RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 24-012855/AABS
Case Name: Ameed Al-Masri v. TD General Insurance Company
Written Submissions by:
For the Applicant: Michael Rotondo, Counsel
For the Respondent: Robert P. Bowman, Counsel
OVERVIEW
1On April 23, 2025 the applicant requested reconsideration of the Tribunal’s decision dated April 9, 2025 (“decision”).
2In this decision, I found that the Tribunal did not have the jurisdiction to consider whether the parties had reached a valid settlement under s. 9.1 of R.R.O. 1990, Regulation 664 (“Regulation 664”), because the applicant did not meet the requirements in s. 9.1(8). The application was dismissed for lack of jurisdiction
3The 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.
4The applicant is seeking a reconsideration pursuant to Rule 18.2(a) and (b). He submits that I erred in law by failing to determine the essential threshold issue of whether the purported settlement was valid, before considering whether the settlement funds had been returned pursuant to s. 9.1(8) of Regulation 664. The applicant argues that I mis-interpreted s. 9.1(10) of Regulation 664. He also submits that I erred in law in failing to properly consider the Divisional Court decision Opoku v. Pal, 1999 CanLII 19913 (ONSC) (“Opoku”).
5Finally, the applicant submits that I committed a material breach of procedural fairness by failing to adjudicate his motion relating to the respondent’s reply submissions, or to consider his evidence of the respondent’s non-compliance with Regulation 664. The applicant requests that the decision be set aside, and requests an Order that he be permitted to proceed with his application without returning the settlement funds. In the alternative, the applicant requests a new hearing before a different adjudicator.
6The respondent submits that there was no error of law or fact or a material breach of procedural fairness. It argues that the applicant is attempting to re-argue his case on the same basis as was previously put forward and rejected. The respondent argues that the request for reconsideration should be dismissed.
RESULT
7The applicant’s request for reconsideration is dismissed.
Factual background and initial preliminary issue hearing
8At the initial written hearing, the respondent had raised a preliminary issue that the applicant should be barred from proceeding with his application for a catastrophic determination, since the parties had entered into a full and final settlement in October 2013. The respondent argued that s. 9.1(8) of the pre-April 2016 version of Regulation 664 states that a person cannot apply to the Tribunal with respect to the benefits that were subject to the settlement, unless the person had returned the settlement funds. Since the applicant had not returned the $90,000 paid pursuant to the settlement, the respondent argued that the Tribunal did not have jurisdiction to consider whether the settlement was valid or invalid. The respondent cited a number of Tribunal decisions where it was found that the return of settlement funds was a necessary precondition, before a claimant can apply to the Tribunal with respect to benefits subject to the settlement.
9The applicant argued at the initial hearing that the respondent’s October 2013 Settlement Disclosure Notice (“SDN”) was non-compliant with s. 9.1(2) and 9.1(3) of Regulation 664. As a result of numerous defects in the SDN, the applicant submitted that the settlement was invalid or void, and that the restriction on applying to the Tribunal under s. 9.1(10) did not apply. He relied on the Divisional Court decision Opoku in support of his position. The applicant also brought a motion at the initial hearing, requesting that the Tribunal strike a portion of the respondent’s initial hearing reply submissions and evidence, as the respondent was “case-splitting” and raising new issues in reply.
10In the April 23, 2025 preliminary issue decision, I found that the legislation was clear that s. 9.1(8) of Regulation 664 is mandatory. Since the applicant had not returned the settlement funds, I found that the Tribunal did not have jurisdiction to adjudicate whether the settlement was valid and whether the respondent was in breach of s. 9.1(2) and s. 9.1(3) of Regulation 664. With respect to the applicant’s motion to strike portions of the respondent’s reply submissions and evidence, I found that the applicable paragraphs and documents related to whether the respondent was compliant with s. 9.1(2) and s. 9.1(3). Since I had determined that I did not have the jurisdiction to consider whether the parties had entered into a valid settlement or whether the respondent was compliant with s. 9.1(2) and 9.1(3), I found that it was not necessary for me to make a ruling on the applicant’s motion.
ANALYSIS
11The 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.
Rule 18.2(b) – No error of law in consideration of Divisional Court decision Opoku v Pal
12The applicant submits that in my decision, I failed to properly consider the decision Opoku. He argues that this decision was the only binding judicial precedent submitted by the parties at the initial hearing, and that the Court in Opoku provided a detailed analysis of a similarly worded predecessor provision. In Opoku, the Court held that any restriction on a party’s right to access the dispute resolution process is void, unless the insurer complies with the settlement regulation.
13I find that the applicant has not established an error of law in my application of Opoku.
14In paragraph 19 of the decision, I note the applicant’s submissions on Opoku, but find that the decision is distinguishable from the present case. In the version of Regulation 664 being considered by the Court in Opoku, there was no provision comparable to s. 9.1(8), which required the return of settlement funds before applying to the Tribunal. Subsection 9.1(8) of the version of Regulation 664 being considered in the present matter, holds that a person cannot commence a mediation proceeding under s. 280 of the Act unless the person has returned the money received as consideration for the settlement. This provision only applies to applications filed on or after March 1, 2002.
