RECONSIDERATION DECISION

Citation: M.L. vs. The Dominion of Canada General Insurance Company, 2020 ONLAT 19-011699/AABS

Before:

Theresa McGee, Vice-Chair

Date:

December 23, 2020

File:

19-011699/AABS

Case Name:

M.L. vs. The Dominion of Canada General Insurance Company

Written Submissions by:

For the Applicant:

M.L. (Self-represented)

For the Respondent:

Chris McCormack, Counsel

OVERVIEW

1The applicant’s request for reconsideration arises from a preliminary issue decision dated October 9, 2020. The Licence Appeal Tribunal (“Tribunal”) found that the applicant was barred from proceeding with her application because she failed to commence her application within two years of the respondent’s refusals to pay the benefits she claimed.

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,¹ the Executive Chair has delegated to me the authority to reconsider the preliminary issue decision in accordance with the applicable rules of the Tribunal.

RESULT

3The applicant’s request for reconsideration is dismissed.

PROCEDURAL ISSUES

4On December 10, 2020, the Tribunal issued an order partially granting a motion from the applicant for an extension to the filing deadline for reply submissions and for an increase to the page limit for those submissions from the 5 originally ordered by the Tribunal to 20. The Tribunal extended the filing deadline to December 14, 2020 and increased the page limit for reply submissions to 10.

5On December 14, 2020, the applicant filed her reply submissions. The submissions were over 12 pages in length. The applicant also submitted a 22-page version of her reply submissions and which she submitted could provide a more detailed explanation of her position, if required. She asked the Tribunal to consider the 22-page version as a proper and detailed reply.

6The respondent objects to the applicant’s request to submit 22 pages of reply submissions because it contravenes the Tribunal’s December 10, 2020 motion order and because granting the request would be prejudicial to the respondent. The respondent noted that it was not provided with a Notice of Motion Hearing in relation to the applicant’s Notice of Motion dated December 4, 2020. It submits that the motion order was issued without the respondent being provided an opportunity to respond. The respondent does not object directly to the December 10, 2020 motion order, but objects to the applicant’s continuing requests for additional pages, as they would undermine the hearing process and significantly prejudice the respondent.

7The Tribunal issued its December 10, 2020 motion order after determining that a formal motion hearing was unnecessary in the circumstances. The applicant had served her Notice of Motion on the respondent and the respondent had not replied. The Tribunal could foresee no prejudice to the respondent flowing from a brief filing extension and a minor page limit increase. Given the nature and timing of the applicant’s request, consideration of the motion ex parte was appropriate.

8That said, the applicant’s request to file the 22-page version of her reply submissions is clearly prejudicial to the respondent, which has abided by the Tribunal’s orders with respect to page limits throughout the preliminary issue and reconsideration proceedings. The applicant’ request represents an increase even to the page limit she requested in her motion. The 22-page version directly contravenes the December 10, 2020 motion order. Accordingly, the applicant’s request that the Tribunal consider this longer version of her reply is denied.

ANALYSIS

9The grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) The Tribunal made an error of law or fact such that the Tribunal would likely have 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 would have affected the result; or

(d) There is new 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 affected the result.

10The applicant submits that the Tribunal acted outside its jurisdiction by deciding a matter that was not part of the preliminary issue hearing. She also submits that the Tribunal made errors of law by not properly weighing evidence, by failing to explain how it weighed the evidence, and by misconstruing the applicant’s arguments in submissions and sur-reply.

11The applicant advised in her reconsideration submissions that she has abandoned her claims for the cost of the two disputed in-home assessments and her request for reconsideration relates to the remaining issues decided in the October 9, 2020 decision.

12The applicant submits that according to the Tribunal’s June 17, 2020 Case Conference Report and Order, there were nine issues in dispute at the preliminary issue hearing, not 10, and by not properly reviewing the issues in dispute, the Tribunal acted outside its jurisdiction.

13In the June 17, 2020 Case Conference Report and Order, Vice-Chair Trojek noted that the respondent’s submissions on the preliminary issue had already been filed and confirmed which issues it claimed were barred due to the two-year limitation period. Those submissions, filed with the Tribunal on June 1, 2020, identify 10 issues to which the respondent raised a limitations defence. The June 17, 2020 Case Conference Report and Order also notes that the applicant had withdrawn her claim for a Neurological Assessment in a Treatment and Assessment Form (OCF-18) submitted June 24, 2009. In identifying whether this issue was in dispute, the Case Conference Report and Order and the respondent’s submissions were inconsistent. Considering the sheer number of issues in dispute, the discrepancy is understandable. However, the fact that the Tribunal considered the respondent’s limitation defence in relation to the withdrawn Neurological Assessment decision is of no consequence. Whether withdrawn at the case conference or ordered barred pursuant to section 56 of the Schedule, the claim for a Neurological Assessment cannot proceed.

