Bablak v. Gore Mutual Insurance Company, 2022 CanLII 81527

RECONSIDERATION DECISION

Citation: Bablak v. Gore Mutual Insurance Company, 2022 ONLAT 20-002022/AABS - R

Before: E. Louise Logan

Licence Appeal Tribunal File Number: 20-002022/AABS

Case Name: Larissa Bablak v. Gore Mutual Insurance Company

Written Submissions by:

For the Applicant: Imtiaz Hosein, Counsel

For the Respondent: Arthur R. Camporese, Counsel

BACKGROUND

1On July 15, 2022, the applicant requested reconsideration of the Tribunal’s Order (released February 28, 2022) ordering the applicant pay the respondent costs, pursuant to Rule 19.2 of the Tribunal’s Common Rules of Practice & Procedure¹ (“Rules”). The Tribunal’s Order for costs was in the amount of $1,000.00 and arose out of a videoconference hearing that was scheduled for June 7-11, 2021.

2The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Rules. To grant a Request for Reconsideration, the Tribunal must be satisfied that 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 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.

3The applicant is seeking a reconsideration pursuant to Rule 18.2(a). The applicant requests that the Tribunal’s Order for costs in the amount of $1000.00 be cancelled. The respondent opposes this request.

RESULT

4The applicant’s Request for Reconsideration is denied.

ANALYSIS

Jurisdiction

5The applicant argues that the Tribunal did not have jurisdiction to make the Order for costs because the matter before the Tribunal was closed. The applicant cites 16-002705 v. TD General Insurance Company² in support of its position that the Tribunal lacked jurisdiction, arguing that once the matter was withdrawn by the applicant, the Tribunal no longer had any role to play in the proceedings, including the motions for costs. The applicant submits that as the respondent’s submissions were made after the Tribunal sent a letter to the parties on June 7, 2021 confirming the file was closed, the Tribunal lacked jurisdiction.

6The respondent submits the Tribunal retained its jurisdiction to Order costs. The respondent notes that Rule 19.2 states that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. The respondent cites F.K.T v. Aviva Insurance Company,³ which it notes was accepted by the Tribunal in the Order, where the Tribunal held it had jurisdiction to hear a motion for costs filed after withdrawal, where the request for costs was made before an application was withdrawn and while the proceeding was still before the Tribunal. The respondent submits the Tribunal had jurisdiction because the respondent made the request for costs at the videoconference hearing, prior to the Tribunal’s closure of the file. The respondent distinguishes the decision in 16-002705 v. TD General Insurance Company noting in that case the respondent’s motion for costs was 12 days after the Tribunal issued its closing letter.

7I disagree with the applicant. I find the Tribunal had jurisdiction to make the Order for costs. In making this finding, I note that the question of jurisdiction was specifically addressed by the Tribunal in the Order. At paragraph 7, the Tribunal noted Rule 19.2 of the Rules allows a request for costs to be made in writing or orally at a case conference or hearing at any time before the decision or order is released. At paragraph 11, the Tribunal accepted the reasoning in F.K.T v. Aviva Insurance Company and found it had jurisdiction to hear the issue of costs. At paragraphs 2, 3 and 4, the Tribunal set out the relevant sequence of events in this case as follows.

8The respondent made the request for costs after logging into the videoconference hearing on June 7, 2021. The applicant’s counsel had also logged in and confirmed that no notice of withdrawal had been filed, although the Tribunal had been emailed about the applicant’s withdrawal. The Tribunal issued a closure letter following the conclusion of the videoconference on June 7, 2021. The Tribunal found it had jurisdiction to hear an issue of costs after withdrawal, where the request for costs was made before an application was withdrawn and while the proceeding was still before the Tribunal.

9I agree with the Tribunal’s reasoning in the Order. The Tribunal correctly applied F.K.T v. Aviva Insurance Company to the facts. The respondent’s request for costs was made while the Tribunal’s proceeding was still before the Tribunal. While the applicant sent an email immediately before the hearing was set to begin, advising the Tribunal that she was withdrawing her application, she did not file a Notice of Withdrawal. To date no such Notice has been received by the Tribunal. In addition, it was only after the videoconference that the Tribunal issued a letter closing the file. This is not a case such as in 16-002705 v. TD Insurance where a Notice of Withdrawal was filed and the request for costs was made well after the Tribunal issued a lettering closing the file. I find the respondent’s request was made in keeping with Rule 19, and the Tribunal had jurisdiction to make the Order for costs.

10For the reasons set out above, I find the applicant has not satisfied that the grounds for reconsideration under Rule 18.2(a) with respect to jurisdiction.

Procedural Fairness

11The applicant submits that the Tribunal violated the rules of procedural fairness in making its Order by not providing the parties with a “Notice of Hearing” as required by s. 6(1) and 6(4) of the Statutory Powers Procedure Act (“SPPA”).⁴ The applicant argues the Tribunal did not provide the requisite details to allow the applicant to provide submissions. The applicant cites Baker v. Canada (Minister of Citizenship and Immigration)⁵ in support of her position that her participatory rights were violated. The applicant states that the Tribunal never provided her with the requisite details or information to provide submissions. Further, the applicant argues the Tribunal never solicited responding submissions and never provided a notice to know if the Tribunal was hearing the respondent’s submissions; and if there was a hearing, when the applicant was to respond.

