RECONSIDERATION DECISION
Before: Rebecca Hines, Adjudicator
Tribunal File Number: 20-001157/AABS
Case Name: Neva Porter v. Aviva General Insurance
Written Submissions by:
For the Applicant: Hennick Lawson, Counsel
For the Respondent: Vicky Chan, Counsel
OVERVIEW
1The applicant has requested a reconsideration of my decision dated May 18, 2021, in which I determined that the applicant was not entitled to an award. The applicant’s claim for an award stems from the respondent’s delay in issuing payment of the applicant’s income replacement benefit (IRB). In my decision dated May 18, 2021, I determined that the respondent’s conduct did not meet the threshold for an award.
2The applicant submits that I made an error of fact or law in determining that issue.
3The respondent opposes the request for reconsideration and submits that my decision was correct. It submits that the applicant’s reconsideration request is an attempt to reargue her case which ultimately failed at the hearing. Further, the applicant has failed in her onus to prove that I made an error of fact or law that would result in a different decision.
RESULT
4After reviewing the parties’ submissions, I order as follows:
(i) The applicant’s reconsideration request is dismissed.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 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 (“Rules”).
6Rule 18.2 states that a request for reconsideration will not be granted unless one or more of the following criteria are met:
(i) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(ii) 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;
(iii) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(iv) There is evidence that was not before the Tribunal when rendering its decision, which could not have been obtained earlier and would likely have affected the result.
7The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary, or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
8The applicant requests that I cancel my decision and make an alternative finding that she is entitled to an award.
9The applicant relies on Rule 18.2 (b) and argues that I made an error of fact or law in finding that the applicant is not entitled to an award. In particular, she alleges that I erred:
a) In finding that the respondent’s delay in issuing payment of the applicant’s IRBs did not constitute behaviour that was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”;
b) In finding that the respondent’s delay in issuing payment of the IRB was done in error as there was no evidence in support of same; and
c) In placing the onus on the applicant to mitigate or notify the respondent of its error sooner.
ANALYSIS
10Reconsideration 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.
11The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The applicant has failed to persuade me that I made an error in law or fact which would result in an alternative decision. Ultimately, I find the applicant disagrees with my decision which is not grounds for reconsideration.
12The applicant submits that I erred in my finding that the respondent’s delay in issuing payment of the applicant’s IRBs did not amount to conduct that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. In support of her position, the applicant provided the dictionary definition of the word “imprudent” and maintains that the respondent’s actions meet this definition. The applicant contends that this Tribunal has endorsed “imprudent” conduct in rendering past decisions on awards. However, the applicant did not submit any case law from this Tribunal in her submissions for the hearing, or in support of her reconsideration request. Therefore, the applicant has not met her onus on this ground, and I do not find I made an error of fact or law in this case.
13The onus was on the applicant to prove that the respondent’s conduct met the threshold for an award. Based on the evidence before me, I determined that the applicant did not meet her onus and that she was not entitled to an award. Further, in paragraphs [32] to [37] of the decision I provided detailed reasons for why I did not accept the applicant’s arguments on this issue. I agree with the respondent that the applicant’s reconsideration request is an attempt to relitigate her position that already failed at the hearing. As submitted by the respondent, the case law supports that this is not the purpose of the reconsideration process.1 The applicant argues that the case law relied upon by the respondent is distinguishable from the present case. I disagree, as the cases submitted by the respondent set out the legal test for reconsideration requests. The applicant did not submit any case law in support of her position.
14The applicant maintains that I erred in determining that the respondent’s delay in issuing payment was done by error as no evidence was submitted to support that it was a mistake. The applicant is correct that I made that factual finding in the absence of evidence of same. However, in my view, the facts in this case support that it is more likely than not that the respondent’s delay in issuing payment was a result of an administrative error. For example, upon being notified by the applicant of the delay the respondent promptly apologized for the error and issued payment. In addition, there was no pattern of unreasonable conduct as I determined that the respondent had adjusted the applicant’s claim in good faith in the past. Therefore, I do not find that this alleged factual error would result in an alternative decision. The threshold to be successful on a reconsideration request is a high one. Minor inconsequential errors do not meet that high threshold for success on a reconsideration request.
15Finally, the applicant submits that I erred in law by placing a reverse onus onto the applicant to mitigate and notify the respondent of the delay sooner. The applicant argues that the Schedule is consumer protection legislation and the respondent has a duty to issue prompt payment of benefits. While I agree with the applicant on these points, this was but one factor I considered amongst other factors in making my decision. I found this fact important in assessing whether the applicant was prejudiced by the delay. In her hearing submissions she argues that she was prejudiced by the delay because she was financially reliant on prompt payment of IRBs. Ultimately, she did not submit any evidence at the hearing to support that she was prejudiced by the delay.
16The applicant has not submitted any evidence to support her position that I erred in law in my finding on the award issue. Consequently, I find I made no error of law or fact in this regard. The applicant has not met her onus in proving that I made an error in law that would result in a different decision.
CONCLUSION
17For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 17, 2021
Footnotes
- R.W.J. vs. Aviva Insurance, 2018 CanLII 140997 (ON LAT) at para. 16, and H.A. v Aviva General Insurance, 2017 CanLII 56678 (ON LAT) at para. 29.