M.MR. v Travelers Insurance Company of Canada, 2021 ONLAT 18-009122/AABS-R
RECONSIDERATION DECISION
Before: Monica Chakravarti
Date of Order: 12/02/2021
Tribunal File Number: 18-009122/AABS
Case Name: [MMR] v Travelers Insurance Company of Canada
Written Submissions by:
For the Applicant: Gus Triantafilopoulos, Counsel
For the Respondent: Kadey B.J. Schultz, Counsel
BACKGROUND
1The applicant submitted a request for re-consideration of the Tribunal’s June 22, 2020 decision (the “Decision”).
2In the Decision the Tribunal found that the respondent was not liable to pay an award under section 10 of Regulation 664 and neither party was liable to pay costs.
3The applicant requests a reconsideration of the Decision on the basis that a case was allowed to be put before the Tribunal following the closing submissions and prior to the Decision being released. Further the applicant requests a reconsideration on the findings in the Decision on the basis that the Tribunal made errors of law and/or fact such that it would have reached a different result had the errors not been made.
4The respondent replied to the request for reconsideration and submits that firstly that the case that was put to the Tribunal had no bearing on the Decision and that there were no errors made that would change the outcome of the Decision.
RESULT
5The request for reconsideration is dismissed.
ANALYSIS
6The grounds upon which a request for reconsideration can be granted are set out in Rule18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (the “Rules”).
7The ground that the applicant submits applies to this matter are that the Tribunal acted outside the Rules of natural justice or procedural fairness. The second ground that applicant submits applies is that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
8I note however that the grounds that the applicant submits are based on the previous rules of the Tribunal. The grounds for this reconsideration are found under Rule 18.2 and specifically Rule 18.2(a) in that “The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.”
9The second ground applicable to this reconsideration is Rule 18.2(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.”
10For the reasons that follow I find that the Tribunal did not act outside its jurisdiction or violate the rules of procedural fairness such that Rule 18.2 (a) would apply and that there were no errors made in the Decision such that a reconsideration under Rule 18.2(b) is warranted.
Introduction of Case Law
11The applicant submits that the Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness in allowing a motion by the respondent to have a case (the “Case”) as described in the footnotes in the Decision, to be put before the Tribunal after the close of hearing before a final decision.
12At paragraph 6 of the Decision the Tribunal mentions the Case however does not give it a name and identifies it only by Tribunal number in the body of the Decision with the full citation in the footnotes. At paragraph 9 the Tribunal confirms that a subsequent motion decision notes that the Case was released on August 7, 2019 (i.e., 11 days prior to the close of the hearing).
13The applicant submits that in allowing this Case to be put before the hearing adjudicator without allowing the applicant an opportunity to make submissions regarding the Case was procedurally unfair.
14The applicant in its reconsideration submissions provides jurisprudence that held that it was procedurally unfair to allow evidence in the hearing following the close of the hearing. The applicant however has not provided any jurisprudence about the introduction of caselaw at a hearing or after the close of a hearing before a decision is rendered. The applicant as well has not provided any support that caselaw and evidence are to be treated the same, when caselaw and evidence are distinct and are used for distinct purposes in a hearing.
15The applicant however does not point out that neither party made submissions on the Case and its application to the facts at hand and secondly the Case was not followed, considered, used, or even referred to by the Tribunal in coming to its finding on the issues in dispute at the hearing. The applicant submits that the Tribunal confirmed that the Case was one factor in the Decision and the applicant asserts that the Case had to be considered because there was a ruling to allow the Case to be entered. However, the applicant does not provide any reference to a paragraph, section or wording in the Decision that remotely appears to consider the Case that it takes exception to. Instead, the applicant makes an unsubstantiated assumption that because the ruling allowing the Case to be entered was “controversial” (as she put it) that somehow the Case must have been an important factor in the Decision.
16The applicant made submissions following the close of the hearing as to why the Tribunal should not believe the respondent when they asserted that the Case was not available to the respondent prior to the close of the hearing. Those submissions were considered by the Tribunal. The submissions made in this reconsideration (regarding the Case not being published prior to the close of the hearing) are a re-litigation of the submissions made at the motion.
17The respondent does note in their reconsideration submission that other than discussing the fact that the respondent brought a motion to have the Case put before the Tribunal after the close of the hearing there is no further mention of the Case in the Decision.
18To allow a case to be entered into a hearing is discretionary on the part of the Tribunal. The Tribunal exercised its discretion in allowing a case to be entered after the close of the hearing. It is important to note that the law continues to evolve during the close of hearing before a decision is rendered. This is also over and above the duty that counsel have to the Courts and Tribunals to provide full disclosure of binding authorities (based on counsel’s belief) relevant to the matters at issue in a hearing.
19Further, the Tribunal has the discretion to consider not only cases before it but the jurisprudence as a whole. The Tribunal notes at paragraph 10 that the Case may not be considered. In the reading of the Decision, it is clear that the Case was not considered. The Tribunal exercised this discretion and clearly did not consider the Case, nor did it have any effect on the Decision.
20Lastly the applicant has not established how the rules of procedural fairness were violated when neither party made submissions on the holding of the Case and its applicability to the matters of the hearing and when the Case was not part of the analysis in the Decision and was not considered and/or made no difference in the Decision.
Bias
21The applicant raises the issue of the hearing adjudicator’s bias. The context of this allegation of bias is in paragraphs 18 and 19 of the applicant’s reconsideration submission. The applicant alleges the adjudicator allowed the Case to be entered and then writes that the adjudicator “tries to minimize her clear bias and preferential treatment that she is providing to the Respondent by saying that the case ‘may have no effect…’ ”.
22An allegation of bias is very serious allegation. There is a strong presumption of judicial impartiality and integrity and thus there is a heavy onus on the applicant to demonstrate that a reasonable apprehension of bias exists. The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.1
23The applicant makes no reference to this legal test and makes no submissions as to how it applies in the Decision. Instead, the applicant assumes bias and preferential treatment because she disagrees with the adjudicator’s decision to allow the Case to be entered. Disagreeing with a decision is not a basis for alleging bias.
Misinterpretation of the Statutory Accident Benefits Schedule - Effective September 1, 2010[^2](''Schedule'')
24The applicant submits that the Tribunal misinterpreted sections. 36, 33 and 52 of the Schedule. Specifically, the applicant submits that the Tribunal erred because as per section 36 of the Schedule once the respondent was in receipt of the OCF-1 and OCF-3 that IRBs should have been paid or alternatively a request for information under section 33 should have been made.
25I find there was no error in the interpretation of these sections of the Schedule and that the applicant’s submissions on section 36 are the same submissions made at the hearing as noted in paragraph 20 of the Decision. Further paragraphs 21-42 of the Decision speak to sections 36 and 32 and the request for information. The applicant provides no submissions in her reconsideration to explain how or where the sections were misinterpreted by the Tribunal.
26Lastly the applicant submits an error in law with respect to section 52 but does not state or point to anything in support of this submission. Thus, there is no misinterpretation of section 52.
27The applicant submits that the Tribunal erred in finding that the payment referred to as a “good faith” payment was actually owed to the applicant. Again, the applicant does not point to any errors made by the Tribunal, instead the applicant asks the Tribunal to re-weigh the evidence referred to in paragraphs 28-41 of the Decision. As well the applicant submits in the reconsideration that the Tribunal termed the payment as “good faith”. This is not the case as noted in paragraph 50 of the Decision and throughout the Decision the Tribunal is quoting the adjuster’s use of this term in evidence and uses quotation marks to convey that it is quoting the term used by the adjuster.
28The applicant submits that there was an error in law in the “gratuitous payment” and that if the error had not occurred that the Tribunal would have reached a different conclusion. The applicant’s submissions are a re-litigation of the issue of whether the respondent withheld the payment of IRBs such that an Award should be granted. The applicant submits paragraphs 55 and 60 are evidence of the error, however these paragraphs speak to the findings and do not show any error.
29The applicant’s submissions on the purported error do not actually point to any errors but instead amount to a re-weighing of the evidence which was considered at the hearing. Re-weighing and re-litigating are not grounds for reconsideration.
No Costs Award
30As stated above a reconsideration involves an error of fact or law such that a different result would have been reached had the error not occurred. The applicant submits that there was an error made in not awarding costs but does not state what that error was.
31The applicant submits that the fact a section 33 request came from counsel should have been considered by the Tribunal in the Decision in considering costs. At paragraph 84 and 85 of the Decision the Tribunal considers the fact that the requests came from counsel and makes its finding at paragraph 92. Therefore, there is no error in this regard.
32The balance of the submissions in the reconsideration are a re-litigation of the arguments made in the first instance. Simply disagreeing with the Decision is not a basis for reconsideration.
CONCLUSION
33For the reasons noted above the applicant’s reconsideration is dismissed.
Released: December 2, 2021
____________________________
Monica Chakravarti, Adjudicator
Footnotes
- As cited by Associate Chair Batty in S.M. vs. Certas Direct Insurance Company, 2019 CanLII 43904 (ON LAT) at para. 27.
- O.Reg. 34/10 as amended.