Denise Armstrong v. The Co-operators, 2022 CanLII 45246

Licence Appeal Tribunal

Citation: Armstrong v. The Co-operators, 2022 ONLAT 20-002362/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 20-002362/AABS

Case Name: Denise Armstrong v. The Co-operators

Written Submissions by:

For the Applicant: Adam Moras, Counsel

For the Respondent: Bruce Keay, Counsel

BACKGROUND

1The applicant, Denise Armstrong, filed a request for reconsideration of the September 20, 2021 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).

2In the decision, I found that a settlement agreement between the applicant and The Co-operators, the respondent, regarding both the applicant’s October 27, 2015 and May 2, 2017 accidents was valid and was not void ab initio. I also declined to grant the applicant’s request to set aside the settlement agreement on the ground of mistake.²

3The applicant requested a reconsideration of the decision on the basis that I:

(i) Acted outside of my jurisdiction and/or violated the rules of natural justice or procedural fairness; and/or

(ii) Made significant errors of law and/or fact such that I would likely have reached a different decision had the errors not been made.

4The applicant also alleges that there has been a miscarriage of justice such that a reconsideration of the decision is warranted.

5The respondent’s position is that the reconsideration request be dismissed.

RESULT

6The applicant’s request for reconsideration is denied.

ANALYSIS

7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules). The grounds that the applicant submitted apply in this matter are Rules 18.2(a) and (b), as he submitted that I:

(i) Acted outside of my jurisdiction or violated the rules of procedural fairness; and/or

(ii) Made an error of law or fact such that I would likely have reached a different result had the error not been made.

Acting Outside of my Jurisdiction and Procedural Fairness

8The appellant submitted that I acted outside of my jurisdiction and violated the rules of procedural fairness by failing to consider the respondent’s duty of good faith and the consumer protection nature of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)³ in the decision. The applicant also submitted that this failure also amounted to an error in law.

9Procedural fairness has been defined as primarily encompassing the following:

(i) Ensuring that parties understand the case they must meet; and

(ii) Ensuring that the parties have an opportunity to be heard to allow them to respond accordingly.⁴

10I find that procedural fairness dictates that the applicant has an opportunity to be heard, and for the respondent to be able to respond accordingly, regarding the applicant’s claim that a valid settlement was not reached or, alternatively, that it should be set aside.

11The Tribunal’s July 28, 2020 Case Conference Report and Order identified the issue in dispute between the parties and a written hearing was scheduled. The decision considered the issue in dispute and both parties submitted written submissions and evidence which I considered in rendering my decision.

12For these reasons, I find that the applicant had a full opportunity to argue its case pertaining to the issue identified in the July 28, 2020 Case Conference Report and Order and to respond to the position taken by the respondent. Therefore, I do not find any violation of procedural fairness or that I acted outside of my jurisdiction. Furthermore, I find that the applicant’s submissions that I failed to consider the respondent’s duty of good faith and the consumer protection nature of the Schedule are more appropriately analyzed under errors of fact and/or law.

Error of Fact and/or Law

13The applicant relied upon Rule 18.2(b) for its position that I erred in fact and/or law. Specifically, the applicant submitted that I erred by:

(i) Failing to address the applicant’s submissions at first instance that when an insured has legal representation, an insurer should not, “under any circumstances,” communicate directly with the insured;⁵

(ii) That I appeared to find as a fact, “without so stating and without any evidence,” that the applicant’s legal representative received the settlement disclosure notice;⁶

(iii) Failing to find that settlement documents signed without the knowledge of a legal representative are invalid;⁷

(iv) Making conflicting statements in the decision that the applicant was “turned away on two occasions” and also stating that she was “redirected” to another office of the respondent;⁸

(v) Inferring that the applicant waived her right to counsel;⁹

(vi) Failing to apply the principles set out in the Ontario Court of Appeal Decision in Milios v. Zagas (Milios)¹⁰ and distinguishing this decision from the facts in this matter;

(vii) Finding that the applicant failed to prove that a mistake was made when she signed the settlement documents; and

(viii) Finding that there was no evidence before me from Mr. Igar Tsimafeyev, the applicant’s representative’s assistant by ignoring Mr. Tsimafeyev’s evidence.

