RECONSIDERATION DECISION
Before: Janet Hueglin Hartwick
Licence Appeal Tribunal File Number: 22-000554/AABS
Case Name: [K. M.] v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Doug Wright, Counsel
For the Respondent: Kimberley Tye, Counsel
OVERVIEW
1On July 14, 2023, the applicant requested reconsideration of the Tribunal’s decision dated June 23, 2023 (“decision”) in which I found the applicant was entitled to an award of 50 per cent in accordance with section 10 of Regulation 664 for the cost of an accessible vehicle, the difference in rent, and an attendant care benefit (“ACB”). I also deemed rental costs as incurred. I declined to grant an award on the cost and modification of a new home.
2The grounds for a request for reconsideration are found in Rule 18.2 of the Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“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 seeks reconsideration under Rule 18.2(b). He submits that I made an error of law or fact in finding that an award does not attach to the housing benefit. The applicant argues that these errors of law or fact affected my ultimate decision and, had it not been for these errors, I would have granted the applicant an award for the treatment plan of the new home.
4The applicant requests that I reverse my decision with regards to the housing benefit and grant a 50 per cent award on the new home.
5The respondent requests that the reconsideration be dismissed.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7I find the applicant has not demonstrated that an error of law or fact occurred such that the Tribunal would likely have reached a different result had the error not been made.
8The test for reconsideration under Rule 18.2 is a high one. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
9In his request, the applicant points specifically to paragraph 55 of my decision and he submits that I made an error of law or fact in finding that an award does not attach to the housing benefit.
The applicant advances arguments that were not made in the original hearing
10During the hearing, the applicant did not advance submissions that have been made in this reconsideration request, namely 1) it was not necessary for me to know the cost of modifying the applicant’s pre-accident dwelling since the benefit was approved and 2) I could have drawn an inference that the respondent approved the new home because it was less expensive than renovating the applicant’s pre-accident dwelling.
11The applicant had an opportunity to advance these arguments during the hearing, yet he did not do so. It is outside of the scope of the reconsideration process for an applicant to advance new submissions. My decision addressed the submissions put forward by the applicant, therefore, I do not find an error of law or fact.
12In paragraphs 17 through 29, I outlined in detail my reasons for granting the applicant the award that I did. I found the adjuster’s handling of the OCF-18 for a house purchase of $770,000.00, house renovations of $29,000.00 and up to $100,000.00 for a wheelchair accessible vehicle was imprudent from the start. I provided several reasons to support my finding that the respondent’s denial of the OCF-18 was unreasonable. Similarly, in paragraphs 30 to 37 I provided an explanation of why I found the respondent’s handling of the second OCF-18 was stubborn, inflexible and not with an open-mind.
13My reasons for awarding a quantum of 50 per cent were provided in paragraphs 40 to 50. I addressed the case law that the parties relied on and I outlined the factors that I considered when determining the percentage of the award. In addition, I outlined my reasons regarding the applicant’s request to deem treatment plans as incurred in paragraphs 56 to 61.
14Although I find no error of fact or law, I note that paragraph 55 of my decision did not offer the same level of detail that I provided in paragraphs 23 through 26, when I outlined my reasons for determining the respondent’s denial of the treatment plan for the house, house modification and car was unreasonable and caused the payment of the benefit to be withheld or delayed. I stated that the respondent’s denial letter failed to communicate the cost of renovating the applicant’s existing home determines the amount of the housing benefit that he was entitled to receive. Nor did the respondent request a renovation report from the applicant or commission one on its own.
15In paragraph 55 of my decision, I agreed with the respondent’s submission that I was not provided with the costs to modify the applicant’s pre-accident home. I declined to grant the award on that basis.
16I recognize that paragraph 55 of my decision may have left the applicant with the impression that I did not conduct a thorough analysis of whether or not to grant an award for the housing benefit. I agree that my decision on this point could have been more fulsome in articulating my reasoning, but I did in fact consider the submissions of both parties. In any event, I do not find I made an error of law or fact such that I would likely have reached a different result.
17For the reasons set out above, I find no error of fact or law.
The quantum of the applicant’s housing entitlement remains unknown
18The respondent approved all issues in dispute ahead of the hearing, therefore I was not required to determine the applicant’s entitlement to the treatment plan. My task was to determine if the respondent was liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant, and if so, to determine the quantum of an award.
19Section 10 of Regulation 664 provides that the Tribunal may order an award up to 50 per cent of the amount to which a person is entitled with interest. At the hearing, I did not receive all the pertinent information necessary to assign an award on the home purchase or its modification.
20While I found the applicant met his onus to prove the respondent unreasonably withheld and delayed payment to the applicant, I was unable to calculate an award on the entitlement to a benefit that was and remains not in evidence. The onus was on the applicant to provide this information and I found that he did not.
21In addition, I was not provided with evidence that the respondent agreed to fund the treatment plan ahead of the hearing because it was less expensive than renovating the applicant’s pre-accident three-bedroom apartment. Rather, in paragraph 49 of my decision, I indicated the respondent’s adjuster testified that it was on the advice of counsel that she reversed the denial and approved the treatment plan, and had this not been the case, she would have maintained the denial. I have not been pointed to any error of law or fact that would have affected the outcome of my decision.
It is not an error of law to point out that the amount of the benefit was not submitted into evidence
22The applicant argues that I made an error of law or fact when I determined the respondent had the onus to commission a home modification report and then decided not to grant an award because of the report’s absence.
23I addressed the absence of the housing report in paragraphs 25 and 26 of my decision. I stated that it would have been ideal if the applicant had conducted a home modification assessment. However, I found the applicant’s choice to seek a new home instead of conducting a modification report did not negate the respondent’s obligation to determine the benefit the applicant was entitled to receive. I stated the respondent’s behaviour stalled the applicant from accessing the housing benefit or understanding how to move forward, rather than work with a highly vulnerable applicant to seek a reasonable resolution.
24I find no error of law or fact in pointing out that the amount of the benefit was not submitted into evidence. Neither party commissioned nor presented a housing renovation report. Yet both parties assert I made an error of law or fact. The applicant asserts I erred in not granting an award on the new home. The respondent argues, in its responding submissions on reconsideration, that I made an error of law by stating the onus to submit a housing renovation report rested with the respondent. The respondent did not file its own request for reconsideration on this point, and I do not address its argument in this reconsideration decision.
CONCLUSION & ORDER
25I find that the grounds for reconsideration under Rule 18.2(b) have not been established.
26The applicant’s request for a reconsideration is dismissed.
Janet Hueglin Hartwick
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 14, 2023