RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 20-014086/AABS
Case Name: Thanh Ho v. Allstate Insurance
Written Submissions by:
For the Applicant: Kevin Doan, Counsel
For the Respondent: Jennifer Griffiths, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated September 21, 2023 (the “Decision”) where I determined that the applicant is bound by the settlement and precluded from proceeding to the Tribunal because he did not rescind the settlement within two business days. In his request, the applicant alleges that the Tribunal made significant errors of law and fact and violated the rules of procedural fairness. The respondent, Allstate Insurance, disagrees and requests that the reconsideration be dismissed.
RESULT
2The applicant’s request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the applicant relies on the following grounds.
a. The Tribunal acted outside its jurisdiction or committed a material breach 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;
4Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
5I find that the applicant’s request for reconsideration is an attempt at re-litigating his case, and I reject his assertions that I made significant errors of law, and that I violated the rules of natural justice and procedural fairness.
Rule 18.2(a): Procedural Fairness
Application of the Legislation Act, S.O. 2006, c. 21, Sched. F (“Legislation Act”)
6The applicant submits that he argued at the initial hearing that the general common law on the enforceability of a contract is varied by statutory requirements when a contract settles certain accident benefits. He submits that the statutory scheme voids all restrictions in such a contract with respect to the applicant’s right to dispute pursuant to section 279(2), unless the respondent availed itself of an exception under Regulation 664 which was in force at the time of the settlement. Despite the respondent not taking issues with the above, the applicant submits that the Tribunal initiated its own argument in favour of the respondent, relying on the Legislation Act which neither party referenced, without giving the applicant an opportunity to be heard, and held that section 279(2) of the Insurance Act, RSO, c I.8 (“Insurance Act”) does not apply.
7The respondent submits that nothing turned on this argument in the final analysis of the Tribunal’s decision. Furthermore, it is reasonable for the Tribunal to reference legislation that provides the framework for establishing its own jurisdiction as was the case here.
8I find that there was no breach of the rules of procedural fairness when I considered the Legislation Act. I am permitted to take judicial notice of statute since the Legislation Act is on the point of the effectiveness of regulations and statutes. Considering the age of settlement and the applicant’s reference to a predecessor of statute and regulation, it was necessary to understand the effectiveness of that predecessor statute and regulation. Accepting the applicant’s incorrect arguments and failing to consider the Legislation Act would have amounted to an error. In fact, I would be abdicating my duty as the trier of law.
Failure to adjudicate the Motion dated September 21, 2023 (“Motion”)
9The applicant filed a motion dated September 21, 2023. In his motion, the applicant was seeking an order requiring oral evidence from the respondent’s former counsel, the former adjuster and the applicant. He submits that the Tribunal breached procedural fairness when it failed to adjudicate his notice of motion dated September 21, 2023. This motion was filed only 2.5 hours before the decision was released. He submits that despite the fact that it was filed while the application was still active, the Tribunal informed the applicant that no adjudicative orders would be made. The applicant requested an opportunity to make submissions as to whether the motion needed to be adjudicated. The Tribunal advised on September 28, 2023 it was waiting for further directions. To date, there is still no further word on the request for submissions.
10The respondent submits that the applicant is attempting to have the Tribunal adjudicate this motion on its merits during the course of this Reconsideration proceeding which is inappropriate. Furthermore, there would be an extreme breach of procedural fairness if the Tribunal had permitted the relief sought by the applicant following completion of the hearing. Moreover, he has not established that there was any evidence that could not have been obtained previously and would have likely affected the result. The respondent asserts that the applicant could have sought permission to call viva voce evidence if he had thought it necessary to his case at the time that the preliminary issue was set down.
11The applicant’s submissions do not clearly articulate how the refusal to adjudicate the motion dated September 21, 2023 to allow him to call witnesses regarding the settlement amounts to a breach of procedural fairness. On September 20, 2023, the Decision was finalized and approved and the division at the Tribunal that is responsible for releasing the decisions to parties was advised to release it. The Decision was released on September 21, 2023. In my view, there is no breach of procedural fairness because the decision had already been completed before the applicant filed his Motion.
