RECONSIDERATION DECISION
Before:
Karina Kowal, Adjudicator
03/25/2021
File:
18-012729/AABS
Case Name:
M.R. v. Allstate Insurance Co.
Written Submissions by:
For the Applicant:
David Hayward, Counsel
For the Respondent:
Ian Kirby, Counsel
Lisa Quan, Counsel
OVERVIEW
1M. R. (“applicant”) filed a Request for Reconsideration. It arises out of a preliminary issue decision released on September 23, 2020 in which I found the applicant barred from proceeding with a claim for attendant care and housekeeping/home maintenance benefits and for transportation expenses, but permitted her to proceed with her remaining claims for home modifications and devices.
2The applicant makes this request under Rule 18.2 (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Common Rules”). The applicant submits that I made a significant error of law and fact and that the Tribunal would likely have reached a different result had the error not been made.
3The applicant seeks an order to vary the Tribunal’s order to permit all issues under the Preliminary Issue hearing to proceed to the substantive hearing.
4The applicant also requests an extension of time to receive and hear this Reconsideration. The applicant was not represented at the preliminary issue hearing and retained counsel for the reconsideration. The respondent did not oppose the request. The Tribunal’s Associate Chair extended the time limit for the request for reconsideration. Submissions were received in a timely fashion according to the Associate Chair’s direction and the reconsideration will be heard in full.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
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;
c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
7Reconsideration 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.
8The Applicant relies on Rules 18.2(b) and 18.2(d) in support of her request for reconsideration.
Issue 1: Attendant Care and Housekeeping/Home Maintenance Benefits
9The applicant executed a full and final release on December 19, 2000 for her motor vehicle accidents of September 24, 1996 and December 3, 1996, excepting only claims for supplementary medical or rehabilitation expenses incurred after December 5, 2000.
10The applicant submits that the claim for Attendant Care and Housekeeping/Home Maintenance Benefits for the period of 2010 to 2018 and the 2018 attendant care/housekeeping home maintenance claim in the amount of $60,450.72 were not captured by the full and final release executed on December 19, 2000.
11The respondent submits that the applicant is attempting to reargue the case and has not established the grounds for reconsideration of this issue.
12On this issue, although housekeeping/home maintenance benefits were not expressly outlined in the full and final release of December 19, 2000, the applicant was represented by legal counsel at the time of execution of the document who would have been responsible for explaining the meaning of settling the past and future benefits agreed upon in a settlement disclosure notice. Further, the applicant received the agreed upon settlement funds which she did not return to the respondent.
13I agree with the respondent. The applicant submissions on this point amount to rearguing her case at the original hearing. Reconsideration is not an opportunity to repeat an argument that did not persuade me then.
Issue 2: Transportation Expenses
14The applicant submits that I correctly found that transportation expenses were not encompassed by the December 19, 2000 release. The applicant submits that I erroneously found that the same expenses were captured by a settlement disclosure notice signed by the applicant on August 15, 2016. The applicant submits that neither party considered this settlement disclosure notice to be valid or binding.
15The respondent confirms that transportation expenses were not encompassed by the December 19, 2000 release. Revised settlement documents regarding same expenses were provided to applicant’s then-counsel at the time on November 30, 2016. The documents were never signed, and the respondent never released the funds. The applicant did not apply to the Tribunal for dispute resolution until December 20, 2018 at the Tribunal. The respondent takes the position that the issue is time barred from proceeding to the substantive hearing.
16Based on submissions and evidence before me at the preliminary issue hearing, I found that the transportation expenses were barred from proceeding to the substantive hearing on the grounds that the expenses were captured by the full and final release dated August 15, 2016.
17The applicant submits on reconsideration that the settlement was never entered into and the decision ought to be varied.
18In the respondent’s reconsideration submissions, it agrees that the parties never entered into a binding settlement on the issue of transportation expenses. However, it argues that the applicant is time barred from proceeding to the substantive hearing with transportation expenses as the expenses were denied on November 19, 2012 and were brought into dispute at the Tribunal on December 20, 2018.
19The applicant was afforded a reply, which was not received. I do not have a position from the applicant regarding limitation period to consider.
20New facts were brought forward by both the applicant and respondent which are consistent. The parties concur that no binding settlement was entered into and no monies were forwarded to the applicant by the respondent. The argument on limitation period with respect to transportation expenses was not made in the respondent’s preliminary issue written submissions.
21Pursuant to s.56 of the Statutory Accident Benefits Schedule, Reg. 34/10 (and in s.72 of Reg.776/93 which were in effect at the time of the applicant’s accidents), an application under subsection 280(2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
22Although new facts have been presented in the parties’ reconsideration submissions, after consideration of these facts I would not have reached a different result had the error not been made.
23Regardless of the new facts brought forward, I still deny permitting the transportation expenses from moving to the substantive hearing, but on grounds of s.56 limitation period, that the application was filed over two years after the date of denial.
CONCLUSION
24I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made.
25I dismiss the applicant’s request to vary the orders regarding attendant care and housekeeping/home maintenance benefits.
26I dismiss the applicant’s request to vary the order regarding transportation expenses.
Karina Kowal
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 25, 2021