RECONSIDERATION DECISION
Before: Heather Trojek, Vice Chair
File: 18-004395/AABS
Case Name: M.J. v. TD Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Ashley Frydrych, Sokoloff Lawyers
For the Respondent: Noah Shapiro, TD Legal Counsel
OVERVIEW
Tribunal’s Motion Order
1The issue underlying this Request for Reconsideration is the interplay between the two-year time limit to dispute denied benefits, the statutory limit on non-catastrophic (CAT) benefits and the determination of whether or not the applicant sustained a CAT impairment as defined by the Schedule1.
2The respondent filed the Request for Reconsideration. It arises from a motion order in which the Tribunal dismissed the respondent’s request to remove five treatment plans from the first application the applicant filed with the Tribunal. The respondent argued that because the applicant had not been determined to be CAT and had exhausted the $50,000.00 statutory limit payable for non-CAT files, it would be procedurally unfair to allow the applicant to proceed to a hearing on these issues.
3The Tribunal dismissed the respondent’s motion to remove the treatment plans and ordered that the two-day in-person hearing scheduled for January 28, 2019 proceed as scheduled. The issues to be determined at the hearing are the applicant’s entitlement to non-earner benefits (NEBs); the five treatment plans which are the subject of the Request for Reconsideration; interest; and an award under the Regulation.2
4The Tribunal also denied the alternative relief sought by the applicant. The applicant requested that the in-person hearing be adjourned to enable the respondent to complete the insurer examination (IE) it requested in response to the applicant’s application for determination of CAT impairment (“OCF-19”). The Tribunal also denied the applicant’s request to combine her first application with the one she filed the day before the motion hearing (“the second application”). The second application, now registered as Tribunal file number 18-009706, includes the respondent’s denial of the applicant’s OCF-19.
5The Tribunal dismissed the applicant’s request to adjourn the hearing and her request to combine her applications. The Tribunal determined that adjourning the hearing and/or combining the two files would compromise the Tribunal’s mandate to conduct hearings in an efficient manner.
Respondent’s Request for Reconsideration
6In its request for reconsideration, the respondent argued that the Tribunal made an error in law because it
i. misconstrued the relief sought by the respondent in its motion;
ii. did not properly consider the arguments it made and the case law it referred to; and,
iii. it should have allowed the respondent’s motion because of an agreement made by the parties which is documented in paragraph 8 of the Tribunal’s decision.
7The respondent requests that the Tribunal’s order be dismissed in its entirety. The respondent further submits that the hearing on January 28, 2019 should proceed as scheduled. It argues that the issues at the hearing should be limited to the issues remaining in the application after the treatment plans are removed, those being NEBs, interest and entitlement to an award.
8The applicant submits that the Tribunal did not make an error in law as alleged by the respondent. The applicant opposes the dismissal of the Tribunal’s order because it confirms that she disputed the five treatment plans within the two year time limit.
9Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
10The respondent’s request for reconsideration is dismissed.
11On my own initiative, I have reconsidered the Tribunal’s decision to deny the adjournment of the in-person hearing scheduled to proceed on January 28, 2019. I have also reconsidered the Tribunal’s decision not to combine the applicant’s files (18-004395 and 18-009706).
12I order that the hearing scheduled for January 28, 2019 be adjourned. I also order that both applications filed by the applicant be combined. I order that the parties attend a case conference resumption within 30 days of the release of this decision. The sequence in which the issues in dispute will be decided by the Tribunal will be discussed at the case conference resumption, I make no order in this regard.
BACKGROUND
13The applicant was involved in an accident on May 17, 2018. After being denied entitlement to NEBs and five treatment plans, the applicant submitted an application to the Tribunal. The parties attended a case conference but were unable to resolve the issues in dispute. The matter was scheduled to proceed to a two day in-person hearing commencing on January 28, 2019.
