Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: D. Stephen Jovanovic, Member
File: 17-001125/AABS
Case Name: T.H. v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Mohamed Elbassiouni, Counsel
For the Respondent: Jessica Green, Counsel
OVERVIEW
1This decision deals with a request for reconsideration of a decision of the Tribunal dated January 17, 2018 whereby the adjudicator dismissed the applicant’s claim for non-earner benefits from April 7, 2015 and ongoing thereafter.
2The applicant was involved in a motor vehicle accident on October 7, 2014 in which he sustained injuries to his neck and back. Various issues arose between the applicant and the respondent and, as they could not be resolved, the applicant filed an application with the Tribunal for Dispute Resolution.
3By the time the matter came on for a hearing before the adjudicator, all issues had been resolved except the applicant’s entitlement to a non-earner benefit under section 12(1)1 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule) which reads as follows:
The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:
- The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
4Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as follows:
(a) a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident;
5As will be examined below, the 26-page request for reconsideration can be distilled to three issues:
A) Did the adjudicator breach the rules of natural justice and procedural fairness by denying the applicant the right to be heard and to adduce evidence?
B) Did the adjudicator make a significant error of law in his interpretation of section 36 of the Schedule?
C) Did the adjudicator commit a significant error of law in deciding that the applicant did not satisfy the statutory test for the determination as to whether he was entitled to the non-earner benefit?
6For the reasons that follow the request for reconsideration is dismissed and the decision of the adjudicator confirmed.
BACKGROUND
7The applicant, who was 78 years old at the time of