M.Y. v. Aviva Insurance Company, 2018 CanLII 139517

RECONSIDERATION DECISION

Before: Heather Trojek, Vice-Chair

Date: December 11, 2018

File: 17-007683/AABS

Case Name: M.Y. v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Carlos Ortiz, Masgras Professional Corporation

For the Respondent: Michael White, Kostyniuk & Greenside Lawyers

OVERVIEW

1This Request for Reconsideration was filed by the respondent. It arises from a preliminary decision in which the Tribunal allowed the applicant to proceed with her application despite her non-attendance at insurer examinations (IEs). The IEs were requested under section 44 of the Schedule¹ to assess the applicant’s initial entitlement to income replacement benefits (IRBs).

2As a condition² to allowing the application to proceed, the Tribunal ordered the applicant to attend IEs required by the respondent to assess her entitlement to IRBs. The respondent was ordered to provide the applicant with new IE dates within 35 business days of receiving the Tribunal’s decision.

3The respondent does not agree with the Tribunal’s decision. The respondent argues that due to the prejudice it suffered as a result of the applicant’s failure to attend numerous IEs over a period of years, the applicant should be completely barred from proceeding with her application.

4The applicant submits that she notified the respondent of and provided reasonable explanations for her non-attendance at the IEs in question. As a result, she argues that she should not be barred from proceeding with her application and that the Tribunal’s decision is correct.

5Pursuant to s. 17(2) of the *Adjudicative Tribunals Accountability, Governance and Appointments Act*, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

6The respondent’s request that the applicant be completely barred from proceeding with her application is dismissed.

FACTS

7The applicant was involved in an accident on February 22, 2015. After being denied entitlement to income replacement benefits the applicant submitted an application to the Tribunal.

8The respondent scheduled seven³ IEs to assess the applicant’s entitlement to IRBs. The parties do not contest the fact that the applicant failed to attend each of the seven IEs scheduled by the respondent to assess her entitlement to IRBs.

9At the preliminary issue hearing, the applicant submitted copies of emails⁴ from her legal representative to the respondent requesting that two of the seven IEs be rescheduled. One because the applicant had to travel overseas for a funeral and another because the applicant was experiencing severe headaches.

10The respondent submitted a letter from one of its IE assessors which confirmed the applicant cancelled an assessment scheduled for March 27, 2017 because she was working.

ANALYSIS

11In order for a Request for Reconsideration to be successful one or more of the following grounds needs to be established. Those grounds are as follows:

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.

12The respondent argues that the Tribunal’s decision should be reconsidered because it violated the rules of natural justice and/or made a significant error in law and fact such that it likely would have reached a different decision. The respondent submits that the Tribunal failed to apply the correct legal onus in this case and that it reached its decision in the absence of supporting evidence.

13I am not persuaded by any of the arguments made by the respondent. I find the Tribunal’s decision to be well-reasoned and based on a balanced and fair assessment of the submissions and evidence filed by both parties. This is evidenced by the fact that the Tribunal accepted some but not all of the applicant’s arguments. The Tribunal, for instance found, despite the applicant’s arguments to the contrary, that the respondent’s IE notices were adequate and compliant with the Schedule.

The Tribunal applied the Correct Onus

14In its Request for Reconsideration the respondent argues that the Tribunal’s decision should be overturned because it put the onus on the respondent instead of the applicant. I find no reason to believe that the Tribunal misapplied the onus in this case.

15In paragraph 12 of its decision the Tribunal clearly states that the onus is on the insured person to establish a reasonable explanation for not attending IEs. The respondent acknowledges that at the beginning of its decision the Tribunal confirms where the onus lies. The respondent however, argues that other statements made by the Tribunal demonstrate that the Tribunal applied the onus incorrectly.

16The respondent refers to paragraphs 24 and 25 of the Tribunal’s decision as evidence that the Tribunal misapplied the onus. I find that the respondent misconstrues the wording or intent of statements made by Tribunal in an attempt to bolster its Request for Reconsideration. In paragraph 25 of its decision the Tribunal states:

… that the evidence that MY simply failed to attend IEs without reasonable explanation is too weak to make a case that she is barred from proceeding with her appeal, which is a severe penalty in this case.

17The respondent argues that the wording of this sentence demonstrates that the Tribunal made a significant error in law by placing the onus on the respondent as opposed to the applicant. Contrary to the respondent’s submissions, I find the Tribunal is simply saying that it does not agree with the respondent’s position.

18In light of the Tribunal’s expertise and its immediate acknowledgement of where the burden lies, I find that the respondent’s interpretation of statements made by the Tribunal to be unfounded and unpersuasive.

The Tribunal made its decision based on Supporting Evidence

19I find that the Tribunal made its determination based on the evidence before it. I do not accept the respondent’s argument that the Tribunal’s decision was made on unsubstantiated assertions contained in the applicant’s submissions.

20In paragraph 25 of its decision, the Tribunal lists the reasons for its decision. In its reasons, the Tribunal clearly relies and puts weight on the emails the applicant’s legal representative forwarded to the respondent requesting that two of the IEs be rescheduled. The Tribunal also relied on the letter submitted by the respondent as evidence that the applicant advised and cancelled one of the IEs because she was working.

21Contrary to the respondent’s submissions, I find that the Tribunal’s decision is grounded in evidence submitted by both parties and not erroneously on unsubstantiated submissions made by the applicant as the respondent alleges.

Tribunal’s Discretion under Section 55

22The purpose of the reconsideration process, is not to interfere with a discretionary decision properly made by the Tribunal simply because one party does not agree with it.

23The Tribunal states in paragraph 38 of its decision that both parties suggested that an alternative open to the Tribunal was to exercise its discretion and permit the applicant to proceed with her application subject to certain terms and conditions. The respondent asked the Tribunal to consider the length of time and the number of missed IEs before exercising that discretion.

24The Tribunal did not find the respondent’s arguments convincing and proceeded to exercise the discretion available to it.

25I find the Tribunal’s decision to be procedurally fair to both parties. In exercising its discretion, the Tribunal attempted to reduce any potential prejudice that could be caused to both parties. At paragraph 40, the Tribunal acknowledges that ordering the IEs to be conducted within 35 days of its decision, is in the best interest of both parties because it facilitates the prompt assessment of the applicant’s injuries and her ability to work.

26I find that the Tribunal‘s decision to be just and equitable to both parties. I can find no basis upon which it should be reconsidered.

CONCLUSION

27For the reasons noted above, I dismiss the respondent’s Request for Reconsideration.

28Pursuant to the powers granted to me, I order that the parties comply with terms and conditions contained in the Tribunal’s decision.

Heather Trojek Vice-Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O.Reg. 34/10
2. 2Pursuant to s. 55(2) and 55 (3) of the Schedule
3. 3one was scheduled in 2016; five were scheduled in 2017 and one was scheduled in 2018
4. 4One email was dated October 25, 2016 and the other was dated January 22, 2018