Volume. 5 Issue. 42- September 22, 2021

In the first of two Reconsiderations, the Tribunal invokes “rare and exceptional circumstances” in allowing in evidence not raised at first instance, despite it having been readily available.

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Rare and Exceptional Circumstances

Rare and Exceptional Circumstances – In the original decision, NM v Aviva (18-008710), the Tribunal found that the Applicant was entitled to NEB of $185.00 per week from February 20, 2018 to March 28, 2019 (up to the two-year mark). However the Tribunal did not allow the requested $320 per week thereafter and ongoing, as “there is no jurisdiction for me to grant any amount past the two years since the $320.00 amount was eliminated with the June 1, 2016 changes to the Schedule.”

On Reconsideration, the Applicant contended “the Tribunal made a significant error of fact and law when it ordered the NEBs payable only up to the two-year mark by utilizing the wrong version of the Schedule”. The Applicant contended that their policy was entered into April 2016, before the June 1 changes, therefore the transitional rules applied, and the pre June 1 version of the Schedule was the correct one in this instance.

The Applicant submitted for the first time the policy slip confirming the date the policy was entered into. The Tribunal noted that this was “new evidence and was not provided at the hearing. Again, the onus at the hearing was on the applicant to prove his case including providing proof of policy coverage dates especially when the transition rules were applicable. Rule 18.2(d) of the Rules provides that the Tribunal can consider new evidence where the party can show: (a) the evidence could not have been obtained previously by the party; and (b) would likely have affected the result. The applicant has not raised this criterion in their reconsideration.”

Despite this, the Tribunal found this to be “one of those rare and exceptional circumstances where there was a clear misunderstanding as to when the policy came into effect and correspondingly what Schedule applies and the interests of justice, including fairness, requires that this new evidence be allowed on a reconsideration. To do otherwise would be significantly prejudicial and cause injustice to the applicant as he would be denied ongoing benefits based on an error of fact.” As a result, the transitional rules were found to apply, and as the Applicant was found to be “either enrolled in school on a full-time basis at the time of the accident or completed his education less than one year before the accident”, entitlement was granted on an ongoing basis at the rate of $320 per week.

Tribunal Allows Treatment Plan Submitted One Month After Maximal Medical Recovery Attained

Temporary Maximal Medical Recovery – In an earlier November 2016 decision involving the principals in DJ v Aviva (18-01213), the Tribunal had removed the Applicant from the MIG, however determined that facility-based treatment was not reasonable and necessary because the applicant had reached maximal medical recovery. For the within matter regarding this 2013 accident, the Respondent sought Reconsideration of the Tribunal having awarded a December 2016 social work counselling treatment plan. They contended that the Tribunal “placed little weight upon the answers of the applicant in the EUO (“that she “is not depressed, can control her emotions and feels anxious but not to the extent where…it will put [her] in a state where [she] cannot do anything”) and instead preferred the evidence of the mental health assessors…”.

The Tribunal agreed that reasons for supporting this preference “were really not articulated”. However upon review, the Tribunal did not find this to be an error that would have resulted in a different outcome had it not been made. “Indeed, while I find it peculiar to discount the applicant’s own words, I find the Tribunal’s reasons at paras. 15-18 provided appropriate rationale to fill in the gaps for its decision to award $3,030 for the social work treatment plan”. The Respondent further contended that the Tribunal, in now awarding the treatment plan, was “overriding” the earlier decision from November 2016 that found the Applicant had reached maximal medical recovery. Disagreeing with the Respondent on this point, it was noted that “rather, the adjudicator relied on the evidence before her and arrived at a different conclusion.” The Tribunal also reconfirmed that “it is well-settled that adjudicators are not bound by the decisions of their colleagues, even previous decisions that concern the same parties.”

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