Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service
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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
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RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Date: December 1, 2017
File: 16-004445/AABS
Case Name: Aviva Canada Inc. v. R.R.
Written Submissions By:
For the Applicant: Nathalie V. Rosenthall and Patrick M. Baker, Counsel
For the Respondent: No Submissions
Overview
On May 4, 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, Aviva Canada Inc. (“Aviva”), sought repayment of Income Replacement Benefits (“IRBs”) paid to the respondent, R.R., on the basis that R.R. wilfully misrepresented facts to Aviva. The Tribunal found that Aviva was not entitled to repayment since, in its view, Aviva failed to prove that it complied with the requirement under s. 52(2)(a) of the Schedule to provide notice of repayment to R.R.
Aviva requests reconsideration of the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”). For the reasons that follow, I grant Aviva’s request for reconsideration and order a rehearing.
Background
The respondent, R.R., was injured in a motor vehicle accident on December 2, 2014. He claimed IRBs from Aviva based on his statement that he was employed prior to the accident as a cook and kitchen worker at Pizza Mamia. He submitted pay stubs indicating that he earned $1,240 bi-weekly. Based on this information, Aviva paid R.R. IRBs in the amount of $9,673.38 from December 10, 2014 to November 10, 2015.
Aviva subsequently reviewed the claim and concluded that R.R. wilfully misrepresented his employment and earnings at Pizza Mamia.
Aviva applied to the Tribunal for dispute resolution on December 14, 2016, claiming entitlement to repayment of IRBs in the amount of $9,673.38 and accountant’s fees of $2,353.93, plus interest. Aviva stated in its application to the Tribunal that it wrote to R.R. on December 15, 2015, notifying him of Aviva’s intention to seek repayment of IRBs in the amount of $9,673.38 (the “Notice Letter”). Aviva also listed the Notice Letter as one of the key documents upon which it would rely in the dispute resolution process.
A case conference in this matter was held by teleconference on March 1, 2017. Aviva provided the Notice Letter to the Tribunal as part of its case conference materials. Following the case conference, the Tribunal issued an order on March 3, 2017 in which, among other things, it stated the following in relation to the documents that would be considered at the application’s hearing:
The only documents and evidence in the hearing record will be the Application for Dispute Resolution and Response (but not attached documents), the case conference order, documents and evidence, including affidavits, filed by the parties for the hearing, and written submissions. The adjudicator will review no other documents in arriving at the decision.
Unfortunately, although it included the Notice Letter in its case conference materials, Aviva did not include the Notice Letter in its document package entitled “Hearing Submissions of the Applicant”, dated March 31, 2017, which it filed with the Tribunal for the purpose of the hearing.
R.R. did not respond to Aviva’s application, and did not file any documents or submissions with the Tribunal before the hearing.
Following a written hearing, the Tribunal determined that Aviva failed to provide evidence that it had given notice to R.R. of the repayment amount, which Aviva was required to do by s. 52(2)(a) of the Schedule. The Tribunal’s reasons stated:
Subsection 52(2)(a) states: “if a person is liable to repay an amount to an insurer under this section, the insurer shall give the person notice of the amount that is required to be repaid.” (Emphasis added.)
The Schedule uses mandatory language. The applicant must give notice to the respondent in order to seek repayment under section 55. The applicant has not provided any evidence with respect to the repayment request made to the respondent. The applicant only made submissions and submissions are not evidence. There is no evidence before me that notice of the repayment amount was provided to the respondent.
Since the applicant has not provided evidence of the notice of repayment amount, I do not need to make a finding with respect to the respondent’s wilful misrepresentation. I find that the applicant has not met its statutory obligation under section 52 of the Schedule with respect to providing notice of the repayment amount. Therefore, I find that the applicant is not entitled to a repayment.
The Tribunal concluded that because Aviva had not provided evidence of the notice of repayment amount, it was not necessary to make a finding with respect to R.R.’s wilful misrepresentation, and Aviva was not entitled to a repayment of benefits.
On May 24, 2017, Aviva filed a request for reconsideration of the Tribunal’s decision on the basis that the Tribunal made a significant error of fact and violated the rules of procedural fairness. On May 30, 2017, R.R. was provided with the opportunity to make written submissions by June 13, 2017, in response to Aviva’s request for reconsideration. R.R. did not respond.
For the reasons that follow, I grant Aviva’s request for reconsideration and order a rehearing.
ANALYSIS
- According to Rule 18.2 of the Rules, a request for reconsideration may be granted only if one or more of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
Aviva makes two main submissions. First, it submits that the Tribunal made a significant error of fact by finding that Aviva did not provide evidence of its repayment request or specify how its repayment request was communicated to R.R. Aviva states that the Notice Letter “was included in the Application by an Insurance Company, and was very clearly and specifically described both in the body of the Application and as part of the Documents List in the Application.”
