A.J. v. Security National Insurance Co., 2021 CanLII 104418

Licence Appeal Tribunal

18-007658/AABS – R

RECONSIDERATION DECISION

Before: Rebecca Hines, Adjudicator

Date of Order: 10/19/2021

Tribunal File Number: 18-007658/AABS

Case Name: A.J. v. Security National Insurance Co.

Written Submissions by:

For the Applicant: Imtiaz Hosein, Counsel Nathan Tischler, Counsel

For the Respondent: Patricia Hill, Counsel Cody A. Moskovitz, Counsel

OVERVIEW

1The applicant has requested a reconsideration of my decision dated April 29, 2021, in which I determined that the Tribunal does not have jurisdiction to determine bad faith claims for punitive damages.

2The applicant submits that I made an error of fact or law in determining that issue and that I placed efficiency over fairness in rendering my decision.

3The respondent opposes the request for reconsideration and submits that my decision was correct. It submits that the applicant’s reconsideration request is an attempt to reargue her position which ultimately failed at the hearing. Further, the applicant has failed in her onus to prove that I made an error of fact or law that would result in a different decision.

RESULT

4After reviewing the parties’ submissions, I order as follows:

(i) The applicant’s reconsideration request is dismissed.

RECONSIDERATION CRITERIA

5The grounds for a request for reconsideration are contained in Rule 18 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 (“Rules”).

6Rule 18.2 states that a request for reconsideration will not be granted unless one or more of the following criteria are met:

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

(ii) 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;

(iii) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

(iv) There is evidence that was not before the Tribunal when rendering its decision, which could not have been obtained earlier and would likely have affected the result.

7The following remedies are available to the Tribunal on a request for reconsideration:

(i) dismiss the request;

(ii) confirm, vary, or cancel the decision or order; or

(iii) order a rehearing on all or part of the matter.

8The applicant requests that I vary my decision and make an alternative finding that the Tribunal does have jurisdiction to determine bad faith claims for punitive damages. The applicant relies on Rule 18.2 (b) and argues that I erred in law in:

(i) Finding that the legislature removed punitive damages as an available remedy absent ‘irresistibly clear’ language and that a statute should not be interpreted as altering the common law;

(ii) Failing to appreciate that s.3(8) of the Schedule and section 10 of O. Reg 664 do not displace the common law remedy of punitive damages; and

(iii) Finding that s. 280 of the Insurance Act, does not confer the jurisdiction to award punitive damages to this Tribunal, and in my statutory interpretation of the legislation.

ANALYSIS

9Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

10The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The applicant has failed to persuade me that I made an error in law or fact which would result in an alternative decision. Ultimately, I find the applicant disagrees with my decision, which is not grounds for reconsideration. For clarity, I will address each of the applicant’s allegations in turn.

Did I error in law in finding that the legislature removed punitive damages as an available remedy absent ‘irresistibly clear’ language altering the common law?

11The applicant submits that I erred in law in paragraph [58] of my decision by finding that if the legislature intended for the Tribunal to have jurisdiction to grant punitive damages it would have expressly conferred this power to the Tribunal by regulation. The applicant relies on some decisions of the Supreme Court of Canada¹ in support of her position that in the absence of clear language, the legislature should not be assumed to have intended to alter the pre-existing ordinary rules of common law.

12I do not find the case law relied on by the applicant support her position that I erred in law in my decision as they are not relevant to accident benefits or the power and jurisdiction of this Tribunal. For example, the decisions relied on dealt with labour disputes, collective agreements, Charter challenges, the Criminal Code and retail and taxation law. The applicant has failed to submit any argument or case law to persuade me that I erred in law in rendering my decision that would result in an alternative decision. I also agree with the respondent that the applicant is rearguing her position, which failed at the hearing. It is well established that that is not the purpose of the reconsideration process.

Did I error in law in failing to appreciate that s.3(8) of the Schedule and section 10 of O. Reg 664 do not displace the common law remedy of punitive damages?

13The applicant argues that I erred in law in paragraph [52] of my decision in finding that s.3(8) and s.10 of O. Reg 664 displace the common law remedy of punitive damages.

14I disagree with how the applicant characterized my findings. In paragraph [52] of my decision, I simply interpret the Court of Appeal’s findings in Stegenga v. Economical² (“Stegenga”) in regard to the remedies that this Tribunal has jurisdiction to order where it is determined that an insurer has unreasonably withheld or delayed payment of benefits. The applicant has failed to convince me that I made an error in law that would result in an alternative decision.

Did I error in law in finding that s. 280 of the Insurance Act does not confer the jurisdiction to award punitive damages to this Tribunal?

15The applicant argues that as of April 2016, this Tribunal has exclusive jurisdiction over accident benefits, which includes the power to decide claims of bad faith for punitive damages. The applicant again relies on decisions of the Supreme Court of Canada³ to support her position that the Tribunal has this exclusive jurisdiction. Once again, I do not find the decisions relied upon by the applicant helpful to her position as they deal with labour disputes, collective agreements, and Charter rights. The fact that other Boards and Tribunals have jurisdiction to determine broader issues is not relevant to this reconsideration request. Nor do these decisions support that I erred in law which would result in an alternative decision. This is the test that must be met on a reconsideration request.

16The applicant then provides her own interpretation of Stegenga in arguing that I erred in law which I had already considered in my decision. I find that the applicant is once again relitigating her position which failed at the hearing. The applicant has failed to persuade me that I made an error in law that would result in an alternative decision.

Did I error in law in my statutory interpretation of the legislation?

17Finally, the applicant argues that I erred in law in how I interpreted the Schedule as my finding that the Tribunal does not have jurisdiction to grant punitive damages for bad faith claims creates an absurd result.

18The applicant submits that the Schedule is consumer legislation which must be interpreted in a manner which is consistent with the spirit of its mandate. The applicant contends that I erred in extinguishing an insured’s ability to pursue the common law remedy of punitive damages. The applicant submits that there are several examples of remedial gaps in the Schedule where there is no penalty for an insurer to comply with its procedural obligations in responding to applications for accident benefits. Consequently, the fact that there is no provision in the Schedule for this relief does not mean it is not available.

19I do not find the applicant’s submissions or case law in support of this allegation persuasive or relevant to whether I erred in law in my interpretation of the Schedule. The applicant did not submit any case law from this Tribunal or higher courts in support of her reconsideration request which supports her position that I made an error in law which would result in an alternative decision. Therefore, the applicant has not met her onus on this ground, and I do not find I made an error of fact or law in this case.

CONCLUSION AND ORDER

20For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Rebecca Hines Adjudicator License Appeal Tribunal Tribunals Ontario

Footnotes

1. 1Heritage Capital Corp. v. Equitable Trust Co. 2016 SCC 19, [2016] 1 SCR 306, at para 30-31; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402 at paras 18-20; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 at para 39; Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, at p. 614 and Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1077.
2. 2Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615.
3. 3Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 followed in other decisions such as Lakehead University v Lakehead University Faculty Association, 2018 CanLII 112409 (ON LA)