RECONSIDERATION DECISION
Before: Ludmilla Jarda, Adjudicator
Licence Appeal Tribunal File Number: 20-009618/AABS
Case Name: Crystal Garvey v. Economical Insurance Company
Written Submissions by:
For the Applicant: Mikolaj T Grodzki, Counsel
For the Respondent: Mai Nguyen, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision on a motion order dated December 5, 2022 (“Motion Order”) in which the Tribunal denied the applicant’s request to extend the time to file a request for reconsideration of the Tribunal’s decision dated August 11, 2022. The Tribunal also struck paragraphs 3-9 and 14-32 of the applicant’s written reply motion submissions.
3The applicant requested a reconsideration of the Motion Order on the basis that the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
4The applicant asked that the Motion Order be overturned and that the applicant’s request to extend the time to file a request for reconsideration be granted so that she may dispute the Tribunal’s August 11, 2022 decision. Alternatively, the applicant requested that a new motion hearing be ordered before a different adjudicator.
5In response, the respondent requested that the request for reconsideration be denied.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7Under Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Rules”), a party may request reconsideration of any decision of the Tribunal that finally disposes of an appeal.
8The grounds for a request for reconsideration to be allowed are contained in Rule 18.2. A request for reconsideration will not be granted unless one or more of the grounds is met. For the purpose of this request, the ground that the applicant submits applies in this matter is Rule 18.2(b), that is, on the basis that the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
9The test for reconsideration under Rule 18.2 involves a high threshold. 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 the weight assigned to the evidence.
10Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The party requesting the reconsideration must show how or why the decision in first instance falls into one of the categories in Rule 18.2.
11For the reasons that follow, I dismiss the applicant’s request for reconsideration and find that:
a. The applicant’s request for reconsideration is non-compliant with Rule 18.1 as the Motion Order does not finally dispose of the appeal.
b. The applicant did not establish that the Tribunal made an error in striking portions of the applicant’s written reply motion submissions under Rule 18.2(b).
c. The applicant did not establish that the Tribunal made an error in denying the applicant’s request to extend the time to file a request for reconsideration under Rule 18.2(b).
This request for reconsideration is non-compliant with Rule 18.1 as the Motion Order does not finally dispose of the appeal
12I find that the applicant’s request for reconsideration is non-compliant with Rule 18.1 as the Motion Order does not finally dispose of the appeal.
13The courts have set out clear policy decisions dealing with appeals and applications for judicial review from Tribunal orders that are not finally dispositive of the issues before the Tribunal. The policy is set out in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 at paragraph 19 as follows:
[…] This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceedings and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order.
14As noted above, the applicant’s request for reconsideration is regarding a motion order denying an extension of time. This is not a decision that determines the substantive matter in dispute between the parties, or any substantive right of the applicant or the respondent.
15In my view, it is the Tribunal’s August 11, 2022 decision, in which the hearing adjudicator made a determination regarding the applicant’s claim for income replacement benefits, an award, and interest that finally disposes of the applicant’s appeal, not the subsequent Motion Order denying an extension of time to file a request for reconsideration.
16As the Motion Order does not finally dispose of the appeal, I find that the applicant’s request for reconsideration does not comply with the requirement of Rule 18.1. As such, the Motion Order is not subject to reconsideration under Rule 18.1, and I dismiss the applicant’s request for reconsideration on this basis.
17Even if I am wrong about the application of Rule 18.1 to this reconsideration request, I would deny the request on other grounds. I discuss the reasons for this conclusion below.
The Tribunal did not make an error of law or fact in striking portions of the applicant’s written reply motion submissions
18I find that the Tribunal appropriately struck paragraphs 3-9 and 14-32 of the applicant’s written reply motion submissions, and the Tribunal did not make an error of law or fact such that the Tribunal would have arrived at a different decision had the error not been made.
19The applicant submitted that she was blindsided by the respondent’s request to strike parts of her written reply motion submissions. She indicated that it was procedurally unfair under Rules 3.1(a) and 3.1(b) to grant the respondent’s request when the respondent failed to deliver motion materials as required by Rule 15. Moreover, given that this dispute resolution system is designed to interpret consumer protection legislation, granting the respondent’s request to strike while denying the applicant’s request for an extension was inconsistent.
20I do not agree with the applicant’s submissions and find no error of law or fact for the following reasons.
21This ground for reconsideration may have been more properly brought under Rule 18.2(a) as the applicant appears to allege that the Tribunal violated the rules of procedural fairness. As a consequence of not identifying the correct criteria and advancing a request for reconsideration under Rule 18.2(b), I find that the Tribunal did not violate the rules of procedural fairness, and I must only consider whether an error of law or fact has occurred under Rule 18.2(b).
22As stated in paragraphs 14 to 17 of the Motion Order, the Tribunal addressed the respondent’s request to strike the applicant’s written reply motion submissions by identifying the purpose of reply submissions as well as the reasons for finding that the applicant’s written reply motion submissions did not constitute a proper reply. I see no error of law or fact in the Tribunal’s analysis.
23As per Rule 3.1, the Rules shall be liberally interpreted and applied, and may be waived, varied, or applied on the Tribunal’s own initiative, or at the request of a party to facilitate a fair, open and accessible process, to allow effective participation by all parties, and to ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
24Additionally, pursuant to section 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), the Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. As such, in the absence of a properly filed notice of motion, under Rule 3.1, the Tribunal may determine how a party’s request will be addressed. This discretionary power is not bound by past decisions of the Tribunal, and it is applied on a case-by-case basis in accordance with the facts of that case.
