A.A. v. TD Insurance Meloche Monnex, 2023 CanLII 40091

Citation: A.A. v. TD Insurance Meloche Monnex, 2023 ONLAT 20-015402/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan, Vice Chair

Licence Appeal Tribunal File Number: 20-015402/AABS

Case Name: A.A. v. TD Insurance Meloche Monnex

Written Submissions by:

For the Applicant: A.A., Self-represented

For the Respondent: Michelle Hatzikonstadinou, Counsel

BACKGROUND

1On February 6, 2023, the applicant requested reconsideration of the Tribunal’s decision dated January 17, 2023 (“decision”). In the decision, the Tribunal determined that the applicant was barred from proceeding with their application under section 55(1)2 because they failed to attend properly scheduled insurer’s examinations (“IEs”). The Tribunal dismissed the application.

2The grounds for a request for reconsideration are contained in Rule 18.2 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”). 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.

3Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

4The applicant has indicated they are seeking a reconsideration pursuant to Rule 18.2 (a), (b) and (c). The applicant requests that the decision be set aside, and the matter be remitted to a new hearing before a different adjudicator. The respondent requests that the decision be confirmed and the request for reconsideration be dismissed.

RESULT

5The applicant's request for reconsideration is allowed, in part.

ANALYSIS

Rule 18.2(a) - The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness

6The applicant makes several arguments pursuant to Rule 18.2(a). I will deal with each of these in turn.

Application of Notice Requirements

7The applicant argues the Tribunal violated the rules of natural justice and procedural fairness in finding that the notice requirements did not apply in the applicant’s case because “they are not an unsophisticated party” and “experienced in the field of automobile accident benefits”.

8I agree with the applicant that their experience with automobile accident benefits is not relevant to the question of whether the respondent’s notices meet the requirements of section 44(5). The adequacy of an IE notice is established by an examination of whether it complies with the requirements of section 44(5), not the knowledge or expertise of the insured person who receives the notice. However, I agree with the respondent that the Tribunal did not make a finding that the notice requirements in section 44(5) do not apply in the applicant’s case.

9I find that while the decision referenced the applicant’s knowledge and experience in automobile accident benefits, it did not conclude the notice requirements do not apply to this case. Rather, at paragraph 13, the Tribunal stated that the explanation of benefits (EOBs) provided all the necessary information for the applicant to be able to understand why their attendance was required at the IEs. At paragraph 13, the Tribunal set out an example from a September 11, 2019 EOB, and noted that each EOB contained the same quality of information. At paragraph 14 the Tribunal found that the notice requirements in the Schedule had been met. As such, I see no violation of procedural fairness in the Tribunal’s analysis of the adequacy of the IE notices.

Failing to Remain Impartial

10The applicant also argues that the Tribunal violated the rules of procedural fairness by failing to remain impartial in rendering its decision. They argue that the Tribunal improperly focused on the applicant as a “sophisticated party” without a fair consideration of the issues raised in the hearing, the applicant’s submissions, and the applicable case law. The applicant submits that the Tribunal’s focus on the applicant’s experience meant that it failed to adjudicate the matter fairly. They argue the Tribunal failed in its duty to apply the same standard of natural justice and procedural fairness, applicable to an insured person under the Insurance Act and Schedule, to the applicant’s case.

11The respondent submits that it was not a violation of procedural fairness for the Tribunal to reference the applicant’s knowledge and experience. The respondent argues that such commentary is not improper and not uncommon, and the Tribunal has considered whether a party is a “sophisticated party” and placed significant weight on this fact in a number of circumstances. The respondent cites the Tribunal’s decisions in 16-004349 v. “Mr. P”, 2017 CanLII 148395 (ON LAT) and S.W. v. Aviva General Insurance, 2020 CanLII 12727 (ON LAT) in support of its position.

12I find the applicant has not met their onus to establish a reasonable apprehension of bias or bias for the following reasons. The test for reasonable apprehension of bias is a high one, and it is well-established. It was set out by the Supreme Court of Canada 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.

13In 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:

Viewed 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.

At paragraph 77, the Court 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.

14The 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.