14The applicant’s remaining grounds for reconsideration are that the Tribunal made errors of law by not properly weighing evidence, by failing to explain how it weighed the evidence, and by misconstruing the applicant’s arguments in submissions and sur-reply. Respectfully, the applicant’s arguments on these grounds fail to establish that the Tribunal erred or in fact or law in such a way that a different result would have been reached if those errors had not been made. The applicant’s submissions attempt to re-litigate the issues in dispute and ask that the Tribunal engage in a re-weighing of the evidence.

15The applicant raises the argument, made in the preliminary issue hearing, that she would have filed her application sooner had she learned about the limitation period, and that ineffective representation of counsel delayed her filing an application. This is not a basis for reconsideration.

16The applicant submits that the Tribunal provided no analysis as to how the respondent can rely on denials of benefits that were not compliant with other provisions of the Schedule. She submits that the Tribunal relied solely on the respondent’s submissions and provided no commentary on the 15 cases she cited, which violates procedural fairness.

17The Tribunal sets out its analysis distinguishing the requirements for a legally valid denial of benefits from the substantive legal requirement for denying a benefit at paragraphs 47-49 of its October 9, 2020 decision. The rules of procedural fairness make no requirement that a tribunal comment on each and every case relied upon by a party to a dispute or that it deal with every submission in its reasons for decision. A requirement for reasons of the nature described by the applicant would considerably hamper the Tribunal’s ability to deliver on its mandate to deliver timely, cost-effective dispute resolution. As the Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v. Vavilov,

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice.²

18For an administrative decision-maker’s analysis to meet the standards articulated in Vavilov, it must meaningfully grapple with key issues and arguments raised by the parties and demonstrate that the decision-maker was alert and sensitive to the matter before him or her.

19The Tribunal’s analysis of the preliminary issue showed that it considered the applicant’s submissions that:

(i) the respondent’s denials are deficient because the respondent contravened several provisions of the Schedule in adjusting her claim (the Tribunal states the applicant’s position at paragraph 14 and sets out its related analysis at paragraphs 47-49);

(ii) for some of the benefits she claimed, the respondent never issued a final denial (the Tribunal states the applicant’s position at paragraph 14 and makes related factual findings at paragraphs 15-33);

(iii) the delay in filing her application is a result of ineffective representation by counsel (the Tribunal states the applicant’s position and sets out its analysis at paragraph 50); and

(iv) the Tribunal should resort to section 7 of the Licence Appeal Tribunal Act, 1999³ to extend the limitation period and preserve her claims, if necessary (the Tribunal states the applicant’s position and sets out its analysis at paragraphs 51 and 52).

20The applicant submits that the October 9, 2020 decision lacked elaboration on all concrete evidence. I find no error in the manner in which the Tribunal set out its factual findings. The decision clearly sets out the facts relevant to an analysis of whether the respondent had issued denials capable of triggering the commencement of the limitation period. The applicant has not established that the absence of additional “elaboration” of the facts constitutes an error of fact or law.

21To the extent that the applicant argues, in support of her reconsideration request, that denials accompanied by notices requesting section44 Insurer’s Examinations are incapable of triggering the limitation period, she is requesting that the Tribunal engage in a re-weighing of the evidence, as its findings on the sufficiency of those denials are clearly set out in the decision on the preliminary issue.

22The applicant submits that the Tribunal erred in finding that income replacement benefits (IRBs) were determined correctly and in accordance with the 1996 Schedule. The Tribunal’s findings in relation to IRBs are set out at paragraphs 17-19 of the preliminary issue decision. The Tribunal made no finding resembling the one identified by the applicant as an error of law. The Tribunal explicitly deferred any findings on whether any of the disputed benefits were denied correctly by the respondent, because the preliminary issue pertained only to the sufficiency of the denial notices for triggering the commencement of the limitation period.

23The applicant has failed to establish any of the criteria set out in Rule 18.2 for the granting of a reconsideration request.

CONCLUSION

24The applicant’s request for reconsideration is dismissed.

Footnotes

1. 1S.O. 2009, c. 33, Sched. 5.
2. 22019 SCC 65 at para. 128.
3. 3S.O. 1999 c. 12 Sched. G.