Safety, Licensing Appeals and Standards Tribunals Ontario
Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3
In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2
Tel.: 416-314-4260 1-800-255-2214
TTY: 416-916-0548 1-844-403-5906
Fax: 416-325-1060 1-844-618-2566
Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3
Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260 1 800 255-2214
ATS : 416 916-0548 1 844 403-5906
Téléc. : 416 325-1060 1 844 618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Date: November 10, 2017
File: 16-000958/AABS
Case Name: C.T. and Aviva Insurance Canada
Written Submissions By:
For the Applicant: Mark I. Vella, Counsel
For the Respondent: Maggie Morgan, Counsel
Overview
On April 26, 2017, the Licence Appeal Tribunal (the "Tribunal") issued a decision in this application for dispute resolution under s. 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to entitlement to statutory accident benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the "Schedule").
The applicant, C.T., was injured in a motor vehicle accident on November 3, 2014. She made a claim to the respondent, Aviva Insurance Canada ("Aviva"), for income replacement benefits ("IRB"s) and physiotherapy and chiropractic treatments. Aviva denied those claims. Following a written hearing, the Tribunal determined that C.T. was entitled to IRBs for three periods, including interest, but was not eligible for the other benefits claimed. The Tribunal found that C.T. was employed during the two gaps between those three periods of IRB eligibility.
Aviva requests that I reconsider the Tribunal's decision on the ground that the Tribunal make a significant error of fact and law. Aviva argues that C.T. was actually employed at a factory ("NowPack") during the second of the three periods for which the Tribunal granted her an IRB. Aviva argues, in essence, that, because of this factual error, it was precluded from benefiting from s. 7(3)(a) of the Schedule, which would have otherwise allowed it to deduct 70% of C.T.'s gross employment income from her IRB.
C.T. provided responding submissions on this request for reconsideration. As part of her submissions, she argues that Aviva's request for reconsideration should be dismissed summarily, as Aviva failed to comply with the requirement in Rule 18.1(b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the "Rules") to provide notification if the party is seeking judicial review or pursuing an appeal in relation to the decision.
For the reasons that follow, I grant Aviva's request for reconsideration and order a written rehearing on part of the matter to allow the Tribunal to determine C.T.'s start date at NowPack and any resulting adjustments to C.T.'s IRB entitlement in Period 2.
Issues and Analysis
- The issues on this request for reconsideration are as follows:
a) Should Aviva's request for reconsideration be dismissed summarily for failure to comply with Rule 18.1(b) of the Rules?
b) By failing to consider s. 7(3)(a) of the Schedule, did the Tribunal make a significant error of law or fact such that the Tribunal would likely have reached a different decision?
Issue 1: Failure to comply with Rule 18.1(b)
C.T. submits that Aviva's request for reconsideration should be summarily dismissed because Aviva failed to comply with the requirement in Rule 18.1(b) to provide notification if it is seeking judicial review or pursuing an appeal in relation to the decision.
Rule 18.1(b) states as follows:
18.1 REQUEST FOR RECONSIDERATION
The Executive Chair of SLASTO may, upon request of a party or on his or her own initiative reconsider any decision of the Tribunal if the request is made within 21 days of the date of the decision.
A request for reconsideration from a party must be served on all other parties and must include:
(a) Reasons for the request, specifying applicable criteria under Rule 18.2;
(b) Notification if the party is seeking judicial review or pursuing an appeal in relation to the decision; and
(c) Remedy or relief sought.
Aviva's request for reconsideration does not indicate whether or not Aviva is seeking judicial review or pursuing an appeal in relation to the Tribunal's decision. C.T. submits that this deficiency cannot be rectified because the requirement of Rule 18.1 is to provide such notification within 21 days of the date of the decision, a deadline that has passed.
I disagree. Rule 18.1(b) requires a party requesting reconsideration to provide notification "if [it] is seeking judicial review or pursuing an appeal in relation to the decision" (emphasis added). The word "if" indicates that notification is required only if such action is in fact being taken. The Rule does not require notification of whether or not such action is being taken, and therefore does not require a party requesting reconsideration to provide notification that it is not pursing an appeal or judicial review.
In any event, failure to comply with a procedural rule is not necessarily a fatal flaw that requires summary dismissal. Rule 3.1 states as follows:
3.1 LIBERAL INTERPRETATION
These Rules will be liberally interpreted and applied, and they may be varied or applied on the Tribunal's own initiative, or at the request of a party, to:
(a) Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative; and
(b) Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
- C.T. has not alleged that Aviva's failure to provide the notification specified in Rule 18.2(b) has caused any prejudice or unfairness to C.T. In the circumstances, justice is best served by deciding this request for reconsideration on its merits. Therefore, to the extent that it may be necessary, I would decline to strictly apply the requirement in Rule 18.1(b), whatever the consequence might be for the Tribunal's process.
Issue 2: Section 7(3)(a) of the Schedule
Background
In its decision, the Tribunal concluded that C.T. was entitled to IRBs in the amount of $400 per week for the following three periods:
January 19, 2015 – March 15, 2015 ("Period 1");
April 1, 2015 – July 1, 2015 ("Period 2"); and
January 10, 2016 – November 3, 2016 ("Period 3").
In C.T.'s written submissions for the hearing, she had additionally requested IRBs dating back to November 10, 2014, but the Tribunal determined that Period 1 began on January 19, 2015, as C.T. was late in providing information reasonably requested by Aviva. C.T. did not ask the Tribunal to consider eligibility for IRBs for the time between Periods 1 and 2 or the time between Periods 2 and 3.
