J.T. v. Aviva Insurance Company
AMENDED RECONSIDERATION DECISION
Before: Terry Hunter, Vice Chair
Tribunal File Number: 18-003238/AABS
Case Name: [JT] vs. Aviva Insurance Company
Written Submissions by:
For the Applicant: Jono Schneider, Counsel
For the Respondent: Brittanny Tinslay, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter. It arises out of a decision released November 25, 2019 by Adjudicator Lake which granted entitlement to some benefits, interest and an award. Adjudicator Lake found entitlement to an award of 25 per cent of the disputed amounts for three treatment plans unreasonably withheld by the respondent. Adjudicator Lake provided in her decision the applicant was entitled to an award. The decision determined the cost of the withheld treatment plans and the percentage to be applied but the calculation of the award was not completed.
2On December 6, 2019 the respondent calculated interest and the award making a payment of $4,572.12.
3On January 2, 2020 the applicant requested a breakdown of the respondent’s calculations. The applicant advised she disagreed with the insurer’s calculation.
4On January 22, 2020 the respondent provided its calculation and advised it had overpaid by $1,653.18.
5The applicant retained an accountant (RSM) who calculated the award to be $10,657.03. The respondent accepted RSM’s calculation and made an additional payment of $6,084.91 representing the difference remaining in the amount originally paid and the RSM calculation.
6The applicant requested payment of the cost of the accounting report in the amount of $2,599.00. The respondent refused.
7On April 27, 2020 the applicant filed a Notice of Motion requesting (1) clarification from Adjudicator Lake on which party bears the cost of RSM’s calculation, (2) costs and HST associated with the motion/enforcement and (3) disbursements and interest associated with the enforcement.
8The motion was heard by me on June 9, 2020. The motion was denied on the basis there is no provision for the payment of disbursements within the cost regime contained in Rule 19 of the Tribunal’s Common Rules of Practice and Procedure (Rules).
9The applicant asserts it is entitled to a reconsideration pursuant to section 18.2 paragraphs (a), (b) and (c) of the Rules. Specifically, that the Tribunal (a) violated the rules of procedural fairness by failing to give reasons in support of its decision, (b) made an error of law in finding the Tribunal had no jurisdiction to order the payment of disbursements pursuant to Rule 19 of the Rules and (c) based its decision on false evidence that would have altered the result.
10The applicant’s reconsideration request also references Rule 17 of the Tribunal’s Rules which allows for the correction of minor errors or to clarify a misstatement or ambiguity which is not substantive. The motion request sought clarification on which party bears the cost of RSM’s report. It is a claim for the disbursement.
11A party seeking reconsideration has a high onus to meet. Reconsideration is only warranted where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome or false evidence has been admitted which influences the result.
RESULT
12The Applicant's request for reconsideration is denied.
ANALYSIS
Is the decision that there is no jurisdiction for the payment of disbursements under the SAB Schedule or Rule 19 of the Tribunal’s Rules correct?
13The Tribunal does not have the jurisdiction to award the cost of disbursements. Prior to the amendments to the Insurance Act R.R.O. 1990, on April 1, 2016, section 282(11) outlined the circumstances where expenses could be awarded by an arbitrator. Ontario Regulation 664 set out the expenses which could recovered pursuant to section 282(11). This included what are generally described as disbursements, filing fees and cost of reports such as the RSM report.
14As submitted by the applicant the amended section 280 references costs. Section 280(6) states the regulations may provide for and govern orders, including interim orders, to pay costs, including orders requiring a person representing a party to pay costs personally. There is no section in the Insurance Act or Reg. 664 that identifies the type of costs that may be awarded as previously set out in the now repealed section 282(11).
15The applicant asks me to find that costs and disbursements are discussed as one and the same in analogous legislation. The applicant submits the Courts of Justice Act, Rules of Civil Procedure and sections 245 and 251 of the Insurance Act all consider costs and disbursements as the same thing.
16I am asked, in effect to read into the Insurance Act and Reg. 664, any reference to costs includes disbursements. That I cannot do when the statutory authority, section 282(11) was repealed.
17The only jurisdiction to award of costs at the Tribunal is contained in Rule 19 and section 17.1 of the Statutory Powers Procedure Act R.S.O. 1990, CHAPTER S.22. Costs are not compensatory but are meant to maintain civility and order during proceedings.1 There has not been one LAT decision that awards disbursements as part of a cost award. The applicant did not direct me to any decisions where disbursements were awarded.
Did the failure to reference Rule 17, the applicant’s request to clarify Adjudicator Lakes decision constitute an error?
18I did not address Rule 17 as the need for clarification was resolved by the RSM report which predated the Notice of Motion of April 27, 2020. The respondent agreed with the RSM accounting report. There was nothing before me requiring clarification.
Was the decision not to award the disbursement cost based on false evidence?
19The applicant submits that the respondent referred to an overpayment to the applicant and they effectively invited me to conclude the overpayment could be set off against the cost of the accounting report. This is referred to as an evidentiary mistake. I did not consider the overpayment issue. I did not reference it in my order, nor did I make any finding of fact with respect of an alleged overpayment.
CONCLUSION
20For the reasons noted above, I deny the Applicant's request for reconsideration.
Terry Hunter
Vice Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Date of Issue: March 17, 2021