RECONSIDERATION DECISION
Before: Chloe Lester, Vice Chair
File: 17-004906/AABS
Case Name: A.P. v. Coachman Insurance Company
Written Submissions by:
For the Applicant: Gus Triantafillopoulos, Legal Counsel
For the Respondent: Jennifer Beresford, Legal Counsel
OVERVIEW
1The applicant was injured in a car accident on March 11, 2016. The applicant was denied certain benefits and filed an application for dispute resolution to the Licence Appeal Tribunal (the “Tribunal”). At the case conference the issues were narrowed that only the issues of income replacement benefits (“IRB”), interest and an award were being heard at the hearing.
2The Tribunal released a decision on June 1, 2018 where the applicant was entitled to a specific quantum of income replacement benefit for a specified time period and interest.
3The respondent, the insurer, requested a reconsideration of the Tribunal’s decision. They claim the Tribunal’s decision does not accurately order the timeframe for payment of the income replacement benefits and when interest on the medical benefits begins to be payable. The respondent requests the Tribunal’s decision be amended.
4The applicant objects to the Request for Reconsideration stating the order is correct and since the respondent has not entered any evidence to support their submissions, it should be dismissed.
5Even though there was no evidence tendered on behalf on the respondent in their Request for Reconsideration, the Tribunal’s decision and the Statutory Accident Benefits Schedule (“SABS”) contained sufficient information to render a decision.
6Pursuant 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
7The respondent’s Request for Reconsideration is allowed in part.
LEGAL TEST
8The grounds for a Request for Reconsideration are contained in section 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
9The section states a Request for Reconsideration will not be granted unless 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.
10The respondent asserts that they therefore are entitled to a reconsideration pursuant to section 18.2(a) and (b) of The Rules. More specifically, they have to prove on the balance of probabilities the Tribunal’s decision violates one or more of those criteria.
ANALYSIS
Did the Tribunal’s decision violate Rules 18.2 a and/or b regarding the issue of income replacement benefit?
11The respondent claims the Tribunal’s decision accurately sets out the eligible timeframe of income replacement benefits in the introduction, up until the pre-104 mark, but does not reflect it in the order.
12The adjudicator expresses the timeframe of the income replacement benefit and the issue to be decided in 6 different ways in her decision:
a. Paragraph 4 states “On January 5, 2018, the respondent agreed that the applicant was entitled to IRB’s up to the 104-week mark…”
b. Paragraph 8(a) states the issue as “Is the applicant entitled to IRB’s in the amount of $329.81 weekly from March 18, 2016 to date and ongoing?”
c. Paragraph 9(a) states “The applicant has established on a balance of probabilities that he is entitled to the quantum of IRB’s claimed.”
d. Paragraph 10 indicates “The parties agree that the applicant has been unable to work and entitled to IRB’s up to this hearing. The only issue is whether the applicant has proven the quantum of the IRB’s he is entitled to.”
e. Paragraph 32 states “In conclusion, the applicant is entitled to $329.81/week in IRB’s from March 29, 2016 to August 2, 2017 and then from November 23, 2017 onwards in accordance with the Schedule.”
f. Paragraph 42(a) states “The applicant has proven the quantum of IRB’s owed and therefore IRB’s are payable in accordance with my reasons above.”
13I find the adjudicator violated Rule 18.2. The decision is unclear what the issues in dispute for the hearing were. The parties did not put forth any submissions regarding entitlement to the income replacement benefit at the hearing, yet the time period the decision ordered the respondent to pay would suggest an entitlement to pre and post 104 income replacement benefit. I find it is unclear from the decision whether the parties agreed the decision would focus on a specific time period. Also the decision finds a period of non-compliance that would disallow payment for a period of time, but it appears the submissions of the parties did not ask the adjudicator to make a finding on it. The analysis of the decision focuses solely on the quantum of income replacement benefit and therefore the order should reflect that.
Did the Tribunal’s decision violate Rule 18.2 a and/or b regarding the issue of interest?
14The respondent claims there was an error in law when the decision stated that interest is payable from the date each OCF-18 was submitted. I find the adjudicator did violate Rule 18.2 regarding the issue of interest.
15The adjudicator states in Paragraph 38 “Interest is payable according to the Schedule under s. 51(3). From the date each OCF-18 was submitted until …”.
16The Schedule states under s.51(3) “Interest is payable at the rate of 1 per cent per month, compounded monthly, from the date on which the amount becomes overdue….”.
17I find there was an error in fact which led to an error in law. The day a treatment and assessment plan is submitted to the insurance company is not necessarily when it becomes overdue. The applicant would have to at least incur the medical treatment. There was no evidence to support the treatment was incurred on the day the treatment and assessment plan was submitted. Therefore I find the adjudicator’s decision to award interest on the day the treatment and assessment plan was submitted to the insurance company an error in law.
Redress
18As there has been more than one violation of the criteria under Rule 18.2, I grant the Request for Reconsideration in part. The applicant requested the decision be amended. I do not have enough information from the Request for Reconsideration to amend the decision. I refer the decision back to the adjudicator to amend her decision. The adjudicator may also have to adjust paragraph 34 of the decision (interest regarding IRB claim) depending on the outcome on the issue of income replacement benefits.
CONCLUSION
19For the reasons noted above, I grant in part the respondent’s Request for Reconsideration. The Tribunal orders the decision to go back to the hearing adjudicator for amendment.
Chloe Lester Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 16, 2019