14In order to interfere with a decision under Rule 18.2(b), however, I must not only have made an error of law or fact, but that error of law or fact must be enough that, had it not been made, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

15For the reasons that follow, I find that I did not make an error of law or fact and, therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.

The respondent’s direct communication with the applicant when she had legal representation

16The applicant submitted that I gave no valid reason and cited no case law as to why the respondent’s representatives, who met with the applicant, should not have turned her away. The applicant also again cited s. 12(1)5 of the General By-Laws, Rules and Regulations of the Canadian Independent Adjusters’ Association (CIAA) under the heading “Code of Ethics” to support her position. This section states:

Policyholders or claimants shall not be given legal advice; nor shall they be advised to refrain from seeking legal advice and no adjuster shall deal with any policyholder or claimant who is represented by legal counsel without the consent of the legal counsel involved.

17While the applicant may not agree with my reasons, the issue of the applicant being turned away from two of the respondent’s offices was addressed in paragraph [31] of the decision. Therefore, I disagree with the respondent that no reason was provided on this issue. Further, framing my reasons as “not valid” without anything more is not enough to warrant a reconsideration.

18Further, the applicant is correct that I did not reference the CIAA’s General By-Laws, Rules and Regulations in the decision. I am not required to, however, address or reference every piece of evidence that is put before me in a decision. Although I am required to consider the evidence put before me by the parties, my decision is based on evidence that I find to be persuasive. The CIAA’s General By-Laws, Rules and Regulations are not persuasive as they are not law and have no legal authority as submitted by the respondent. The Tribunal also does not have jurisdiction to enforce its provisions.

19For these reasons, I find that I made no error of fact or law in the decision such that a reconsideration is required on this basis.

Receipt of the settlement documents by the applicant’s representative

20The applicant submitted that I erred by finding “without so stating” that Ms. Babb, the applicant’s representative, received the settlement documents from the respondent.

21I do not agree with the respondent that I made a finding in the decision that Ms. Babb’s received the settlement documents prior to October 2, 2019 and, as a result, no error was made such that a reconsideration is warranted on this basis. At paragraph [27] of the decision, I stated that the respondent had at least alerted Ms. Babb via email about the settlement documents on June 18, 2019.

22Further, the applicant’s reconsideration submissions on this point focus on Ms. Babb’s not receiving the settlement documents via email.¹¹ No comment is made, and no evidence is specifically provided, regarding the additional evidence from William Ho, accident benefits claim representative of the respondent, that he had also sent the settlement documents to Ms. Babb also by way of letter dated June 18, 2019.

Settlement documents signed without the knowledge of a legal representative

23The applicant also submitted that I erred by stating that the applicant provided no authority for her position that because Ms. Babb was not aware that the applicant signed the settlement documents that this somehow invalidated the agreement or gives rise to a finding that the settlement was not properly entered into. To support her position, the applicant submitted, “there is no shortage of cases where agreements between insurers and unrepresented parties, usually unsophisticated, are set aside on the basis of the insurer’s duty of good faith and the disparity in bargaining power. This is trite law,”¹² but the applicant again failed to provide any case law to support her specific submission that settlement documents signed without the knowledge of a legal representative are invalid.

24Disagreeing with my finding without anything more does not amount to an error in fact or law and is also an insufficient basis to grant a reconsideration of the decision.

Alleged conflicting statements regarding the applicant’s attendance at the respondent’s offices

25The applicant submitted that I made conflicting statements in paragraph [31] of the decision by first stating that the applicant was “turned away” from the respondent’s office in Ottawa and redirected to the respondent’s office in Whitby and, secondly, by stating that the applicant was turned away on two occasions.¹³

26Whether the language of “turned away” or “redirected” was used does not change the fact that the applicant attended two branch offices of the respondent on July 5, 2019 in effort to sign the settlement documents. I agree with the respondent’s submission that the significance of these details, if any, shows the determination of the applicant to sign the settlement documents and finalize the settlement.

27The applicant also suggested that I erred in interpreting the applicant’s affidavit to mean that the applicant was asking for help in executing the settlement documents when the applicant, after stating that a person at the Whitby office told her to sit down with her lawyer, affirmed, “I said I cannot drive far and asked for help.”

