Pope v. Aviva General Insurance, 2023 CanLII 50597

Citation: Pope v. Aviva General Insurance, 2023 ONLAT 22-003650/AABS - R

RECONSIDERATION DECISION

Before: Adjudicator Tavlin Kaur

Licence Appeal Tribunal File Number: 22-003650/AABS

Case Name: Pope v. Aviva General Insurance

Written Submissions by:

For the Applicant: Allen Wynperle, Counsel

For the Respondent: Kevin Griffiths, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant in this matter. It arises out of a preliminary issue decision dated March 13, 2023 (“decision”) in which the Tribunal found that the Settlement Disclosure Notice (“SDN”) the applicant was not defective. In her request, the applicant alleges that the Tribunal made a significant error of law and fact. The respondent 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, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“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 ground:

b) The Tribunal made an error of law or fact such that the Tribunal would have likely 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 does not establish grounds for reconsideration under Rule 18.2. I find she is attempting to re-argue her case. I reject her assertion that the Tribunal made an error of law or fact.

Rule 18.2(b):

6The applicant submits that the Tribunal made significant errors of law in the application of section 9.1 of Regulation 644 of the Schedule. It is the applicant’s position that had these errors of law have not been made, the Tribunal would likely have reached a different decision.

7The respondent submits that the Tribunal did not make an error law or fact.

ANALYSIS

Onus

8The applicant submits that the onus of proving the SDN was valid lies with the respondent. According to the applicant, “the Ontario Court of Appeal in Catania v. Scottish and York and several decisions of the Financial Services Commission have determined that the onus for proving that a settlement disclosure notice is valid belongs with the insurer.”

9The respondent submits that an insurer has the onus of establishing the existence of a settlement agreement and that it satisfied its onus. Therefore, after the respondent established the existence of a signed release and SDN, the applicant should have the onus of establishing non-compliance on the part of the insurer given that she is a party that argues that subsection 9.1(5) applies.

10In paragraph 22 of the decision, I provided reasons why I believed that the onus lies with the applicant. Moreover, the Court of Appeal did not address the onus in Catania v. Scottish and York, 2001 CanLII 24147 (ON CA) (“Catania”) as alleged by the applicant. The applicant did not direct to the Tribunal to where the Court of Appeal in Catania determined that the onus belongs to the respondent. Moreover, I am not bound by decisions of the Financial Services Commission of Ontario. Similar to Catania, I reviewed the SDN to determine whether or not it complied with Regulation 664. I found that it did.

Whether the SDN was compliant

11In paragraphs 19 to 23 of the applicant’s submissions, the applicant addresses the purported deficiencies in the SDN, which was previously raised in her submissions for the preliminary issue hearing. I find that the applicant is trying to reargue her case. She does not direct the Tribunal to the alleged error of law or fact in the decision.

Further deficiencies in the SDN

12In paragraphs 24 to 32, the applicant addresses other deficiencies in the SDN. She raised these arguments in her original submissions, which I addressed in paragraphs 15 to 28 of the decision. There is no error of law or fact. I find that the applicant is attempting to reargue her case.

13In paragraph 33 of the applicant’s submissions, she does not make a clear or cogent argument. Rather, she reproduced an excerpt from Aviva Canada Inc. v. Parveen, FSCO P-12-00023 and P12-00024 (“Parveen”). It is unclear what the applicant is attempting to argue.

14In paragraph 35, the applicant argues that I erred in my decision by noting that the words “lifetime maximum” would denote to a person of simple means that the benefits were available for the rest of their life. In fact, if the insurer wanted to convey the fact that the benefits were available for the rest of an individual’s life, then they should use that language. The applicant’s argument is not clear or cogent. In paragraph 25 of the Decision, I found that the descriptions noted that the medical and rehabilitation benefits have a lifetime maximum. This finding was based on my review of the SDN.

15The applicant submits that I erred at paragraph 27 of my decision in finding that the maximum amount of benefits was properly quoted by the insurer. The applicant submits that the maximum amount of benefits is indexed to inflation, not to end in the year of the car accident (the year after the legislation was brought into place), but rather the maximum medical and rehabilitation benefits continues to be indexed to inflation in this case and until the year that the Release is signed in 2002. Thus, the actual lifetime maximum ought to have been $1,048,800.00.

16In paragraph 27, I did not make a finding that the maximum amount of benefits was properly quoted by the insurer. Rather, I addressed the medical and rehabilitation benefits information found in the SDN. In paragraphs 28 to 29, I made a finding that the SDN provided adequate information and complied with section 9.1(3).

17With respect to the lifetime maximum, I find that the applicant is attempting to introduce a new argument, which was not previously raised before. 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 her preliminary issue submissions.

18The applicant submits that I erred in paragraphs 30-32 by not accepting that the SDN that was signed by the applicant has all of the deficiencies addressed by Director Delegate Blackman in the Parveen case. I am not bound by Delegate Blackman’s decision. I explained in paragraphs 30 to 32 why I was not persuaded by it. Moreover, it was the applicant’s onus to prove that the settlement is invalid due to non-compliance with Regulation 664. I find that there is no error of law, and that the applicant is attempting to re-argue her case.

19In paragraph 42, the applicant submits that the principle of comity dictates that a decision of a tribunal or court of the same jurisdiction be given considerable weight and should only be departed from where the trier is convinced that the prior decision is wrong and can advance cogent reasons in support of this view. In the Decision, I provided reasons why I was not persuaded by the case law that the applicant was relying on. Moreover, I am not bound by decisions of other adjudicators or arbitrators.

20The onus is on the applicant to establish her grounds and she has not done so. Dissatisfaction with the result is not a ground of reconsideration. Not accepting the applicant’s submissions or evidence at the hearing is not an error of law. Although the applicant may disagree with the Decision, reconsideration is not an opportunity for the applicant to re-argue her position, which is what I find to be the case here.

CONCLUSION

21For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Tavlin Kaur

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal