RECONSIDERATION DECISION
Before: Jesse A. Boyce, Adjudicator
File: 18-008443/AABS
Case Name: R.J. and Economical Insurance Company
Written Submissions by:
For the Applicant: Eric Winkworth
For the Respondent: Chelsea Gilder
OVERVIEW
1This request for reconsideration was filed by the applicant, R.J. It arises out of a preliminary issue decision dated February 6, 2020 in which I found that R.J. was statute-barred from proceeding with her application at the Tribunal under s. 55 of the Statutory Accident Benefits Schedule – Effective September 1, 2020 (the “Schedule”) due to her refusal to attend several properly scheduled Insurer’s Examinations (“IEs”) to asses her claim that she is catastrophically impaired.
2In the preliminary issue decision, I determined that Economical’s IE notices satisfied the requirements of s. 44, that the timing and reasons for its notices were proper and that Economical was entitled to choose its assessor. Accordingly, I found that R.J. was statute-barred from proceeding with her application until she attended the s. 44 IEs.
3In a 58-page reconsideration request, R.J. alleges I made numerous errors of fact and law. Further, R.J. submits that I violated procedural fairness and natural justice, violated her right to be heard and submits that the decision was not internally coherent. Finally, R.J. makes rather significant accusations of bias and requests that a different adjudicator hear her reconsideration request. She requests that the decision be reversed.
RESULT
4R.J.’s request for reconsideration is dismissed.
REQUEST
5The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the criteria are met. Here, the basis for R.J.’s reconsideration request falls under Rules 18.2(a) and (b):
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and
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.
ANALYSIS
Bias and the Tribunal’s Reconsideration Policy
6To begin, I agree with R.J. that the Tribunal’s policy on reconsideration—a policy shared by several other tribunals—puts me in the unenviable position of having to determine whether my initial weighing of the evidence and reasoning constituted a reasonable apprehension of bias that affected the outcome of the decision. However, that is all we agree on.
7In her request, R.J. expends considerable effort attempting to argue that I was biased in my initial decision and that I “reverse-engineered” an outcome that justifies her request for another adjudicator on reconsideration. Amongst other significant allegations, she submits that in issuing the “flawed” decision, it can be “reasonably apprehended as having motive (personal, financial, and reputational) and/or inherent cognitive bias” and that allowing me to reconsider my own decision would allow me to “engage in post-hoc rationalization.” She offers allegations that I paid “lip service” to the insurer, that I failed to read her submissions entirely and that she did not receive the right to a fair hearing. I vehemently disagree and do not accept that these submissions came from R.J.
8To be frank, I found counsel’s submissions to be toxic, erratic and unbecoming of a legal professional and I query the strategy behind same. The allegations and insinuations regarding pecuniary interests go beyond zealous advocacy as they are baseless and brazen and only distract from advancing the interests of the applicant. I find no evidence of bias and would direct counsel to review Chapters 2, 5, and 7 of the Law Society of Ontario’s Rules of Professional Conduct before addressing the Tribunal in the future.
The alleged errors
9As noted, R.J. submits that I made errors of fact and errors of law. The Tribunal’s reconsideration policy is helpful here because, as the preliminary hearing adjudicator, I am in the best position to recognize that these alleged errors are largely attempts to revisit the same arguments that were made unsuccessfully at first-instance. On review, I agree with Economical that R.J. has not raised a single relevant and material error that would affect the outcome of my decision.
10Many of R.J.’s submissions focus on the notice requirements of s. 44 and the ability of the insurer to rely on s. 55 to bar an applicant when they do not attend an IE. Economical submits, and I agree, that the preliminary issue decision properly stated and applied the legal principles and jurisprudence governing the application of s. 44 at para. 14 and s. 55 in paras. 16-20. On review, I find no errors in my analysis of the notices provided by Economical and again find that they were proper and timely. Accordingly, I find no error that would have led to a different result.
11Further, I agree with Economical that R.J. argued and seems to be arguing again for importing additional requirements to the notice provisions in s. 44(5), as well as the requirements for an insurer seeking to rely on s. 55. For example, I disagree that notice of an IE has to include the contact information of the person conducting the assessment or that an insurer is not permitted to choose its own assessor for same. Similarly, I disagree that I failed to consider R.J.’s privacy rights and concerns, which I address at length in paras. 25-27.
