) ) HUMBERTO CARREON PINERA Appellant – v. –, 2023 ONSC 3155

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 CLAIMSFUND Respondent ) ) ) ) ) ) ) ) ) ) Cary N. Schneider, for the AppellantAndrew Choi, for the Respondent ) ) ) ) HEARD at Toronto: 23 May 2023 (byvideoconference) MEW J. REASONS FOR DECISION [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 outfor 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.

Hebelieves 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 amotor 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 beeninvolved 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 animpairment 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 anaccident. [6] The appellant applied to the Licence Appeal Tribunal (“LAT”) for a determination of whether he was involved an accidentas defined by the Schedule. [7] An adjudicator rejected the application.

He accepted that the appellant was credible, but found no compelling evidence toshow that he was injured as a result of a motor vehicle accident: Pinera v. Motor Vehicle Accident Claims Fund (MVACF), (ON LAT). [8] The appellant sought a reconsideration of that decision, asserting that it was an error for the adjudicator to have concludedthat 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 anaccident.

He also claimed that the adjudicator had failed to give an adequate explanation for why he accepted that the appellant wascredible but not accepting that he was involved in an accident. And he submitted that the adjudicator had erred in law by the way heweighed 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), (ON LAT) - concluding, at para. 19: My decision on the issue of whether an accident occurred is reasonable considering the evidence and submissions. As noted by theRespondent, a person can suffer injury by various means at various places and it does not amount to an error of law to require some formof corroborative evidence to support the Applicant’s claim.

Here, I assessed the testimony and evidence and came to the conclusion thatthe 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, SchG. The appeal is limited to questions of law only: s. 11(6). The appellate standard of review for questions of law is correctness: Housenv. 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.

Inaddition, 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 basisfor the decision and to logically link this basis to the decision. But it is not necessary for decision makers to exhaustively address allpossible 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 anycorroborative evidence that might support the appellant’s belief that his injuries were the result of an accident. The record before theAdjudicator amply supports his findings of fact and, in particular, his conclusion that the appellant failed to meet his evidentiary burdenof 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 madeerrors 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 anaccident. [15] In his reconsideration decision the Adjudicator addressed each of these grounds methodically and dispassionately.

The natureof 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 mixedfact and law. [17] This appeal disclosed no error of law. Rather, the appellant invites us to re-litigate issues that the LAT has determined, bydressing 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 inthe 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 therespondent. _______________________________ 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