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
File: 16-003034/AABS
Case Name: S.T. v. Economical Mutual Insurance Company
Written Submissions By:
For the Applicant: William Keele and Rikin Morzaria
For the Respondent: Lisa Armstrong and Shalini Thomas
Overview
1In this request for reconsideration, S.T. claims ongoing entitlement to benefits under the Statutory Accidents Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 403/96 (the “Schedule”). At its heart, her request concerns the applicability of the Schedule’s two-year time limit to dispute her entitlement to those benefits. The Licence Appeal Tribunal (“Tribunal”) held that the limitation period applied and, on that basis, dismissed S.T.’s application. S.T. asks me to reconsider the Tribunal’s decision. For the reasons below, I deny her request.
The Facts
2The parties agree on the essential facts, which are as follows.
3On September 12, 2008, S.T. was struck while walking across an intersection. As a result, she was hospitalized, required surgery, and received benefits under the Schedule from Economical Mutual Insurance Company (“Economical”). This dispute concerns two of those benefits: attendant care benefits, and housekeeping and home maintenance benefits. Between the accident’s date and two-year anniversary, Economical paid S.T. $66,777.92 and $9,512.85 in both benefits, respectively.
4Economical then terminated them. On August 26, 2010, Economical sent S.T. a letter and Explanation of Benefits advising her that any attendant care or housekeeping and home maintenance expenses incurred more than 104 weeks after the accident – i.e., after September 12, 2010 – would not be paid unless she was determined to be catastrophically impaired. Economical included an Application for Catastrophic Impairment (“OCF-19”), which S.T. did not submit by September 12, 2010.
5Four and a half years later, on May 13, 2015, S.T. submitted an OFC-19. Economical approved the application in November 2015, thereby determining that S.T. was catastrophically impaired. S.T. then submitted claims for both attendant care and housekeeping and home maintenance benefits for expenses she incurred following the 104-week post-accident mark. Economical refused to pay the claims given its 2010 denial and S.T.’s failure to dispute that denial within two years as required by the Schedule.
6In response, S.T. applied to the Tribunal. In its decision of September 7, 2017, the Tribunal determined that the application was time-barred by the limitation periods in s. 281(2) of the Insurance Act, R.S.O. 1990 c. I.8, as it read in September 2010, and s. 55(1) of the Schedule, which required S.T. to apply for mediation at the Financial Services Commission (“FSCO”) within two years of Economical’s denial of benefits. In essence, S.T.’s central argument was that the two-year limitation period did not start to run before she was deemed catastrophically impaired and thus eligible to continue to receive the benefits in question. The Tribunal rejected her position based on jurisprudence rendered by both FSCO and Ontario’s Court of Appeal. Further, the Tribunal held that the doctrine of discoverability does not apply in the statutory accident benefits context. Therefore, the Tribunal dismissed S.T.’s application.
7S.T. now asks me to reconsider the Tribunal’s decision.
Decision and Reasons
A. Preliminary Issue: The Timing of This Request
8The Tribunal’s Rules of Practice and Procedure (“Rules”) require requests for reconsideration to be filed within 21 days of the date of the decision for which reconsideration is being sought. In this case, S.T. did not request a reconsideration until October 19, 2017, 42 days after the date of the Tribunal’s decision. Why?
9S.T.’s counsel explained that, upon receipt of the Tribunal’s decision, they initially intended to only apply for judicial review. However, they then discovered the “developing body of case law with respect to judicial review of [Tribunal] decisions,” which prompted them to seek a reconsideration to “first exhaust all internal review options” before proceeding further. As a result, they filed S.T.’s application for judicial review and request for reconsideration contemporaneously on October 19, 2017. Further, S.T.’s counsel explains their delay by pointing out that there is nothing in the Tribunal’s Rules of Practice and Procedure (“Rules”), Judicial Review Procedure Act, or the Rules of Civil Procedure requiring a party to first seek a request for reconsideration before initiating an application for Judicial Review.
