RECONSIDERATION DECISION
Before: Stephanie Kepman
Licence Appeal Tribunal File Number: 19-011699/AABS
Case Name: Marina Landa v. The Dominion of Canada General Insurance Company
Written Submissions by:
For the Applicant: Marina Landa, Self-Represented Applicant
For the Respondent: Christopher McCormack, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision in which the Tribunal found that the applicant was not entitled to an income replacement benefit (“IRB”), several medical benefits, interest, an award and costs.
2The applicant submits that the Tribunal acted outside of its jurisdiction, violated the rules of procedural fairness and made errors of law and fact, based on the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”), specifically Rule 18.2 (a) and (b).
3The applicant is seeking an order for a rehearing of the matter in its entirety and to rely on new evidence.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The applicant’s request for reconsideration is dismissed.
BACKGROUND
6The applicant filed her application to the Licence Appeal Tribunal (“Tribunal”) in 2019 and amended this application in 2020. The Tribunal held a preliminary issue hearing in 2020 and found that the applicant could not proceed with some of the disputed issues because she did not start her application within the two years required by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant requested that the Tribunal’s Preliminary Issue Decision be considered in 2020, and the Tribunal dismissed the applicant’s request.
7The applicant completed a second Request for Reconsideration of its Preliminary Decision in 2022 based on the Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997. The reconsideration was heard, and the Tribunal dismissed the applicant’s second request for reconsideration.
8The substantive hearing proceeded, and the Tribunal issued a decision in 2023, which the applicant now seeks to reconsider.
ANALYSIS
9The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration under Rule 18.2 will not be granted unless 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.
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.
11The grounds that the applicant argues apply are Rules 18.2(a) and (b), namely that the Tribunal acted outside of its jurisdiction and the Tribunal made an error of law or fact such that it would have likely reached a different result had the error not been made. The respondent disagreed with this. The respondent also objected to the applicant’s use of certain evidence in support of her Request for Reconsideration.
Preliminary Issue - Privileged Communications Shall not be Considered
12The respondent objected to the applicant’s references to privileged settlement communications between the applicant and the respondent in the applicant’s Reconsideration Submissions. The respondent argued that based on the binding Supreme Court decision of Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, (“Sable Offshore Energy”) these settlement discussions cannot be admitted into evidence for the Reconsideration Request.
13The respondent noted the issue of not disclosing privileged communications had been addressed by the Tribunal in its Case Conference report of June 17, 2020, and was not respected by the applicant in the substantive submissions.
14The respondent requested that the Tribunal exclude the settlement discussion raised in the applicant’s Reconsideration submissions in paragraphs 78, 80, 81, 85, 94, 100, 113, 114 and 115 and any other reference to privileged discussions.
15The applicant disagreed that the information and arguments made did not violate settlement privilege and would be prejudicial to the applicant if not considered. The applicant also argued the Tribunal had not fully considered this issue in the substantive submissions or made a finding concerning settlement privilege applying to her submissions.
16I agree that the applicant’s references to privileged settlement discussions shall not be considered for the Reconsideration Request. While the applicant is, in general, correct that s. 15(1) of the Statutory Powers Procedure Act allows the Tribunal may admit all evidence that is relevant to the subject matter of the proceeding, section 15(2)(a) prohibits the Tribunal from admitting any evidence that is subject to privilege, which includes settlement privilege. Settlement and settlement discussions, whether successful or not, are to be confidential to promote more fruitful and open-minded discussions between the disputing parties and the privilege may be set aside only in exceptional circumstances such as misrepresentation, fraud or undue influence (see, e.g., Sable Offshore Energy at para. 19). While the applicant argues that the Tribunal did not make a finding on whether settlement privilege applied and that their relevance demands the inclusion of the material she relies on in her reconsideration request, my review satisfies me that they pertain to settlement discussions. The privilege presumptively applies despite any relevance, and she has not rebutted that presumption.
17Had the applicant wished to rely on communications she thought could be subject to privilege, she engaged a positive obligation to raise this before serving and filing her submissions, which she did not do. I also note that the applicant was explicitly warned not to rely on communications subject to privilege, which she did not respect throughout the hearing.
18To sum, I agree with the respondent. The applicant’s submissions pertaining to settlement are presumptively inadmissible. I have not been persuaded that settlement privilege should be set aside, therefore, all references to settlement discussions in paragraphs 78, 80, 81, 85, 94, 100, 113, 114 and 115 and any other reference to privileged discussions are excluded.
Preliminary Issue – Additional Evidence Shall not be Admitted
19The applicant also argued that the Tribunal should conduct “further investigation” and request more evidence. The respondent argued that this is not the role of the Tribunal and relied on SSZ v Certas Direct Insurance Company, 2020 CanLII 34439 (ON LAT), where the Tribunal found that an applicant was not permitted to supplement their substantive evidence via the Reconsideration Process.
