RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Licence Appeal Tribunal File Number: 20-012047/AABS
Case Name: The Estate of Kayla Duff-Foley vs. TD General Insurance Company
Written Submissions by:
For the Applicant: Todd J. McCarthy, Counsel R. Tally Vanounou, Counsel
For the Respondent: Eric K. Grossman, Counsel Meredith A. Harper, Counsel
BACKGROUND
1This request for reconsideration was filed by the respondent, TD General Insurance ("TD"). It arises out of a decision dated March 15, 2022, in which I found that the parties reached a binding settlement agreement on September 1, 2020, with respect to the Estate of Kayla Duff-Foley's ("applicant") accident benefit claims for the November 18, 2015 and May 1, 2016 accidents.
2The unique facts giving rise to the dispute are outlined in my original Decision from paras. 10-18 and need not be repeated. Pursuant to Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) ("Common Rules"), the respondent submits that I made errors of law and fact such that the Tribunal would likely have reached a different decision had the errors not been made.
RESULT
3The respondent's request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18.2 of the Common Rules. The respondent's request relies solely on criteria 18.2(b) of the Common Rules: 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.
5The test for reconsideration under 18.2(b) involves a high threshold. Reconsideration 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. The reconsideration process is not an invitation for the Tribunal to reweigh evidence, or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence. I find this is precisely the case here.
No error of law or fact
6First, the respondent submits that I erred in concluding that TD and the applicant came to terms regarding a settlement of both accidents and that the facts, correctly considered, show that it remained open to the applicant, and subsequently her Estate, to reject TD's offer. To this end, TD submits that only the "beginning framework of what could have been a potential settlement agreement existed after the mediation, but nothing close to a binding settlement contract." Putting aside TD's attempt to mischaracterize what occurred between the parties, I see no reason to interfere with my determination at para. 24 of the Decision:
24On the evidence before the Tribunal, I find that there is no question that the parties had a mutual intention to create a legally binding contract, as the settlement was negotiated and reached within the context of a full day global mediation where all of the parties were represented (on both the tort and accident benefits sides) and where the mediation was reached with the help of a neutral and experienced mediator. Based on the September 1, 2020 email from Mr. Schmidt confirming the Minutes of Settlement, I find it clear that the parties reached an agreement on all of the essential terms of the settlement on that date. Mr. Chiu's September 1, 2020 email in response to the Minutes of Settlement was, in my view, express confirmation of the parties' agreement on settlement. In this vein, as Mr. Chiu was the representative for TD Insurance at the mediation, TD Insurance is bound by the settlement he negotiated and which he confirmed agreement with. Fundamentally, I find there was offer, acceptance and agreement on the essential terms of settlement.
7Second, TD asserts that I erred in finding that the e-mail from mediator Michael Schmidt amounted to "minutes of settlement." It submits that minutes of settlement are formal, legal instruments and that the e-mail dated September 1, 2020 from Mr. Schmidt was erroneously labelled by him as "settlement terms" but in actuality was "merely a reiteration" of TD's offer. I agree with the applicant that TD's suggestion that there were no minutes of settlement—or that the mediator erroneously mislabelled his email that set out the parameters of the settlement in detail—ignores the undisputed evidence that there was a meeting of the minds, which was confirmed by TD's representative. Further, I do not accept that minutes of settlement require a certain degree of formality to be binding or, more importantly, that my acceptance of the relative informality of the minutes of settlement email from the mediator was an error of law or fact that would have affected the outcome of my decision.
8Third, TD submits that I erred in concluding that an executed Settlement Disclosure Notice ("SDN") and Release by the applicant herself was not an essential term of the settlement and that it was an error for me to conclude that "the unsigned SDN and release does not negate the validity or enforceability of the settlement between the parties," relying on s. 9.1 of the O. Reg. 664. I again find no error of law or fact that would have affected the outcome of my decision. I addressed these issues at length in paras. 32-38 of my Decision, and specifically followed the comments of Justice Reid in Riggs Estate v. Intact at para. 34 and the Court of Appeal's comments from The Estate of Rebecca Wu at para. 36. On review, I see no reason to interfere with my determinations.
9Fourth, TD asserts that I erred in failing to consider that the benefit breakdown for purposes of completing the SDN—specifically the effect of the $3,700 Non-Earner Benefit portion of the settlement on her ODSP entitlement—was never agreed to by the parties. On review of Mr. Schmidt's email, the first point indicates that this specific claim was "resolved." Where the issue before me was whether the parties reached a settlement, I see no error of fact where I relied on this clear statement. In any event, TD did not specifically raise this issue at first instance, so it is difficult to see how this was an error of fact that would have affected the outcome of my Decision that a settlement was reached.
10Next, TD asserts that I erred in concluding that the amount to be structured was agreed to by the parties and that I ignored the clear wording from Mr. Schmidt's email that the final structure amount was to be provided. I find I addressed this squarely at paras. 36-41 of the Decision and again see no error that would have affected the outcome of my decision. In addition, TD asserts that I erred in concluding that the death of the applicant did not result in a limitation on her counsel's ability to confirm settlement instructions. I find I addressed this issue at para. 28 and see no error that would have affected the outcome of my Decision.
11Finally, the remainder of TD's submissions take something of a shotgun approach, arguing that I erred in not considering that the applicant's untimely death became a "relevant and important fact that changed the settlement positions" of the parties; that the Wu and Riggs Estate decisions I explored are "irrelevant"; that the tort settlements are irrelevant; and that I erred in not applying the common law Slayer Rule. It is difficult to fathom how I did not consider how the applicant's untimely death was relevant where it underpinned the entire dispute and my analysis. Similarly, it is unclear how the caselaw and tort settlements are irrelevant where TD's own submissions explored same. Lastly, I see no error in finding that the common law Slayer Rule has no application on the facts of the dispute, as explained in paras. 39 to 41 of my Decision, despite TD's urging that it does.
12A preference for a certain weighing of the evidence does not constitute an error and reconsideration is not an opportunity to relitigate arguments that failed at first instance. For these reasons, I see no reason to interfere with my Decision that the parties reached a binding settlement agreement on September 1, 2020 with respect to the applicant's accident benefit claims for the November 18, 2015 and May 1, 2016 accidents.
CONCLUSION
13The respondent's request for reconsideration is dismissed.
Jesse A. Boyce Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: June 24, 2022