RECONSIDERATION DECISION

Citation: Jones vs. Aviva Insurance Canada, 2020 ONLAT 19-013768/AABS

Before: Theresa McGee, Vice-Chair

Date: December 17, 2020

File: 19-013768/AABS

Case Name: Debra Jones. vs. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Peter B. Cozzi, Counsel

For the Respondent: Danielle Ralph, Counsel

OVERVIEW

1This request for reconsideration, made by Aviva, arises from a decision issued on October 1, 2020 (“the preliminary issue decision”) in which the Tribunal found that s. 56 of the he Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”)¹ did not apply to bar the applicant, D.J., from proceeding with her application for a non-earner benefit.

2Aviva submits that the Tribunal made significant errors of fact and law that would have resulted in a different outcome had they not been made. On reconsideration, Aviva seeks a determination that D.J. is statute-barred under s. 56 of the Schedule from proceeding with her claim for a non-earner benefit.

RESULT

3Aviva’s request for reconsideration fails to comply with Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (“the Common Rules”) and is accordingly dismissed. The matter shall proceed to a hearing of the issues remaining in dispute.

ANALYSIS

4On February 7, 2019, the Tribunal Amended Rule 18 of the Common Rules (“Reconsideration of a Tribunal Decision”). Under the amended rule, the Tribunal will only reconsider a decision that finally disposes of an appeal.

5D.J. submits that Aviva’s request for reconsideration is non-compliant with Rule 18 because the preliminary issue decision did not result in a final order. The decision disposes only of the preliminary issue that was before the Tribunal at the hearing.

6Aviva submits that the preliminary issue decision is subject to reconsideration under Rule 18 because it disposes of the issue raised by its limitation defence, thereby depriving it of a substantive right which could be determinative of the entire action.

7Aviva relies for its position on the Ontario Court of Appeal’s decision in Ball v. Donais (“Ball”).² In Ball, the court considered an appeal from a motion order for a determination before trial of a question of law raised by the pleadings issued under Rule 21 of the Rules of Civil Procedure³. The motion order permitted the underlying action to proceed unhindered by the two-year limitation period in the Highway Traffic Act.⁴ The court held that the motion order had the effect of a final order because it precluded the defendant from thereafter raising a limitations defence, depriving it of a substantive right that could be determinative of the entire action.

8This preliminary issue decision is distinguishable from the motion order considered in Ball, because the present dispute is subject to a statutory regime which sets out inherent time limits for claiming a non-earner benefit, the sole accident benefit in dispute in this application [see s. 12(1)1 of the Schedule, which stipulates that a claim for non-earner benefits must arise within 104 weeks of the accident; and s. 36(3), which provides that an applicant is not entitled to a non-earner benefit for any period prior to submitting a completed disability certificate.]

9Although the preliminary issue decision found that Aviva has no defence under s. 56 of the Schedule, because there was no denial of a claimed benefit capable of triggering the limitation period for the time period at issue, the preliminary issue decision does not preclude Aviva from raising a defence on the basis of provisions of the Schedule that delimit the time period for claiming a non-earner benefit. The preliminary issue decision does not deprive Aviva of a substantive right that could be determinative of the entire application.

10Issues remain in dispute that were not properly before the Tribunal in the preliminary issue hearing. It would have been a jurisdictional error for the Tribunal to determine anything other than the issue before it at the hearing, and it would be inappropriate to consider Aviva’s remaining defences, be they procedural or substantive, in the context of a request for reconsideration. As stated at paragraph 17 of the preliminary issue decision, the issues remaining in dispute can only properly be adjudicated in the context of a separate hearing.

11The preliminary issue decision is interlocutory in nature. The Tribunal cannot grant reconsideration of an interlocutory order. The request for reconsideration is not properly within Rule 18 and is therefore denied.

COSTS

12D.J. seeks the costs associated with preparing her submissions on the reconsideration. She submits that the reconsideration request is frivolous, because Aviva knew or ought to have known that the basis of its request is without legal merit.

13While I have found that Aviva’s reconsideration request is not properly within Rule 18, I have no basis to conclude that it is unreasonable, frivolous, vexatious, or in bad faith as is required for a costs order under Rule 19. I accordingly dismiss D.J.’s request for costs.

CONCLUSION

14The request for reconsideration is dismissed. Conversely, the applicant’s request for costs is dismissed.

15The matter shall proceed to a hearing. The Tribunal shall contact the parties within 30 days of this decision to schedule a case conference for the purposes of exploring the possibility of settlement and making any procedural orders that may be necessary in advance of the hearing.

16If the parties resolve the issues in dispute, they shall advise the Tribunal immediately in writing.

Footnotes

1. 1Ontario Regulation 34/10.
2. 213 O.R. (3d) 322, 1993 CanLii 8613 (ON CA).
3. 3O.Reg 575/07.
4. 4R.S.O. 1980, c. 198, as amended.