15As such, while I agree with the applicant that Divisional Court decisions are binding upon me, the decision Opoku is clearly distinguishable from the present matter. The Court in Opoku considered the restriction on access to the dispute resolution process in s. 9.1(5) of the prior version of Regulation 664. However, this was pre-March 1, 2002 and accordingly, at that time there was no requirement to return any settlement funds before initiating the dispute resolution process. I agree with the respondent that the applicant has not cited any case involving a version of Regulation 664 which included the s. 9.1(8) requirement, where the Tribunal permitted a claimant to dispute a settlement without first returning the settlement money.
Rule 18.2(b) – No error of law in interpretation of s. 9.1(10) and s. 9.1(8) of Regulation 664
16The applicant submits that in the decision, I failed to properly apply s. 9.1(8) and s. 9.1(10) of Regulation 664. He argues that the modern approach to statutory interpretation requires statutes to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”; see, Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC). The applicant submits that the language of the pre-April 1, 2016 version of s. 9.1(10) is broader in scope than the current provision, and lifted the legislative bar when the conditions are met, removing any repayment requirement under 9.1(8).
17I find the applicant has not established an error of law in my consideration of s. 9.1(8) and s. 9.1(10) of Regulation 664.
18Firstly, I agree with the respondent that the applicant is raising the same arguments as had been advanced at the initial hearing. The reconsideration process is not an opportunity to relitigate a position where a party disagrees with the Tribunal’s decision. Secondly, in support of his interpretation of the broader scope of the language in s. 9.1(10), the applicant argues that the Court in Opoku considered a comparable provision and clearly stated that any restriction on applying for dispute resolution is void unless the insurer complies with the settlement regulation. However, as previously stated, the Court in Opoku did not have to apply the repayment provision of s. 9.1(8), as it did not exist in the version of Regulation 664 in effect at that time.
19In paragraph 11 of the decision, I summarize s. 9.1(8) which states that no person may apply to the Tribunal with respect to the benefits that were the subject of a settlement or purported settlement unless the person has returned the money that was paid in consideration of the settlement.
20In paragraph 18 of the decision, I note that s. 9.1(8) specifies that this repayment requirement applies not only to a settlement but also to any “purported settlement”. I found that the use of the term “purported settlement” indicates that the legislative intent was that settlement funds were to be returned, even in situations such as these, where the validity of the settlement was being challenged. Although the applicant argues that the language of the pre-April 1, 2016 version of s. 9.1(10) is much broader than the current provision, and removes the applicability of 9.1(8) if the insurer fails to comply with the settlement regulation, he has not directed me to any evidence or authority in support of this position. The applicant has not directed me to any decision which involved a version of Regulation 664 that contained the repayment requirement in s. 9.1(8) where the Tribunal did not require the repayment of the settlement funds, prior to disputing the settlement.
21Accordingly, I find that the applicant has not established an error of law in my consideration of s. 9.1(8) and s. 9.1(10) of Regulation 664.
Rule 18.2(a) – No material breach of procedural fairness
22The applicant submits that I breached his right to procedural fairness by refusing to consider the respondent’s non-compliance with s. 9.1(2) and s. 9.1(3) of Regulation 664 and whether a valid and enforceable settlement had been entered into. The applicant also argues that by not addressing his motion to strike certain portions of the respondent’s reply materials, I also deprived him of procedural fairness.
23I find that the applicant has not established a material breach of procedural fairness.
24In paragraphs 13 and 21 of the decision, I state that given that the applicant did not comply with the mandatory requirements of s. 9.1(8) of Regulation 664, the Tribunal does not have the jurisdiction to consider whether the parties had entered into a valid settlement or whether the respondent was compliant with s. 9.1(2) and 9.1(3). In paragraphs 14 to 24, I provide the reasons as to why I found that the Tribunal did not have the jurisdiction to consider the validity of the settlement. With respect to the applicant’s motion to strike portions of the respondent’s reply submissions and evidence, I found that the applicable paragraphs and documents related to whether the respondent was compliant with s. 9.1(2) and s. 9.1(3). Since I did not have the jurisdiction to consider this issue, in paragraph 24 of the decision, I found that it was not necessary for me to make a ruling on the applicant’s motion.
25I do not agree with the applicant that my failure to consider whether the respondent was compliant with s. 9.1(2) and s. 9.1(3) was a breach of procedural fairness. Rather, in the decision I determined that the return of the settlement funds pursuant to s. 9.1(8) was a necessary precondition before the validity of the settlement could be considered. Disagreeing with the applicant’s position on this issue, is not a material breach of procedural fairness.
CONCLUSION & ORDER
26For the reasons above, I find no violation of procedural fairness and no error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
27The applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 17, 2025