12I also reject R.J.’s assertion that the preliminary issue decision is not internally coherent. As examined further below, the line of reasoning straddled the parties’ submissions and, in my view, addressed the issue in dispute in a linear and logical way, given the shotgun approach to R.J.’s submissions and many of the tangential issues that were raised. While R.J. may disagree with the outcome, I find the decision is coherent and disagree that it was made without “due consideration to the governing statutory scheme, the principles of statutory interpretation, the evidence before [me], that facts to which [I] should have taken notice, the submissions of the parties, the case law before [me], and the legal tests [I] was required to apply,” as alleged.
Right to be heard
13As I understand it, R.J. asserts that the preliminary issue decision violated her right to be heard and that because I “failed to consider and address the main substance of the majority of [R.J.’s] submissions and sur-reply, it appears that [the decision] is invalid and that a disposition without a hearing has been made without the consent of [R.J.] to have a disposition rendered.” It is not entirely clear what this means, but on review of the decision, I disagree that R.J.’s right to be heard was violated or that her submissions were not substantively addressed.
14R.J. takes issue with para. 34 of the decision, wherein I addressed her sur-reply submissions that provided further argument over s. 33 requests, questioned the relationship between Economical and its third-party assessors and urged the Tribunal to request further particulars under Rule 9.1 of the Common Rules. I queried the relevance to the preliminary issue and determined that more information was not required to understand the nature of the dispute. On review, I fail to see how this determination violated R.J.’s right to be heard and disagree that it somehow resulted in a disposition without a hearing, as alleged.
15Indeed, on review of the headings in the preliminary issue decision alone, I find it unreasonable of R.J. to suggest that her scattered approach to presenting the issues went unaddressed, as the headings mirror her initial submissions and, in my view, provide concrete examples of all of the substantive issues I considered: “Is R.J. statute-barred from proceeding with her application under s. 55 of the Schedule because she refused to attend the requested s. 44 IEs?”; “The timing of the requests and sufficiency of the notice”; “R.J.’s requests for clarification”; “Assessor documentation and secure mailing address”; “Choice of assessor – psychiatric evaluation, PIPEDA and reasonably necessary”; “The nature of the IEs, reasonable connection and neuropsychological assessment”; “R.J.’s secondary arguments”; “Affidavit evidence”; “Section 55” and, lastly, “R.J.’s motion.” While R.J. may disagree with my reasons, I find it that it cannot be said that she was not “heard” by the Tribunal. In any event, while I personally endeavor to do so, it is well-settled that an adjudicator is not required to refer to every piece of evidence or submission before them when rendering a decision.
Economical’s request for costs
16Economical seeks $1,000 in costs on the basis that R.J.’s submissions contain no new evidence or arguments but seek a re-weighing of the evidence by a different adjudicator. Furthermore, Economical submits that “[R.J.’s] submissions are, at least in part, not based upon any legal principle, but are an attack on the adjudicator.” It submits that the request is supported by the excessive nature of R.J.’s submissions—being 58 pages on a single issue—which are largely a restatement of her arguments at first-instance.
17Pursuant to Rule 19.1 of the Common Rules, the Tribunal may award costs where a party “has acted unreasonably, frivolously, vexatiously, or in bad faith”. While I agree with Economical that the submissions provided by R.J. were excessive and that counsel’s behaviour was vexatious, I decline to order costs.
18Unfortunately, neither of the Tribunal’s initial reconsideration notice to R.J. or the Common Rules provided a page length for submissions. While parties have an obligation to assist the Tribunal by providing concise materials—and the 58 pages offered by R.J. are clearly the opposite of concise—I find it would be imprudent to punish R.J. where the Tribunal did not provide parameters.
19Rule 19.5 provides guidance when determining whether to award costs. Although I found counsel’s submissions to be inappropriate and groundless, counsel’s behaviour did not actually interfere with my ability to carry out a fair, efficient, and effective review of my initial decision. Further, while I find the submissions were misguided, I find there was no breach of a direction or order issued by the Tribunal and, other than its time in responding to the request, there was no prejudice to Economical, given my determination. As a result, I consider it inappropriate to punish the applicant, R.J., for counsel’s behaviour, due to the potential impact that a $1,000 costs order would have on R.J.’s ability to access the Tribunal moving forward.
CONCLUSION
20R.J.’s request for reconsideration is dismissed.
Released: September 18, 2020
Jesse A. Boyce
Adjudicator