15Taken together, the case law establishes that the onus is on the applicant, and the threshold for a finding of real or perceived bias is high. The grounds must be substantial, and the applicant is required to provide cogent evidence in support of their allegation. The assessment itself is highly contextual and fact specific.

16In their reconsideration submissions, the applicant states the Tribunal failed to remain impartial, citing the Tribunal’s references to the applicant’s knowledge of the automobile accident benefits system. While they refer to the Tribunal’s statements as “improper”, they have not provided cogent evidence demonstrating a reasonable apprehension of bias. Simply stating that the Tribunal’s references to the knowledge and experience of the applicant with the automobile accident benefits system does not mean that the Tribunal was not impartial, and it is not sufficient to meet the high threshold of demonstrating a reasonable apprehension of bias, or to justify a finding of bias.

17Furthermore, I do not find the references to the applicant’s knowledge of the automobile accident benefits system to be improper in their context. As noted above, in the decision the Tribunal reviewed and found that the insurer’s notices met the requirements of section 44(5). The Tribunal also noted that, although the applicant is a sophisticated party, the applicant did not raise the issue of deficient notices until making submissions on the preliminary issue. The Tribunal further noted that the applicant’s response to the insurer’s notices was to request that the insurer reschedule the IEs. The Tribunal found that the applicant’s response suggests the applicant understood the information in the notices, particularly in light of their experience with the automobile accident benefits system. I see nothing improper in this reference, or in this finding. The applicant has not met the high standard for establishing bias or lack of impartiality.

18The applicant also argues that the Tribunal violated the rules of procedural fairness because it overlooked, mischaracterized and selectively referenced evidence in its decision. They submit the Tribunal only considered the respondent’s submissions and omitted any analysis of the applicant’s submissions in fact and law. They argue in so doing, the Tribunal denied the applicant the opportunity to be heard.

19I find no such violation of procedural fairness for the following reasons. At paragraphs 8-19 of the decision the Tribunal cited the evidence it relied on and set out its reasons for its conclusions. I agree with the respondent that it is well established that the Tribunal is not required to reference every piece of evidence or argument put forward. The Tribunal has cited the evidence it found relevant to its determination of the preliminary issue. I see no violation of procedural fairness in the Tribunal’s treatment of this evidence.

20The applicant also argues the Tribunal violated the rules of natural justice and procedural fairness by omitting analysis of the sufficiency of the notice requirements in its decision. I disagree. The question of the sufficiency of the notices is specifically addressed by the Tribunal at paragraphs 11 to 14 of the decision. The Tribunal sets out its analysis, including the position of the parties, the evidence it relies on, and its reasons for concluding that the notices are sufficient. The decision contains the Tribunal’s reasons for finding the notices meet the requirements of section 44(5). The fact the applicant does not agree with these reasons is not grounds for reconsideration.

21For the reasons set out above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a).

Rule 18.2(b) - The Tribunal made an error of fact or law

22I find that the Tribunal erred when it dismissed the applicant’s December 30, 2020 application in its entirety for the following reasons.

23On reconsideration, the parties made lengthy submissions with respect to the statutory interpretation of section 55(1), and whether the Tribunal acted outside its jurisdiction by finding that section 55(1) applies to the application in its entirety. The applicant argues the issues of medical and rehabilitation benefits in the amounts of $2,658.86, $34,126.00, $854.25, and $10,054.74 were not the subject of the preliminary issue hearing. The applicant submits that the preliminary issue hearing only concerned attendant care benefits, caregiver benefits and housekeeping benefits. The respondent argues that the Tribunal acted within its jurisdiction when it made the order barring the applicant’s entire application. It argues the Tribunal interpreted section 55(1) correctly when it barred the applicant’s entire application and cites relevant case law in support of its position.

24I find, however, that the issue is not one of statutory interpretation or a question of jurisdiction. Rather, the issue is rooted in an error made by the Tribunal in the amended Case Conference Report and Order (“CCRO”) of July 20, 2021. This CCRO sets out the issue to be decided at the preliminary hearing as:

Is the applicant barred from proceeding with [their] application to dispute entitlement to attendant care benefits, housekeeping benefits and caregiver benefits, pursuant to section 55(1)2 of the Schedule?

