M.I. v. Coseco Insurance Company, 2021 CanLII 40712

M.I. v. Coseco Insurance Company

Citation: M.I. v. Coseco Insurance Company, 2021 ONLAT 18-000742/AABS-R

RECONSIDERATION DECISION

Before: Ian Maedel, Vice Chair

Date of Order: 05/12/2021

Tribunal File Number: 18-000742/AABS

Case Name: M.I. v. Coseco Insurance Company

Written Submissions by:

For the Applicant: David S. Wilson, Counsel

For the Respondent: Philippa Samworth, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant in this matter.

[2] It arises out of a Tribunal decision dated May 19, 2020 where the adjudicator concluded following: i. It lacked the jurisdiction to award ongoing income replacement benefits; ii. It dismissed the claim for an award pursuant to Regulation 664 of the Insurance Act; iii. It dismissed the claim for interest; and iv. It denied the applicant’s request for costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017, as amended February 7, 2019 (“Rules”).

3The applicant submits that the adjudicator made errors of fact or law such that she would likely have reached a different decision if these errors had not been made.

[4] The applicant is seeking an order: a. Varying the previous decision to conform with the applicant’s submissions; b. In the alternative, a rehearing on all or part of the matter.

RESULT

5The applicant’s request for reconsideration is dismissed.

PARTIES’ POSITIONS

6The applicant submits the adjudicator’s reasoning with regard to the jurisdictional issue is conclusory only and failed to undertake adequate legal analysis. Specifically, the applicant submits there was no reference to the applicant’s submissions or jurisprudence provided in support of the applicant’s position.

7The applicant submits that in considering the claim for an award, the adjudicator considered only the period between February 17, 2017 to May 24, 2018. There is no reference to the second denial or income replacement benefits on October 13, 2018 and the continued refusal until January 10, 2019.

8The applicant submits that the adjudicator failed to apply the correct test for costs pursuant to Rule 19 of the Common Rules of Practice & Procedure (“Rules”).

9The respondent submits there has been no error of law or fact pursuant to Rule 18.2(b) of the Rules. The Tribunal can review only for significant errors and not undertake a wholesale reweighing of the evidence. The errors of fact or law must be significant and of such a nature that adjudicator would likely have reached a different decision.

10The respondent submits the reasons provided in the previous decision are adequate to permit a meaningful judicial review. The adjudicator was not required to respond to each argument or recognize each piece of evidence tendered by the applicant.

11The respondent asserts the adjudicator was correct in rejecting the FSCO¹ jurisprudence relied upon by the applicant which relied on the repealed s. 287 of the Insurance Act. The claim for income replacement benefits (“IRB”) was reinstated prior to the hearing, so there is no dispute as to entitlement or quantum of benefits. Given there is no dispute, any claim for ongoing IRB amounts to declaratory relief and is beyond the Tribunal’s jurisdiction pursuant to s. 280 of the Insurance Act. Thus, there is no error of law.

12The respondent further submits it is within the adjudicator’s discretion to assign little or no weight to the applicant’s submission for an award. It is clear in Vice Chair Helt’s Motion Order that jurisdiction was largely a question of law. There is no evidence of an error of fact to indicate the adjudicator likely would have reached a different decision, had the alleged error not been made, as required by Rule 18.2(b).

ANALYSIS

13The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the current Tribunal Rules, as amended. Pursuant to Rule 18.2(b), the applicant claims the Tribunal made an error of law or fact such that the Tribunal would have likely reached a different decision had the error not been made.

14I have reviewed the complete Tribunal file for this matter. This includes the application, the Case Conference Order dated August 17, 2018, the previous Motion Order dated December 31, 2018, the hearing submissions and jurisprudence attached, the Tribunal decision dated May 19, 2020, and the submissions tendered in relation to the reconsideration request, inclusive of jurisprudence provided by the parties.

Ongoing Benefits and Tribunal Jurisdiction

15I do not find the adjudicator made an error of law in concluding the Tribunal lacked jurisdiction to award ongoing income replacement benefits. The issue of entitlement and quantum of IRB was not in dispute. The FSCO jurisprudence the applicant relied on, was based upon a regime imposed by the now repealed s. 287 of the Insurance Act. As a result, the adjudicator placed little weight upon this jurisprudence and the applicant was unable to direct the Tribunal to any other authority to support a claim for ongoing IRB when entitlement and quantum were not at issue.

16The applicant’s argument is concentrated on the perceived unfairness resulting in the respondent’s reinstatement of IRB prior to the hearing, thus depriving the applicant of a determination of the issue and the protection of a Tribunal Order following a hearing. The applicant submits this is precisely why an order for ongoing benefits is required to protect the applicant from potential inappropriate conduct in the future.

17The applicant is requesting declaratory relief, which has specifically been rejected by the Tribunal in similar matters. Although not binding, I am persuaded by the Tribunal findings found in both J.R. v. Primmum² and M.S. v. Unifund³, where the Tribunal concluded that it did not have the jurisdiction to award declaratory relief when entitlement and quantum of benefits were not at issue pursuant to s. 280 of the Insurance Act. Similar to Adjudicator Boyce’s decision in B.E. v. The Personal⁴, the Tribunal does not have the jurisdiction to consider hypothetical or academic questions once the claim for a dispute has been resolved. Beyond s. 280, the Tribunal does not otherwise have any remaining jurisdiction; inherent, implied, or residual.⁵

18I disagree with the applicant’s submissions that it is “cavalier” to suggest the applicant is protected by her ability to return to the Tribunal with a new application in the event the IRB is reduced or denied. This is exactly what is anticipated by the Insurance Act and the Schedule. An order for ongoing benefits when entitlement and quantum are no longer in dispute is contrary to s. 280 of the Insurance Act. Imposing ongoing IRB into the future, only to be changed by an additional Tribunal Order would result in an absurdity in these circumstances.

