RECONSIDERATION DECISION
Before:
Jesse A. Boyce, Vice-Chair
05/14/2021
Tribunal File Number:
19-009201/AABS
Case Name:
Richard Pollitt v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant:
Self-Represented
For the Respondent:
Andrea R. Lim, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision dated January 8, 2021, in which I determined that the applicant was not entitled to an income replacement benefit (“IRB”) in excess of the statutory maximum of $400 per week from one-week post-disability to November 8, 2019. In addition, I found that the applicant was not entitled to an IRB for an amount in excess of $16 per week from November 9, 2019 and ongoing because Certas correctly calculated the ramp down formula contained in s. 8(1) of the Schedule. In my decision, I also dismissed the applicant’s claims of a constitutional question, dental treatment, physiotherapy and orthotics.
2As I understand it, the applicant submits that I erred in law such that I would have likely reached a different decision had the error not been made, that I acted outside of the Tribunal’s jurisdiction and that the doctrine of res judicata should apply. The applicant is seeking an order varying the decision to reflect a different quantum of IRB in the amount of $886.21 per week retroactive to November 2, 2017 and a “ramp up” of his IRB payment instead of the ramp down calculated by Certas and ordered by the Tribunal.
RESULT
3The applicant’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request for reconsideration, the applicant relies on criteria 18.2(a) and 18.2(b), submitting that the Tribunal acted outside of its jurisdiction and made an error of law such that the Tribunal would likely have reached a different result had the error not been made.
The Tribunal did not act outside of its jurisdiction
5I find no evidence that I acted outside of the Tribunal’s jurisdiction. Throughout his initial submissions and in his reconsideration request, the applicant references a tort claim that Certas submits is currently before the Ontario Superior Court of Justice under Court File No. 29/18. The basis of his request here seems to stem from the applicant’s assertion that the Explanation of Benefits (“EOB”) letter from Certas was “closed” based on a “sworn OCF-2” in his “Affidavit of Documents in the Superior Court of Justice” which he describes as “closed pleadings”. He submits that the Tribunal acted outside its jurisdiction by varying the IRB set by the “paramount Superior Court as to the criteria in [Rule] 18.2(a).” First, it is unclear how the EOB or OCF-2 would be “closed pleadings” where both were essential to the determination before the Tribunal at first instance. Second, my consideration of these documents was certainly within the Tribunal’s jurisdiction, as the issues before me required engagement with the applicant’s pre-accident income.
6In any event, I agree with Certas that there is a strict prohibition regarding statutory accident benefits matters for court proceedings. To this end, the applicant’s position that a proceeding took place and a decision rendered regarding a dispute over an amount of IRB received before the Superior Court is not only incorrect, but it is counter to the Insurance Act and the Court of Appeal’s decision in Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615, which held that where a dispute relates to the insurer’s compliance with obligations to the insured under the Schedule, then it falls within the broad reach of the dispute resolution provisions, and within the jurisdiction of the Tribunal.
7Further, I agree with Certas that the applicant’s assertion that the Tribunal acted outside of its jurisdiction in making its determination is unfounded, as ss. 280(1) and (2) of the Insurance Act provide that an insured person may apply to the Tribunal to resolve disputes over the amount of a benefit. This clearly provides the Tribunal with the jurisdiction to decide the quantum of IRBs payable, including any calculation of a ramp down under s. 8(1). Accordingly, I find no reason to vary my decision under Rule 18.2(a).
No error of law
8I find no evidence to support the applicant’s claim that I made an error of law such that the Tribunal would likely have reached a different decision had the error not been made, as required by Rule 18.2(b). Here, the applicant asserts that I erred when I failed to “realize his first objection” to a reduction of the IRB pursuant to s. 7(3) and s. 8(1), which resulted in a ramp-down of IRB after he turned 65, and that s. 8(1) “is not applicable” because Certas was “closed off” due to an EOB and because the applicant did not agree with the reduction.
9The applicant’s request for reconsideration featured many of the same arguments made at first instance. Reconsideration is not meant to be a re-weighing of the evidence and especially so where the submissions are underpinned by the same errors and misunderstandings. Accordingly, I rely on my findings at paras. 16 to 18 of the original decision, where I clearly applied the proper calculation under s. 8(1) for the ramp-down IRB amount as a result of the applicant turning 65. The applicant’s disagreement with the ramp down, his proposal that he is instead entitled to a “ramp up” and his assertion that the December 12, 2019 EOB somehow “closed off” such a calculation is not supported by law. I find no error of law that would have changed the outcome of my decision.
10Further, I find it cannot be said that I was not alive to the applicant’s position, as I addressed his submissions regarding the pre-104 IRB calculation in paras. 13-15 of my original decision, finding that his calculation was not only incorrect but that the proposed amount would be greater than the quantum provided by the Schedule. On reconsideration, his IRB calculations are again incorrect and his proposal for a greater IRB quantum of $886.21 per week would again result in IRB amounts greater than $400 per week and would therefore not be payable. The applicant’s position on his IRB calculation is premised on a misguided understanding that OCF documents are “rulings” or “closed pleadings” and that his IRB payments are “fixed” amounts that cannot be lowered or varied as circumstances change. Contrary to the applicant’s submissions, the Tribunal did not “vary” the amount listed in the OCF-2. These errors are not the Tribunal’s.
11The applicant also submits that I erred by “excluding” s. 6(2)(b) because he ought to have been paid IRB beyond 104 weeks without any reduction as it is “not variable by the Tribunal” and the “Tribunal only has authority as a regulatory body to enforce SABS 6(2)(b) word per word as written.” It is unclear what this means where s. 6(2)(b) speaks to entitlement and not to the calculation of IRB quantum. There is no dispute that Certas paid and continues to pay IRB to the applicant and the issue before me was quantum. It is not an error of law by the Tribunal when the applicant disagrees with the calculations and statutory maximums provided in the Schedule. I find no reason to interfere with my decision under Rule 18.2(b).
Res judicata is not applicable
12There was no evidence provided by the applicant to support his assertion that the doctrine of res judicata applies. As Certas submits, the “decision” referenced by the applicant is not a decision but his own Affidavit of Documents in relation to his tort claim. Certas submits that there is no decision rendered by the Superior Court regarding the applicant’s accident benefits nor may he bring a proceeding for same in these circumstances, as described above. Further, Certas submits that the issues that were in dispute at first instance and which formed the basis of my determination had not been previously determined by the Tribunal. The applicant has provided no evidence to refute this and did not direct me to evidence that a decision has already been made on these issues. Res judicata does not apply.
ORDER
13For the reasons above, the applicant’s request for reconsideration is dismissed.
Jesse A. Boyce
Vice Chair
Tribunals Ontario
Released: May 14, 2021