RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 18-007302/AABS
Case Name: T.D. v. Certas Direct Insurance Company
Written Submissions by:
For the Applicant: Carlos Ortiz, Paralegal
For the Respondent: Andrew McKague, Counsel
OVERVIEW
1This reconsideration decision concerns an application to the Licence Appeal Tribunal by the applicant, T.D., who claims that she is entitled to a non-earner benefit under the Statutory Accident Benefits Schedule. Her insurer, Certas Home and Auto Insurance Company, disagrees. While it has not explicitly denied T.D.’s application for non-earner benefit, T.D. has yet to file a completed Disability Certificate. Certas argues that, absent a Disability Certificate to support T.D.’s claim, she is not entitled to a non-earner benefit, and the Tribunal has no jurisdiction over the parties’ dispute.
2The parties participated in a case conference on January 15, 2019 where these arguments were apparently raised. Following the case conference, the Tribunal issued a report on March 6, 2019 in which it noted that “it was determined that the Tribunal did not have jurisdiction to hear this matter” and, “on consent,” the file was closed.
3Nevertheless, the applicant filed a request for reconsideration on March 7, 2019.
4Pursuant 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
5The applicant’s request for reconsideration is granted.
ANALYSIS
Did the appellant meet one or more criteria under Rule 18.2 to grant a Request for Reconsideration?
6The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. That Rule states that a request for reconsideration will not be granted unless one or more of the criteria in Rule 18.2 applies.
7In this case, the applicant asserts that she is entitled to a reconsideration on the basis of Rule 18(a), specifically that the Tribunal made an error of law or fact by “failing to acknowledge that [she] made an application for non-earner benefits and that a denial is not a requisite [sic] to start a [Tribunal] proceeding if benefits are applied for but never paid.” Indeed, she offers no explanation of why she consented to the Tribunal’s file being closed following the parties’ case conference.
8Certas takes the position that T.D. has not properly applied for a non-earner benefit and, therefore, no denial could be made. As it relates to the facts, the case conference adjudicator asked for submissions on the issue of jurisdiction during the case conference and, ultimately, “dismissed the application…on the basis that there was no denial by Certas and therefore nothing in dispute before the Tribunal”.
9Despite T.D.’s request, the fact of the matter is that she does not consent to her file being closed. Moreover, if Certas is right, and the Tribunal indeed dismissed T.D.’s application for lack of jurisdiction, it did so in breach of the process envisioned in Rule 3.5, which it clearly did not follow. But it is hard to tell precisely what happened. The report states that “it was determined” that the Tribunal did not have jurisdiction but does not make clear whether that determination was made by the parties or by the Tribunal.
10Moreover, even if the parties made submissions on whether the Tribunal had jurisdiction to hear the matter, I find that the decision violated the rules of natural justice as the parties were not given sufficient notice, as outlined in the Rules.
11In any event, either T.D. does not consent to her file being closed, or the Tribunal determined the issue of jurisdiction in error. Thus, the matter should proceed. That said, there remains a significant and potentially dispositive preliminary issue between the parties. For that reason, I will schedule this matter for an imminent appearance during which the parties, having followed the proper procedure, can address the extent of the Tribunal’s jurisdiction over their dispute.
CONCLUSION
12For the reasons noted above, I accept the applicant’s request for reconsideration. A case management officer will schedule a new case conference. This decision serves as notice under Rule 3.5. The parties should come prepared to argue whether the application should be dismissed without a hearing because the matter is outside the Tribunal’s jurisdiction. The parties are ordered to exchange all documents and submissions that they will be relying on 10 days prior to the case conference.
Chloe Lester
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 7, 2019