RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 19-003616/AABS
Case Name: M.K. v. TD General Insurance Company
Written Submissions by:
For the Applicant: Michael Rotundo
For the Respondent: Patricia Hill
OVERVIEW
1M.K.’s request for reconsideration, filed on April 29, 2020, arises from the Tribunal’s April 6, 2020 decision (“the decision”). The decision determined that M.K. is statute-barred from proceeding with her application for a non-earner benefit (“NEB”) as TD issued a valid denial that triggered the limitation period and M.K. did not appeal in time.
2Both M.K. and TD filed submissions. TD also made a request for costs.
3For the reasons to follow, M.K.’s request for reconsideration is denied.
THE LAW
4Rule 18.1 of the Tribunal’s Common Rules of Practice and Procedure1 (“the Rules”) requires a Request for Reconsideration to be made within 21 days of the date of the decision. M.K. submitted her Request for Reconsideration two days after the deadline and therefore seeks an extension of time pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, and moreover in accordance with the Emergency Order made under O. Reg. 73/20 of the Emergency Management and Civil Protection Act.
5There are limited grounds upon which a person can request a reconsideration. In this case, M.K. asserts that the Tribunal met the following criteria outlined in Rule 18:
(i) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and
(ii) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error(s) not been made.
6The basis for M.K.’s claim regarding the decision, is that she “seeks a determination that she has commenced her application for NEBs within the time limitation imposed by s. 56 of the Schedule on the basis that TD has not made a valid refusal to pay NEBs and as such, the two year limitation period has not been triggered”.
7M.K. asserts that she therefore is entitled to a reconsideration pursuant to sections 18.2 (a) and (b) of the Rules.
DISCUSSION AND REASONS
Extension of time request
8M.K.’s request for an extension of time is denied. I find that the Tribunal did not act outside its jurisdiction nor did it violate the rules of procedural fairness. I also find that the Tribunal did not make a significant error of law or fact such that the Tribunal likely would have reached a different decision if it had not made the error.
9TD submits that M.K. submitted her Request for Reconsideration two days after the limitation period had expired relying on the state of emergency arising out of Covid-19 pandemic. The decision was served on the parties on April 6, 2020. On April 15, 2020, counsel for the respondent sent counsel for the applicant an email asking how he was going to proceed with respect to the decision. No reply was received.
10On April 27, 2020, counsel for the respondent wrote to the Tribunal and copied counsel for the applicant asking if the Tribunal was going to issue a closing letter. On April 27, 2020, the Tribunal responded advising the matter had been closed and no closing letter was needed. Counsel for the applicant was copied in that email.
11On April 28, 2020, counsel for the applicant requested the extension based on the pandemic but did not provide any supporting documents or evidence that the pandemic had in any way contributed or caused the delay. TD submits that reliance on the state of emergency order requires some form of evidence that the pandemic affected the M.K.'s ability to request reconsideration within the limitation period. I agree.
12A request under the Emergency Management and Civil Protection Act must be made with documentation or evidence to support that request. Such a request cannot be granted without evidence or reasons for the request. Based on the evidence, M.K. has not satisfied this requirement. M.K. has not pointed me to any evidence or submissions that contradicts TD’s claim.
The merits of the reconsideration request
13For the reasons that follow, I find that M.K.’s request for reconsideration is without merit. M.K. submits that an insurer cannot pre-emptively deny a potential claim in the future. I would agree with M.K.’s argument, if an insured is entitled or found to be entitled to a potential future benefit. On the evidence in the decision, M.K. was found not to be entitled to a NEB.
14M.K. relies on the distinguishable decision, Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 in support of her position. Tomec dealt with attendant care and housekeeping benefits in the context of catastrophic impairment. M.K. also relied on Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508. Galdamez is also distinguishable, as the insurer in that case informed the applicant that she was not eligible for income replacement benefits (“IRBs”) and not entitled to NEBs.
15TD submits that there is no provision for an insured to reapply for specified benefits following a termination by an insurer. TD’s position is that the only remedy for an insured is to appeal a benefit termination or denial within two years, in accordance with s.56 of the Schedule.
16I find that at the time, January 27, 2015, when M.K. was advised by TD that she was not eligible to receive a NEB, she had the opportunity to, but did not contest this determination. It was not until April 2019 that M.K. pursued a remedy via the dispute resolution process with the Tribunal. It was also pointed out that M.K. had the services of counsel throughout the adjustment of the file. There is also no claim of discoverability made by M.K. that she is now entitled to NEBs.
17I have already found that TD’s January 27, 2015 denial was proper. In paragraphs 22-24 of the decision, the consideration of whether TD’s denial was proper was thoroughly analysed and found to be clear and unequivocal. I found that the term “not eligible” was accepted by the Court of Appeal and was applicable as an acceptable response by TD in the circumstances of this proceeding.
18Additionally, in accordance with s. 12(1) of the Schedule, an insured is entitled to a NEB if the insured “does not qualify for an IRB”. This is not the case for M.K., who qualifies for IRBs. I find that the decision considered the evidence and submissions of the parties and rightly found, based on the evidence, that M.K.’s application regarding the NEB was beyond the limitation period.
COSTS
19TD’s request regarding costs relates to reimbursement for the cost of this proceeding.
20TD did not offer any submissions on the issue of costs.
21I do not find M.K.’s actions demonstrate a lack of good faith, or any other grounds that would warrant a claim for costs. Consequently, TD’s claim for costs for this proceeding is denied.
CONCLUSION
22For the reasons set out above, I reject M.K.’s request for the decision to be overturned. The original finding stands. M.K.’s request for reconsideration is denied.
23TD’s request for costs is also denied.
Derek Grant
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: September 8, 2020