RECONSIDERATION DECISION
Before:
Brian Norris, Adjudicator
12/10/2021
Licence Appeal Tribunal File Number:
19-002587/AABS
Case Name:
[F. G] v. Aviva General Insurance
Written Submissions by:
For the Applicant:
Robert N Franklin, Counsel
For the Respondent:
Danielle Wilkinson, Counsel
OVERVIEW
1F.G., the Applicant, filed this request for reconsideration. It arises out of a decision in which I found that he was statute-barred from applying to the Tribunal to dispute the Respondent’s decision to refuse to pay further income replacement and medical benefits.
2The Applicant makes this request 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) (“the Rules”). He submits that I made an error of law such that the Tribunal would likely have reached a difference decision, that I acted outside my jurisdiction or violated the rules of natural justice or procedural fairness, and that there is evidence that was not before the Tribunal when rendering the decision that could not have been obtained previously that would likely have affected the result of the hearing.
RESULT
3The Applicant’s request for reconsideration is dismissed.
BACKGROUND
4The Applicant was involved in an accident on August 10, 2016 and sustained a minor injury as described in section 3(1) of O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“the Schedule”). His injuries were treated pursuant to the Minor Injury Guideline (the “MIG”). He later claimed entitlement to medical benefits beyond the $3,500.00 funding limit provided by the MIG, but the Respondent denied funding for the claims. Further, the Applicant was unable to work as a result of his injury and received income replacement benefits (“IRBs”) for a period until the Respondent stopped payment on the recommendation in an insurer’s examination (“IE”).
5The dispute went to a hearing and I decided that the Applicant was statute-barred from filing his appeal with the Tribunal, because the appeal was filed more than two years following the Respondent’s decision to deny funding for the medical and income replacement benefits claimed. Further, I found that an analysis of the Manuel factors weighed in favour of the Respondent1.
6The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one of the following criteria are met:
i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
ii. 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;
iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
iv. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
ERROR OF LAW
7The Applicant submits that I made a significant error of law by finding that the Respondent’s denials were proper and that they started the limitation clock. The Respondent submits that this is a new argument and it is improper to raise new arguments at the reconsideration stage.
8I agree with the Respondent and find that the Applicant is advancing a new argument, which is not a proper ground for reconsideration by the Tribunal. As noted in paragraph [14] of my initial decision, the Applicant made no submissions and led no evidence to explain how or why the denials were improper and, instead, relied on the discretionary exception in section 7 of the Licence Appeal Tribunal Act (the “LAT Act”) to extend the limitation period. Despite not receiving any submissions on the validity of the denials, I reviewed the denials and found no obvious evidence showing that they were improper. Therefore, I find that the Applicant has failed to prove that the Tribunal made an error of law such that the Tribunal would have reached a different decision had the error not been made.
NEW EVIDENCE NOT BEFORE THE TRIBUNAL
9The Applicant submits that my decision should follow the reasoning in M.M. v. Aviva2, which was released by the Tribunal on May 28, 2020, after the initial hearing for this matter, but, before my decision was released. He submits that the January 25, 2017 denial from the Respondent should not start the limitation clock because it was “not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision.”
10The Respondent submits that new case law is not evidence and that the new case has no impact on a denial which the Applicant previously understood. It further submits that there are cases like Hedley v. Aviva3, which were released before the initial hearing, that the Applicant could have relied on had he made the argument in the initial hearing. Lastly, it submits that the denials were clear and unequivocal, and they do not need to be legally correct in order to permit an insured person to decide whether or not to challenge the refusal.
11I find that the release of M.M. v. Aviva has no impact on my initial decision, and I find that this is another attempt to present a new submission during the reconsideration process. As noted previously, the Applicant made no submissions on the validity of the Respondent’s denials. As submitted by the Respondent, there are similar cases released prior to the hearing which the Applicant could have relied on, but chose not to. Further, I am not bound by decisions of my peers.
12The case law relied upon by the Applicant is neither evidence nor argument. While the case of M.M. v. Aviva is arguably new, there were other cases that the Applicant with a reasonable degree of due diligence could have obtained before the hearing and introduced at the hearing. However, as stated above this case would not have affected the result.
ERRORS OF FACT AND LAW
Was there an error of fact with respect to the denial date?
13The Applicant submits that I reverse-engineered a desired outcome. He claims that I ignored the evidence before me that indicated that a denial letter was received via fax on February 28, 2017 and not January 25, 2017, the date of the letter. He submits that in the absence of any other evidence, a document sent by mail is deemed to be received on the fifth business day after, pursuant to section 64(18) of the Schedule.
14The Respondent submits that there is no evidence that the decision was reverse engineered to produce a desired outcome and that, when considering his submission in the initial hearing, is again advancing a new argument.
15I agree with the Respondent and find that the Applicant is advancing a new argument with respect to the characterization of the January 25, 2017 denial. As identified by the Respondent, the Applicant submitted in paragraph 21 of his submissions for the initial hearing that “the stoppage of benefits occurred on January 29, 2017.” As a result, his submissions regarding the application of section 64(18) of the Schedule, amount to advancing a new argument and I reject them for that reason. Accordingly, I find that the Tribunal made no error of fact with respect to the denial date.
Was section 7 of the LAT Act misapplied?
16The Applicant submits that I erred in law by grouping the various denials together, rather than analyzing each issue individually, when analyzing whether to extend the limitation period pursuant to section 7 of the LAT Act. The Respondent submits that the Applicant failed to identify the criteria for granting a reconsideration that this argument relies upon. It further submits that the Applicant fails to articulate any supporting reasons for this ground and, again, is advancing a new argument at the reconsideration process.
17I find that the Applicant is correct and that the Manuel factors ought to be analyzed separately on each specific denial. However, I find that such an error fails to result in a different outcome. This is because my analysis on the Manuel factors is based on the overall justice of the case, and that the factors may push or pull at different rates. Specifically, shortening the six-week delay by five business days fails to tip the scales in favour of permitting the Applicant to proceed to a substantive hearing on his entitlement to IRBs. Further, both the Applicant and Respondent, at times, grouped the various denials together during their submissions. I acknowledge that the Applicant once addressed an extension of IRBs individually, however, this only occurred when discussing the merit of his case and not during the other three factors. In any event, my finding in the initial decision remains unchanged.
COSTS
18The Respondent requests a cost award pursuant to Rule 19.1 of the Rules. It submits that the Applicant acted unreasonably, brought the reconsideration frivolously and in bad faith. It submits that the Applicant’s reconsideration request unreasonably shifts the burden of proof to the Tribunal and is a disingenuous attempt to rectify the omissions in his initial submissions. Specifically, the Respondent highlights that on three occasions the Applicant shifted the burden of proof to the Tribunal. First, when he submitted that the Tribunal should have advanced arguments on his behalf with respect to the sufficiency of notices. Second, that the Tribunal should have advanced an argument that the January 25, 2017 denial date was later. Third and last, that the Tribunal should have advanced evidence on the Applicant’s behalf to prove that he was busy seeking treatment instead of given instructions to file an appeal.
19The Applicant chose not to make reply submissions.
20I have considered the submissions and find no evidence that the Applicant acted unreasonably, frivolously, vexatiously, or in bad faith. While the Respondent highlights arguments which I have found to be an attempt to advance new arguments at the reconsideration stage, I see this only as an attempt to right a previous wrong. To me, the Applicant’s request for a reconsideration is a reasonable attempt to use the tools available to him in order to achieve a desired outcome and such actions fail to justify a cost award.
CONCLUSION
21The Applicant’s reconsideration request is mostly an attempt to relitigate the issues and advance new arguments that he did not make at the initial hearing. This is not permitted by the Tribunal in a reconsideration request. The case law submitted by the Applicant for the reconsideration is neither evidence or argument and, in any event, had no impact on my decision. In addition, the Applicant’s submissions on the error of fact or law regarding analyzing each specific denial are valid, but do not result in a different outcome and I see no misapplication of section 7 of the LAT Act. The Applicant’s request for reconsideration is dismissed for these reasons.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 10, 2021
Footnotes
- Manuel v. Ontario (Registrar, Motor Vehicles Dealers Act) 2012 ONSC 1492
- 2020 CanLII 37673 (ON LAT)
- 2019 ONSC 5318.