Ireneh E. Omere v. The Commonwell Mutual Insurance Group, 2021 CanLII 45654

Citation: Omere v. The Commonwell Mutual Insurance Group, 2021 ONLAT 20-007753/AABS – R

RECONSIDERATION DECISION

Before: Ian Maedel, Vice Chair

Date of Order: 05/25/2021

Tribunal File Number: 20-007753/AABS

Case Name: lreneh E. Omere. v. The Commonwell Mutual Insurance Group

Written Submissions by:

For the Respondent: Cecil R. Jaipaul, Paralegal

OVERVIEW

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

2The Tribunal closed this file after the applicant withdrew the Application on September 15, 2020.

3The respondent is seeking a determination of its Notice of Motion dated July 22, 2020. The respondent sought a determination the applicant was statute-barred from proceeding with her Application pursuant to s. 55(1)2, as she failed to attend insurer’s examinations (“IE’s”) scheduled pursuant to s. 44 of the Schedule.

4A written motion hearing was scheduled for September 14, 2020. On that date, the applicant contacted the Tribunal via email correspondence and indicated her intention to withdraw the Application in its entirety.

5The Tribunal issued a closure letter dated September 15, 2020 confirming the applicant had withdrawn the Application and the closure of the file.

6The respondent submits the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness pursuant to Rule 18.2(a) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017, as amended February 7, 2019 (“Rules”).

7The Respondent is seeking an order:

a. Overturning the Tribunal’s closure of the file and for the Tribunal to render a decision regarding the respondent’s Notice of Motion.

PARTIES’ POSITIONS

8The respondent submits the Tribunal violated the rules of procedural fairness by not considering the respondent’s Notice of Motion. The applicant did not forward a Notice of Withdrawal, but rather sent email correspondence signaling she wished to withdraw the application. The respondent relies on Executive Chair Lamoureux’s Reconsideration Decision in 16-000474 v. Aviva¹ where it was determined the Tribunal violated the rules of procedural fairness by not considering the respondent’s request for dismissal and costs prior to the applicant’s withdrawal of the application and closure of the Tribunal file.

9By closing the file without adjudicating the issues raised by the respondent, the Tribunal violated Rule 18.2(a).

10The applicant did not file any submissions in response to the Request for Reconsideration.

11In reply submissions the respondent sought a cost award of $300.00 given the applicant’s inconsiderate and unreasonable behaviour.

RESULT

12The respondent’s request for reconsideration is dismissed.

ANALYSIS

JURISDICTION

13I do not find the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness pursuant to Rule 18.2(a).

14Reconsideration 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.

15This Tribunal derives its statutory authority from s. 280 of the Insurance Act, R.S.O. 1990 c. I.8. Section 280(1) specifically applies to disputes in respect to entitlement or quantum of statutory accident benefits. There must be a dispute in order for the Tribunal to have jurisdiction over the determination of benefits.

16When a party withdraws its application for benefits, even on the eve of a hearing, the Tribunal loses jurisdiction to adjudicate the dispute at issue. In this case, the respondent was seeking a determination the applicant was barred from proceeding with the application due to her failure to attend IE’s scheduled pursuant to s. 44 of the Schedule. When the Application was withdrawn, the applicant’s failure to attend the IE’s became moot.

17The respondent did not seek costs pursuant to Rule 19.1 as part of the relief sought in the previous Notice of Motion. This is a distinguishing factor in light of the case law the respondent relies upon. In 16-000474 v. Aviva, Executive Chair Lamoureux specifically states that it was the Tribunal’s failure to respond to the respondent’s request for costs which was a breach of procedural fairness. The breach of procedural fairness was not due to the applicant’s withdrawal of the application.

18Given the mootness of the issues in dispute, and the lack of an unaddressed cost award like in 16-000474 v. Aviva, there was no breach of procedural fairness in the closure of this file prior to the adjudication of the respondent’s motion.

19The respondent submits the applicant failed to file a formal Notice of Withdrawal and simply contacted the Tribunal via email to signal she was withdrawing the application. However, the end result was the same, the Tribunal’s file was closed. This technical failure to file a Notice of Withdrawal does not otherwise invalidate the Tribunal’s Closure Letter.

COSTS

20The respondent has also sought a cost award in its reply submissions. Given this relief was not sought in the reconsideration request, the respondent has split its case and prevented the applicant from providing any submissions in reply. To award costs pursuant to Rule 19 in these circumstances would be a breach of procedural fairness and Rule 3.1(a) of the Rules.

21Even if the respondent had requested costs in its initial submissions, I reference 16-000474 v. Aviva where Executive Chair Lamoureux concluded that a withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a costs order….a cost award shall not be granted merely because a withdrawal has caused another party inconvenience.²

22In support of its submission for costs, the respondent relies on E.M v. Pembridge Insurance Company³ where costs were imposed following a hearing when it was revealed the applicant failed to provide complete medical records and failed to serve hearing submissions on the respondent. This case is distinguishable on its face and of no persuasive value in determining the merits of a cost award in this matter.

23Although the respondent failed to cite the test for costs pursuant to Rule 19.1, costs may only be imposed when a party has engaged in conduct that is unreasonable, frivolous, vexatious, or in bad faith. This is a high threshold, and it is not met in this case.

CONCLUSION

24For the reasons noted above, the respondent’s request for reconsideration is dismissed.

25The Tribunal’s file shall remain closed.

Ian Maedel

Vice Chair

Tribunals Ontario - Licence Appeal Tribunal

Footnotes

1. 12016 CanLII 105250 (ON LAT) (Reconsideration).
2. 22016 CanLII 105250 (ON LAT) at para. 19.
3. 32020 CanLII 14476 (ON LAT) at paras. 27-36.