C.T. returned to her pre-accident job as a kitchen helper from March 16, 2015 to March 31, 2015, which falls between Periods 1 and 2. The Tribunal found that she stopped work on March 31, 2015 because of her ongoing impairments. C.T. did not claim IRBs for this period.
The Tribunal found that C.T. held a factory job at NowPack Inc. ("NowPack") from July 2015 to January 2016, which falls between Periods 2 and 3. The Tribunal's decision refers to C.T.'s start date at the factory as follows:
In July 2015, the applicant again attempted to work and got a job in a factory…. Although the applicant worked from July 2015 to January 2016 she was laid off due to a shortage of work.
- The start date of C.T.'s employment at NowPack is at issue in this request for reconsideration. If C.T. started working at NowPack earlier than July 2015, then Aviva is entitled to a deduction from IRBs with respect to the employment income earned during Period 2.
Submissions
Aviva's submissions focus on whether the Tribunal ought to have made a deduction to C.T.'s IRB entitlement due to post-accident employment income. In essence, the issue is whether C.T. was employed at NowPack during Period 2.
Aviva submits that the Tribunal was presented with evidence that C.T. returned to work from March 15, 2015 to March 31, 2015 at her pre-accident employment, and from April 2015 to January 2016 at NowPack. Aviva points to three pieces of evidence that were before the adjudicator with respect to C.T's start date at NowPack, the last two of which indicate a start date during Period 2:
a) An affidavit sworn by C.T. on October 22, 2016 indicating that she was employed at NowPack from July 2015 to January 2016;
b) An insurer's psychiatry assessment report based on an examination on June 20, 2015, which states that C.T. reported that she was employed in a factory at that time; and
c) An insurer's orthopaedic surgeon assessment report based on an examination on November 23, 2015, which states that C.T. reported that she had been working at NowPack since April 2015.
- Aviva submits that the Tribunal erred by failing to consider s. 7(3)(a) of the Schedule. That provision states:
(3) The insurer may deduct from the amount of an income replacement benefit payable to an insured person,
(a) 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit.
- C.T. submits that that there is no income to be contemplated during the periods of eligibility for IRBs, as she was not employed during those periods. With respect to C.T.'s start date at the factory, C.T. submits that the Tribunal considered all the evidence, including C.T.'s affidavit and the insurer's examinations, and concluded that C.T. did not resume working until July 2015.
Analysis
I am satisfied that the Tribunal made a significant error of fact in determining that C.T. commenced work at the factory in July 2015. I am also satisfied that this error is such that the Tribunal would likely have reached a different decision.
The Tribunal did not provide reasons for concluding that C.T. started the factory job in July 2015, nor was any reference made to the evidence relating to when she started that job.
There was some evidence before the adjudicator to support a finding that C.T. commenced work in July 2015. This was included in C.T.'s affidavit in which she swore that to be true. There was also evidence to the contrary. Specifically, there was an insurer's orthopaedic surgeon assessment based on an examination that took place on November 23, 2015, which stated that C.T. had been employed at the factory since April 2015. There was also an insurer's psychiatry assessment dated July 7, 2015, which was based on an assessment that took place on June 20, 2015. That report stated:
[C.T.] has since found a job in a factory which she finds less physically demanding as she has to lift less. She currently works 3 days per week.
Those reports were in evidence at the written hearing and were referred to in Aviva's written submissions at the hearing.
The Tribunal is not required to refer in its decision to every piece of evidence that it considers in making a factual finding. Further, it is generally not my place on a reconsideration request to question the weight that an adjudicator assigns to the evidence. The adjudicator is entitled to prefer some pieces of evidence over others.
However, I cannot reconcile the finding that C.T. started the factory job in July 2015 with the statement in the psychiatrist's report based on a June 20, 2015 examination that C.T. was currently working at that job. How could C.T. have reported on June 20 that she was currently working at the factory, and provided detail that she found it less demanding because she had to lift less, if she did not start the job until the next month? How else could that information have made it into the report if C.T. was not in fact working at the factory at least as of June 20, 2015? This discrepancy was not addressed in the Tribunal's decision. In the face of apparently irreconcilable evidence to the contrary, I am satisfied that the Tribunal's finding that C.T. commenced the factory job in July 2015 was made in error.
As C.T. was employed at NowPack for at least part of Period 2, the Tribunal ought to have considered Aviva's entitlement to deduct 70% of C.T.'s employment income earned during that period of eligibility, pursuant to s. 7(3)(a) of the Schedule. This would likely have affected the result.
Accordingly, I am of the view that a rehearing is necessary to determine C.T.'s start date at the factory and Aviva's entitlement to make deductions to C.T.'s IRB entitlement during Period 2, in accordance with s. 7(3)(a) of the Schedule.
Aviva also requests an order requiring C.T. to provide Aviva with documents relating to her post-accident income. Aviva had the opportunity to request these additional documents prior to the hearing in this matter, but did not do so until this request for reconsideration. In the circumstances, a further disclosure order would not be an appropriate remedy on reconsideration. However, Aviva may seek an order for additional disclosure as part of the rehearing process, which the Tribunal may grant or deny.
ORDER
- Aviva's request for reconsideration is granted and a written rehearing is ordered to allow the Tribunal to determine C.T.'s start date at NowPack and any resulting adjustments to C.T.'s IRB entitlement in Period 2.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: November 10, 2017