10In my view, this explanation falls short. The requirement that a party exhaust all adequate alternative remedies before commencing a judicial review is a well-established principle of administrative law. Indeed, it dates back decades and has been the subject of numerous Supreme Court of Canada decisions: see Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61 at para. 30. While there may be nothing in the Rules, Judicial Review Procedure Act, or the Rules of Civil Procedure explicitly compelling one to seek a reconsideration before applying for judicial review, the obligation nonetheless exists. Thus, based on counsel’s submissions, I see no acceptable reason to excuse the late filing. I would therefore refuse this request for reconsideration on that basis.
11At any rate, even after considering the substance of S.T.’s request, I see no reason to intervene.
B. S.T.’s Substantive Arguments
The Limitation Period
12S.T. claims that the Tribunal “erred in law in finding that the limitation period…started to run before [she] had a viable cause of action with respect to entitlement to Attendant Care Benefits and Housekeeping and Home Maintenance Benefits.” She offers no further argument or analysis, let alone identify a specific error of law in the Tribunal’s reasoning. Instead, S.T.’s request for review merely asserts that the Tribunal erred.
13A reconsideration is not an appeal or an opportunity to reargue one’s case. Available grounds for reconsideration are set out under Rule 18.2. Rule 18.2(b) provides for a reconsideration where “the Tribunal made a significant error of law or fact such that the Tribunal would have reached a different decision had the error not been made.” Disagreeing with the Tribunals finding of fact or interpretation of the law, or likewise simply stating that “the Tribunal got it wrong,” are not sufficient grounds for reconsideration under Rule 18.2(b). The onus is on the party seeking reconsideration to establish the error of fact or law.
14In this case, S.T.’s submissions fail to establish even a prima facie case that the Tribunal made an error of law. Beyond a bald assertion, they offer nothing. Consequently, her argument does not meet the threshold for reconsideration.
The Doctrine of Discoverability
15S.T. also argues that the Tribunal “erred in law in finding that the doctrine of discoverability does not apply to the two year limitation period.” Again, she offers no further submissions or analysis.
16As with the first ground, this issue was raised during the hearing and, offering clear reasoning for its decision, the Tribunal rejected S.T.’s arguments. S.T.’s request at this stage fails to identify a specific error of law with the Tribunal’s reasoning, or provide any legal argument or authority to support her position. Again, the entirely of S.T.’s submission is simply “the Tribunal was wrong.”
17This submission also fails to establish even a prima facie case that the Tribunal made an error of law. Thus, it does not meet the threshold for reconsideration either.
Dr. Becker’s Evidence
18Lastly, when this matter was heard on June 19, 2017, S.T. sought to call Dr. Becker as an expert witness. The Tribunal denied her request for three reasons: 1) calling an expert was outside of the scope of the hearing as agreed on during the case conference, 2) S.T. had not given notice of her intention to call an expert witness as required by the Rules, and 3) the Tribunal was not satisfied that Dr. Becker’s testimony would have significant probative value.
19S.T. claims that the Tribunal erred in law by finding
that Dr. Becker’s testimony would not add to the legal issue to be determined at the hearing, and later relying on the fact that the Applicant submitted an OCF-22 for Dr. Becker to complete a file review relating to catastrophic impairment in support of [its] finding that there was no evidence that the Applicant was unaware that she likely would be determined to be catastrophically impaired.
20As with S.T.’s first two asserted grounds for reconsideration, S.T.’s submissions here fail to provide a legal argument or authority, are limited to a bald assertion, and fail to establish a prima facie case that the Tribunal made an error of law. I would dismiss it for that reason.
21However, unlike the first grounds, this one is based on a factually incorrect premise. The Tribunal did not rely on the OCF-22 in the manner alleged. Rather, the Tribunal’s decision makes clear at para. 59 that, having found that the doctrine of discoverability did not apply in this context, the Tribunal was also of the view that, even if it did, the applicant would still not succeed.
22I see no error in the Tribunal’s reasoning with respect to this issue.
Conclusion
23This request for reconsideration is denied.
Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario
Released: January 31, 2018