RECONSIDERATION DECISION
Before: Ian Maedel, Adjudicator
File: 17-009119/AABS
Case Name: R.K. v. Allstate Insurance Company
Written Submissions by:
For the Respondent: Cary N. Schneider, Counsel
OVERVIEW
1On November 13, 2018, the Licence Appeal Tribunal (the “Tribunal”) issued a preliminary issue decision in this matter pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent, Allstate Insurance Company, has filed a request for reconsideration, despite being successful at the hearing and obtaining an order barring the applicants claim for accident benefits.
2Pursuant to the written hearing conducted, the Hearing Adjudicator found the following:
i. The applicant was barred from pursuing this claim for benefits because he failed to attend an insurer’s examination pursuant to ss. 44 and 55 of the Schedule, and provided no reasonable explanation for his non-attendance;
ii. The applicant is not barred by s. 55 from proceeding with his claim for accident benefits because of his failure to attend an examination under oath. S. 55 does not apply to a failure to attend pursuant to s. 33 of the Schedule. In accordance with s. 33(6) the respondent is not obliged to pay accident benefits until the applicant submits to an examination under oath;
iii. The applicant is not barred from proceeding with his claim for accident benefits because he commenced his application more than two years after the accident;
iv. The applicant is not liable to pay costs to the respondent.
3The respondent submits the Hearing Adjudicator failed to consider its submissions with regard to the issues specific to the limitation period and costs, cited above at paragraphs iii and iv.
4The respondent submits the Hearing Adjudicator failed to consider submissions on the twenty-one month delay between the accident and when the respondent was informed of the accident, specifically in relation to the limitation period. This amounted to the Tribunal acting outside its jurisdiction, a violation of the rules of natural justice or procedural fairness, or a significant error in law or fact such that it would have reached a different decision if these errors had not been made.1
5Pursuant 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.
6As explained below, I dismiss the request for reconsideration pursuant to 18.4(a) of the Common Rules of Practice and Procedure
ANALYSIS
7The criteria for granting a reconsideration is laid out at Rule 18.2;
a) The Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would have likely reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would have likely affected the result.2
DECISION AND REASONS
The Limitation Issue
8I am not satisfied the Tribunal acted outside of its jurisdiction, violated the rules of natural justice or procedural fairness pursuant to Rule 18.2(a). Nor am I satisfied that the Tribunal made a significant error of law or fact that would have likely resulted in a different outcome had the error not been made, pursuant to Rule 18.2(b).
9The respondent’s submissions are moot. The respondent was already successful in obtaining an order barring the application for accident benefits. Whether the Hearing Adjudicator overtly considered the twenty-one month delay in notifying the respondent of the accident does not constitute a significant error of law or fact, nor does it change the outcome of the hearing.
10The Hearing Adjudicator is not required to cite every argument raised by the parties in his decision. Once he determined the applicant had provided no reasonable explanation for non-attendance at the insurer’s examination, the applicant was deemed to have abandoned his claim for accident benefits. The hearing adjudicator then correctly applied the statutory two year limitation period as laid out at s. 56 of the Schedule.
Submissions for Costs
11I am not satisfied there are grounds to reconsider the Hearing Adjudicator’s decision with regard to costs as per the criteria laid out in Rules 18.2(a) and 18(2)(b).
12The respondent submits the Hearing Adjudicator failed to consider the respondent’s cost submissions. Clearly the Adjudicator was aware of the test for costs pursuant to Rule 19, and specifically cited the cost threshold at paragraph twenty-two of the decision.
13Costs are a discretionary remedy and the test as laid out in Rule 19 is a high threshold to satisfy. Although the specific submissions were not cited, I have no reason to believe they were not considered in the Adjudicator’s decision not to award costs in this matter. Thus, the request to reconsider the denial of costs is dismissed.
CONCLUSION
14The respondent’s request for reconsideration is dismissed.
Ian Maedel
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: May 22, 2019