RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 19-004182/AABS
Case Name: AM vs. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Rizwan Wancho, Paralegal
For the Respondent: Candace Mak, Counsel
OVERVIEW
1A.M.’s request for reconsideration, filed on August 25, 2020, arises from the Tribunal’s August 13, 2020 decision (“the decision”). The preliminary issue before the Tribunal was whether A.M. was barred from disputing a denial of an income replacement benefit (“IRB”) pursuant to s. 56 of the Schedule. I determined that A.M. was statute-barred from proceeding with her application.
2A.M. has asked the Tribunal to reconsider that decision.
THE LAW
3There are limited grounds upon which a person can request a reconsideration. In this case, the following criteria outlined in 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”):
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; or
d. There is evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.
4To be successful in a request for reconsideration, A.M. must satisfy one of the criteria set out in Rule 18.2 of the Rules.
RESULT
5A.M.’s request for reconsideration is dismissed.
ANALYSIS
6I interpret A.M to be asserting the grounds in Rule 18.2. The basis of A.M.’s argument are as follows:
a. My decision made an error in law or fact in finding that Aviva was correct in concluding A.M. was claiming entitlement to IRBs with the submission of an Election Form (“OCF-10”); and
b. My decision made an error in law or fact in finding that Aviva’s notice letter continued to be a valid denial of her entitlement to IRBs, even though A.M. submits that she stopped working in February 2017.
7In response to the alleged errors of law and fact, Aviva submits that A.M.’s specific arguments do not justify granting the reconsideration request.
Errors of fact or law
Was Aviva correct in concluding A.M. was claiming entitlement to IRBs with the submission of an OCF-10?
8A.M. submits that I erred when I equated the submission of the OCF-10 as a request for IRBs for less than the mandated seven workdays lost.
9Aviva submits that this is not a sufficient ground to change the decision.
10I agree with Aviva. An application for benefits is complete when an OCF-1 and OCF-3 are submitted, and the relevant boxes are checked. A.M. submitted an Application for Accident Benefits Form (“OCF-1”) and a Disability Certificate (“OCF-3”). On receipt of the OCF-1 and OCF-3 completed by A.M. and her physicians, I find Aviva was within its rights to decide on eligibility for NEB or IRB based on the information it had available at the time, specifically that A.M. was employed on the date of loss and had been off work for approximately four days. On receipt of this determination, A.M. would have been free to dispute but did not.
11A.M. submitted an OCF-10, which informed Aviva that she did not elect to receive non-earner benefits, although the OCF-3 indicated that she suffered a complete inability to carry on a normal life.
12After submitting the OCF-10 and being advised by Aviva by way of notice letter in January 2017, there is no evidence that A.M. advised Aviva that she was not claiming entitlement to IRBs. It is not until August 14, 2019, when A.M. sent a letter to Aviva explaining the reasons for the delay in submitting an Employer’s Confirmation Form (“OCF-2”).
13Considering that A.M. was represented as early as 2016, there is no reasonable explanation as to the delay between the January 16, 2017 denial notice letter and A.M.’s failure to appeal the denial before the limitation period expired.
14I do not consider A.M.’s explanation for the delay in her August 2019 letter to be reasonable. Approximately seven months passed between the end of the limitation period and A.M.’s letter. While I am sympathetic to the fact that A.M. was hospitalized and bed-ridden for some time, A.M.’s representative could have contacted the insurer well before the end of the limitation period to advise of his client’s well-being. This was not done.
15Based on the evidence, A.M. took the necessary steps to commence her application for benefits, and Aviva properly responded as mandated by the Schedule.
16For these reasons, I find that my decision did not make an error in law or fact in determining that Aviva was correct in concluding that A.M. was claiming entitlement to IRBs with the submission of the OCF-10.
Was Aviva’s notice letter a valid denial of A.M.’s entitlement to IRBs, even though she submits that she stopped working in February 2017?
17A.M. submits that I made an error of law or fact in finding that Aviva’s notice letter was a valid denial of her entitlement to IRBs. A.M.’s position is that the reason given (being IRB not available due to waiting period not meeting the seven-day requirement pursuant to s. 6 of the Schedule) could not be considered a continuing denial for IRB. A.M. further submits that she did not stop working until February 2017 due to medical reasons, which means that a new denial should have been issued.
18Aviva’s position is that the Court of Appeal has been clear on what action starts the claims process, that being, the submission of an OCF-11, which A.M. did. In Sietzema v. Economical Mutual Insurance Company, the Court of Appeal also established that the only remedy for an insured person is to appeal the termination of benefits within the two-year limitation period.2 Again in Sietzema, the Court of Appeal held that clear and unequivocal notice given by the insurer, cancelling an insured’s benefits, was sufficient to trigger the limitation period.3 If A.M. thought the denial to be improper, she had a right to dispute the denial within the two year limitation period. She did not.
19My decision considered the evidence of A.M.’s claim, specifically at paragraph 20, I confirmed that Aviva’s denial was proper. I considered the fact that A.M.’s submission of an OCF-10 electing IRBs after completing the OCF-1 and OCF-3, was an indication that applying for IRBs was an option available to her. By submitting an OCF-10, A.M. is notifying Aviva of her intent to apply for a specified benefit, and in her OCF-10, that specified benefit was IRBs.
20Therefore, Aviva is required to respond in the affirmative or negative, whether they agree with A.M.’s claim of entitlement for IRBs. Aviva responded accordingly, denying A.M.’s claim, based on the OCF Forms submitted, and the information available to it. I found that the denial was proper, and as stated in part at paragraph 21 of my decision, A.M. “failed to take action before the limitation period expired”.
21For these reasons, I find that in my decision I did not make an error in law or fact in determining that Aviva’s notice letter was a valid denial of A.M.’s entitlement to IRBs.
22Although A.M. is disappointed with the outcome of the hearing, the purpose of the reconsideration process is not to give an unsuccessful party a second opportunity to have its case heard. Taking exception with the duly reasoned findings of an adjudicator is not a ground for reconsideration. Many of the arguments A.M. makes regarding the Tribunal having made an error of law or fact are not persuasive. I find that A.M. has failed to establish that the Tribunal made any error in law or fact such that its decision should be reconsidered.
PROCERDURAL ISSUE
23On November 13, 2020, Aviva filed a Notice of Motion (the “Motion”) for leave to file sur-reply submissions. A.M. provided responding submissions to the Motion on November 16, 2020.
24The Motion has been received, reviewed, and the Tribunal finds it unnecessary to address the relief sought, as the reconsideration decision upheld the initial decision.
CONCLUSION
25For the reasons set out above, I dismiss A.M.’s request for reconsideration.
Derek Grant
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: December 21, 2020
Footnotes
- Respondent’s Reconsideration Submissions - Sagan v. Dominion of Canada, 2014 ONCA 720 at paragraphs 7 to 8 - Tab 4
- Ibid - Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 at paragraph 15 – Tab 6
- Ibid – at paragraph 12