AMENDED RECONSIDERATION DECISION
T.M. vs. Aviva General Insurance, 2020 ONLAT 18-010477/AABS
Before: Derek Grant
Tribunal File Number: 18-010477/AABS
Case Name: T.M. vs. Aviva General Insurance
Written Submissions by:
For the Applicant: Adrian Nicolini, Counsel
For the Respondent: Michael Silver, Counsel
OVERVIEW
1Both T.M. and Aviva have filed requests for reconsideration in this matter. The requests arise out of a decision dated June 19, 2020 (the “Decision”) in which the Tribunal found that T.M. was not entitled to certain benefits and Aviva was not entitled to a repayment of a benefit.
ISSUES AND RESULTS IN THE DECISION RELEVANT TO THE RECONSIDERATION
2The Tribunal found the following:
(i) T.M. was not entitled to income replacement benefits (“IRBs”) of $400.00 per week from October 16, 2018 to date and ongoing;
(ii) T.M. is not entitled to interest on all overdue payment of benefits owing in accordance with the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''); and
(iii) Aviva is not entitled to re-payment of IRBs in the amount of $17,563.50 from T.M.
Applicant’s Request for Reconsideration
3T.M. is seeking reconsideration of the following:
(i) The Tribunal’s decision that T.M. is not entitled to IRBS in the amount of $400.00 per week from October 16, 2018 to date and ongoing; and
(ii) The Tribunal’s decision that T.M. is not entitled to interest on any overdue payment of benefits.
Respondent’s Request for Reconsideration
4Aviva is seeking reconsideration of the following:
(i) The Tribunal’s decision regarding the insurer not being entitled to a repayment of the IRB in the amount of $17,563.50 from T.M.
RESULT
5Both T.M.’s and Aviva’s requests for reconsideration are denied.
Applicant’s Reconsideration – Result
6I did not err in finding that T.M. was not employed, in that she did not earn employment income, therefore she is not entitled to IRBs.
7The Tribunal did not err in finding that, as there was no overdue payment of benefits, therefore interest was not payable.
Respondent’s Reconsideration - Result
8The Tribunal did not err in finding that Aviva did not obtain proper consent in submitting it’s request for repayment of IRBs via electronic means.
ANALYSIS
Did the Tribunal err in finding that T.M. is not entitled to IRBs?
9To be successful in a request for reconsideration, E.C. must satisfy one of the criteria set out in section 18.2(b) 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”). The criteria are:
(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 new evidence that could not have reasonably been obtained earlier and would likely have affected the result.
10I found that T.M. was not employed pursuant to s. 5 and s. 7 of the Schedule. In addition, I found that, pursuant to s. 4 of the Schedule, T.M. did not earn “gross employment income” or “gross weekly employment income”, therefore, IRBs could not be calculated pursuant to s. 7(2)(1)(i) of the Schedule.
11T.M. submits that the Tribunal erred in ‘combining’ the requirements under s. 5 and s. 7 of the Schedule. T.M. posits that the Tribunal’s finding that she was employed was all that is required to determine that she is entitled to IRBs.
12The flaw in T.M.’s argument is that her request for relief asks to determine both entitlement and quantum and this fact engages both s. 5 and s. 7. In fact, if it did not, it would be defective. Part II of the Schedule is the section addressing entitlement to IRBs. Sections 4, 5 and 7, are included under Part II. In determining whether an insured is entitled to IRBs, the period of entitlement and the amount of that entitlement is encompassed under Part II of the Schedule. It is counter to the regulations under Part II to take the approach that the sections not be taken together determining entitlement to IRBs.
13Paragraph 16 of the decision specifically discussed the necessary consideration of s. 5 in conjunction with s. 7. Although s. 5 discusses the eligibility criteria, this eligibility only refers to whether or not a person was employed during the period of eligibility prior to the accident. There is no provision under s. 5 to calculate the amount of IRBs an insured may be entitled to, therefore, it is necessary to look at the section that deals with the amount of potential IRB entitlement, that being s. 7. Entitlement to IRBs cannot be calculated by the sole consideration of s. 5.
14T.M. has failed to establish how the Tribunal erred in its consideration of s. 5 and s. 7 in determining that although T.M. was employed (because she had a position available should she be able to return to work), she did not earn weekly employment income during the period of eligibility prior to the accident.
Did the Tribunal err in finding that Aviva is not entitled to a repayment of IRBs?
15Aviva submits that the Tribunal erred in its determination that Aviva did not obtain consent to serve its notice of repayment by electronic means. Aviva’s position is that previous correspondence was sent by email, therefore T.M. acquiesced this mode of delivery of documents.
16T.M. argues that s. 64(2)(e) requires explicit consent, and that correspondence by way of email for the purposes of communication is not captured by s. 64(2)(e). T.M. agrees that she and Aviva have corresponded by way of email, and that she has acquiesced this mode of communication, however this consent does not extend to receiving a notice.
17I agree. Although not specifically discussed in the decision, the distinction is that a notice of repayment (“the Notice”) is a new cause of action. The Notice is the document that commences the process of dealing with the new cause of action. As such, it triggers its own requirements to follow the service rules unless there is specific consent to serve that Notice via electronic means.
18There is no evidence that Aviva obtained the required consent to send the Notice via electronic means. The Notice was sent within the required 12-month period, however, pursuant to s. 64(2)(b), the intended recipient (T.M.’s counsel) must, under s. 64(2)(e), “consent to delivery [of the notice in writing] by electronic means. Neither T.M. or Aviva pointed me to any such evidence of consent.
19Regardless of whether previous correspondence was via e-mail, there is no provision under s.64 that consent to e-mail correspondence includes consent to “notices in writing”. The evidence before the Tribunal was that there was e-mail correspondence, however there is no evidence of consent given for documents or notices (representing a new cause of action, i.e., IRB repayment) to be sent via electronic means.
20For the above reasons, I find that there was no error in my decision which determined that Aviva did not obtain the required consent to send the notice of repayment via electronic means.
COSTS
21T.M. made a request for costs “on the basis that Aviva has acted unreasonably, frivolously, vexatiously or in bad faith in bringing their request for reconsideration, fully knowing that their request lacked substance and evidential support and that T.M. would sustain significant costs in responding to the request”.
22T.M.’s request for costs is denied. I do not find that Aviva’s request for reconsideration to be an unreasonable one. The request for repayment is for a significant amount. Aviva put forth evidence in its initial submissions that IRBs were paid in error, and as is within its right, requested a repayment of the IRBs.
23Despite the Tribunal’s initial finding that the IRBs are not repayable, Aviva exercised its right to request a reconsideration of that decision. I do not find that Aviva’s actions justify costs to be awarded to T.M.
CONCLUSION
24For the reasons noted above, both T.M.’s and Aviva’s reconsideration requests are denied.
25T.M.’s request for costs is denied.
Derek Grant
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: October 20, 2020