25In this case, although the respondent did not file a Notice of Motion and all supporting materials pursuant to Rule 15, in order to ensure procedural fairness, the Tribunal had the power to waive or vary the procedural requirements of Rule 15. Further, in the absence of a formal motion by the respondent, on the Tribunal’s own initiative, the Tribunal had the power to make a decision regarding the admissibility of the applicant’s written reply motion submissions.
26While the applicant now claims that she was blindsided by the respondent’s request, during the motion hearing, the applicant had the opportunity to make responding submissions. At that time, the applicant did not request an adjournment of the motion hearing, nor did she request to pause the motion hearing in order to have more time to respond to the respondent’s request. Rather, she argued, like she argues again here, that the purpose of reply submissions was to address the issues raised in the respondent’s responding materials. In both cases, she claimed that is what she did. However, in reviewing the applicant’s written reply motion submissions, it was evident that they were improper and relying on these written reply motion submissions would have constituted a breach of the rules of evidence.
27The purpose of reply submissions is well settled. As stated by Adjudicator Grant in E.M. v. Aviva Insurance Company, 2020 CanLII 12741 (ON LAT) (reconsideration decision) at paragraph 20:
The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument. Only where an exceptional circumstance that arises during the course of a proceeding, would the Tribunal consider additional submissions.
28As indicated at paragraph 17 of the Motion Order, at paragraphs 3-9 and 14-32 of the applicant’s written reply motion submissions, the applicant:
a. reiterated her initial arguments from her main submissions;
b. identified the legal tests for seeking a reconsideration and for seeking an extension of time to file a request for reconsideration for the first time; and
c. brought forward new arguments in connections with the above referenced legal tests.
29The applicant should have reasonably anticipated that the respondent would argue that she failed to meet the legal tests required to be successful on her motion and that they would identify these legal tests in light of her failure to do so.
30In the circumstances, it would have been procedurally unfair pursuant to Rule 3.1(a) for the Tribunal to consider the applicant’s improper written reply motion submissions as the respondent does not have the right of further reply [see: Osei-Kumi v. Certas Home and Auto Insurance Company, 2023 CanLII 2691 (ON LAT)]. Further, unlike in Godber v. Aviva Insurance Company, 2021 CanLII 69333 (ON LAT), the respondent was not seeking to file a sur-reply. Rather, the respondent was seeking to preclude the applicant from raising issues in her written reply motion submissions that should have been raised in her initial submissions and from reformulating her initial argument. As such, a Notice of Motion was not mandatory.
31As for the applicant’s allegation that allowing the respondent’s motion to proceed is inconsistent with my findings in Assaf v. Unifund Assurance Company, 22-001069/AABS [“Assaf”], I do not agree as the Assaf decision is distinguishable to the case at hand, and I am not bound by Assaf. As such, there is no error of law or fact, and the applicant’s allegation of an inconsistency is not a ground for reconsideration.
32Considering the above, I find no error was made regarding the Tribunal’s decision to strike the applicant’s improper written reply motion submissions. Further, even if I was wrong in striking paragraphs 3-9 and 14-32 of the applicant’s written reply motion submissions, as per the detailed reasons provided at paragraphs 18 to 49 of the Motion Order, I do not find that the Tribunal would have reached a different result. As such, the applicant did not establish that the Tribunal made an error in striking portions of the applicant’s written reply motion submissions under Rule 18.2(b).
The Tribunal did not make an error of law or fact in denying the applicant’s request to extend the time to file a request for reconsideration
33I also find that the Tribunal appropriately denied the applicant’s request to extend the time to file a request for reconsideration, and the Tribunal did not make an error of law or fact such that the Tribunal would have arrived at a different decision had the error not been made.
34The applicant appears to argue that the Tribunal did not properly identify the requirements for a request for reconsideration pursuant to Rule 18.1. The applicant further submitted that the Tribunal’s failure to address the multiple marked impairments identified by Dr. Aladetoyinbo provided some merit in initiating a reconsideration and that the Tribunal erred by failing to account for this evidence when discussing the merits of the appeal. The applicant also indicated that the Tribunal failed to rely on the struck written reply motion submissions when discussing the justice of the case. Finally, the applicant took the position that had these errors not been committed, the Tribunal would likely have reached a different decision.
35I do not agree with the applicant’s submissions and find that she has not established grounds for reconsideration under Rule 18.2(b) for the following reasons.
36The applicant mischaracterized the Tribunal’s analysis regarding the requirements for a request for reconsideration pursuant to Rule 18. Contrary to the applicant’s submissions, the Tribunal appropriately identified the requirements for a request for reconsideration pursuant to Rule 18.1 at paragraph 20 of the Motion Order.
37As for the balance of the applicant’s allegations, I reiterate that a reconsideration is not an invitation for the Tribunal to reweigh the applicant’s evidence or for the applicant to relitigate the merits of her appeal or the justice of the case.
38Contrary to the applicant’s allegations, the Tribunal’s decision to deny the applicant’s request to extend the time to file a request for reconsideration was not solely based on the hearing adjudicator’s conclusions relating to Dr. Aladetoyinbo’s medical evidence. Rather, the Tribunal considered several factors and provided fulsome reasons at paragraphs 18 to 49 of the Motion Order.
39Also, as indicated above, it would have been procedurally unfair for the Tribunal to rely on improper reply submissions in discussing the justice of the case. As such, the Tribunal was not at liberty to rely on these submissions when discussing the justice of the case.
40For the above reasons, I find that the Tribunal did not make an error in law and fact in denying the applicant’s request to extend the time to file a request for reconsideration. I further find that the applicant is attempting to re-litigate her motion to extend the time to file a request for reconsideration as she disagrees with the decision and the weight assigned to her evidence. The fact that the applicant does not agree with the Tribunal’s decision is not ground for reconsideration under Rule 18.2(b).
CONCLUSION
41For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 31, 2023