RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 18-005079/AABS
Case Name: F.C. v. Intact Insurance Company
Written Submissions by:
For the Applicant: Jessie Tran, Paralegal
For the Respondent: Andrew Grayson, Legal Counsel
OVERVIEW
1The applicant, the insured, filed an application for dispute resolution to the Licence Appeal Tribunal (the "Tribunal") for income replacement benefits.
2At the case conference the respondent requested a stay of proceeding because the applicant had also filed an application with the Ontario Superior Court relating to a property damage claim stemming from this car accident. The respondent is claiming material misrepresentation in both proceedings. They take the position that having two hearings relating to the same issue would amount to duplicity of proceedings.
3The applicant objected to the stay of proceedings because he is currently out of work, not receiving income replacement benefits and requested the case to be heard and decided. The Tribunal decided to proceed to a hearing in order to ensure an efficient, proportional and timely resolution of the matter.
4The respondent also requested a preliminary issue hearing to decide the issue of material representation to avoid unnecessary costs of summoning witnesses on the substantive issues of the hearing if they are successful on the preliminary issue. The applicant objected to the preliminary issue hearing for the same reasons listed above. The Tribunal denied a preliminary issue hearing because the delay in the proceedings would result in a significant prejudice to the applicant since it had already been two years since the car accident.
5The respondent requested a reconsideration of the Tribunal's decisions. They claim the Tribunal's decision violates the rules of procedural fairness, natural justice and made a serious error of law and fact. The respondent requests the Tribunal's decision be set aside and grant a stay of proceedings and/or a preliminary hearing.
6Pursuant 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
7The respondent's Request for Reconsideration is dismissed.
LEGAL TEST
8The grounds for a Request for Reconsideration are contained in Rule 18 of the Tribunal's Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
9The respondent asserts that they therefore are entitled to a reconsideration pursuant to section 18.2(a) and (b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) ("Rules").
10More specifically, the respondent has to prove on the balance of probabilities the Tribunal's decision violates one of those criteria.
ANALYSIS
Did the Tribunal's decision violate the rules of natural justice and/or procedural fairness?
11The respondent claims the Tribunal's decision violates natural justice and/or procedural fairness:
a. by allowing the Tribunal's application to be heard first in advance of the application filed before Superior Court
b. by denying a preliminary hearing on the issue of causation. They argue the Tribunal stated the preliminary issue of causation is irrelevant without reasons
c. by failing to allow the respondent the opportunity to present its case and tender evidence
d. by denying a stay of proceedings results in duplicating evidence, arguments and witnesses and increases costs.
12I find the Tribunal's decision did not breach natural justice and/or procedural fairness for the following reasons:
a. Firstly, the respondent argues that somehow having the Tribunal's case heard in advance of the Superior Court action would cause some type of violation of procedural fairness which would affect the ability for a fair hearing. I have no evidence to support that. The respondent will have an opportunity to present its case fully and fairly before both proceedings. The Tribunal's decision allowed for the respondent to bring the issue of material misrepresentation as a defense regarding the issue in dispute. The decision was well reasoned and took into account any potential prejudice brought forward by the parties.
b. Secondly, the respondent is claiming they will be arguing material misrepresentation in both cases, and is therefore a duplicity of proceedings. I have no evidence from the respondent whether the tests are the same, the burden of proof is the same or whether the definition is the same in both contexts. I find the case law presented by the respondent distinguishable because many of the cases concern two concurrent actions within the courts and not within a court and Tribunal. There are some cases cited from the Financial Services Commission of Ontario (FSCO) which granted a stay of proceedings pending the decision of the courts. The circumstances surrounding those cases are different than this hearing because the legislation at the time allowed for benefits under the Statutory Accident Benefit Schedule (SABS) to be heard in the courts after a failed mediation at FSCO. That is not the case today. Any dispute about benefits under the SABS must be heard at the Tribunal. There is no longer an opportunity to bring forward a claim for accident benefits to the courts.
c. Lastly, the potential prejudice to the applicant is also a factor to consider in whether the proceedings should be stayed as well as separated to hold a preliminary hearing first. The applicant tendered submissions at the case conference and for the reconsideration on how a delayed hearing could affect his livelihood because he is not working and is not receiving an income replacement benefit. The applicant filed an appeal with the Tribunal, it is his onus to prove benefits stem from the accident and he is opposing the stay of proceedings. Therefore the mere inconvenience or potential increase of costs to the respondent did not outweigh the prejudice to the applicant. Any prejudice caused to the respondent by having to pay for benefits in which the applicant may not be entitled to can be rectified by recovering the benefits at a later date. The adjudicator considered those factors in rendering the decision.
13The respondent claims a breach of procedural fairness when they were denied a preliminary issue hearing. They claim the Tribunal's decision stated the causation argument is irrelevant and failed to allow the respondent an opportunity to present the case. I find the opposite is true. The decision to deny a preliminary hearing was to account for the potential prejudice to the applicant. While it may be that having a preliminary issue hearing might be slightly more efficient because it may reduce witnesses and/or hearing dates. The potential prejudice to the applicant by delaying the hearing on the substantive issues would be greater than the potential for efficiency. The respondent will be given a full opportunity to present its case at the hearing and any arguments on material misrepresentation or causation can be made at that time.
14The respondent requested a stay of proceedings and a preliminary issue hearing. The adjudicator denied the respondent's request. The decision considered the positions of the parties and accounted for any prejudice that it may have caused the parties. I find the Tribunal's decision did not violate the rules of natural justice or procedural fairness.
Did the Tribunal's decision make a significant error of law or fact such that the Tribunal would likely have reached a different decision?
15The respondent did not make any submissions or lead me to any evidence regarding this issue and therefore I find the Tribunal's decision did not make a significant error of law or fact.
CONCLUSION
16For the reasons noted above, I dismiss the respondent's Request for Reconsideration.
Chloe Lester
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 15, 2019