Neila Paesano v. Coseco Insurance Company et al., 2025 CanLII 35946

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 25-001700/AABS

Case Name: Neila Paesano v. Coseco Insurance Company et al.

Written Submissions by:

For the Applicant: Imtiaz Hosein, Counsel Christos P. Kakaletris, Articling Student

For Coseco Insurance Company and Nikki Filippone: Philippa G. Samworth, Counsel

For Focus Assessments and Darren Parsons: Kerry Nash, Counsel

For Dr. Julian Mathoo and Dr. Abdalhakim Mustafa: Ian MacLeod, Counsel

OVERVIEW

1On March 3, 2025, the applicant requested reconsideration of the Tribunal’s letter dated February 27, 2025 (the “letter”).

2Stemming from an application filed with the Tribunal on February 10, 2025, the letter stated the following under the signature of the Manager of Operations/Registrar of the Tribunal:

The Tribunal will not be processing this application because it names respondents who are not listed as insurers licensed to carry on business in Ontario.

Under s. 280 of the Insurance Act, the Tribunal has jurisdiction to adjudicate disputes in respect of a person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. Section 268 of the Insurance Act provides that insured persons have recourse for the payment of statutory accident benefits against an insurer, with whom liability for the payment of benefits rests. The Insurance Act defines an “insurer” as the person who undertakes or agrees or offers to undertake a contract of insurance.

Pursuant to s. 4.5(4) of the Statutory Powers Procedure Act, the Tribunal is giving you notice of its decision not to process your application in accordance with the provisions of the Insurance Act cited above.

If you wish to resume the processing of your application, you may file a new or amended Application by an Injured Person for Auto Insurance Dispute Resolution form, listing as a respondent an insurer licensed to carry on business in Ontario who is liable for the payment of statutory accident benefits pursuant to a contract of insurance with the insured applicant.

3The application is seeking damages from Coseco Insurance Company, Nikki Filippone, Dr. Abdalhakim Mustafa, Dr. Julian Mathoo, Focus Assessments, and Darren Parsons (the “named respondents”).

4By way of an order (dated March 19, 2025), the Tribunal found the letter “is a decision that finally disposes of this appeal.” As such, the applicant’s request for reconsideration was accepted for adjudication.

5The 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.

6The applicant relies on Rule 18.2(b) in her request for reconsideration. She is seeking an order to have the Tribunal “process and hear” the application.

7The named respondents provided responding submissions to the Tribunal. They either oppose the request for reconsideration, or they ask the Tribunal to disallow the application from proceeding.

RESULT

8The applicant’s request for reconsideration is dismissed.

ANALYSIS

9I find the applicant has not demonstrated how the Tribunal erred in fact or law by issuing the letter.

10The 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.

11The applicant argues that the Tribunal made errors of law by issuing the letter and not processing her application. Specifically, the applicant claims that case law from both the Tribunal and the Court of Appeal for Ontario support her position, namely, that the Tribunal has jurisdiction over “all parties who are connected to what is in substance, an accident benefits matter.”

12Once again, the named respondents ask for this request for reconsideration to either be dismissed, or they ask the Tribunal to disallow the application from proceeding. Some of them submitted case law in support of their position.

13In review of the case law, the recent Divisional Court case in Keulen v. Allstate Insurance Company, 2024 ONSC 2033 (“Keulen”) is of particular import to this decision. Ruling on a request to have the Tribunal consider a claim for punitive damages, the Divisional Court held that no such remedial authority existed. Rather, as Justice Corbett wrote for the panel in Keulen (at paragraph 15):

The LAT’s jurisdiction is circumscribed by statute. The statute provides that the LAT will decide claims in accordance with the SABS Schedule and applicable regulations. None of those instruments authorize an award of punitive damages. They do, however, authorize the Tribunal to deem benefits incurred, to make a special award of 50% of benefits, and to award interest and costs, all as potential responses to unreasonable conduct by an insurer. These are “different remedies” than an award of punitive damages, a “policy choice” made the Legislature.

14Though the applicant is seeking damages for breaches of the duty of good faith, civil conspiracy, etc., I still find the Divisional Court’s ruling about the Tribunal’s inability to award punitive damages applies. Specifically, the Divisional Court ruled that no damages may be awarded by the Tribunal. Therefore, such remedies cannot be ordered by the Tribunal in favour of the applicant through this particular application. In a similar vein, I note that Coseco Insurance Company is the only one of the named respondents who can pay accident benefits, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

15The Divisional Court’s comment about the “policy choice” of the Legislature is also an important answer to a claim made by the applicant in her reconsideration submissions. Specifically, the applicant claims that accepting the position in the Tribunal’s letter would act to “immunize persons who commit tortious acts in accident benefits related matters”. As Justice Corbett notes, the remedial authority available to the Tribunal is a “policy choice” made by the Legislature. It is not for the Tribunal to question this choice.

16Turning to the applicant’s other arguments, I do not find they are compelling explanations for why the Tribunal committed an error of law or fact.

17First, the applicant claims that the ability of the Tribunal under Rule 3.6 to “add a person as a party to a proceeding if the person has a significant interest in the proceeding” shows there is the authority to rule on cases involving all the named respondents. Regardless of whether they can be added as parties, the relief being sought from the named respondents is not available for the Tribunal to order. Without demonstrating how the Tribunal has the authority to issue the remedies being sought in her application, I find the applicant has not shown an error.

18Similarly, even if I accept the applicant’s reading of Yang v. Co-operators General Insurance Company, 2022 ONCA 178 (“Yang”); Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314 (“Dorman”); and Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, as it relates to who can appear as a party before the Tribunal, this same question of available remedies would remain.

19Further, I find the applicant’s reliance on Yang (and its interpretation of Dorman) does not support her position on available remedies. At paragraph 9 of Yang, Justice Lauwers wrote the following (my emphasis added):

… The claim in Dorman that this court held was not statute-barred by s. 280 was a class action for systemic negligence against the Financial Services Commission of Ontario (“FSCO”). The allegations against FSCO were that it had failed to investigate complaints against insurers and failed to enforce its own guidelines. In constrast [sic], the appellant’s claims concern the way in which she was assessed for statutory accident benefits under s. 44 of the Schedule. That is squarely within the Licence Appeal Tribunal’s mandate. The only damage pleaded attributable to the remaining defendants is that the appellant may have received fewer benefits than she was owed. As the motion judge noted, her physical injuries arise from the car accident, not the actions of the respondents. In the words of Dorman, this remains a case “concerned with [Schedule] benefits and amounts”: at para. 4…

20Put another way, the jurisdiction of the Tribunal provided by s. 280 of the Insurance Act is premised on whether a case involves “benefits and amounts” from the Schedule. Regardless of her submission to the contrary, I find the applicant is not seeking accident benefits from the Schedule. Rather, she wants the Tribunal to award damages. Therefore, in contrast to the applicant’s position about the “substance” of the dispute, I find her requests are not “concerned” with the Schedule.

21Finally, I do note that a reading of Yang could support an interpretation that the claim against Coseco Insurance Company for breach of duty of good faith might be considered an aspect of the adjusting process. As such, it might be captured under a request for an award pursuant to s. 10 of Reg. 664, which, per Keulen, is one of the instruments available to the Tribunal. However, as the applicant indicated on her application, she is not seeking an award.

22Taken together, I find the applicant has not demonstrated how the Tribunal erred in fact or law. As such, the applicant has not met her onus on reconsideration.

CONCLUSION & ORDER

23The applicant’s request for reconsideration is dismissed.

Craig Mazerolle Vice-Chair Tribunals Ontario – Licence Appeal Tribunal