RECONSIDERATION DECISION
Before:
Ian Maedel, Vice Chair
02/04/2021
Tribunal File Number:
19-006462/AABS
Case Name:
M.M. and Aviva Insurance Company
Written Submissions by:
For the Applicant:
Eric Winkworth, Counsel
For the Respondent:
Melinda Baxter, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant in this matter. It arises out of a decision dated May 28, 2020 by Adjudicator Lake. That decision concerned the applicant’s entitlement to three treatment plans, an award, and interest. The Tribunal found the applicant was entitled to the three treatment plans at issue, interest, and an award pursuant to s. 10 of Ontario Regulation 664.
2After the Tribunal issued its decision, the respondent made a request for reconsideration. The parties provided reconsideration submissions. As part of its submissions dated June 22, 2020, the applicant sought an award for costs pursuant to Rule 19.1 of the Common Rules of Practice & Procedure (“Rules”).
3However, in correspondence to the Tribunal dated June 24, 2020, the respondent withdrew its request for reconsideration. That same day, the applicant requested that the Tribunal still consider its request for costs. The applicant’s request was considered as a Notice of Motion.
4In considering the applicant’s request for costs, I rendered a Motion Order dated June 25, 2020 and dismissed the applicant’s request pursuant to Rule 19.1.
RECONSIDERATION REQUEST
5The applicant filed a request for reconsideration dated June 29, 2020.
6The applicant submits that, in dismissing her request, the Tribunal:
i. Acted outside its jurisdiction or violated the rules of procedural fairness; and
ii. Made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
7The applicant is seeking an order:
i. Properly addressing her submissions for costs related to the respondent’s request for reconsideration dated June 28, 2020; and
ii. Such further and other relief as counsel made advise and the Tribunal may permit.
PARTIES’ POSITIONS
8In her original reconsideration submissions dated June 22, 2020, the applicant submits costs were warranted due to the respondent’s gamesmanship and brinkmanship. The applicant further submits that the respondent’s reconsideration submissions were an attempt to re-litigate the matter, providing new submissions following Adjudicator Lake’s decision. Finally, the applicant seeks compensation for at least two days of preparation time required for the reconsideration materials.
9The applicant submits that I failed to provide any reasons to demonstrate my review of the submissions in order to rationally sustain the administrative decision rendered. This, she argues, amounts to an abuse of process and offends the principles of fundamental justice.
10The respondent submits a mere disagreement with the outcome is insufficient grounds to seek reconsideration. The respondent further submits there has been no significant legal or evidentiary mistake preventing a just outcome.
ANALYSIS
11The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Rules. Reconsideration 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.
12In rendering my Motion Order dated June 25, 2020, I made an error of law when I failed to consider the applicant’s cost submissions. This was not a “minor inconsequential…substantive mistake”, as the respondent submits, but an error of procedural fairness.
13Upon review of my previous Motion Order, it is clear that I did not have the opportunity to review the applicant’s submissions with regard to costs pursuant to Rule 19 as part of the applicant’s original reconsideration submissions dated June 22, 2020. This is precisely why I failed to consider the quantum of costs sought and the submissions for costs. There was no intention to otherwise “turn a blind eye” to the submissions provided.
14Procedural fairness demands the Tribunal review all submissions provided by the parties. I have now had a chance to review the submissions provided. This includes a review of the original reconsideration submissions and the second or subsequent reconsideration submissions provided following my Motion Order.
15Costs are a discretionary remedy which may be awarded when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1. Similarly, the Tribunal shall consider relevant factors relating to an award for costs as laid out in Rule 19.5 of the Rules.
16I am not persuaded this is an attempt to relitigate the matter, nor do I consider the respondent’s reconsideration request an abuse of process. The respondent did provide additional case law and attempt to rely on a s. 44 report to which the applicant objects. However, these factors alone do not trigger a cost award.
17I am similarly not persuaded the respondent is conflating medical and other reasons with sufficiency of notice pursuant to s. 38 of the Schedule. Even if the respondent’s reconsideration submissions failed to demonstrate a change in outcome caused by errors in fact or law, this does not automatically trigger a cost award. I do not otherwise see a pattern of behaviour demonstrated by the respondent that would attract costs.
18The test for costs remains a high bar. When I consider the totality of the submissions before me, I am not persuaded the respondent has demonstrated a pattern of behaviour that would attract costs pursuant to Rule 19. The applicant’s request for $2,000.00 in costs shall be dismissed.
CONCLUSION
19For the reasons noted above, I grant the applicant’s request for reconsideration.
20However, upon reconsideration, the applicant’s request for $2,000.00 in costs is denied.
Ian Maedel
Vice Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: February 4, 2021