28In her reconsideration submissions, however, the applicant only criticizes this interpretation without providing any evidence or submissions as to how this statement in the applicant’s affidavit should have been interpreted. Indeed, the applicant also stated in her affidavit that after she signed the settlement documents, she thanked the representative at the Whitby branch office and left. This confirmation of appreciation in the applicant’s affidavit of the assistance provided to her at the Whitby office supports my interpretation that the applicant was asking for help to sign the settlement documents and, as a result, I find that no error was made in the decision on this basis.

Inferring that the applicant waived her right to counsel

29The applicant also submitted that I erred, “again without specifically stating it,” by inferring that the applicant waived her right to counsel. Aside from making the submission that there must be evidence of an explicit intention and such waiver cannot be inferred, the applicant supported this submission with no evidence or case law.

30As I made no such finding in the decision that the applicant waived her right to counsel, inferred or otherwise, I find that no error was made as alleged by the applicant.

Mistake and the decision in Milios

31Regarding the applicant’s alternative claim that the settlement between the parties should be set aside on the basis of mistake and her reliance on the decision in Milios, the applicant submitted that I erred:

(i) In how I distinguished the facts in Milios to the facts in this matter;

(ii) By not following the basic principle in law in Milios, which is that a settlement entered into by mistake will not be upheld; and

(iii) By not considering the following factors as the court did in Milios in arriving at my decision:

(a) Since no order giving effect to the settlement had been taken out, the parties’ pre-settlement positions remained intact;

(b) Apart from losing the benefit of the impugned settlement, the defendant will not be prejudiced if the settlement is not enforced;

(c) The degree to which the plaintiff would be prejudiced if judgement is granted in relation to the prejudice that the defendant would suffer if the settlement is not enforced; and

(d) The fact that no third parties were, or would be, affected I the settlement is not enforced.

32I find that I made no errors in the decision regarding the decision in Milios or applicant’s reliance upon mistake to set aside the settlement.

33Firstly, it is open for the applicant to disagree with how I distinguished Milios from the facts in this matter, but this is not a basis upon which to grant a reconsideration as this submission points to no error in fact or law.

34Secondly, because I distinguished the facts in Milios from the facts in this matter, there was no error in failing to follow the decision in Milios or failing to consider the factors set out by the court in that decision regarding mistake.

35Finally, the applicant also submitted that I missed “the point entirely” that a mistake was made in this matter as Mr. Walton Armstrong, the applicant’s husband, allegedly provided the wrong message from Ms. Babb to the applicant.

36Upon closer examination of the applicant’s affidavit sworn September 25, 2020, it is unclear what information Mr. Armstrong provided to the applicant about signing the settlement documents. Paragraph 9 of the applicant’s affidavit states:

Sometime later I received a package from Co-Operators. I did not know what it was. I called Walton, who was at work. He advised me that he would call up the law office. Walton called me back and stated that he spoke to someone at Grillo Law and told me I should sign the documents [my emphasis added].

37It is unknown from this excerpt of the affidavit as to who said that the applicant should sign the documents – the person that Mr. Armstrong spoke to or Mr. Armstrong himself. Indeed, one interpretation of the emphasized sentence is that Mr. Armstrong only told the applicant that he spoke with someone at Grillo Law and that Mr. Armstrong told the applicant she should sign the settlement documents. What Mr. Armstrong actually said to the applicant about signing the settlement documents before she did so is unclear, and this confusion was not resolved at first instance as there was no evidence, via affidavit or otherwise, from Mr. Armstrong as pointed out by the respondent in its reconsideration submissions.

38Moreover, if even I agree with the applicant’s submissions that she did not receive the message from her legal representative about the settlement documents as intended, this failure would fall squarely at the feet of the applicant’s representative.

39Despite the applicant’s submission that Mr. Armstrong, the applicant’s husband, was “not the applicant,” Mr. Armstrong was referred to as such by the applicant’s representatives and treated as the instructing party. For example, the Affidavit of Ms. Babb sworn September 25, 2020 states [my emphasis added]:

(i) On July 4, 2019, Ms. Babb received an email from her reception advising that “the client” had called and “advised he received paperwork from the insurance company that he was previously told not to sign but was going to sign if he did not hear from us;”¹⁴

(ii) Ms. Babb asked Mr. Tsimafeyev to speak to Mr. Armstrong, not the applicant. Indeed, Ms. Babb’s July 4, 2019 email instructed Mr. Tsimafeyev to “tell him don’t sign;”¹⁵

