RECONSIDERATION DECISION
Before:
Samia Makhamra, Adjudicator
05/25/2021
Tribunal File Number:
19-003212/AABS
Case Name:
E.L. v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Nathan Tischler, Counsel
For the Respondent:
Erica Lewin, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision on a preliminary issue, dated June 15, 2020, in which the Tribunal barred the applicant from proceeding with the application for failing to attend a s.44 Insurer’s Examination.
2After receiving the Tribunal’s decision, the applicant wrote to the Tribunal asking for a clarification. The Tribunal did not provide any clarification and invited the applicant to file a request for reconsideration. The applicant also requested a reconsideration of the Tribunal’s decision to refuse to clarify the decision.
RESULT
3The request for reconsideration is dismissed.
BACKGROUND
4The applicant was involved in an automobile accident on November 15, 2016.
5The applicant sought medical benefits from the respondent, pursuant to the Statutory Accident Benefit Schedule- Effective September 1, 2010 (the “Schedule”). When the respondent denied some of these benefits, he applied to the Tribunal.
6The respondent raised a preliminary issue, claiming the applicant was barred pursuant to s. 55(1)(2) of the Schedule from proceeding with this application because he failed to attend a s.44 Insurer’s Examination (IE) in November 2018.
7The Tribunal ordered a written hearing on the preliminary issue.
8The Tribunal released a decision on the preliminary issue on June 15, 2020. In the decision, the adjudicator found that pursuant to s.55(1)(2) the applicant was statute barred from proceeding with his application because he failed to attend a s.44 IE which was reasonably necessary. The IE related to a treatment plan submitted by Lauren Okell on October 18, 2018.
9After the release of the decision, on or around June 25, 2020, the applicant requested clarification pursuant to Rule 17(b) of the Tribunal’s Common Rules of Practice and Procedure as to whether the effect of the decision was to preclude him from disputing whether his injuries fall within the Minor Injury Guideline (“MIG”) on a final basis.
10The applicant also requested the respondent’s position on the consequences of paragraph 40 of the Decision. The respondent indicated that its understanding was that the applicant was permanently precluded from disputing the issue of the MIG.
11In response, on or around July 16, 2021, the Tribunal invited the applicant to file a reconsideration request.
12On August 4, 2020, the applicant filed a request for reconsideration. The applicant did not dispute the adjudicator’s finding under s.55(1)2. The focus of the applicant’s reconsideration was on paragraph 40 of the Decision in which the adjudicator considered whether to allow the application to proceed under s.55(2). The adjudicator determined that it would be prejudicial to the respondent to order an IE as too much time had passed, and it would not yield relevant or useful information for the purposes of deciding whether the applicant was outside of the MIG.
13The applicant asks that the Tribunal reconsider its position that the determination of the adjudicator in paragraph 40, stated above, stands for the proposition that he is permanently precluded from challenging the respondent's determination that his injuries fall within the MIG. The Applicant also requested that the Tribunal reconsider its decision dated July 16, 2020, in which it declined to clarify the effect of the adjudicator’s decision.
Parties’ Submissions
The applicant
14To the extent that the Decision permanently barred the applicant from disputing the MIG determination, the applicant submitted that the Tribunal has no jurisdiction to do so, as there is no provision in the Schedule that specifically grants the Tribunal that jurisdiction. Relying on s.38 and s.39, the applicant argued that the structure of the Schedule suggests that an insurer must make a continuous determination as to whether an insured person's injuries fall into the MIG. In addition, s.54 would be rendered purposeless.
15The applicant submitted the Decision violated the rules of procedural fairness and natural justice to the extent that it made a determination with respect to future applications, when there were no submissions on this issue. Similarly, the applicant submitted that the Tribunal violated the principles of procedural fairness and natural justice when it refused to clarify the adjudicator’s ruling with respect to whether the applicant is permanently precluded from disputing the classification of his injuries as MIG by the Respondent. The applicant suggested the Tribunal should remedy its jurisdictional errors by clarifying that the adjudicator’s ruling does not preclude the applicant from commencing a future application with respect to the MIG.
16In addition, the applicant submitted that the adjudicator erred in fact and law by treating the MIG as a benefit which is subject to sections 44 and 55 of the Schedule, rather than as a status which is not subject to those provisions.
17The applicant asked for $1,000 in costs.
The respondent
18The respondent disagreed. It submitted that the Tribunal does have jurisdiction to finally dispose of statutory accident benefits disputes due to an applicant’s non-compliance with the Schedule and the Insurance Act, where the prejudice to the insurer is incurable.
19In summary, the respondent submitted that the consequences of the adjudicator’s findings are that the applicant is permanently barred from disputing the issue of the MIG. To support its position, the respondent relied on case law dealing largely with the doctrine of res judicata.
20The respondent asked for $500 in costs.
ANALYSIS
21The grounds for granting a reconsideration are set out in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. 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 Rules 18.2(a) and 18.2(b):
a) the Tribunal acted outside its jurisdiction or violated rules of natural justice or procedural fairness; and,
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.
Did the Tribunal act outside its jurisdiction or violate the rules of procedural fairness and natural justice?
22I find that the adjudicator properly considered the issue of whether the applicant was barred to proceed with his application.
23She then applied s.55(2), a section under which the Tribunal may permit an application to proceed despite a finding under s. 55(1)2. As said earlier, the adjudicator decided not to allow the application to proceed.
24The only issue before the adjudicator was whether the applicant failed to attend a specific IE. This specific IE would address the specific treatment plan submitted by Lauren Okell on October 18, 2018.
25After finding that the applicant failed to attend the specific IE, the adjudicator turned to s.55(2) as to whether to allow the application to continue, despite the applicant’s failure to attend a specific IE. I find that the adjudicator properly applied s.55(2). She indicated that the main question was whether there was prejudice in allowing the application to proceed. She then concluded that too much time had passed for this IE to yield relevant information for the purposes of deciding whether the applicant is outside of the MIG at the time the IE was contemplated.
26Here, the parties want a finding on whether the adjudicator’s conclusion under s.55(2) meant that the applicant was precluded from bringing future applications.
27The issue of future applications was not before the adjudicator and the issue of whether the MIG applied was not before her either. Similarly, whether the applicant’s condition deteriorates in the future and a new application is made for medical benefits was not before the adjudicator. These are issues yet to be tested and outside the scope of the preliminary issue decision under reconsideration.
28In other words, I cannot reconsider an issue that was not before the adjudicator.
29The applicant also requested a reconsideration of the Tribunal’s decision to refuse to clarify the Decision. I find the request to reconsider without merit. Rule 17(b) allows the Tribunal to clarify an order or decision that contains a misstatement or ambiguity, which is not substantive or does not change the order or decision. In my view, Rule 17(b) does not apply as there was no misstatement or ambiguity, and it was within the Tribunal’s power to inform the applicant of his choice to file a request for reconsideration.
30The parties’ requests for costs are dismissed. Costs are a discretionary remedy and may be awarded when a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuant to Rule 19.1. I am not persuaded that the conduct of the applicant or the respondent met that threshold.
CONCLUSION
31The request for reconsideration is dismissed.
Samia Makhamra
Adjudicator
Tribunals Ontario - Licence Appeal Tribunal
Released: May 25, 2021