outcome of the hearing.

[1] G.I. v. The Guarantee Company of North America, 2010 CanLII 151284

[2] E.M. v. The Guarantee Company of North America , 2020 CanLII 12763