12Based on my review of the Case Conference Reports and Orders (“CCR/O”) dated November 22, 2022 and February 22, 2023, the parties both consented to a written hearing. If there was an issue with the hearing format, the applicant should have filed a Motion immediately with the Tribunal rather than waiting until September 21, 2023 to do so. The motion was filed after all of the submissions had been submitted to the Tribunal. As such, I find that there is no breach of procedural fairness.
Reasonable apprehension of bias
13The applicant submits that an adjudicator is accorded the presumption of judicial integrity and impartiality which can be rebutted only by cogent evidence such as no reasons or unintelligible reasons in the form of the reasons themselves, or evidence that an adjudicator issued a decision before receiving the submissions of counsel touching on an important issue. He asserts that the breaches of procedural fairness are sufficient to suspend the decision until after the Motion has been heard, or to cancel the decision. In the alternative, he submits the breaches and errors amount to cogent evidence sufficient to rebut the presumption of judicial integrity and impartiality in order to cancel the decision.
14The respondent submits that this is not an enumerated ground for reconsideration and the applicant has not made his case in this regard.
15The test for reasonable apprehension of bias is well-established. It is as follows:
The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394.
16In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45 at para. 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging actual or a reasonable apprehension of bias must establish the presence of serious grounds:
17Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process and must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.
18The Court also noted that this inquiry is necessarily fact-specific and highly contextual:
Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.
19There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one. Ontario Provincial Police v. MacDonald, 2009 ONCA 805
20A party cannot simply state that there is bias and then list a set of statements to support this allegation. Rather, these alleged facts must be first established, and then carefully understood in the context of the overall litigation and/or the relationship between the parties and the decision-maker.
21The threshold for a finding of real or perceived bias is high, and there must be more than mere suspicion. Rather, cogent evidence is needed to support a “real likelihood or probability of bias.” Further, the cumulative effect of all the adjudicator's conduct, comments, and interventions must be assessed to rebut the strong presumption of impartiality.
22In my view, the allegation of bias is unfounded. The applicant in his request for reconsideration did not present cogent evidence that supports his allegations of bias or reasonable apprehension of bias. Nor did the applicant clearly articulate how there is bias. Furthermore, as noted in paragraphs 6 to 12 above, I do not find there was a violation of procedural fairness. Without the breach of procedural fairness, there is no evidence of bias. As such, I find that the applicant has not met his onus to establish a reasonable apprehension of bias or bias that would result in the voiding of the Decision.
Insufficient or unintelligible reasons in holding s. 279(2) does not apply
23The applicant submits that the reasons in relation to sections 52(3) and (4) of the Legislation Act are contradictory and unintelligible. The applicant points to the word “Schedule” in paragraph 37 and submits that appears to be an error as the Schedule does not authorize proceedings. Moreover, he argues that there is a contradiction because references to sections 280 to 284 of the old version of the Insurance Act are included in the summary section.
24The respondent submits that the applicant has failed to prove that the Tribunal provided insufficient and/or unintelligible reasons. The Tribunal found that the respondent did comply with section 9.1(2) and 9.1(3) of Regulation 664. As such, the potential applicability of section 279(2) of the Insurance Act is moot in the circumstances of this case.
25I find that there is no breach of procedural fairness. In paragraph 36 to 37, I provided clear and cogent reasons regarding sections 52(3) and 52(4) of the Legislation Act and why section 279(2) of the Insurance Act is not applicable. I agree that the use of the word of the “Schedule” is a typographical error. It should have referenced the current version of the Insurance Act. In any event, it does not change my decision.
26In the overview section, I included the applicable version of Regulation 664. For the purposes of clarity, I should have also included an additional section addressing the changes to the Insurance Act as a result of the Legislation Act. In any event, I do address the impact of the Legislation Act in paragraphs 36 to 37 of the decision.