14The respondent denied the applicant’s entitlement to the treatment plans in dispute because she had exhausted the $50,000.00 non-CAT limit on medical and rehabilitation benefits. The respondent did not request that the applicant attend insurer examinations (IEs) to determine if the five treatment plans in dispute were reasonable and necessary.
15The applicant subsequently submitted an OCF-19 to the respondent. The respondent requested that the applicant attend an IE to determine if the applicant was CAT. Before the motion hearing, the applicant submitted an application to the Tribunal disputing the respondent’s denial of her OCF-19. At the time of the motion hearing, the IE scheduled in response to the applicant’s OCF-19 had not yet been completed.
16The applicant filed her first application with the Tribunal, in part, to protect her right to dispute the benefits denied by the respondent within the two-year time limit prescribed by the Schedule.
17The applicant had previously advised the respondent that she would withdraw her first application with the Tribunal, if the respondent would agree to waive/extend the two-year time limit associated with the benefits contained in that application. The respondent did not agree to the applicant’s request to waive the limitation period.
18At the motion hearing the parties agreed that the applicant filed her application to dispute the respondent’s denial of the five treatment plans within the two-year time limit. The parties also agreed that a determination of whether or not the treatment plans were reasonable and necessary should be made after the CAT designation issue had been determined. This agreement is documented in paragraph 8 of the Tribunal’s decision.
19In her motion materials and at the motion hearing, the applicant requested that the Tribunal order an adjournment of the two day in-person hearing. She also requested that the Tribunal order that her two applications be combined.
REASONS
20Rule 18.13 requires a request for reconsideration to include the reasons for the request.
21Rule 18.2, specifies the criteria for granting a reconsideration request. The relevant criteria for reconsideration in this case are:
i. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
ii. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
22Rule 18.1 also permits me to reconsider a decision on my own initiative and to confirm, vary or cancel a decision or order of the Tribunal.
23The respondent failed to persuade me that the Tribunal’s decision should be reconsidered. The respondent’s Request for Reconsideration is denied for the following reasons:
The Tribunal understood the determination sought by the respondent
a) I find that the Tribunal clearly understood what the respondent was seeking and accurately described it in its decision. The respondent argues that the Tribunal erred in law by stating that in its motion the respondent sought an order “barring” the applicant from proceeding with her application on the five disputed treatment plans. In its motion the respondent asked the Tribunal to order that the treatment plans in dispute be “removed” from the applicant’s application. The outcome of removing the treatment plans from the applicant’s application would for all intents and purposes block or prevent the applicant from disputing entitlement to the disputed treatment plans once the two year time period had expired. I find that the Tribunal’s characterization of the relief sought by the respondent is correct. The respondent’s argument is based on semantics and does not come close to reaching the high bar that needs to be met in order for a decision of the Tribunal to be overturned.
The Tribunal considered the submissions of the parties
b) There is no requirement that the Tribunal refer to or address every argument made by a party in its submissions. In addition, the Tribunal is not bound by decisions made by the Financial Services Commission (FSCO). The respondent argues that the Tribunal made a significant error in law because it did not consider the argument the respondent made regarding a section 45(6) of the Schedule. The respondent further argues that the Tribunal erred in law because it did not consider the case law, or more specifically the two FSCO decisions, the respondent cited in support of its position.
The respondent argues that section 45(6) which deals with the payment of “incurred” expenses being paid after an applicant is determined to be CAT supports its position regarding the removal of the five treatment plans. There was, however, no evidence before the Tribunal that the applicant had incurred the treatment plans in dispute. Other than the absence of a reference to the respondent’s section 45(6) argument, I have no basis upon which to find that the Tribunal did not consider the respondent’s submissions on this issue. More importantly, I find that even if the Tribunal failed to consider this argument, the error was not significant enough, in light of the other reasons provided by the Tribunal, to have led it to come to a different decision.