The error comes in the fact that the CCRO does not include the remaining issues included in the application dated December 30, 2020. In addition to a claim for a section 10 award, the application lists the following benefit claims, with interest:

1. Housekeeping and home maintenance - $10,400.00
2. Attendant care benefit - $3,000/month
3. Occupational therapy services - $2,658.86
4. Caregiver benefits - $250.00/week
5. Medical benefit - Other goods and services - $34,126.00
6. Visitor expenses - $1,249.44
7. Rehabilitation benefit - Other goods and services - $854.25

25The CCRO deals only with matters related to the preliminary issue, namely issues 1, 2 and 4. It does not refer to the other issues in dispute. It does not indicate these issues have been withdrawn, settled, or that they are proceeding to a hearing. It is silent on these matters. I find that this led to the Tribunal dismissing the application in its entirety following its determination of the preliminary issue.

26In my view, it is clear from paragraph 4 of the decision that the Adjudicator’s understanding, based on the CCRO, was that the issues in dispute were attendant care benefits, housekeeping benefits and caregiver benefits. Paragraph 4 of the decision states, in full:

The following preliminary issue is to be decided:

a. Is A.A. barred from proceeding with their application to dispute entitlement to attendant care benefits, housekeeping benefits and caregiver benefits pursuant to s. 55(1)2 of the Schedule?

27Likewise, the submissions of the parties at the preliminary issue hearing related only to entitlement to attendant care, housekeeping and caregiver benefits. There is no reference to the other medical and rehabilitation benefits listed in the application in the decision. It follows that when the Tribunal determined that the applicant was statute barred from proceeding with their application under section 55(1)2, the Tribunal was referring to their application for attendant care benefits, housekeeping benefits and caregiver benefits as set out in the preliminary issue statement at paragraph 4.

28I do not agree with the respondent’s reconsideration argument that the Tribunal’s finding properly applies to the applicant’s entire application. I find that the issues addressed by the decision are those set out in paragraph 4 exclusively. As a result, I find that the Tribunal’s conclusion at paragraph 22 of the decision that the application is dismissed is an error. In my view, the Tribunal was not aware that there were additional benefits in dispute when it dismissed the application.

29As a result, I find that the Tribunal made an error, and that the error is such that the Tribunal would likely have reached a different outcome had the error not been made.

30Accordingly, I find that the benefits identified in the application dated December 30, 2020 that were not the subject of the preliminary issue determination are still in dispute. The applicant can proceed with their application for the remaining issues 3, 5, 6, and 7 in that application, along with related interest and an award under section 10 of Regulation 664, should they choose to pursue such an award.

31Finally, I note that in their reconsideration submissions, the applicant refers to other medical and rehabilitation benefits in the amount of $10,054.74 that were added at the case conference on June 17, 2021. While the respondent does not dispute this, no further detail about these claims were provided by the applicant in their submissions. These other benefits can be also addressed at the case conference that the Tribunal will schedule to address procedural issues related to the remaining issues 3, 5, 6 and 7 as noted above.

Rule 18.2(c)

32While the applicant has indicated they are seeking reconsideration pursuant to Rule 18.2(a), (b) and (c), their submissions only make arguments with respect to Rule 18.2(a) and (b). As a result, I find the applicant has not established grounds for reconsideration under Rule 18.2(c).

ORDER

33For the reasons noted above, I grant the applicant’s request for reconsideration, in part.

34I vary the Tribunal’s decision as follows:

a. The applicant may proceed with their application for the remaining issues 3, 5, 6 and 7 as listed in the application dated December 30, 2020, with related interest.

b. The applicant may proceed with a claim for an award under section 10 of Regulation 664 related to these benefits, if the applicant chooses to pursue such an award.

35The Tribunal shall schedule a case conference to address procedural matters for the conduct of the hearing on these issues. At the case conference the Tribunal may also address any additional issues not listed in the application that were added at the case conference dated June 17, 2021.

36If the parties resolve the issues, the applicant shall immediately advise the Tribunal in writing.

E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal