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:
Maureen Helt, Vice-Chair
July 12, 2019
File:
17-007805/AABS
Case Name:
Aviva Insurance Canada v. H.H.
Written Submissions by:
For the Applicant:
Thomas R. Hughes, Counsel
For the Respondent:
Alina Kaganovich, Counsel
OVERVIEW
1This is a request for reconsideration made by the applicant (insurer) of a decision of the Licence Appeal Tribunal (Tribunal) dated January 31, 2019 (Decision). In the Decision the Tribunal found that the insurer was not entitled to repayment of non-earner benefits (NEBs) in the amount of $2,193.57.
2The insurer requests that the Tribunal vary its order and find that it is entitled to repayment of the $2193.57 paid out to the respondent (H.H.) in error.
3H.H. submits that the Decision is correct, and the relief sought by the insurer should be denied.
4Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Sched. 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.
RESULT
5I find that that the Tribunal made an error in law in determining that the insurer was not entitled to its claim for repayment of NEBs paid out to H.H. in error. The error is found in the Tribunal’s interpretation of section 52 of the Statutory Accident Benefits Schedule – Effective June 1, 2010, (Schedule).
ANALYSIS
6The insurer’s request for reconsideration is made pursuant to rule 18.2 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).
7The onus is on the party seeking reconsideration to establish the criteria set out in Rule 18.2. The respondent relies on Rule 18.2(b) in submitting that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
BACKGROUND
8By way of background, H.H. was involved in a motor vehicle accident on July 2, 2016. She applied for accident benefits. The insurer paid H.H. NEBs after the first 4 weeks after the onset of a complete inability to carry on a normal life. The insurer submits that H.H. was only entitled to the payment of NEBs after the first 26 weeks of the onset of a complete inability to carry on a normal life.
9The insurer explains the error was made as a result of the change made to section 12 of the Schedule. Specifically, prior to June 1, 2016, section 12 of the Schedule provided that NEBs were not payable for the first 26 weeks after the onset of the complete inability to carry on a normal life.
10After June 1, 2016, section 12 as amended reduced the waiting period for payment of NEBs from 26 weeks to 4 weeks after the onset.
11The motor vehicle accident occurred on July 2, 2016. The insurer believed that the payment of NEBs should be based on the post June 1, 2016 Schedule, which, if H.H. qualifies for the benefit, would start after four weeks. H.H. was paid NEBs from July 30, 2016 to January 13, 2017.
12On October 23, 2017 the insurer notified H.H. that as her insurance policy effective date was May 27, 2016 she was subject to s. 12 of the Schedule before it was amended on June 1, 2016. In other words H.H. was not entitled to payment of NEBs until after a twenty six week waiting period, or from October 23, 2016 onward.
TRIBUNALS DECISION
13The Tribunal found that the insurer was not entitled to repayment of NEBs paid in error to H.H. during the first 26 weeks of her disability. In reaching this Decision the Tribunal considered section 52 of the Schedule.
14Section 52 of the Schedule is as follows.
- (1) Subject to subsection (3), a person is liable to repay to the insurer,
(a) any benefit described in this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud;
(2) If a person is liable to repay an amount to an insurer under this section,
(a) the insurer shall give the person notice of the amount that is required to be repaid; and
(3) If the notice required under subsection (2) is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud. O. Reg. 34/10, s. 52 (3).
15H.H. argued that the twelve-month period began to run as of the date of the first payment which was July 30, 2016. In making this argument H.H. referred to a decision of the Financial Service Commission, Slater v. The Personal Insurance Company FSCO A07-000592 for its interpretation of the word “payment”.
16Briefly, Slater states that “to avoid the creation of a rolling limitation period “the payment” must be interpreted as meaning the first payment in error”. H.H. submits that this determination was made in a similar factual circumstance where the tribunal was considering when notice must be given within twelve months of “the payment” for the insurer to be repaid.
17In the Decision, the Tribunal cited Slater and found that when the rationale in Slater is combined with the fact that the Schedule is consumer protection legislation, the term “payment” in section 52(3) should be interpreted in favour of the insured. The Tribunal found that interpreting payment in any other way would result in a “rolling limitation period” that would create unfairness and unpredictability.