Aviva further submits that the Tribunal denied it procedural fairness by dismissing its appeal in a summary manner without making a determination on the merits of the dispute. Aviva submits that the existence of the Notice Letter was before the Tribunal, and that the Tribunal had the power under Rule 9.1 to request, “further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.”
Aviva was provided with an opportunity to make additional submissions on why the Notice Letter was not included in its hearing submissions. Aviva explained in its additional submissions that if the Notice Letter was not included in its hearing submissions, it was “nothing more than an innocent administrative oversight.” Aviva also submits that there was no dispute as to whether the Notice Letter was provided to R.R., and that R.R. has not disputed the fact that he received notice of the repayment issue.
Did the Tribunal breach procedural fairness?
I am satisfied that the Tribunal breached procedural fairness in the circumstances. By dismissing the appeal on the basis that the Notice Letter was not included in the evidence at the hearing, the Tribunal denied Aviva the opportunity to have its case heard on its merits.
The main issue for the hearing was whether Aviva could establish that benefits were paid to R.R. as a result of wilful misrepresentation or fraud, in which case Aviva would be entitled to repayment of benefits under s. 52 of the Schedule. As a precondition to repayment, Aviva was also required to establish that it provided notice to R.R. of the amount of repayment in accordance with s. 52(2)(a) of the Schedule.
The key evidence demonstrating whether Aviva complied with s. 52(2)(a) was the Notice Letter. Aviva referred to the Notice Letter in its application and included a copy of the Notice Letter in its case conference materials, but did not put the Notice Letter before the Tribunal at the hearing. Aviva acknowledges in its additional submissions that the Notice Letter was not part of the record before the adjudicator at the hearing. Aviva attributes this to an “administrative oversight”.
The Tribunal did not have the Notice Letter before it at the hearing. However, it is clear from Aviva’s application that Aviva stated that it sent the Notice Letter to R.R. on December 15, 2015. Aviva stated in its application:
Pursuant to section 52(1)(a), Aviva wrote to the claimant on December 15, 2015 notifying him of the insurer’s intention to seek repayment of IRBs in the amount of $9,673.38 for payments made between December 10, 2014 and November 10, 2015. Aviva has therefore satisfied its notice requirements per the [Schedule].
Aviva’s application formed part of the hearing record, in accordance with the Tribunal’s case conference order.
There was no reason to doubt Aviva’s assertion that it sent the Notice Letter in accordance with s. 52(2)(a) of the Schedule. R.R. did not contest the fact that he received the Notice Letter, not having responded to Aviva’s application. There was no reason to believe that the delivery of the required notice was in issue. Although compliance with s. 52(2)(a) of the Schedule was neither contested nor controversial, the Tribunal dismissed Aviva’s application based on that issue without providing Aviva with an opportunity to respond to the Tribunal’s concern.
If this matter had gone to an oral hearing, any doubt as to whether Aviva provided the required notice could have been dealt with by a simple clarification question from the adjudicator. While that opportunity is not available in a written hearing, the Tribunal could have requested additional information. Rule 9.1 states that the Tribunal may request additional documentation from a party at any stage of the proceeding, as it “considers necessary for a full and satisfactory understanding of the issues in the proceeding.” Rule 3.1 states that the Rules are to be “liberally interpreted and applied” to ensure “efficient, proportional, and timely resolution of the merits of the proceedings.” Requesting additional information in accordance with Rule 9.1 would have allowed the Tribunal to consider the merits of Aviva’s application.
Normally, a tribunal is not required to raise issues that it perceives with a party’s evidence before rendering a decision. It is the parties’ responsibility to lead the best evidence in support of their cases. However, in this case, there was no reason to consider Aviva’s compliance with s. 52(2)(a) to be a live issue. In the unique circumstances of this case, therefore, fairness required that Aviva be put on notice of the issue before the Tribunal dismissed the application for that reason.
Having said that, I would caution parties to ensure that all documents that they wish the Tribunal to consider are filed with the Tribunal for the purpose of the hearing. The Tribunal makes its decision based on the documents submitted to it for the hearing, and the hearing member does not review documents that were submitted for the purpose of the case conference. While the Tribunal may request further documentation that it considers necessary, the onus is on the parties to put their case forward.
As I am satisfied that there was a breach of procedural fairness in this case, it is not necessary to consider whether or not the Tribunal made a significant error of fact such that it would likely have reached a different decision.
Conclusion and Order
- For the reasons set out above, I am satisfied that the Tribunal violated the rules of procedural fairness. As a result, I order a rehearing in this matter.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: December 1, 2017