20I agree with the respondent’s position; While I appreciate that the applicant is self-represented, the Tribunal’s role does not include the tasks of investigation and requesting further evidence; this would impermissibly allow the Tribunal to advocate on the behalf of a party. Therefore, this request will not be considered.
The Tribunal did not Act Outside Its Jurisdiction or Violate the Rules of Procedural Fairness
21The applicant argued that the Tribunal violated the rules of procedural fairness by not weighing evidence properly and without sufficient commentaries and reasons. The applicant disagreed with how much of the evidence in her substantive hearing was weighed and the findings of fact that the Tribunal made. She provided examples of her evidence and case law and argued that the Tribunal did not consider them properly.
22The respondent disagreed with this position and argued that the applicant’s request for reconsideration should be dismissed. The respondent relied on paragraphs 33 to 42 of the substantive decision, which detailed the Tribunal’s analysis and weighing of evidence.
23The respondent also submitted that based on P.P. v Wawanesa Mutual Insurance Company, 2021 CanLII 60480 (ON LAT) (“P.P.”), the Tribunal does not have to refer to every argument or piece of evidence cited by a party in its decisions.
24I find the Tribunal did not act outside its jurisdiction or violate the principles of natural justice. Though I understand the applicant’s position regarding her reconsideration request, I agree with the respondent and that the basis of the weighing of evidence and consideration of facts presented by the parties is addressed in the Tribunal’s original decision.
25The applicant has not persuasively shown that the Tribunal made an error of procedural fairness by not addressing every argument and piece of evidence she raised in her arguments. This position is supported by P.P., which I found to be persuasive, as it addressed a request for reconsideration on similar grounds to the subject matter. Furthermore, the reasoning and findings of the Tribunal are also laid out in its original decision.
26Moreover, I agree with the respondent’s argument that the reconsideration hearing is not the appropriate time for parties to be rearguing their positions, but instead must convincingly show that, for rule 18.2(a), the Tribunal made violated the rules of procedure or natural justice, which the applicant has not done.
No Errors of Law or Fact Such that the Tribunal would have likely reached a Different Result
27The applicant submitted that the Tribunal failed to fully assess and consider all evidence regarding the applicant’s submissions supporting her entitlement to the IRB and made conclusions without reviewing and verifying evidence. The applicant also argued that her delay in providing financial documents to the respondent until 13 years later was inaccurately described as a “refusal”
28The applicant also submitted that the Tribunal failed to properly assess and consider her evidence regarding the reasonableness and necessity of the disputed medical benefits and procedural issues related to her Expenses Claim Form (“OCF-6”) and Treatment and Assessment Plan (“OCF-18”).
29The applicant argued that the Tribunal incorrectly interpreted the Schedules, FSCO Guidelines, facts and case law. The applicant also argued she was not given proper denials by the respondent for many of the disputed medical benefits, which is an argument related to the substantive submissions.
30The respondent disagreed with the applicant and requested that the applicant’s request for reconsideration be dismissed. The respondent argued that the weighing of evidence and findings can be found in paragraphs 34 to 41 of the decision with respect to the applicant’s request for IRBs and paragraphs 62 to 65 and 69 to 71, 74 to 75 and 80 to 82 concerning the disputed treatment plans.
31The respondent reiterated its position that the substantive decision does not need to reference every argument or piece of evidence raised by a party.
32The respondent also argued that the applicant was trying to reargue the decided substantive issues.
33I agreed with the respondent’s position and find that the Tribunal did not make an error of fact or law that would result in a different outcome. I agree with the respondent ‘s argument that much of the applicant’s submissions consisted of her attempting to reargue her substantive position. This is not the purpose of a reconsideration, as supported by P.P.
34Regarding the applicant’s issues with the Tribunal’s interpretation of case law and legislation, the applicant’s arguments mainly reargue her original position, which does not show that the Tribunal made an error or law or fact that would result in a different outcome. I agree with the respondent that the applicant’s arguments consisted of her relying on the same case law she originally relied on and that the applicant’s submissions generally argued the same position as her substantive position.
35The applicant argued that the Tribunal made errors in interpreting the evidence but did not persuasively prove her point in her arguments. Instead, I found most of these submissions were repetitive of her substantive submissions. Some of the errors raised by the applicant related to the respondent’s position, where the applicant argued that the Tribunal did not provide sufficient or clear reasoning.
36Though there may have been small, administrative or typography errors in the substantive decision, this is not the basis for granting a Request for Reconsideration. Moreover, these errors would not result in a different outcome in the decision.
37The applicant also sought to re-litigate the benefits that were statute-barred by Vice Chair Theresa McGee. These were addressed by the Tribunal in Landa v. The Dominion of Canada General Insurance Company, 2022 ONLAT 19-011699/AABS -R. Therefore, I will not consider this.
CONCLUSION
38For the reasons noted above, I deny the applicant’s request for reconsideration.
Stephanie Kepman
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 26, 2023