No or unintelligible reasons in addressing section 9.1 at paragraph 36 of the decision
27Referring to my decision, the applicant submits that:
At para. 36, she addressed Mr. Ho’s argument that Estate of K.D.F. is distinguishable because it was not a case where s. 279(2) of the Act and s. 9.1 of the regulation were in issue. She rejected the Applicant’s argument involving s. 279(2) but she failed to address the remains of his argument relating to s. 9.1.
28In my view, it is difficult to discern which argument the applicant is relying upon because he has not directed the Tribunal to a specific argument. In any event, the Tribunal does not have to consider every single argument. Moreover, I have reviewed his submissions and find that the section that addresses Estate of K.D.F., 2022 CanLII 20127 (ON LAT) (“K.D.F.”) merely provides a summary of the case and sections. He did not advance any argument in that section.
It is unclear what his argument is or its relationship to the grounds for reconsideration. I find that there is no breach of procedural fairness and nor is there an error of law. Furthermore, I found that section 279(2) was not applicable in this case as noted in paragraphs 36 to 37 of the Decision.
Boilerplate and unintelligible incorporation of Regulation 664
29The applicant submits that the Tribunal summarized Regulation 664 by using previous decisions and omitted citing the new requirement noted above and failed to provide reasons to respond to his arguments relating to the omitted new requirement. Additionally, the Tribunal omitted citing section 9.1(10) despite the applicant’s arguments relying on section 9.1(10).
30I find that there is no breach of procedural fairness and there is no error of law. In the overview section of Regulation 664, I provided a summary of section 9.1(2) and (3). For the purposes of clarity, I should have also included the words “shall be in a form approved by the Superintendent”. However, the overview section of Regulation 664 reflects the requirements. This does not change my decision. Furthermore, in paragraphs 26 to 33, I addressed his arguments in detail.
31With respect to section 9.1(10), the applicant did not direct the Tribunal to his arguments in his initial submissions. I have reviewed his initial submissions and note that the applicant reproduced section 9.1(10) under the “First Remedy: Statutory Voiding of Restrictions on the Right to Dispute” section. He states that, “Subsection 279(2) of the Insurance Act begins the protection by voiding all restrictions on the right by parties to continue to dispute accident benefits entitlement. To be saved from this voiding, compliance with the requirements as set out under s. 9.1(10) of the Settlement Regulation is required.” He concludes that “Reaching a settlement agreement or a contract, however, represents only one of several requirements under s. 279(2) and s. 9.1 that must be complied with in order to be exempt from the voiding remedy above and successfully restrict Mr. Ho’s right to dispute”. In my view, he provided an overview of the section. It is unclear what his argument is or its relationship to the grounds for reconsideration.
Unintelligible version and provisions of Regulation 664:
32The applicant asserts that the Tribunal copied the current version of the regulation from previous case law. He submits that the Tribunal provided no references and explanations on how sections 280 to 284 continue to exist, particularly when it was held that s. 279(2) does not continue to exist. It is a legislative fact that ss. 279, and 280 to 284 were all repealed at the same time by April 1, 2016. Referring to my decision, he states that, “Her legislative provisions are therefore not transparent or intelligible, regardless of whether they happen to be actually correct in whole or in parts.”
33In the overview section, I included the applicable version of Regulation 664. For the purposes of clarity, I should have also included an additional section addressing the changes to the Insurance Act as a result of the Legislation Act. In any event, the applicant has not advanced a clear argument with respect to the Tribunal acting outside of its jurisdiction or violating the rules of natural justice or procedural fairness.
Rule 18.2 (b): Errors of law or fact
Errors involving the common law requirements on the formation of a contract
34The applicant submits that the Tribunal made an error involving the common law requirements on the formation of a contract. He submits that I erred by omitting reasons and references to the fact that FSCO decided that the settlement disclosure notice (“SDN”) was non-compliant with the regulation because it was not signed by the applicant, and FSCO refused to sign an order dismissing the arbitration despite the request from the respondent.
