RECONSIDERATION DECISION
Before: Kimberly Parish, Adjudicator
File: 18-004966/AABS
Case Name: J.L. v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Ovidiu E. Klein, Paralegal
For the Respondent: Diana M. Oliveira, Counsel
OVERVIEW
1On June 30, 2019, the Licence Appeal Tribunal (the “Tribunal”) issued a preliminary issue decision in this matter pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant, J.L., has filed a request for reconsideration following the release of the preliminary issue decision released on June 20, 2019 which I issued. The Tribunal found he was statute barred pursuant to s. 56 of the Schedule from proceeding with his claim for income replacement benefits (“IRBs”).
2J.L. is seeking through the reconsideration process an order that the Tribunal vary the decision and find his application for IRBs is not statute barred pursuant to s. 56 of the Schedule and/or to grant an extension of time for J.L. to file his application with the Tribunal pursuant to s. 7 of the Licence Appeal Tribunal (“LAT”) Act.
3Pursuant 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
4The applicant’s request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration are contained in amended Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure, Effective February 7, 2019. A request for reconsideration will not be granted unless one of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result;
(d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6J.L. submits that section 18.2 (a) and (b) apply.
7J.L. submitted the Tribunal erred in fact and law in its application of s. 56 in finding that a lack of Report of Mediator as considered under s. 56 (2) of the Schedule does not bar its applicability to extend the limitation period. Further, that this error violates the rules of natural justice and/or procedural fairness. J.L. also submits the Tribunal erred in fact and law when it applied s. 7 of the LAT Act and determined an extension of time was not warranted. J.L. further submitted the Tribunal erred in fact and law by placing the onus of proving that the limitation period had not expired on the applicant rather than the respondent for why it had proscribed.
8I reject J.L.’s submission that the Tribunal erred in its application of s. 56 when it found that as a result of a Financial Services Commission of Ontario (“FSCO”) mediation never being scheduled, and subsequently no Report of Mediator being issued that there is no date in which the 90-day post-mediator’s report can be calculated from. J.L. submitted that he followed through with the pre-April 2016 Schedule in applying to mediate the denial of IRBS within two years of the denial date. Therefore, he submits it would violate the rules of natural justice and procedural fairness to require he be bound by the post-April 2016 Schedule, especially with the lack of formal transitional rules.
9J.L relies on 16-000588 v. State Farm Insurance Company1 in which a 90-day extension of time was granted in the absence of a Report of Mediator. The Tribunal addressed in paragraph 10 of its original decision that it found the facts of that case distinguishable and was not persuaded by it. The respondent submitted that the adjudicator in 16-000588 v. State Farm noted as no transitional rules on point had been produced by the parties it resulted in the adjudicator making a decision based on first principles. I agree with the respondent’s reconsideration submission that to rely on 16-000588 v. State Farm and conclude a finding in the favour of the applicant would produce an absurd result. In the present reconsideration, the applicant did not file an application with the Tribunal until May 31, 2018 which was more than 26 months past when the applicant initially filed for mediation at FSCO on March 17, 2016. The Tribunal then considered in its original decision whether an extension of time was warranted under s. 7 of the LAT Act and found that it was not.
10J.L. has raised a new argument in its submissions that the Tribunal erred in fact and law when it placed the onus on the applicant, not the respondent for proving the limitation period had not expired. This argument was not put forward by J.L. in his original submissions for the hearing. I reject J.L.’s argument for the following reasons. The reconsideration process is not an opportunity for a losing party to supplement the evidence once the deficiencies in his or her case have been exposed in a decision. This was noted in the reconsideration decision submitted by the respondent in which the Executive Chair in 16-000066 v. Waterloo regional Municipalities Insurance2 which noted the reconsideration process cannot be used to re-litigate matters which have been addressed in the first instance. However, I will confirm what the Tribunal noted in its original decision. It noted that the respondent’s March 5, 2015 denial of IRBs was a clear and unequivocal denial. The adjuster’s log notes confirmed a mediation could not be scheduled with the FSCO as their calendar was full. The respondent provided seven different dates between May 25 – February 20, 2017 in which it had left voicemail messages with J. L’s prior legal counsel indicating an application with the Tribunal should be filed. The Tribunal accepted this information in its original decision and rejected the applicant’s argument that because a Report of Mediator was never issued, or produced to the parties by FSCO, this would continue the 90-day extension of the limitation period pursuant to s. 56 (2). Therefore, I do not find the rejection of the applicant’s argument has placed the onus on the applicant of proving the limitation period had not expired.
11J.L raised within its reconsideration submissions that the Tribunal consider in the alternative, that the cover letter from FSCO dated December 27, 2018 confirming there was no Report of Mediator, or any correspondence which suggests the FSCO file was or is closed represent the event which the 90-day extension applies pursuant to s. 56 (2). I reject J.L.’s submission for two reasons. J.L. had this documentation prior to the original hearing but is putting forward this argument for the first time in his reconsideration submissions. It would not make sense that the 90-day extension period proposed by J.L. should begin to run from December 27, 2018 as that date is seven months after the application was filed with the Tribunal on May 31, 2018. The preliminary issue hearing was to determine if the applicant is statue barred from proceeding with his claim for IRBs to the Tribunal. I will therefore not consider this argument as part of the reconsideration.
12I find the Tribunal correctly applied s. 56 of the Schedule when it concluded in its original decision that a date does not exist to calculate the 90-day post-mediator’s report extension from.
13I find the Tribunal did not err in its application of s. 7 of the LAT Act. J.L. submitted the Tribunal made significant errors of fact and law with regards to three of the factors the Tribunal needs to consider when determining if s. 7 of the LAT Act applies. These factors include: bona fide intention to appeal, length of the delay, and prejudice.