The Award Claim

19I do not find the adjudicator made an error of fact with regard to the claim for an award pursuant to s. 10 of Regulation 664. However, the applicant is correct in asserting that the adjudicator failed to make any direct reference to the period of October 13, 2018 and January 10, 2019 regarding the award at issue.

20In reviewing the decision, it is clear the adjudicator reviewed the evidence with regard to the applicant’s main contention that the applicant was not removed from the minor injury guideline (“MIG”) at an earlier juncture of adjustment of this matter. In paragraphs 19-54, the adjudicator makes overt references to the evidence, including the reports and addendums provided and the evidence provided by the Adjuster, Mr. Jin.

21When I review the written record before me, it is clear that the adjudicator not only considered the submissions tendered by the parties, but the viva voce evidence tendered by Mr. Jin. Given the adjudicator heard this evidence, only she was in the best position to weigh it. This is not a hearing de novo, and I have no choice but to defer to the conclusions made by the adjudicator based on the weight she attributed to the viva voce evidence in relation to the submissions provided.

22Although my mandate is not to reweigh the totality of the evidence, I have taken this opportunity to review the submissions provided with regard to the award at issue, specific to the period between October 13, 2018 and January 10, 2019.

23The applicant was removed from the MIG and IRB was reinstated on May 24, 2018. The adjustment of the five treatment plans the applicant relies on in support of the award claim were all adjusted prior to the period between October 13, 2018 and January 10, 2019. Thus, falling within the period the adjudicator clearly identified in the decision.

24The period between October 13, 2018 and January 10, 2019 is when the respondent held back IRB payments due to the applicant’s failure to attend s. 44 insurer’s examinations (“IE’s”). In her Motion Order dated December 31, 2018, Vice Chair Helt found these additional IE’s not reasonably necessary based on the purpose and timing of the anticipated examinations.

25Although Vice Chair Helt found these IE’s were not reasonably necessary, I am not persuaded the IRB held back during this period was unreasonably withheld or delayed, while the parties awaited a determination of the issue. To the contrary, from the submissions provided by the parties, it appears the adjuster consistently reviewed the file and adjusted the file with the information in his possession.

26Otherwise, it was completely within the discretion of the adjudicator to place little weight on the evidence related to the award for this period. Following my review of this evidence, I see no reason to interfere with the previous finding and I cannot conclude there has been an error of fact that otherwise would have resulted in a different conclusion, as contemplated in Rule 18.2(b).

Costs

27I do not find an error in the adjudicator’s denial of costs. The adjudicator was clearly aware of the test for costs and the criteria considered by the Tribunal in awarding costs and the amount of costs considered as laid out in Rules 19.1, 19.5, and 19.6 and cited at paragraphs 7-10 of the decision. Therefore, it is somewhat puzzling that she failed to refer to the correct test, instead citing the maintenance of civility and order. It appears this may be a reference to the caselaw cited at paragraph 58 and 59 of the respondent’s hearing submissions.

28Again, I have taken this opportunity to review the written costs submissions provided by the parties. Among several factors cited, the applicant seeks costs for a previous motion to amend the Case Conference Order, for the respondent’s failure to review medical documentation, and for the respondent’s motion to stay the proceeding while the applicant failed to attend the IE’s. The applicant asserts Rule 19.6 should be interpreted broadly to partially reimburse parties for their legal fees. The applicant then submitted a Bill of Costs, including apportionment for hours/days for preparation or hearing attendance.

29Costs are discretionary remedy which may be imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. In considering the test for costs, the Tribunal may consider the seriousness of the misconduct, whether the conduct was in breach of any Tribunal orders, or whether the parties’ behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to the other parties, and the potential chilling effect a cost award may have on individuals accessing the Tribunal system.

30Given my review of the written record provided, I am not prepared to interfere with the adjudicator’s dismissal of the applicant’s claim for costs. Although, the adjudicator failed to reference the test laid out at Rule 19.1, I do not otherwise see any error of law or fact that would have otherwise resulted in a different conclusion. Nor have I identified any demonstrable behaviour that falls within the ambit of Rule 19.1, that would lead me to conclude an award for costs is necessary in this case.

31Given my conclusions regarding the other issues before me, the request for reconsideration on the issue of interest is moot and also shall be denied.

CONCLUSION

32For the reasons noted above, I deny the applicant’s request for reconsideration.

33The Tribunal file shall be closed.

Ian Maedel Vice Chair Tribunals Ontario

Footnotes

1. 1Financial Services Commission of Ontario.
2. 2J.R. v. Primmum Insurance Company, 2018 CanLII 140991 (ON LAT) at paras. 12-16.
3. 3M.S. v. Unifund Assurance Company, 2020 CanLII 27395 (ON LAT) at paras. 12-14.
4. 4B.E. v. The Personal Insurance Company and Ministry of the Ontario General (Ontario), 2020 CanLII 69925 (ON LAT).
5. 5Ibid at paras. 20-21.