Rooney v. Allstate Insurance Company of Canada, 2024 CanLII 108222

Citation: Rooney v. Allstate Insurance Company of Canada, 2024 ONLAT 22-012715/AABS-R

RECONSIDERATION DECISION

Before: Brian Norris

Licence Appeal Tribunal File Number: 22-012715/AABS

Case Name: Rooney v. Allstate Insurance Company of Canada

Written Submissions by:

For the Applicant: Ashu Ismail, Counsel

For the Respondent: Ian D. Kirby, Counsel

OVERVIEW

1This request for reconsideration was filed by Mickey Rooney (“the Applicant”). It arises out of a decision released July 12, 2024 in which the Panel found that the settlement agreement between the Applicant and Allstate Insurance Company of Canada (“the Respondent”) was valid pursuant to section 9.1 of Regulation 664. The Applicant submits that the Tribunal made an error of law of fact, and/or committed a material breach of procedural fairness. She did not outline the specific relief sought in her initial submissions, but in reply submissions asked that the Tribunal apply the “correct” legal test or, in the alternative, order a new hearing on the transcripts of the initial hearing.

RESULT

2The Applicant’s request for reconsideration is dismissed.

ANALYSIS

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “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 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;

c) 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.

4Reconsideration 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.

5The Applicant submits that the Tribunal committed an error of law by failing to interpret the settlement notice pursuant of Ontario Regulation 780-93 (“the Regulation”) and binding caselaw. She further submits that a material breach of procedural fairness occurred when the Tribunal accepted a defense from the Respondent which was not included in their materials, which further reversed the onus of proof in the matter, depriving her of natural justice.

6The Respondent submits that the Reconsideration should be dismissed and suggests that the Applicant is attempting to relitigate the initial decision at the reconsideration process.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to relitigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Error of Law

8I find no error of law in the conclusion that the settlement agreement is compliant with the Regulation.

9The Regulation permits the Applicant to rescind a settlement if the Respondent failed to comply with the settlement provisions outlined in section 9.1 of the Regulation, which includes advising the Applicant of the commuted value of the benefit being settled.

10The Applicant’s submissions regarding an error of law focus on the application of the Regulation to a settlement disclosure notice, dated December 19, 2000. In this case, the Applicant maintains that the commuted value of her attendant care benefits (ACBs) of $0.00 in the settlement agreement, in addition to stating that the maximum under the policy was $1,000.000.00 and that the remaining policy limit would be less than $0.00, was nonsensical and thus, the settlement agreement does not comply with the obligations outlined in section 9.1.

11The Respondent highlights that the Panel found that the Respondent was not required to give the commuted value of payments that had not been claimed because it was impossible to do so. It also highlights that ACBs were not part of the settlement agreement and that it would be unrealistic to expect it to provide a commuted value of a benefit that was never claimed and the quantum of which is zero.

12I find that the Applicant is attempting to relitigate the issue of whether the settlement agreement complied with section 9.1 of the Regulation. Paragraphs [21] to [30] of the initial decision address the application of section 9.1 of the Regulation to the settlement agreement between the parties. The Panel concluded that the Respondent was not required to give the commuted value of a benefit that had never been claimed and it was impossible to calculate.

Breach of Procedural Fairness

13The Applicant submits that the Tribunal determined that the Respondent was not required to comply with section 9.1 of the Regulation regarding ACBs because she never demonstrated a need for ACBs, and infers that it is because the Panel found that she had not applied for ACBs at the time of the settlement. She submits that demonstrating a need for a benefit by applying for it is not the test under section 9.1(2)5 and that the Tribunal deprived her of natural justice by relying on this defence, which she submits was not included in the Respondent’s response and/or defence.

14The Respondent never addressed these submissions directly.

15I find no material breach of procedural fairness. The Applicant erroneously describes the basis for the decision and her submissions fail to appreciate that she implied in her closing submissions that ACBs were a live issue at the time of the settlement because the Respondent had information regarding her needs for same. The Respondent’s submissions on the issue were in response to the Applicant’s suggestion. Further, the Applicant was provided an opportunity to reply to the Respondent’s position on the issue.

16At paragraph [27] of the original decision, the Panel found that the parties decided that ACBs were not part of the settlement agreement and that it was unrealistic to expect the Respondent to provide the commuted value of a benefit the Applicant was not claiming. The original decision turned on this finding. Nothing in the original decision purports to relieve the Respondent of the requirement to comply with the Regulation. The Panel observed that the Applicant had not claimed ACBs when the parties entered into the settlement agreement, highlighting the flawed logic in the Applicant’s position. As stated in the original decision, the Respondent is unable to provide the commuted value of a benefit that had never been claimed.

17Nevertheless, I find no breach of procedural fairness because the Applicant was provided an opportunity to reply to the Respondent’s position. In closing submissions, the Respondent highlighted the Applicant’s failure to claim ACBs prior to entering into the settlement agreement as an additional reason why it would not be required to include a commuted value for ACBs in the settlement agreement. This was and remains a reasonably expected defense and it was incumbent on the Applicant to anticipate and address such a position. In fact, the Applicant was provided an opportunity to make reply submissions, and did so. However, the reply submissions did not object to or address the Respondent’s position. That the Panel found it to be compelling is not a basis for reconsideration on procedural fairness grounds.

18Accordingly, I find no material breach of procedural fairness or error of law such that the Tribunal would likely have reached a different result had the error not been made.

CONCLUSION & ORDER

19For the reasons above, I find no material breach of procedural fairness or error of law such that the Tribunal would likely have reached a different result had the error not been made.

20The Applicant’s request for reconsideration is dismissed.

Brian Norris

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal