Lengyel v. Certas Home and Auto Insurance, 2022 CanLII 68243

Citation: Lengyel v. Certas Home and Auto Insurance, 2022 ONLAT 19-012019/AABS – R

RECONSIDERATION DECISION

Before: Craig Mazerolle

Licence Appeal Tribunal File Number: 19-012019/AABS

Case Name: Gabriella Lengyel v. Certas Home and Auto Insurance

Written Submissions by:

For the Applicant: Gabriella Lengyel, Self-Represented

For the Respondent: Philippa Samworth, Counsel

BACKGROUND

1Due to injuries sustained from an accident on April 6, 2018, the applicant sought accident benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (“Schedule”).¹ The respondent denied some of these benefits, so the applicant filed an application with the Licence Appeal Tribunal (“Tribunal”).

2At both the motion hearing and during this reconsideration process, the applicant has been self-represented.

3After completing a motion hearing involving both oral and written submissions, I granted the respondent’s request to dismiss the applicant’s application (“Motion Order”, dated December 14, 2021).

4Briefly, I concluded that the applicant failed to attend a virtual, psychiatric insurer’s examination (“IE”), which, in turn, meant she had failed to meet the statutory requirements for bringing an application to the Tribunal. The application was dismissed without a hearing, pursuant to Rule 3.4(c) of the Common Rules of Practice and Procedure (“LAT Rules”).

5The Motion Order followed an earlier order I issued (dated July 21, 2021), where I stayed the application pending the completion of a psychiatric IE.

6The applicant took issue with my Motion Order, so she filed a Request for Reconsideration claiming my ruling made legal and factual errors. She also alleged that I exceeded the jurisdiction provided to the Tribunal under s. 280 of the Insurance Act.² The applicant asked for costs as part of her reconsideration request.

7For the reasons to follow, the applicant’s Request for Reconsideration is denied.

ANALYSIS

8The four grounds for granting a reconsideration are provided under Rule 18.2 of the LAT Rules:

(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 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.

9As explored below, the applicant based on her reconsideration request on a number of grounds. Most of these submissions fell under Rule 18.2(a) and (b), i.e., breaches of procedural fairness and jurisdiction, and errors of fact or law, respectively.

10In response, the respondent stated that the applicant has failed to establish any of the grounds under Rule 18.

Jurisdiction and Procedural Fairness – Rule 18.2(a)

11Aside from several submissions about procedural fairness explored below, the applicant’s submissions under this subsection mainly involved her argument that s. 280 of the Insurance Act does not confer jurisdiction on the Tribunal to adjudicate disputes over IEs. According to the applicant, the Tribunal is limited to disputes over entitlement and quantum of accident benefits. I do not agree.

12Section 280 of the Insurance Act provides the following jurisdiction to the Tribunal [emphasis added]:

(1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

(4) The dispute shall be resolved in accordance with the Statutory Accident Benefits Schedule.

(5) The regulations may provide for and govern the orders and interim orders that the Licence Appeal Tribunal may make and may provide for and govern the powers and duties that the Licence Appeal Tribunal shall have for the purposes of conducting the proceeding.

(6) Without limiting what else the regulations may provide for and govern, the regulations may provide for and govern the following:

1. Orders, including interim orders, to pay costs, including orders requiring a person representing a party to pay costs personally.

2. Orders, including interim orders, to pay amounts even if those amounts are not costs or amounts to which a party is entitled under the Statutory Accident Benefits Schedule.

13I have highlighted these subsections (in particular, subsection 4), because they speak directly to the concern raised by the applicant. The Legislature not only conferred jurisdiction over accident benefit disputes to the Tribunal, but it did so with the caveat that (unless allowed for under another regulation) these disputes must be handled in accordance with the Schedule. Disagreements over IEs stem from ss. 44 and 55(1) of the Schedule, so there is nothing inappropriate about the Tribunal applying these provisions to a proceeding about accident benefits.

14Turning to procedural fairness, the applicant raised a number of concerns about the Motion Order and my decision-making process.

15First, the applicant argued I lacked sufficient independence. This allegation was made without any detailed specifics. Considering the presumption of adjudicative independence, I do not find a bald submission claiming a lack of independence is sufficient to establish a breach of procedural fairness.

16The applicant then submitted that my Motion Order lacked clear reasons. Reasons are a foundational aspect of procedural fairness, because they allow parties to determine the process an adjudicator used to reach their conclusions. It is not enough though to state that a set of reasons are not clear. There has to be an explanation about why an adjudicator’s reasons failed to meet the minimum standards of intelligibility and clarity. The applicant failed to provide this explanation, so I again find she has not established a breach of procedural fairness.

