RECONSIDERATION DECISION
Before: Maureen Helt, Vice-Chair
File: 17-002993/AABS Case Name: M.H. v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Danica E. Maslow, Counsel
For the Respondent: Asma Desai, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises from a motion decision where the Licence Appeal Tribunal (LAT) denied the applicant’s request to reinstate his application filed with the Tribunal and dated May 12, 2017, or alternatively to set aside the Notice of Withdrawal filed by the applicant dated December 13, 2017.
2In his request for reconsideration, the applicant argues that the Licence Appeal Tribunal (LAT) made a significant error in law by failing to find that the Tribunal Rules of Practice and Procedure (Rules) apply to a Notice of Withdrawal.
3The applicant argues that in failing to consider the Rules and the LAT mission statement the Vice-Chair made a number of errors in law.
4Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Schedule 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.
RESULT
5For the reasons that follow, I deny the applicant’s request for reconsideration.
BACKGROUND
6The applicant filed an application with the LAT on May 12, 2017. A three-day in-person hearing was scheduled for December 14, 18 and 19, 2017 in Kitchener Ontario. The issues in dispute included income replacement benefits and interest.
7On December 8, 2017 the respondent brought a motion to dismiss the application for the applicant’s failure to meet the timelines for production of documents set out in the LAT’s case conference order dated September 5, 2017. The documents were ordered to be produced by September 25, 2017.
8On December 13, 2017 the applicant filed a Notice of Withdrawal of the application with the LAT. The respondent advised at that time it would be seeking costs as a result of the late withdrawal of the application.
MOTION DECISION
9There were two motions before the Vice-Chair. The applicant by way of Notice of Motion dated January 10, 2018 sought to reinstate his application or in the alternative to set aside the Notice of Withdrawal. The respondent, by Notice of Motion dated December 19, 2017 was seeking costs as result of the late withdrawal of the application.
10In dismissing the applicant’s motion reinstating the application or alternatively denying making an order to set aside the applicant’s Notice of Withdrawal, the Vice-Chair considered the applicant’s submission that the Tribunal should be directed by Rule 3.1, dealing with liberal interpretation. He rejected it because there is no rule dealing with withdrawals so there is nothing to liberally construe. The Vice-Chair also rejected the argument that a withdrawal is tantamount to a dismissal without a hearing under Rule 3.4.
11In reaching his decision, the Vice-Chair found that "signing the Notice of Withdrawal, particularly with the advice of legal counsel leads me to find that the withdrawal was unconditional and not influenced by factors such as mistake or inadvertence".
ANALYSIS
12The applicant requests a reconsideration of the motion decision pursuant to rule 18.2 (a) and (b) LAT Rules. Rule 18.2(a) deals with the Tribunal acting outside of its jurisdiction or violating the rules of natural justice or procedural fairness. Under Rule 18.2(b) the applicant argues that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision. I consider each of these grounds below.
Natural Justice and Procedural Fairness
13In reviewing the applicant’s request for reconsideration there is no clear argument advanced with respect to the Tribunal acting outside of its jurisdiction or violating the rules of natural justice or procedural fairness other than making the argument that reinstatement should be allowed after a withdrawal on the basis of having a fair, open and accessible process.
14In the reconsideration request the applicant states that the Vice-Chair failed to consider the LAT Mission statement that is to allow for a fair, open and accessible process, which allows for effective participation by all parties. The applicant argues that the Vice Chair failed to consider its submission that allowing for reinstatement of the application shortly after withdrawal would allow for a fair, open and accessible process.
15In reviewing the Vice-Chair’s decision it is clear that he considered the impact of the Notice of Withdrawal. He stated that signing the Notice of Withdrawal, particularly with the advice of legal counsel, led him to conclude the withdrawal was unconditional and not influenced by factors such as mistake or inadvertence.
16As such, I find that the applicant has failed to demonstrate that the Vice Chair acted outside of the Tribunal’s jurisdiction, or violated the rules of natural justice or procedural fairness.
Error of law
17The relevant test for granting a request for reconsideration on the basis of a significant error of law is set out in Rule 18.2(b) of the LAT Rules.
18Rule 18.2(b) allows the Tribunal to review a decision for “significant errors”. This Rule does not mean that on a reconsideration the Tribunal should reweigh all the evidence. Rather, the errors of fact or law must be significant such “that the Tribunal would likely have reached a different decision.”1
The Vice-Chair rejected the applicant's submission that Rule 3.1 plays a role in his decision. He stated “the rule requires the Tribunal's Rules be given a liberal construction. In this case there is no rule on the effect of a withdrawal or a description of factors to consider on a request to reinstate. There is nothing to liberally construe.” The applicant fails to put forward any submission in his request for reconsideration and fails to point to any rule dealing with withdrawals to support his argument that the Vice-Chair made an error of law in this finding.
19I further find no error in the Vice-Chair’s finding that to deny the reinstatement is not the equivalent of dismissing without a hearing under Rule 3.4. I accept the respondent's submission that it was the act of withdrawal that terminated the right to a hearing and Rule 3.4 or 3.5 are not applicable.
20As set out above, the onus is on the party seeking a reconsideration to establish that there was a “significant error of law or fact such that the Tribunal would have reached a different decision had the error not been made.”
21I find that the applicant has not established an error of law or fact. Rather, the reconsideration appears to be an attempt to reargue the very same arguments that were made before the Vice-Chair. A reconsideration is not an appeal or an opportunity to reargue one’s case.
CONCLUSION
22I find that there are no significant errors of law, nor is there are any denial of natural justice or procedural fairness in the Vice-Chair’s decision based on the reasons set out above. As such, I deny the applicants request for reconsideration.
Maureen Helt Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 19, 2019
Footnotes
- Taylor v Aviva Canada Inc., 2018 ONSC 4472 at para 70