Bennett v. Allstate Insurance Company of Canada, 2022 CanLII 45283

RECONSIDERATION DECISION

Before: Nancy Aquilina, Vice-Chair

Licence Appeal Tribunal File Number: 20-004414/AABS

Case Name: Janet Bennett v. Allstate Insurance Company of Canada

Written Submissions by:

For the Applicant: Karl Arvai, Counsel

For the Respondent: Caroline Meyer, Counsel

OVERVIEW

1The applicant requests reconsideration of a decision in which I found that the applicant was not entitled to an award pursuant to section 10 of Regulation 664, with respect to an income replacement benefit from September 24, 2018 to date as well as an order for costs.

2The applicant asks the Tribunal to reconsider the original decision,¹ and to vary it by finding that Allstate unreasonably withheld or delayed payment of the income replacement benefit from September 25, 2018 to November 17, 2021. The applicant accordingly seeks an award in the amount of 50% of the amounts owed for past income replacement benefits and interest during this period. Lastly, the applicant seeks an order for costs.

RESULT

3For the following reasons, the applicant's request for reconsideration is dismissed.

ANALYSIS

4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal's Common Rules of Practice and Procedure.² A request for reconsideration will not be granted unless one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b. 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;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d. 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.

5The applicant submits that Rules 18.2 (a) and (b) apply in this case and, specifically, alleges the following:

i. The Tribunal erred in law in relying on the opinion of Mr. Grimaldi as supporting Allstate's position;

ii. The Tribunal erred in law in relying on the testimony of Dr. Jaroszynski in support of Allstate's position;

iii. The Tribunal erred in law in relying on the expert testimony of Dr. Jaroszynski with respect to chronic pain;

iv. The Tribunal erred in law in its decision in failing to find that Allstate had an obligation to consider all of the evidence in an objective fashion in its decision to terminate the income replacement benefit;

v. The Tribunal erred in law in assessing and determining whether Allstate satisfied its obligation to adjust the claim;

vi. The Tribunal erred in law in impliedly finding that it was reasonable for Allstate to rely on IE opinions which failed to address the applicant's overall condition and disability;

vii. The Tribunal erred in law in finding that Allstate re-evaluated its position on the income replacement benefit and reinstated the benefit once the post-accident income was confirmed;

viii. The Tribunal erred in law in failing to consider the cumulative impact of the two periods of IRB non-payment.

The Tribunal did not err under Rule 18.2(b)

Expert Testimony

6The applicant submits that I relied on the opinions of the experts Dr. Jaroszynski, Mr. Grimaldi, and Dr. Corbin and that by relying on these opinions I failed to address the applicant's overall condition and disability. The applicant contends that it objected to the need for their testimony on the basis that it was irrelevant to the sole and narrow issues before the Tribunal and that the decision of the Tribunal ought to have been limited to the evidence and opinions contained in the reports.

7At the commencement of the hearing, the parties agreed to a timetable that would include testimony by Dr. Jaroszynski, Mr. Grimaldi and Dr. Corbin. The parties agreed that the issues in dispute had been limited in scope and yet the applicant chose to raise this objection on the second day of the hearing just moments before two of the experts were set to testify. I considered proportionality and the applicant's objection when I ordered that the length of the testimony of each expert be shortened substantially given the narrow scope of the issues before me.

8In order to grant a request under Rule 18.2(b), I must not only have made an error of law or fact, but that error must be such that I would likely have reached a different result had the error not been made. On the evidence and submissions before me, I am not persuaded that I made an error of law or fact in allowing this testimony to proceed. Even if I had chosen to disallow it, it would not have affected the result of the original decision. The testimony of the experts was limited and based on the expert opinions as contained in the reports which were already before the Tribunal as evidence.

9Along these lines, I disagree with the applicant's submissions that the Tribunal erred in law in relying on the expert testimony of Dr. Jarozynski with respect to chronic pain. I agree with the applicant that chronic pain did not form part of Dr. Jaroszynski's report of August 20, 2018, however, it became the subject of his oral evidence that was led by the applicant's cross-examination of this expert. According to the applicant's reconsideration submissions, she raised an objection in allowing this expert to proceed on the grounds that the evidence ought to have been limited to opinions contained within the medical reports. Contrary to this, the applicant chose to question Dr. Jaroszynski on his ability to diagnose chronic pain when chronic pain did not form the basis of his medical opinion in his report.

10In paragraph 27, I clearly stated that I accept Dr. Jaroszynski's medical opinion that he did not see a cause for an organically based pain in the applicant which was the subject of his report. This medical opinion was, in my view, applicable in the context of my consideration of whether Allstate improperly relied upon Dr. Jaorszynski's report to terminate the income replacement benefit which in my view, it did not.

11The applicant submits that the Tribunal erred in law in relying on the medical opinion of Mr. Grimaldi as supporting Allstate's position and that it ought to have considered the applicant's arguments that his findings supported the applicant's disability. It is not the role of a reconsideration to re-weigh evidence that has already been properly considered by the Tribunal. Through cross examination and submissions, the applicant argued that Mr. Grimaldi's conclusions in his Functional Capacities Examination were not consistent with the results of his testing that she believed supported her disability.

12In my view, the applicant is asking me to re-weigh the evidence as it relates to the respondent's termination of the income replacement benefit when I was tasked with considering if the respondent had unreasonably withheld or delayed payments through behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.³ I applied the principles as set out in Persofsky v. Liberty Mutual Insurance Co. at paragraphs 27 through 33 when considering an award for the income replacement benefit from September 24, 2018 ongoing and determined that an award was not payable.⁴

Consideration of the Applicant's Expert Opinions

13The applicant submits that the Tribunal erred in law in its decision to find that Allstate had an obligation to consider all the evidence in an objective fashion in its decision to terminate the income replacement benefit. In addition to this, the applicant alleges that the Tribunal erred in law in assessing and determining whether Allstate satisfied its obligation to adjust the claim.

14I agree with the applicant that Allstate has an obligation to weigh all evidence objectively in determining the termination of the benefit and adjust their file accordingly. As stated in my original decision at paragraphs 28 and 29, Allstate acted appropriately when they received and asked their assessors to review the medical reports of Dr. Ogilvie-Harris and Mr. Allan Mills' reports. This review did not alter their opinion for a number of factors that were identified in the decision. Procedurally, they fulfilled their obligation to adjust the file accordingly. I am not persuaded that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

Tribunal did err under Rule 18.2(b) regarding Post-Accident Income Evidence

15I agree with the applicant that I made an error in law in finding that Allstate re-evaluated its position on the income replacement benefit and reinstated the benefit once the post-accident income as this was led by submissions and not evidence. I find that even if the Tribunal failed in considering this argument when it should not have, the error was not significant enough, in light of the other reasons provided by the Tribunal, to have led it to come to a different decision. I agree with Allstate's position in their submissions, that this error is an inconsequential substantive mistake that is not enough to interfere with a decision made a first instance.⁵

The Tribunal did not err under Rule 18.2(a)

Failing to Consider the Prejudice to the Applicant

16The applicant submits that the Tribunal erred in law in failing to consider the cumulative impact of the two periods of IRB non-payment alleging a prejudice to the applicant and financial distress. In review of the submissions, she relies on 18.2(a). It appears that these submissions are more properly understood as 18.2(b) as 18.2(a) refers to breaches of procedural fairness such as the right to participate meaningfully in a hearing or the opportunity to cross-examine an expert as examples. As stated in the original decision at paragraph 31, the Tribunal considered the oral testimony of the applicant when balancing prejudice and hardship. This was one of many factors that were weighed by the Tribunal pursuant to Persofsky v. Liberty Mutual Insurance Co.⁶ I do not find any error of law that would materially affect the decision.

Costs

17Costs are discussed in paragraphs 38-43 of the original decision. The applicant contends that the reasons and evidence for pursuing costs as presented in her revised submissions at paragraphs 62 and 73. These are factors in consideration of an award and not costs. Although I appreciate that some reasons may be applicable in considering costs, the threshold and factors for costs as set out in paragraphs 39 and 40 of my original decision are distinct from those of an award. To reiterate, Rule 19.1 of the LAT Rules states that a party may request costs where they believe that the other party has acted unreasonably, frivolously, vexatiously or in bad faith in a proceeding (my emphasis) and Allstate's behaviour does not warrant an order for costs on this basis. Therefore, it is the party's behaviour through disobeying tribunal orders or advancing meritless motions, for example, that may attract an order for costs. This threshold was not met.

18As a result of the above, I am not persuaded that I made an error of law or fact such that the I would likely have reached a different result had the error not been made.

CONCLUSION

19For the reasons noted above, I dismiss the applicant's Request for Reconsideration.

Nancy Aquilina

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Bennett v. Allstate Insurance Company of Canada, 2018 CanLII 153710 (ON LAT)
2. 2Effective February 7, 2019
3. 3Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) page 17.
4. 4FSCO POO-00041, January 31, 2003
5. 5Iqbal v. Gore Mutual Insurance Company, 2021 CanLII 64248 (ON LAT)
6. 6FSCO POO-00041, January 31, 2003