12The respondent submits that there has been no violation of procedural fairness, such that the Order for costs should be cancelled. The respondent argues that the Tribunal alerted the applicant on two separate occasions that she had not filed submissions, including on October 22, 2021 when the Tribunal advised the applicant it would notify the adjudicator if she wished to file submissions. The respondent submits that the applicant has not provided any authority for her submissions that the Tribunal was not compliant with s. 6 of the SPPA. The respondent notes the applicant was included on numerous email exchanges related to the request for costs, and she also sent several communications to the Tribunal. The respondent submits this is not a case of the applicant being deprived of notice that a hearing was underway.

13I disagree with the applicant for the following reasons.

14Rule 19.2 provides that “A request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.” As noted above, the request in this case was made orally at the videoconference hearing before the Tribunal closed the file.

15Rule 19.3 then provides that “The Tribunal may order that a party making a request orally shall provide written submissions to the Tribunal and all other parties within 7 days of that oral request. A submission on costs shall set out the amount being requested.” Rule 19.3 is permissive, not mandatory, with respect to the requirement that the Tribunal request written submissions. Further, it does not include the requirement that responding parties have an opportunity to make submissions before an order is made. This is in contrast with Rule 18.3, which provides that, in the case of a Request for Reconsideration, responding parties will have an opportunity to make submissions before any order under Rule 18.4(b) relating to the reconsideration request is made.

16In this case, the Tribunal notes at paragraph 4 of the Order that submissions were requested during the videoconference hearing, with the Tribunal member noting at paragraph 4 that: “I indicated to both counsel that I would entertain written submissions on the issue of costs. The respondent filed written submissions, but the applicant did not file any written submissions.” While there was some confusion with respect to the lack of an order regarding submissions following the videoconference hearing, I nonetheless find the applicant had notice and was provided an opportunity to make submissions. Specifically, the applicant was in attendance when the request for costs had been made at the June 7, 2021 videoconference hearing, and she was, therefore, in attendance when the Tribunal advised the parties that it would be accepting submissions. The applicant was copied on the respondent’s submissions with respect to costs on July 22, 2021.

17The applicant was then further advised by the Tribunal on October 22, 2021 that the Tribunal did not have her submissions on costs. The applicant sent a number of emails to the Tribunal about the request for costs asserting her position that the Tribunal lacked jurisdiction, but did not make submissions.

18I find that this is not a case where the Tribunal violated the rules of procedural fairness such that the applicant was deprived of notice that the Tribunal was considering making an order for costs under Rule 19.

19In addition, I find that on March 21, 2021 the applicant was provided with “Notice of Hearing” as required by s. 6 of the SPPA. The Notice issued by the Tribunal to hold a videoconference to consider the applicant’s Application for Dispute Resolution under the Insurance Act⁶ appropriately addressed the statutory authority, hearing date, time, and details about the manner in which the hearing would be held as required by s.6 of the SPPA. The hearing was held by the Tribunal at the scheduled time on June 7, 2021, and the parties attended. The request for costs arose at the hearing, in relation to the applicant’s actions in withdrawing the Application that was the subject of the hearing. I find that the question of costs was not a separate matter requiring separate Notice under the SPPA. I find that the Notice of Hearing sent by the Tribunal on March 22, 2021 met the notice requirements of s. 6 of the SPPA.

20In her submissions, the applicant also raises the issue of an email sent to the parties on March 29, 2022 from a case management officer at the Tribunal. In this email, the case management officer mistakenly indicated to the parties that the respondent’s request for costs was being reassigned to be reviewed by another Tribunal member, when in fact the Order was issued by the same member who presided over the videoconference hearing. The applicant submits that the Tribunal has not indicated what changes were made given the “review” process that occurred with the matter having been “reassigned”. The applicant argues that this amounts to a denial of procedural fairness, citing the decision in Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals)⁷ seemingly to indicate a review process was undertaken by the Tribunal that was not transparent to the parties.

21I disagree. I find no significance in the mistake made by the case management officer in the March 29, 2022 email. The Tribunal deals with a high volume of cases. The fact that an administrative error was made indicating that a matter was reassigned, when in fact it was not, is not a violation of procedural fairness.

22For the reasons set out above, I find the applicant has not established grounds for reconsideration under Rule 18.2(a) with respect to a violation of the rules of procedural fairness.

CONCLUSION

23For the reasons set out above, I deny the applicant's Request for Reconsideration.

E. Louise Logan Vice-Chair

Footnotes

1. 1The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended.
2. 22017 CanLII 43992.
3. 32017 CanLII 81649.
4. 4RSO 1990, c. S.22.
5. 52 SCR 817 (SCC).
6. 6RSO 1990, c I.8.
7. 72019 ONCA 518.