RECONSIDERATION DECISION
Before: Deborah Neilson, Adjudicator
Tribunal File Number: 18-008232/AABS
Case Name: [T.A.K] vs. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: Ramandeep Kaur Pandher, Counsel
OVERVIEW
1This request for reconsideration was filed by the Respondent in this matter. It arises out of a decision dated January 9, 2020, in which I determined the amount of income replacement benefits (“IRBs”) the Applicant was entitled to. I also awarded interest to the Applicant and ordered the Respondent to pay an award of 35% under R.R.O. 1990, Regulation 664 (“664 award”).
2The Respondent submits that I erred in fact and law in awarding interest and a 664 award. It is seeking an order that:
a. The Applicant is not entitled to interest at 2 percent per month compounded; and
b. The Applicant is not entitled to a 664 award.
3Under Lat Rule 18.1,1 I have been assigned responsibility to decide this matter.
RESULT
4The Respondent's request for reconsideration is granted.
BACKGROUND
5The Applicant was injured in an automobile accident (“the accident”) on December 10, 2016. The dispute between the parties was the amount of income replacement benefits (“IRB”) that the Applicant was entitled to. I was also required to determine whether interest and a 664 award were payable. I found that the Respondent delayed payment of IRBs that, up to August 2018, was reasonable because it had conflicting information about whether the Applicant was employed. I determined that any delay by the Respondent after August 2018 was unreasonable because, by that time, the Respondent had a copy of the Applicant’s employment file. I found that the employment file confirmed that the Applicant was employed at the time of the accident.
ANALYSIS
6The grounds for a request for reconsideration to be allowed are contained in LAT Rule 18.2. A request for reconsideration will not be granted unless one or more of the following criteria are met:
(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, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
7The ground that the Respondent argues applies to this case is as follows:
(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;
8More specifically, the Respondent submits that I made significant errors of fact in determining that it received the Applicant’s employment file in August 2018, his CPP file by March 12, 2018, and his tax returns by August 2018. The Respondent submits I made significant errors of fact in determining that it received emails enclosing the employment file when no email confirmation receipts were filed by the Applicant. The Respondent submits that if I had not made those errors of fact, I would have determined that the Respondent did not receive information that would have allowed it to determine the quantum of IRBs until it received the Applicant’s written submissions on April 10, 2019.
9The Respondent submits that the Applicant's Exhibit Book contained cover letters and fax confirmation slips for all other documents served on it, but that the Applicant’s employment file in the Exhibit Book contained no cover letter addressed to the Respondent or its counsel, nor any fax confirmation slip or email confirmations. The Respondent submits that there was no evidence that the Applicant’s employment file was produced before April 10, 2019. The only evidence the Respondent relied on is a letter dated April 13, 2018 asking the Applicant for his complete employment file from [employer] in addition to an explanation from his employer as to his employment status at the time of the accident.2 An inference may be drawn that the Respondent did not have a copy of the file at that time. Otherwise, there would have been no reason for the Respondent to again request a copy, unless it was seeking an updated copy in order to determine if the Applicant worked after the accident.
10In his reply submissions, the Applicant provided an email that appeared to be addressed to the Respondent dated August 15, 2018. The Applicant submitted, and I accepted, that email was evidence that the Respondent had a copy of his employment file, which showed that he was still employed when the accident occurred.
11The Respondent submits that, although it had some information by August 2018, it did not receive the employment file until it received the Applicant’s written submissions. It did not object to the Applicant including the August 15, 2018 email in his reply submissions. The first indication I had that the Respondent did not receive the August 15, 2018 email and the attached employment file was in the Respondent’s reconsideration submissions.
12Having reviewed the Respondent’s reconsideration request, the Applicant’s reconsideration submissions, my decision, and the evidence again, I find that I drew a factual inference that the Schedule did not allow me to draw for the following reasons.
13Under s. 64(2)(e) of the Schedule, any document required or permitted under the Schedule to be given to a person may be delivered by electronic means, if the intended recipient of the document consents to delivery by electronic means. The earliest correspondence from the Respondent to the Applicant that was before me was dated December 30, 2016.3 It advised the Applicant that he may reach the Respondent through the email address provided in that letter. The email address was Jordon.agnew@aviva.com. This was repeated in the letters from the Respondent dated January 11, 2017, February 22, 2017, March 10, 2017, April 28, 2017, July 12, 2017, July 26, 2017, January 9, 2018, and January 19, 2018. The letters from the Respondent to the Applicant dated August 25, 2017 and April 14, 2018 confirm the email address. These letters amount to the respondent’s consent for the Applicant to deliver documents to that particular adjuster by electronic means at that email address.
