RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 17-000608/AABS
Case Name: D.G. v. TD Home and Auto Insurance Company
Written Submissions By:
For the Applicant: Robert M. Durante and Shane L. Henry
For the Respondent: Paul J. Barnes
Overview
1This request for reconsideration concerns the applicant’s motor vehicle accident in Michigan, U.S.A and, more specifically, his purported election under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) to receive accident benefits at the rate specified under Michigan law. The Licence Appeal Tribunal (the “Tribunal”) held that he was not entitled to receive such benefits, following which he asked me to reconsider the Tribunal’s decision. For the reasons explained below, I dismiss his request.
The Facts
2The basic facts are uncontroversial.
3On May 25, 2015, the applicant, D.G., and his spouse, C.R., were driving north on US Highway 23 in Michigan, returning home to Ontario. D.G. was driving C.R.’s car, which was insured by Allstate Insurance Company (“Allstate”). Unfortunately, a car travelling southbound lost control, spun across the median, and crashed into D.G. and C.R. An ambulance took D.G. to [a hospital], where he required considerable treatment.
4Following the accident, D.G. applied for no-fault accident benefits from both Allstate and TD Home and Auto Insurance Company (“TDHA”), which insured D.G.’s own car. In or around the same time, he also elected, pursuant to s. 59 of the Schedule, to receive accident benefits from both insurers in accordance with Michigan’s no-fault accident benefits regime. Soon after, Allstate began paying benefits to D.G. at the Michigan Personal Injury Protection (“PIP”) level.
5However, in September 2015, TDHA accepted priority over D.G.’s claim. Upon assuming carriage, TDHA informed D.G. that it would not pay him accident benefits at the Michigan’s PIP level. As it later explained, TDHA was not a signatory to Michigan’s “certification list” and, thus, D.G. was ineligible to receive no-fault accident benefits under the Michigan Insurance Code, 1956, c. 31. According to TDHA, D.G. could only receive benefits under the Schedule.
6Those benefits then expired. In March 2017, TDHA refused to pay for an expense claim form (OCF-6) totaling $51,464.48 USD for treatment that D.G. received at [a hospital], along with a treatment and assessment plan (OCF-18) totaling $2,372.64 for physiotherapy. TDHA denied both amounts on the basis that D.G. had already received the maximum amount payable under the Schedule for someone with non-catastrophic injuries.
7So D.G. applied to the Tribunal. The central issue before the Tribunal was whether TDHA is obligated to pay D.G. benefits at Michigan’s PIP level and, in turn, whether D.G. was entitled to receive the above-mentioned benefits that TDHA refused to pay.
8The Tribunal agreed with TDHA. It found that TDHA was not a signatory to Michigan’s no-fault certification list and, thus, D.G. was not eligible to receive benefits under the Michigan Insurance Code – that is, that D.G. did not meet the “criteria prescribed for recovery” within the meaning of s. 59(4) of the Schedule. It therefore dismissed his application.
9D.G. now asks me to reconsider the Tribunal’s decision.
Decision and Reasons
10D.G. does not take direct aim at the Tribunal’s analysis of the Michigan Insurance Code or the Schedule. Rather, he raises a new argument.
11D.G.’s new argument begins by focusing on the Tribunal’s description of C.R. as his “spouse,” an adjective that he used but did not actually prove in his written submissions to the Tribunal: see para. 20. To this same end, he swore a detailed affidavit – filed for the first time on this request – outlining his relationship with C.R., essentially proving that he and C.R. are indeed spouses.
12D.G. then raises a new implication of this relationship: as C.R.’s spouse, D.G. was insured under the Allstate policy and should continue to receive benefits under that policy at the Michigan PIP level. Indeed, he claims that, in the circumstances, he was precluded from “making any claims against the [TDHA] policy.”1 Further, he claims that the Tribunal erred in “finding that [TDHA] was automatically the highest-priority insurer” – a finding that, in fact, it did not make – and, ultimately, disputes TDHA’s assertion of priority over his claim.
13I see no reason to intervene.
14D.G. does not directly dispute the Tribunal’s determination of the central issue that was before it, namely whether TDHA is obligated to pay him benefits at Michigan’s PIP level. Put another way, he actually accepts the Tribunal’s determination that TDHA is not required to pay him those benefits. That alone is enough to resolve this request.
15Moreover, and as I have observed elsewhere, a request for reconsideration is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal.2 While there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, this is not such a case. Indeed, D.G.’s request for reconsideration goes much further than simply raising a new argument – it asks for an entirely new remedy. In essence, D.G.’s revised tact revisits the issue of priority as between TDHA and Allstate. That issue was never before the Tribunal and, more problematically, is not one that is within the Tribunal’s jurisdiction or that D.G. is, at this point, entitled to revisit. Under the Disputes Between Insurers, O. Reg. 283/95, the time for D.G.’s objection to TDHA’s assertion of priority expired long ago: see s. 5. It would therefore be inappropriate, and beyond my jurisdiction, to now adjudicate this new issue.
16I sympathize with the applicant’s position. He has clearly suffered and, it seems, must now bear the cost of the large expenses at issue. Nevertheless, I am simply not empowered to grant his request.
17Lastly, although TDHA requested costs, I refuse to make such an order. I see nothing in D.G.’s conduct triggering such consequences.
Conclusion
18This request is dismissed.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: June 13, 2018
Footnotes
- Here, he relies on s. 268(5.2) of the Insurance Act, R.S.O., c. I.8, which provides as follows: “If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant.”
- See I.K. v. Primmum Insurance Company, 2018 CanLII 13162 at para. 27.