(iii) Mr. Tsimafeyev conveyed to Ms. Babb that he spoke to Mr. Armstrong as well on July 4, 2019 and not the applicant;¹⁶

(iv) Ms. Babb spoke to Mr. Armstrong, not the applicant, on July 4, 2019 about pursuing a catastrophic impairment determination and advised him that it was best that the applicant not accept the offer;¹⁷ and

(v) After learning that the settlement documents had been signed, Ms. Babb contacted Mr. Armstrong, not the applicant.¹⁸

40There is no indication that the applicant’s representative attempted to contact the applicant as opposed to Mr. Armstrong on July 4, 2019 or even after Ms. Babb became aware that the settlement documents were signed.

41For these reasons, I find that I did not err by finding that I was unable to determine that a mistake occurred in this matter on the evidence that was before me at first instance. As a result, a reconsideration is not warranted on this basis.

Evidence of Mr. Tsimafeyev

42The applicant also submitted that I erred in finding that there was no evidence before me from Mr. Tsimafeyev. Rather, the applicant submitted that I ignored Mr. Tsimafeyev’s evidence.¹⁹ At the same time, however, the applicant agreed that the following excerpt of the decision was true:

Additionally, even though Ms. Babb’s affidavit stated that Mr. Tsimafeyev confirmed with her that he spoke with the applicant’s husband, I again have no evidence before me regarding what was discussed in this conversation and what instructions were provided to the applicant’s husband, as I also do not have any evidence from Mr. Tsimafeyev.²⁰

43It is difficult to understand whether the applicant submitted that I erred or not regarding Mr. Tsimafeyev’s evidence, or lack thereof, by her reconsideration submissions. In any event, I find that no error was made as I did not have any direct evidence before me at first instance from Mr. Tsimafeyev via affidavit or by any other means and the portion of the decision quoted by the applicant above captures the totality of the evidence of Mr. Tsimafeyev’s involvement as given in Ms. Babb’s affidavit.

The respondent’s duty of good faith and the consumer protection nature of the Schedule

44In revisiting the applicant’s first ground of the respondent’s duty of good faith and the consumer protection nature of the Schedule, I find that no error has been made such that a reconsideration is warranted on either of these grounds. The respondent’s submissions on this ground are vague and appear to characterize the totality of the applicant’s submissions as opposed to pointing to a specific error of fact or law. As such, a reconsideration is not granted on this basis.

Miscarriage of Justice

45The applicant submitted that there was a miscarriage of justice as the applicant was denied the fundamental right of a litigant, i.e., the advice of counsel, and, as a result, she lost her right to claim accident benefits from the respondent.²¹ The applicant further submitted that based on the culmination of the alleged errors of facts and law in the decision that it should be set aside and a finding be made that no settlement was reached or, alternatively, that if a settlement was reached that it was through mistake and it cannot stand.

46Even if a reconsideration could be granted on the basis of a “miscarriage of justice,” which is not provided for in Rule 18.2 of the Rules as a ground for reconsideration, I find that there has been no miscarriage of justice as alleged by the applicant as I have found that no errors of fact or law were made in the decision.

CONCLUSION AND ORDER

47The applicant’s request for reconsideration is denied.

Lindsay Lake

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Armstrong v. The Co-operators, 2020 CanLII 121840 (ON LAT) (the “decision”).
2. 2Ibid. at para. 5.
3. 3O. Reg. 34/10.
4. 4See the reconsideration decision of IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
5. 5Applicant’s Request for Reconsideration, para. 15.
6. 6Ibid. at para. 21.
7. 7Ibid. at para. 29.
8. 8Ibid. at para. 34.
9. 9Ibid. at para. 36.
10. 101998 CanLII 7119 (ON CA).
11. 11Ibid. at paras. 22-23.
12. 12Ibid. at para. 30.
13. 13Ibid. at para. 34.
14. 14Affidavit Compendium, tab 2, para. 13.
15. 15Ibid. at para. 13 and Exhibit A.
16. 16Ibid. at para. 13.
17. 17Ibid. at para. 14.
18. 18Ibid. at para. 16.
19. 19Supra note 5 at para. 51.
20. 20Ibid. at paras. 49-50.
21. 21Ibid. at para. 52.