14The Applicant submits that there was ample evidence to support my findings of fact. The email to the Respondent dated August 15, 2018 enclosing the employment file was addressed to angie.haramis@aviva.com. It was not sent to Jordon.agnew@aviva.com. The email enclosing the Applicant’s employment file contained the Applicant’s name, the date of loss and the claim file number. Accordingly, one could presume that even if the email was directed to a different adjuster than Jordon Agnew, the recipient of the email had enough information to forward it on to the adjuster with carriage of the file. However, the Schedule addresses when documents can be delivered by email, who documents are to be delivered to, and when they are considered to have been received.
15Under s.64(6) of the Schedule, the functional equivalency rules set out in sections 4 to 13 of the Electronic Commerce Act, 2000, SO 2000, c 17 apply to emailed documents. Under s.10 (2) of the functional equivalency rules of the Electronic Commerce Act, 2000, an email will be considered provided to a person if it can be retained and it is accessible by the other person so as to be usable for subsequent reference. It is not considered accessible if the person delivering the email hinders the recipient’s ability to access the document.
16Section 22(3)(a) of the Electronic Commerce Act, 2000 applies for determining when an email is considered under the Schedule to be delivered.4 When an insurer consents to documentary delivery by email, an email is presumed to be received by an insurer if it has designated or uses an information system for the purpose of receiving electronic documents, when the email enters that information system and becomes capable of being retrieved and processed by the addressee. In this case, the employment file was emailed to angie.haramis@aviva.com. There is no other mention of Angie Haramis in any of the evidence that was before me. There is no evidence that the Respondent consented to email delivery to any address other than Jordon.agnew@aviva.com, except possibly the Respondent’s lawyer.5
17Section 64(21) of the Schedule states that if an insurer provides the name and address of a contact person to whom documents are to be delivered, anything delivered to the insurer that is not addressed to the attention of the contact person at that address shall not be considered to have been delivered to the insurer until it is received by the contact person. None of the letters from the Respondent to the Applicant directed him to deliver documents to a contact person. Nor was the Applicant advised that delivery of documents to someone other than a contact person would mean there was no delivery. Instead, he was given the name of Jordon Agnew to contact if he had any questions. However, when s.64(21) is read together harmoniously with s.64(2)(e), the consent of the “intended recipient” in s.64(2)(e) must mean that consent to receive documents electronically is for a specific email address and not just any email address connected to an insurer. This interpretation accords with the provisions of the Electronic Commerce Act, 2000 and the references to the “addressee” in the relevant sections of that Act.
18There was no evidence before me that Angie Haramis consented to the delivery of documents from the applicant. Accordingly, it was an error of both fact and law for me to have accepted the Applicant’s submission that documents that were emailed to her on the Applicant’s behalf were delivered or received by the respondent. Therefore, I erred in finding that the respondent knew by August 2018 that the applicant was employed.
19The applicant submits that the respondent knew the applicant was employed when he underwent an examination under oath. I was not provided with transcripts of the examination and have no evidence that the employment file was made an exhibit to that examination. I made a finding of fact that, given the conflicting information provided to the respondent, that the respondent’s delay of paying IRBs up to August 2018 was reasonable. I determined that any delay in paying IRBs after August 2018 was unreasonable because the respondent had the employment file by then, which disclosed the applicant’s employment status when the accident occurred. Given my finding that it was reasonable for the respondent not to pay IRBs until it had confirmation of the applicant’s employment status at the time of the accident, I would not have held the respondent liable for a 664 award and interest at the rate of 2% per month compounded under s.10 of Reg.664 had I not erred in the timing of when the respondent received the employment file. Instead, I would have found the applicant entitled to interest in accordance with the Schedule. For these reasons, the respondent’s request for reconsideration is granted.
20The applicant is entitled to interest on the IRBs as set out under the Schedule and not at the rate of 2% per month. The applicant is not entitled to a 664 award.
CONCLUSION
21For the reasons noted above, I grant the Respondent’s request for reconsideration.
22The order for the 664 award and interest at 2% per month is rescinded.
23The applicant is entitled to interest on the IRBs in accordance with the Schedule.
24If the parties are unable to reach an agreement on the calculation of the interest within 30 days of the release of my decision, they may serve and file written submissions with the Tribunal within 45 days of the release of this decision.
Deborah Neilson Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: April 22, 2021
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“LAT Rules”).
- Respondent’s document brief tab 5
- Respondent’s document brief, tab 4.
- S. 64(22) of the Schedule.
- A letter from the Respondent’s lawyer to the Applicant dated February 28, 2018 provides the lawyer’s email address.