17Finally, the applicant cited the Divisional Court’s case in Lockyear v. Wawanesa Insurance Company.³ Broadly speaking, this decision involved the Court’s findings about the procedural fairness of a Tribunal proceeding involving catastrophic impairment. There was no explanation about why the applicant believed this decision applied to her reconsideration request, so I will not make any comment on the ruling’s possible application to the present case.

Factual and Legal Errors – Rule 18.2(b)

18The Tribunal does not grant reconsideration requests based on Rule 18.2(b) lightly. For instance, the Tribunal made the following observation in Pottayya v. Unica Insurance Inc. about the standard needed to grant a reconsideration based on an alleged error: “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 where it failed to meet its burden at first instance.”⁴

19Put another way, the reconsideration process is not a venue to relitigate the same arguments in hopes of a different conclusion. Rather, to merit a reconsideration under Rule 18.2(b), a party must first establish a factual or legal error, and then it must show how remedying the error would have likely resulted in a different substantive outcome. Only after these two steps have been met will the Tribunal consider whether it is appropriate to use the discretionary powers under Rule 18 to overturn the important principle of finality.

20Many of the applicant’s arguments under Rule 18.2(b) are based on disagreements with how I weighed the evidence in the Motion Order. For instance, the Tribunal ignored evidence that this IE would be harmful to her; there is enough medical evidence to find her catastrophically impaired without the IE; improper COVID-19 protocols and consent forms were used, etc. There were also several references to violations of ss. 44 and 46.

21Not only were a number of these arguments addressed in the Motion Order, but—aside from stating that I should have weighed the evidence differently—there is no compelling explanation for why the applicant believes the factual findings and legal interpretations in the Motion Order are incorrect. The Tribunal is mandated to make factual and legal determinations based on the evidence and legislation before it, and a disagreement with these conclusions will not—in and of itself—be enough to merit a reconsideration.

False Evidence – Rule 18.2(c)

22The applicant did raise one ground that could been seen as falling under Rule 18.2(c), i.e., the subsection concerned with “false evidence”. Specifically, the applicant alleged the respondent made incorrect statements, e.g., it asserted she was involved in a minor accident. The applicant opposed its characterization of the accident.

23Focusing on the disputed comment about the severity of the accident, I do not find this statement is an attempt to insert “false evidence” into the hearing. Rather, these kinds of statements are better seen as a party’s submissions about how the Tribunal should weigh certain evidence and arguments. Parties are allowed to put forward their own interpretations of the facts, and there is nothing in the applicant’s reconsideration request that rises to the level of requiring the use of the discretionary power under Rule 18.2(c).

Applicant’s Other Arguments

24As referenced above, the applicant made several arguments that do not fit neatly into any of the grounds for reconsideration under Rule 18. Normally, the inability to cite a specific subsection of Rule 18.2 would be sufficient to strike these arguments. However, considering the applicant is self-represented, the Tribunal has an obligation to try and understand the substance of her arguments (even if they do not fit into the legalistic language that counsel or a paralegal might use). This allowance does not mean that the Tribunal will make up arguments for a self-represented party, nor does it mean the Tribunal will go beyond the four corners of the party’s submissions to infer what “must have been meant”. Rather, the Tribunal is expected to give a fair hearing to all those who come before it, regardless of whether a party has legal representation or not.

25First, the applicant raised concerns about the number of pages the respondent used in its reconsideration submissions. This concern was addressed in a separate motion order (dated April 22, 2022).

26Second, the applicant contended that there should have been a determination over whether she was involved in an “accident”, pursuant to the definition under s. 3(1) of the Schedule. To my knowledge, the respondent has never contested that the incident on April 6, 2018 was an “accident”.

27Finally, the applicant submitted that a number of statutes have been violated, e.g., the Canadian Charter of Rights and Freedoms⁵, Human Rights Code⁶, and the Privacy Act.⁷ Unsupported references to alleged violations will not be enough to meet the high threshold necessary for a reconsideration. Again, the importance of finality means that the Tribunal will only exercise its discretion under Rule 18 in rare cases where a change to the original decision is needed. I would also add that some of these statutory complaints are best addressed by forums other than the Tribunal.

Costs Request

28Rule 19.1 of the LAT Rules allows the Tribunal to order costs where a party’s behaviour is found to be unreasonable, frivolous, vexatious, and/or bad faith.

29The applicant did not support her request for costs with submissions. As such, I do not find the applicant has demonstrated the respondent’s behaviour reaches the high threshold necessary to order costs.

ORDER

30The applicant’s Request for Reconsideration is denied.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2R.S.O. 1990, c. I.8.
3. 32022 ONSC 94.
4. 42022 CanLII 1149 (ON LAT), at para. 7.
5. 5Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
6. 6R.S.O. 1990, c. H.19.
7. 7R.S.C. 1985, c. P-21.