35I find that there is no error. In paragraphs 8 to 11, I provided the background of the facts. The applicant has not directed the Tribunal to the letter from FSCO in which they declined to issue a dismissal order or where they say that the SDN is non-compliant. From my review of the file, there are no such letters that substantiates the applicant’s position. My analysis was based on the information that was before me.
Errors on the statutory requirements of an accident benefits settlement
36The applicant submits that I erred because I relied on the fact that “the settlement was confirmed in the Minutes of Settlement, which was signed and dated by the applicant. It does not state that the settlement was contingent on the personal signing of the acknowledgement on page 6.” He asserts that the requirement of signature on the statutory statement does not need to be stated in the Minutes of Settlement. It was mandatorily required by legislation. However, the applicant fails to direct the Tribunal to where it says that it was mandatorily required by the legislation.
37The applicant submits that I misapplied the finding in K.D.F. that the SDN and release are mere formalities and are not essential to the terms of their agreement. He argues that in K.D.F., the dispute was whether there was an enforceable contract at general or common law. It is his position that I erred by applying the finding at common law to override the statutory regime, effectively holding, in error, that the SDN and release are mere formalities and not essential to compliance with the statutory regime. The reasons may be, at best, only relevant to the issue of contract formation but otherwise are irrelevant to compliance with the statutory requirements under section 9.1.
38The respondent submits that language in section 9.1 of Regulation 664 is premised upon the existence of a “settlement” which can be rescinded within the two day “cooling off period” at the option of the insured, or outside of that period if the insurer has not complied with subsections 2 and 3. The Tribunal correctly held that there was a meeting of the minds and a settlement between the parties, and in addition, found as a fact that the respondent had complied with subsections 2 and 3 of Regulation 664 section 9.1. The fact that the applicant refused to sign the SDN on the prescribed line (although he clearly acknowledged the information in the SDN in the facts of this case) cannot reasonably allow him to preserve a unilateral right of recission in respect of an otherwise binding agreement for a period of almost 20 years. As such, there was no error of law.
39I am not persuaded by the applicant’s position. In paragraphs 35 to 40, I explained why there was a binding settlement. My analysis was based on the requirements set out in section 9.1 of O. Reg 664. I did not override the statutory regime by applying the principles in K.D.F. Applying the principles of K.D.F. does not contradict the statutory provisions.
40The applicant argues that I misplaced my focus by placing it on merely the requirement of an insured person to have “understood the settlement” under the common law requirement when I ought to have focused on the requirements in the legislation. Furthermore, he argues that I conflated the common law with the statutory regime. Referencing my decision, he also states that:
She also objected at para. 39, that furthermore, “he did not to take issue with the settlement for many years”. Again, she erred by conflating general common law with the statutory regime. Her objection contradicts not only the statutory regime but also her own understanding of it as she had written “[o]f significance, there is nothing in the regulation which places a time limitation for when an insured can rescind the settlement” earlier in Pope.
41It is difficult to discern what the applicant is arguing. He has not pointed the Tribunal to how there is an error. With respect to his comments regard Pope v. Aviva General Insurance, 2023 CanLII 19910 (ON LAT), I find that he is attempting to introduce a new argument that was not previously raised. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. While there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, this is not such a case. The applicant had an opportunity to address this in his preliminary issue submissions.
42The applicant submits that I failed to acknowledge and provide reasons to address his detailed arguments in paragraphs 59 to 67 of his responding submissions. I disagree. I addressed this in paragraph 33 to 34 of the decision. In my view, he is attempting to reargue his position.
CONCLUSION
43The onus is on the applicant to establish his grounds and he has not done so. Dissatisfaction 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 or a breach of the rules of procedural fairness. Although the applicant may disagree with the Decision, reconsideration is not an opportunity for the applicant to re-argue his position, which is what I find to be the case here.
44For all the reasons noted above, the request for reconsideration of the Decision dated September 21, 2023 is dismissed.
Tavlin Kaur
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 21, 2023