In the recent reconsideration decision of 2020 ONLAT 19-006032/AABS, McCague Borlack LLP's Mahroze Khan was successful in having the applicant's request for reconsideration dismissed. Vice Chair Farlam considered the request for a reconsideration of her Decision released on May 14, 2020 ("Decision")1 in “which the applicant was barred from proceeding with her application to determine her entitlement to non-earner benefits ("NEBs") because she failed to attend the respondent's s. 44 independent examination ("IE")”.
Vice Chair Farlam noted that this request should have been brought by the applicant under the new Rule 18, as amended on February 7, 2019.
In her discussion of jurisdiction and procedural fairness, the Vice Chair considered the case of Vavilov2 and stated that Vavilov did not apply to this matter as that ruling purely applies to court review and not reconsideration under Tribunal Rules. Furthermore, she went on to note that even if Vavilov were to apply, the decision would satisfy the standard within as the Decision meets the presumptive standard of review of reasonableness because it is not unreasonable.
In upholding that the notice provided to the applicant was sufficient, Vice Chair Farlam relied on Hedley3 and its finding that the reasons in the notice should be clear and sufficient enough for an unsophisticated person to make an informed decision on the matter.
Vice Chair Farlam noted that the claimant failed to advance any position that they did not understand the notices or the reasoning for why the occupational therapy IE was required and further failed to present any reasonable explanation for non-attendance.
In finding that the applicant had not established any grounds for reconsideration, Vice Chair Farlam stated that “because the applicant has requested reconsideration, the onus is on the applicant to prove her grounds and she has not done so. Instead, the applicant's submissions attempt to reargue the case made before at the hearing and raise new arguments. A reconsideration is not an opportunity to reargue one's case or an appeal.”
1 2020 CanLII 34492 (ON LAT)
2 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.)
3 Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318.
Originally published by McCague Borlack LLP, October 2020
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