18The Tribunal found, at paragraph16 of the Decision that:
There is no doubt that the Applicant first provided notice to the Respondent about an error on October 23, 2017 and well over the 12-month limitation period under s. 52(3) of the Schedule.
RECONSIDERATION REQUEST
19In its submissions for reconsideration, the insurer submits that the Tribunal made a significant error in its finding that the term “payment” in in section 52(3) creates ambiguity such that it should be interpreted in favour of the insured.
20It is the insurer’s position that there is no ambiguity and that on a plain reading, section 52(3) allows an insurer to seek repayment of twelve months of benefits that were paid in error, once notice has been given.
21H.H., in response to the request for reconsideration submits that the insurer failed to raise the argument of “no ambiguity” at first instance and cannot do so now, upon reconsideration.
22While I agree that a reconsideration request is not to be used as an opportunity for parties to raise new arguments, I do not find that to be the case here.
23In reviewing the insurer’s original submissions for repayment of NEBs, it is clear that the insurer sets out a clear interpretation of section 52. I recognize that in its reply submissions the insurer does put forward a case that deals with ambiguity in legislative provisions however this was in response to H.H.’s responding submission. As such I reject H.H.’s submissions that the request for reconsideration should be denied on the basis of new arguments being raised.
24The question that remains before me is the interpretation of section 52, specifically section 52(3) in deciding this reconsideration request.
25In its submissions H.H. refers to the decision in Bell ExpressVu Limited Partnership v. Rex1, for the principle that ambiguity in legislation means that if the words of the provision are reasonably capable of more than one meaning, then the entire context of a provision must be considered before determining whether there is ambiguity.” H.H. submits that the word “payment” has more than one meaning.
26H.H. submits that a decision maker has the discretion to resolve a statutory uncertainty and adopting any interpretation that the “statutory language can reasonable bear, and judicial deference in such instances is itself a principle of modern statutory interpretation.”2
27With respect to H.H.’s argument, while I do not agree with the principles of statutory interpretation raised, I disagree that there is any ambiguity in section 52(3) with respect to the word “payment” or otherwise. When section 52 is read in its entirety it clearly contemplates repayment in the circumstances of this case.
28First, section 52(1) sets out when an insured is liable to repay an insurer – in this case the payment was clearly made in error.
29Second, section 52(2) (a) requires that the insurer shall give the person notice of the amount that is required to be repaid. In this case the insurer gave notice by way of letter dated October 23, 2017.
30Last, section 52(3) states that if the if the notice is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount.
31Section 52(3) references that notice is required within 12 months after payment of the amount to be repaid.
32The twelve-month period refers to the period of time that one is entitled to claim back repayment. In this instance the insurer gave notice October 23, 2017 and is seeking repayment for any NEBs paid out in the twelve-month period October 23, 2016 to October 23, 2017. In this case the repayment sought is for NEBs paid from October 23, 2016 until January 2017.
33I find the Tribunal erred by making a significant error law in its interpretation of section 52(3) of the Schedule such that had the error not been made the Tribunal would likely have reached a different decision.
34Based on my findings above, I grant the request for reconsideration and vary the Tribunals order and find that the insurer is entitled to repayment of NEBs paid to H.H. for the period October 23, 2016 through to January 13, 2017 in the amount of $2,193.57.
COSTS
35In accordance with Rule 19 of the Rules, the Tribunal may order Costs against a party if it has acted unreasonably, frivolously, vexatiously or in bad faith. The Applicant submits that the Respondent’s conduct with respect to this matter amounts to all of the above.
36In light of my findings above, there is no basis for a finding that costs are warranted. Costs denied.
Maureen Helt Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division Released: July 12, 2019
Footnotes
- Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, [2002] 2 SCR 559 at para 29.
- Respondent’s Reply to the Applicant’s Request for Reconsideration at paragraph 7, referencing Patricia Mc. Lean v. Executive Director of f British Columbia Securities Commission, 2013 SCC 67, [2013] 3 RCS 895 at para 40.