14It was submitted by J.L. that it was a significant error of fact and law when the Tribunal found there was no bona fide intention to appeal due to the significant lapses in time which occurred since J.L. filed his Application for Mediation with FSCO on March 17, 2016. J.L. submits the Tribunal failed to consider the applicant’s explanation and that the period of time was an “allowable statutory timeline” with regards to s. 56 (2) as no Report of Mediator was issued, therefore the limitation period is ongoing. The Tribunal noted the applicant’s reasons for the delay within paragraph 15 of its decision and these reasons were not accepted by the Tribunal.
15J.L. has noted the Tribunal erred in its application of the law when it factored in the time delay from the date of the Tribunal application to when a hearing would take place. The Tribunal considered the delay to be 26 months which was from the date the Application for Mediation was filed with FSCO on March 17, 2016 and when the application was filed with the Tribunal on May 31, 2018. J.L. argues the period of time which should have been considered by the Tribunal is the delay between the expiry of the limitation period and the filing of the Tribunal application which represents the period March 5, 2017 to May 31, 2018. I agree with J.L.’s submission that the Tribunal erred when it based the length of the delay on the date the Application was filed with FSCO (March 16, 2016.) I find the correct date for which the delay should have been calculated from is the expiry of the limitation period (March 5, 2017) to the date when the application was filed with the Tribunal (May 31, 2018) which makes the length of the delay almost 15 months. However, the error in law is not significant and that the Tribunal would likely not have reached a different conclusion had the error not been made as a delay of 15 months is still a significant delay.
16I am not persuaded by the reconsideration decision submitted by the applicant, A.F. v. North Blenheim Mutual Insurance Company; N.L. v. North Blenheim Mutual Insurance Company.3 That reconsideration noted that the Tribunal erred in law when it considered the length of the delay and concluded that if the applicants were permitted to proceed with their application, a hearing on the merits would take place almost four years after the respondent denied the claims. While the Tribunal relied in its original decision on 17-006956 v Guarantee Company of North America4, the delay in that case was more than two years, I still find the 15-month delay in J.L.’s case represents a significant delay. The Tribunal in its decision rejected the applicant’s explanation for the delay that it was awaiting on a response from FSCO. Therefore, that argument will not be further considered as part of the reconsideration process.
17J.L. submitted that the Tribunal made two significant errors of law when it found that as a result of the applicant not proceeding with his application in a timely manner, significant prejudice would be caused to the respondent if an extension of time were to be granted. J.L. submits the Tribunal incorrectly considered the amount of time from the within Tribunal application to when a hearing would take place. This issue has been previously addressed in the paragraph above.
18J.L. submits the Tribunal made another significant error of law when it based its actual decision on a lack of actual evidence of prejudice. J.L. has argued that the Tribunal should have considered the principle in Elkhouli v. Senathirajah5 that an ‘assertion of prejudice must be accompanied by actual evidence of same.’ J.L. further submitted this principle was accepted by Vice Chair Kershaw in A.F. The respondent raised J.L.’s submission is inaccurate. In A.F. it was the applicant’s submission that the Tribunal consider the principle in Elkhouli. In paragraph 35 of that decision, Vice Chair Kershaw noted that the Tribunal did not err in law by not considering Elkhouli and that the Tribunal generally considered the four factors in deciding whether to grant an extension of time.
19J.L. relied on the Tribunal decision 17-007052 v. Unica Insurance Inc.6 which noted four factors may be considered when determining if an extension of time will be granted under s. 7 of the LAT Act but that these four factors are a guideline. I accept that the Tribunal used the four factors as a guideline in reaching its decision that an extension of time would not be granted.
20J.L. submits the Tribunal accepted in its decision that there are merits to the applicant’s IRB claim and that the applicant was caught between the transition of Schedules without formal transitional rules. J.L. submitted as a result, he should be granted an extension of time to be able to dispute IRBs. I agree with the respondent that it was preliminary issue hearing the Tribunal was to be deciding on and not the merits of the applicant’s case. In its decision, the Tribunal did accept there were merits to the applicant’s IRB appeal but that it did not change its finding that an extension of time would not be granted with respect to the other factors.
Respondent’s Request for Costs
21In its reconsideration submissions, the respondent has claimed costs pursuant to Rule 19.1 of Tribunal’s Common Rules of Practice and Procedure. Noted under Rule 19.1, a party may request costs through the Tribunal when it believes another party in a proceeding has acted unreasonably, frivously, vexatiously, or in bad faith. The respondent submitted the applicant has behaved unreasonably in this proceeding in light of the evidence that the applicant’s prior legal representative was negligent in handling his IRB claim and that LawPro has been ghost writing the applicant’s submissions.
22The respondent’s request for costs is dismissed. I do not find the applicant’s written submissions to the preliminary issue hearing, its request for reconsideration, and the applicant’s written submissions are alleged to have been written by LawPro rises to the level warranting a cost award.
CONCLUSION
23For the reasons I have noted above, I dismiss the applicant’s Request for Reconsideration under Rule 18.2 (a) and (b).
Kimberly Parish
Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division Released: December 2, 2019
Footnotes
- 16-000588 v. State Farm Insurance Company, 2016 CanLII 106918 (ONLAT)
- 16-000066 v. Waterloo regional Municipalities Insurance, 2017 CanLII 19186 (ONLAT), at para 13
- A.F. v. North Blenheim Mutual Insurance Company; N.L. v. North Blenheim Mutual Insurance Company, 2019 CanLII 58193 (ONLAT)
- 17-006956 v Guarantee Company of North America, 2018 CanLII 110952 (ONLAT)
- Elkhouli v. Senathirajah, 2014 ONSC 6140
- 17-007052 v. Unica Insurance Inc., 2018 CanLII 83523 (ONLAT)