[The Applicant] v Unifund Assurance Company, 2020 CanLII 12759

RECONSIDERATION DECISION

Before: Marisa Victor, Adjudicator

Date: February 14, 2020

File: 18-008089/AABS

Case Name: [The Applicant] v Unifund Assurance Company

Written Submissions By:

For the Applicant: Rachel Levitsky, counsel

For the Respondent: Danielle Lecours, counsel

OVERVIEW

1The applicant, [the applicant], was involved in a car accident on April 22, 2016. She claimed accident benefits from the respondent (“Unifund”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2The applicant requested that she be found to have sustained a catastrophic impairment (“CAT”). She also submitted a request for funding the CAT assessments from Unifund in the amount of $15,872.00 (the “preliminary issue”). Unifund denied the request for funding the CAT assessments on the basis that the amount quoted exceeded the applicant’s $50,000 maximum limits available under s. 18 of the Schedule for medical and rehabilitation benefits.

3The applicant disputed the respondent’s denial and filed an application with the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

4A written hearing on the preliminary issue was held on March 25, 2019.

5In my Decision,¹ I found that CAT assessments are not considered a medical benefit and therefore their funding does not fall within the s. 18 limit of $50,000. Further, I found that the CAT assessments are reasonable and necessary.

6Unifund requested a reconsideration of the Decision on the grounds that 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. The criteria for reconsideration on this ground is set out in Rule 18.2 (b) of the Tribunal’s Common Rules.²

7The respondent requests that the Decision be varied to find that the applicant is not entitled to the CAT assessments in the amount of $15,872 because the cost exceeds the s. 18 monetary limits for medical and rehabilitation benefits available for non-CAT injuries. Further, the respondent argues that the proposed CAT assessments are neither reasonable nor necessary.

8The applicant opposes this request for reconsideration on the basis that Unifund is simply trying to re-litigate issues fairly dealt with in the Decision. In addition, the applicant states that the request for reconsideration is frivolous and therefore seeks her costs.

9Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,³ I have been delegated responsibility to decide this matter in accordance with the applicable Common Rules.

RESULT

10The respondent’s request for reconsideration is dismissed. The applicant’s request for costs is granted in the amount of $100.

DID THE TRIBUNAL MAKE AN ERROR OF FACT OR LAW

11Unifund’s main argument is that the Decision was wrongly decided. The respondent contests the finding that the cost of CAT assessments [does] not come under the limits of s. 18 because they are not directly connected to medical benefits. Unifund supports its position with the same two Tribunal decisions it relied on at the hearing on the basis that these decisions “confirm that the cost of catastrophic assessments is a medical benefit.” It also relies on historical amendments to the Schedule between 1996 and 2010 as evidence of legislative intent, an issue it also previously raised at the hearing.

12Unifund states that the proposed CAT assessments are neither reasonable nor necessary. However, it files no argument or evidence to support this statement.

13The applicant submits that the respondent is attempting to relitigate the hearing issues already decided. Unifund has simply repeated the same arguments made at the hearing. The applicant submits that, in regard to the two Tribunal cases relied on by the respondent, in the Decision, I already made a finding that these two cases did not deal with whether CAT assessments should be paid out of the limits available under. 18 of the Schedule.

14The applicant also states that, in relation to legislative intent, the respondent simply repeated its previous submissions at the hearing and made no effort to explain how I made any errors, significant or otherwise, or how I interpreted the legislation incorrectly.

15The applicant states that respondent baldly states that the proposed CAT assessments are neither reasonable nor necessary without any argument or evidence to support its position.

Analysis

16For the reasons provided below, I am satisfied that there was no material error of fact or law that would affect the outcome of this application. In order to meet the high onus to warrant the reconsideration of a decision, the requesting party, in this case the respondent, must provide some evidence and argument to the Tribunal to support its position. It has not done so.

17As stated in 16-000929 v. TD Home and Auto Insurance Company⁴ the task on a request for reconsideration is not to re-weigh the evidence. I agree with the applicant that the respondent has only raised the very same arguments it made at the hearing and that these were heard and decided in the Decision. The respondent is essentially trying to re-litigate the Decision based on the same arguments.

18The respondent may not agree or like the Tribunal decision; however, the onus is on the respondent to prove that valid grounds exist for its request for reconsideration. It did not do so. The request is therefore denied.

APPLICANT’S REQUEST FOR COSTS

19The applicant seeks her costs in the amount of $1500 for having to reply to a “frivolous” request for reconsideration.

20The applicant relies on 16-000066 v. Waterloo Regional Municipalities Insurance,⁵ for the definition of a frivolous claim. That decision states that such a claim lacks a legal basis or legal merit, was not serious, insufficient on its face and presented no rational argument that could support its claim. The applicant states that this request for reconsideration is entirely frivolous given that the submissions are only three pages in length, barely made out an argument, made bald statements about the law previously stated at the hearing, and asserted errors without argument or evidence. The applicant suggests that the purpose of the reconsideration request is to delay paying for the CAT assessments approved in the Decision.

21The respondent provided no reply argument in response to the request for costs.

Analysis

22The bar for granting costs is high. However, in this case the bar is met. The request for reconsideration was a frivolous request.

23The respondent, represented by counsel, has failed to provide any basis to support its claim. It simply repeats arguments already heard and decided in the Decision. In addition, it alleges errors of law with no supporting argument or evidence. The respondent’s submissions appear to make no effort to meet the test for a reconsideration. When considering the powers of the Tribunal to award costs under Rule 19.5, I find that this request is frivolous and interferes with the Tribunal’s efficient and effective process in adjudicating disputes.

24The amount awarded shall be nominal. The applicant requests $1500 in costs. Rule 19.6 of the Common Rules limits the amount of costs to $1000 for each full day of attendance at a motion, case conference or hearing. Given the brevity of the respondent’s submissions, I find that only a nominal amount should be granted.

25Given the frivolous nature of the request for reconsideration, I find that it is appropriate to grant an amount for costs. Therefore, I am granting the applicant costs in the amount of $100.

ORDER

26This request for reconsideration is denied.

27The applicant is awarded $100 in costs.

Marisa Victor Member Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1[The Applicant] v Unifund, Tribunal File Number: 18-008089/AABS
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)
3. 3S.O. 2009, c. 33, Sched. 5. I
4. 416-000929 v. TD Home and Auto Insurance Company, 2017 CanLII 69239 at para. 19.
5. 52017 CanlII 35320