Released Date: 07/20/2021
Tribunal File Number: 19-007787/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Evan Kosiner
Applicant
and
Economical Insurance Company
Respondent
RECONSIDERATION ORDER
The applicant:
Self-represented
The respondent:
Chris Metcalf
OVERVIEW
1A case conference in this matter was conducted on December 10, 2019 before Vice Chair White. The application was settled and the Tribunal’s file was closed. The applicant confirmed the settlement in writing.
2Well over one year later, on March 5, 2021, the applicant filed a Notice of Motion requesting the following relief:
i. An order reopening the file due to an alleged breach of the settlement agreement;
ii. An order making the settlement agreement part of the motion record before the Tribunal;
iii. An injunction to prevent the insurer from terminating the contract of insurance while the Tribunal reviews the settlement agreement.
3In a decision dated March 25, 2021, the adjudicator wrote the following:
The applicant submits the respondent has breached the terms of the settlement agreement. He has been provided notice that his contract of auto insurance with the respondent will lapse on April 23, 2021. The applicant submits his insurance policy has not been renewed in bad faith, as a result of the circumstances surrounding his application before the Tribunal. He submits the respondent has breached the terms of the settlement and damages should result.
The respondent submits the settlement is subject to a confidentiality clause and the injunctive relief sought is outside of the Tribunal’s jurisdiction. The respondent submits the applicant is bound by the settlement and cannot reopen the application pursuant to s. 9.1(8) of Regulation 664. This section states that no person may re-apply for benefits to the Tribunal unless they have returned the money received as consideration for the settlement. Given the applicant has not returned the settlement funds, the applicant is barred from re-opening the matter and this motion should be dismissed.
Section 9.1(8) of Regulation 664 is operative. Until the applicant returns the settlement funds, this matter cannot be re-opened. This settlement was accorded in December 2019 and was not rescinded within the statutory two-day period as per s. 9.1(4) of Regulation 664. The settlement agreement remains binding on the parties.
Until the settlement funds are returned, I have no authority to re-open this matter, nor is it of any utility to review the terms of the confidential settlement agreement now purportedly at issue.
4The adjudicator denied the request for an injunction finding that the Tribunal could not grant injunctive or equitable relief. The Tribunal is bound by the powers conferred upon it by the Insurance Act, The Statutory Accident Benefits Schedule (O. Reg. 34/10), and the Statutory Powers Procedure Act.
5Finally, the adjudicator decided that the Tribunal also does not have any jurisdiction regarding the renewal of the insurance contract between the insured party and the insurance company.
6The applicant filed a request for reconsideration of that decision on April 4, 2021.
7The applicant submitted various grounds in support of his request for reconsideration including that the adjudicator:
- Showed bias towards favouring the insurer although lacking relevant facts such as what was the amount not returned, even though that is a moot point for this scenario, that further penalizes the applicant and encourages insurers to breach settlement before LAT without fear or recourse;
- Did not list the correct parties to the matter in his order;
- Failed to accommodate the applicant’s basic human rights given his disabilities as were put on file and acknowledged prior to the proceeding;
- Caused the applicant to rely upon misrepresentations by the LAT pertaining to a lack of need of document findings;
- Showed a lack of duty of care to a self-represented person to create a fair and equal hearing and order to be filed;
- Caused the applicant additional distress and time spent off work to prepare additional filings due to the adjudicator’s negligence;
- If a settlement agreement has been breached by the insurer, no funds should be returned as the agreement is null and void and moot. Recourse for funds given outside of a settlement agreement before the LAT because it is null and void, would not be under the LAT’s jurisdiction and fall under the Honourable Court if funds should be returned; and
- If funds were given at all, which the LAT has no evidence before them, nor did they review the settlement agreement to confirm what consideration monetary or otherwise was given and erred and was negligent in its determination.
8In a subsequent submission, the applicant offered a summary of LAT decisions written by the adjudicator and provided his statistical analysis as to decisions that favoured an insurer as opposed to a self-represented applicant.
ANALYSIS
9The applicant is relying on the following three criteria taken from the Tribunal’s Rule 18 which deals with reconsideration requests:
- The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
- 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;
- 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.
10I am not satisfied that the applicant has met the onus on him of establishing that any of these criteria have been met.
11The adjudicator was dealing with what should have been a relatively straightforward motion. He decided that because the applicant had not returned the settlement funds, he was foreclosed from setting aside the settlement. There is no dispute that the applicant did not return the funds. That should have ended the motion. The applicant, however, sought an injunction preventing the respondent from not renewing his policy of insurance. The adjudicator correctly decided that LAT had no jurisdiction to issue an injunction.
12Accordingly, considering the substantive merits of the motion, there is no basis to set aside the decision.
13The applicant appears to submit that the adjudicator violated the rules of procedural fairness and denied him his basic human rights by not accommodating his disabilities. However, he has not provided any information as to the accommodation needed or if any was requested.
14The submission that the adjudicator was biased against the applicant is not supported by any information in the file. The applicant’s dissatisfaction with the result of his motion is not a basis for establishing a reasonable apprehension of bias let alone actual bias.
15Finally, in dealing with the applicant’s statistical analysis of the adjudicator’s past decisions, it is the merits of the matter before the adjudicator that is relevant and not what may or may not have happened in other files.
ORDER
16The applicant’s request for reconsideration is dismissed and the decision of the adjudicator is confirmed.
Date of Issue: July 20, 2021
D. Stephen Jovanovic
Associate Chair