Mai v. Aviva Insurance Company of Canada, 2022 CanLII 70513
RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Date of Order: 08/03/2022
Licence Appeal Tribunal File Number: 20-010532/AABS
Case Name: Ly Mai v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Andrew Franzke, Counsel
For the Respondent: Michael J.L. White and Matthew Samuels, Counsel
BACKGROUND
1This request for reconsideration was filed by Ly Mai (“applicant”).
2It arises out of a January 19, 2022 decision (“Decision”) in which I found that the applicant’s application is statute-barred under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) and dismissed her application.
3The applicant submits that I made an error of law or fact such that I would likely have reached a different result had the errors not been made.
4The applicant’s request that a different adjudicator hear the reconsideration request is not granted by the Tribunal. Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, effective October 2, 2017, amended February 7, 2019, (“Rules”), specifically provides that a request for reconsideration may be heard by the same member whose decision is the subject of the request.
RESPONDENT’S MOTION TO STRIKE APPLICANT’S REPLY SUBMISSIONS
5On March 28, 2022, the respondent brought a motion requesting that I strike the applicant’s reply submissions dated March 22, 2022 on this reconsideration (the “reply”) and costs of the motion.
6The respondent submits that the applicant raises issues in her reply that should have been raised in her initial submissions, that this is not a proper use of reply and as such the reply ought to be struck.
ORDER ON MOTION AND REASONS
7I agree with the respondent’s submissions and allow the respondent’s motion. I order the applicant’s reply is struck from this reconsideration for the following reasons.
8Paragraphs 1 through 5 of the reply discuss the test for reconsideration which could have and should have been raised in initial submissions.
9The reply contains new submissions regarding the undated settlement correspondence. This information had to be available to the applicant prior to making her initial submissions.
10The reply repeats the applicant’s position regarding delay and prejudice which is not the purpose of reply.
11The reply contains new submissions regarding s. 56 of the Schedule and the triggering of the limitation period. This could have and should have been raised in initial submissions as it was information available to the applicant prior to making her initial submissions.
12It is well established that for a party to a Tribunal proceeding to raise new submissions in reply is unfair to the opposing party, which is left without an opportunity to respond.
COSTS ON MOTION
13No costs of this motion are awarded to the respondent
14Although the applicant’s reply submission has been struck, I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Rules.
RESULT
15The applicant’s request for reconsideration is dismissed.
ANALYSIS
16The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Rules, as amended. The applicant makes this request under Rule 18.2 (b) which is that 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.
17In summary, the applicant submits that I erred in law by:
a. incorrectly interpreting and applying the test for exercising my discretion to extend the limitation period as set out in Manuel1;
b. finding that the respondent had been denied the opportunity to obtain evidence as to the applicant’s ongoing medical and vocational state during the last several years;
c. finding that the applicant relied solely on undated settlement correspondence in demonstrating a bona fide intention to appeal;
d. misinterpreting s. 56 of the Schedule; and
e. finding that the applicant admitted that her lawyer received the denial letter on March 9, 2018.
18The respondent submits that the applicant’s request for reconsideration be denied because the applicant’s submissions are either wholly unsubstantiated by law or simply misstate it, and the Tribunal should not permit the applicant to reargue its case on reconsideration
19After reviewing all of the evidence, submissions and legal authorities of both parties made at the hearing I reached the conclusion in the Decision for the reasons below.
20I did not fail to correctly interpret the Manuel test or any part of it as suggested by the applicant. The legislative basis for extension of a limitation period and the factors in the Manuel case are set out at paragraphs 9 and 10 of the Decision and applied to the specific facts of this case at paragraphs 22 through 28 of the Decision. The Tribunal decisions cited by the applicant are fact specific and not binding on me. This is not a case in which, for example,2 where I found that there were reasonable grounds to have the applicant’s claim decided on the basis of a full evidentiary record. Instead, I considered the Manuel factors and exercised my discretion fairly for the reasons expressed in the Decision.
21The findings I made, as set out in paragraph 10 b, c, and e above, are all factual findings supported by the evidence before me at the hearing. I correctly considered the evidence, and made appropriate findings and find no error in doing so.
22There is no error in my interpretation of s. 56 of the Schedule. The applicant’s s. 56 argument was made at the hearing and found not to be persuasive as set out in paragraph 19 of the Decision. The case cited by the applicant in support of the suggestion that the word “refusal” gives rise to some ambiguity3 found a significant error where an adjudicator found the applicant was able to proceed with her application despite a clear denial. This is the opposite of my Decision and is unhelpful. Further, I found that the denial was clear, unequivocal, not confusing or ambiguous as set out in paragraph 14 of the Decision. There has been no misinterpretation of s. 56 or interpretation at odds with the approach to statutory interpretation mandated by the Supreme Court of Canada, as suggested by the applicant, but instead a finding of the fact of denial based on the evidence and an interpretation of s. 56 based on found facts.
23The applicant’s submissions that I made significant errors of law or fact, such that a different conclusion would have been reached, are unfounded.
24Further, the applicant made substantially these same arguments at the hearing and they were found lacking given the facts of this particular case. I have reconsidered them and have found no error of law or fact such that I would likely have reached a different result had the error not been made.
25As a result, the applicant’s submissions amount to a re-argument of her case. The Tribunal has said before that a reconsideration is not an opportunity to relitigate the issues in dispute.4
26Dissatisfaction with the result is not a ground of reconsideration. Not accepting the applicant’s submissions, evidence or case law at the hearing is not an error of law or fact.
27The applicant has not established her grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant has requested reconsideration, the onus is on the applicant to establish her grounds and she has not done so.
CONCLUSION AND ORDER
28For the reasons noted above, I dismiss the applicant’s request for reconsideration of my Decision.
Avril A. Farlam Vice Chair Tribunals Ontario – Licence Appeal Tribunal
Released: August 3, 2022
Footnotes
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2022, 2012 ONSC 1492 (Div. Ct).
- Pena v. Allstate Insurance Company of Canada, 20-007893/AABS at para 28.
- G.P. v. Aviva Insurance Company, 16-000726 (Recon).
- R.K.K. v. Cooperators General Insurance Co., 2021 CanLII 18934 at para. 6 (ON LAT).