TD General Insurance Company v. Julien Bennett, 2024 CanLII 51699

Citation: TD General Insurance Company v. Julien Bennett, 2024 ONLAT 22-001767/AABS

RECONSIDERATION DECISION

Before: Mary Henein Thorn

Licence Appeal Tribunal File Number: 22-001767/AABS

Case Name: TD General Insurance Company v. Julian Bennett

Written Submissions by:

For the Applicant: Harkamal Hehar, Counsel

For the Respondent: Tania Billard, Spouse of the Applicant

OVERVIEW

1On January 11, 2024, the applicant requested reconsideration of the Tribunal’s decision (“decision”) dated November 20, 2023, in which I found the applicant is not entitled to a repayment, I found an agreement to pay $50 per month to the applicant was not reached between the parties and the applicant was not entitled to interest and an award.

2The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“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; or

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.

3In its reconsideration request, the applicant relies on the criteria from Rule 18.4 of the Licence Appeal Tribunal Rules. Rule 18.4 outlines the possible outcomes; it does not outline the criteria for granting the reconsideration.

4It submits that I made several errors of fact when making the order and an error in law which would have yielded a different result had it not been made. It is seeking to have the decision varied. For the purpose of this reconsideration, I will be referring to the Licence Appeal Tribunal Rules, Rule 18.2 (b).

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

6The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate 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.

Reference to the respondent’s written submissions as evidence and testimony

7The applicant takes the position that I made an error of law when I confused the respondent’s written submissions and referred to it as evidence and testimony in paragraph 11 in my decision and refers to paragraph 13 where I make my findings. It submits that the respondent never testified at the hearing, therefore there was no testimony before the Tribunal to consider as evidence.

8It also says that I erred by giving the respondent’s written submissions more weight than evidence provided by the applicant.

9It also points to the “Tribunal’s Practice Direction on Evidence” indicates that anything a party wishes to rely upon at hearing to support their case may be considered evidence.

10The Licence Appeal Tribunal has no such document called “Tribunal’s Practice Direction on Evidence”; therefore I cannot reference such document.

11The respondent disagrees with the applicant’s position and states no error was made and the decision should stand.

12The applicant is partially correct when it said I erred when I referred to the following statement as testimony. Found in paragraph 11 in my decision “the respondent testified that he contacted his lawyer regarding the payments and was told, [ “…it was fine and not to worry about it.”] He further testified that he also called Kristy Lynne, the adjuster on file from TD General Insurance Company (“TD”) to see why he was continuing to receive payments and was told that, “I could not speak directly to them, as we signed a contract with Diamond and Diamond”. The respondent testified that he was told Kristy Lynne the is only authorized to speak to the respondent’s counsel from Diamond and Diamond directly.” Instead, I should have referred to these statements as the respondent’s submissions rather than testimony. However, I find the error is not significant enough to change the outcome of my decision.

13Under Rule 15.1 of the Statutory Powers Procedure Act (“SPPA”) it states “….a Tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in court, (a) an oral testimony; and (b) any document or thing relevant to the subject matter of the proceeding and may act on such evidence…..” I accepted the respondent’s remarks during his opening statements as testimony as per this rule.

14The respondent under oath during his opening statement confirmed that he did contact his lawyer about these ongoing payments and that he did attempt to contact TD Insurance. I found those statements substantiated in the evidence the respondent provided. I thoroughly reviewed the evidence provided by both parties and made a determination accordingly.

15The applicant incorrectly stated that I gave more weight to written submissions made by the respondent than the “evidence” the applicant provided.

16The applicant incorrectly suggests that I relied solely on the respondent’s written submissions and did not take into consideration the applicant’s evidence to make my final determination.

17In paragraph 13, I stated “On the evidence, I find the applicant has not satisfied me on a balance of probabilities that the IRB was paid as a result of wilful misrepresentation or fraud. It is not expected from the Tribunal to comment on all evidence that it considered, the applicant cannot make a determination that I only relied on the respondent’s written submissions to reach my decision.

18The applicant has not proven that the error made in law made in this would have yielded a different result had it not been made.

Considering the respondent’s counsel as independent of the respondent

19The applicant submits that I made an error of law by not giving any weight to the conduct of the respondent’s counsel as agent for the respondent. The applicant argues that if I was to accept the respondent’s evidence that his counsel was aware of his return to work and did not make aware the applicant, it would constitute wilful misrepresentation because his previous counsel was aware and did not notify the applicant. The respondent’s counsel should not have been considered a separate entity.

20The applicant relies on Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC) in support of its position. The Court held that a lawyer is an agent for his or client and in accordance with the law of agency, “where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business, or which falls within the apparent scope of the agent's authority.”

21The respondent takes the position that no error was made.

22The respondent submitted a screen shot of a section of an order from the Ontario Superior Court of Justice dated June 4, 2021 removing the respondent’s former counsel in paragraph one as counsel of record.

23Unlike the circumstances of Pastoor v. Pastoor, the court has ordered the removal of counsel from this file. Given that the court has severed the relation between the respondent and his counsel, I must consider them as separate entities.

24I find no error was made by treating the respondent and his former counsel as separate entities.

Repayment agreement of $50 per month

25The applicant states that I erred an acted outside of my jurisdiction when I made a determination that there was not an agreement to pay $50 per month to the applicant, however no submissions were made as to how I erred by reaching that decision.

26The respondent agrees with the decision and states no errors were made.

27The parties attended a case conference on January 20, 202 and the applicant identified three issues in dispute. The issues were again confirmed in the applicant’s hearing brief and the applicant raised this issue during the hearing’s opening statements.

28As found in both the Case Conference Report and Order and the applicant’s hearing brief, the issues are as follows:

a. Is the Applicant entitled to a repayment in the amount of $10,400.00 ($12,000- $1,600 paid to October 2023), relating to its payment of Income Replacement Benefit for the period of October 14, 2018 to May 19, 2019?

b. Whether an agreement was reached between the parties for repayment at the rate of $50 per month?

c. Is the Applicant entitled to interest on any overdue payment of benefits.

29I do not find I erred or acted outside of my jurisdiction by making my finding.

CONCLUSION & ORDER

30The applicant has not established grounds for reconsideration as defined pursuant to Rule 18.2 (a) and (b).

Mary Henein Thorn

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal