RECONSIDERATION DECISION
Before: Samia Makhamra, Adjudicator
File: 18-009518/AABS
Case Name: [P.M.] v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Mark Baker, Counsel
For the Respondent: Christopher Macaulay, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent. It arises out of a decision dated August 17, 2020, in which I found the applicant was entitled to payment of an income replacement benefit (“IRB”) during a period of suspension.
2The respondent submits that the Tribunal erred in law by misinterpreting the phrase “reasonable explanation” found in s. 33(8)(b) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
RESULT
3The request for reconsideration is dismissed.
REQUEST
4The grounds for granting a reconsideration are set out in Rule 18.2 The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017). A request for reconsideration will not be granted unless one or more of the grounds listed in Rule 18.2 are met. In this instance, the request for reconsideration falls under Rule 18.2(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.
5The respondent requests that the Order be varied pursuant to Rule 18.4(b)(i). In the alternative, it requests that a new hearing be ordered pursuant to Rule 18.4(b)(ii).
BACKGROUND
6The applicant was involved in a motor vehicle accident on January 13, 2015. Her impairments were identified as a severe concussion, soft tissue injuries and dental injuries. Relevant to the hearing were her psychological symptoms, as she was found to suffer from depression and received treatment for same.
7The applicant started receiving IRBs from the respondent one week after the accident until the respondent suspended payment on November 21, 2016. The respondent suspended payment on the basis that the applicant failed to obtain necessary treatment and failed to provide it with relevant information. The period of suspension was from November 21, 2016 to August 17, 2017.
8In the decision, the Tribunal found that the applicant was in breach of s. 33(1). However, pursuant to s. 33(8), the Tribunal found that the IRB payment amounts withheld during the period of non-compliance were payable, as the Tribunal found that the applicant provided a reasonable explanation for her non-compliance, being that she believed the respondent could access that information.
9The respondent argues that the Tribunal erred in law by misinterpreting the phrase “reasonable explanation” as found in s. 33(8)(b) of the Schedule.
Submissions of the parties
10The respondent submits that it was not possible for the explanation offered by the applicant to constitute a “reasonable explanation” because: (a) it was only offered at the hearing, for the first time; (b) there was no objective evidence to corroborate it; and (c) it is illogical and irrational when viewed objectively.
11As such, the respondent requests that the Order be varied to state that the respondent is not required to pay IRBs for the period from November 21, 2016 to August 17, 2017. In the alternative, if the Order cannot be varied, the respondent requests that the matter ought to be referred back for a new hearing.
12The applicant disagreed. In summary, she argues that the Tribunal properly and carefully considered all the evidence and reached its decision with no misapprehension of the law or evidence. finding was fitting, and the reasons were enough in the context of the case.
ANALYSIS
Did the Tribunal err in law in finding the applicant’s explanation reasonable pursuant to s. 33(8)(b)?
13I disagree with the respondent. In finding the applicant’s explanation to be reasonable, the Tribunal did so within the context and specific circumstances of the case. For example, at paragraphs 33 and 34, the Tribunal found it reasonable that the applicant believed she was compliant as she believed that the respondent had the ability to access the records with the consent she had previously provided.
14The Tribunal accepted the applicant’s explanation as reasonable, and she was consistent in her answers during cross-examination, in that she believed or understood that she was compliant, that the respondent could obtain the information directly from her physicians.
15The respondent provided no authority to support its position that the timing of the applicant’s explanation was too late to find it unreasonable. In addition, s.33(8) does not provide a time limitation for a reasonable explanation, so it cannot be said that it was an error of law to find the applicant’s explanation credible at the hearing.
16Further, the decisions relied upon by the respondent are distinguishable on the facts, and none of these decisions provide a timeline for an explanation to support the respondent’s position that the Tribunal erred in finding the applicant’s explanation to be reasonable.
17Specifically, in 17-000018 v. State Farm Insurance1, the applicant neglected to provide the financial documents necessary for the calculation of an IRB, which prevented the insurer from calculating the benefit, and the applicant knew that they were not in compliance with the s. 33 request. In contrast, in this case, the information requested was regarding whether the applicant was receiving psychological treatment, which the Tribunal found she was. Here, the applicant also believed she was in compliance (as she was receiving treatment), and on the evidence, the Tribunal found her explanation to be credible. In other words, I am not persuaded that the Tribunal committed an error in considering the explanation at the hearing because the applicant could not have provided an explanation during a time when she did not believe she needed to. As such, the fact that she provided her reasonable explanation at the hearing and not before was not fatal to the Tribunal finding that it was reasonable, nor was it an error that would have resulted in a different outcome.
18The Tribunal provided sufficient reasons and explanation for weighing the evidence and arriving at its determination. The purpose of a reconsideration is not to re-weigh evidence that was properly considered by the Tribunal at the hearing. The reconsideration process is used to determine if the Tribunal made an error as alleged by the respondent, which in this case I find no such error was made.
19I find the Tribunal weighed all of the evidence before it and provided sound reasons for its finding that the applicant was entitled to a payment of an IRB during a period of suspension.
20Therefore, I find that the respondent has failed to establish that the Tribunal made any error of law or in fact such that its decision should be reconsidered.
CONCLUSION
21The respondent’s request for reconsideration is dismissed.
Samia Makhamra,
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Date of Issue: March 29, 2021
Footnotes
- 17-000018 v. State Farm Insurance, 2017 CanLII 146182, (ON LAT).