The Tribunal is not bound by the agreement of the parties
c) The respondent argues that the Tribunal should have removed the treatment plans from the applicant’s application because of the agreement reached by the parties and documented in paragraph 8 of its decision. I do not agree. The Tribunal cannot make a decision based solely on the agreement of the parties. Nor is the Tribunal obligated to issue an order merely because the request is “on consent”. Although the consent of the parties is one factor the Tribunal will consider in making an order or decision it is only one factor. The Tribunal’s decision must be based on its statutory obligations, the evidence before it, and on the case law that binds it. Moreover, there is no evidence that the applicant consented to the removal of the treatment plans from her application based on the wording contained in paragraph 8 of the Tribunal’s decision. I therefore find that the Tribunal made the correct decision and would have erred in law if it had removed the treatment plans from the applicant’s application based on the agreement reached by the parties.
Adjournment of the Hearing
24The respondent did not request that I reconsider the Tribunal’s decision regarding the adjournment, the hearing or the combining of the applicant’s files. Based on the authority given to me, I decided to do so on my own initiative. I did not ask for submissions from the parties on these issues because they would not have affected the outcome of my decision.
25I find that it is procedurally unfair for the Tribunal to deny the applicant’s request to adjourn the hearing. I find that the most practical, flexible, cost-effective and efficient way of balancing the needs of the parties, in this particular case, is to adjourn the hearing and grant the applicant’s request to combine both of her files. Adjourning the hearing and combining the files enables to the parties to deal with the CAT determination issue prior to determining if the treatment plans are reasonable and necessary. The issue of CAT determination and the payment of the treatment plans are intrinsically linked because of the $50,000 cap on medical and rehabilitation benefits for applicants who have not sustained a CAT impairment as defined by the Schedule.
26In its reasons, the Tribunal states that the hearing should proceed because adjourning and/or combining the applicant’s files would compromise the Tribunal’s mandate to ensure that hearings proceed in an efficient manner.
27I find that the Tribunal failed to properly balance the mandate of the Tribunal with the principle of procedural fairness. Proceeding expediently is only one component of the Tribunal’s mandate. In addition to proceeding expeditiously, the Tribunal is required to secure a just and cost-effective determination of every proceeding on its merits. In this case, adjourning the hearing and combining the files is not prejudicial to the parties and enables the Tribunal to take a broader and more holistic approach to determining the issues before it. If there is any prejudice to the parties, I find that in this case, it is outweighed by the potential savings that the parties and Tribunal could gain by dealing with both of the applicant’s files at the same time.
28In this case, I find that the most cost-efficient way for the parties to proceed is to have one as opposed to multiple hearings before the Tribunal. In many cases, the issues in dispute involve the same witnesses and the same or similar evidence. Proceeding with one hearing avoids the potential cost and inconvenience of having witnesses testify twice. Having one hearing also means that all the evidence is heard by one adjudicator as opposed to two or more. This results in the most just determination of the merits of a case, because the adjudicator deciding the matter hears all, as opposed to fragmented pieces of, the evidence when making a determination.
29Moreover, one of the key components of the Tribunal’s mandate is to promote the early resolution of disputes between the parties without the Tribunal’s involvement. This puts the decision-making authority in the hands of the parties and benefits the parties as well as the Tribunal in terms of the allocation of needed resources. I find that the probability of the parties resolving the issues in dispute will increase significantly once the issue of CAT determination has been addressed. This is one of the advantages and cost-savings associated with adjourning the in-person hearing scheduled for January 28, 2019 and combining the applicant’s files.
CONCLUSION
30For the reasons noted above, I dismiss the respondent’s Request for Reconsideration.
31Pursuant to the powers granted to me, I order that:
The hearing scheduled for January 28, 2019 shall be adjourned.
The applicant’s files shall be combined.
The parties shall attend a resumption of the case conference within 30 days of this decision being released. The parties shall contact the Case Management Officer (CMO) assigned to this file in order to schedule the resumption of the case conference.
Heather Trojek Vice Chair Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: January 23, 2019