Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Tribunal File Number: 19-013031/AABS
Case Name: Mark Green vs. Intact Insurance Company
Written Submissions by:
For the Applicant: Tamur Shah, Counsel
OVERVIEW
1The applicant requests reconsideration of a decision dated May 14, 2021 (the “decision”).1 In the decision, the Licence Appeal Tribunal (the “Tribunal”) found that the applicant was not entitled to the cost of an income replacement benefit multidisciplinary report because the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”)2 does not obligate insurers to fund assessments or examinations of the nature claimed.
2The applicant seeks reconsideration on the grounds that the Tribunal made errors of law and would have reached a different outcome had the errors not been made. The Tribunal did not request submissions from the respondent.
RESULT
3The request for reconsideration is dismissed. The applicant has identified no error of law in the decision and has therefore failed to satisfy his onus of establishing grounds for reconsideration.
ANALYSIS
4The grounds for reconsideration of a Tribunal decision are contained in 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), as amended (the “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 likely 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.
5The applicant asserts that the Tribunal made errors of law and that it would have reached a different result had the errors not been made. He submits that the Tribunal erred in finding:
i. that the doctrine of procedural fairness has no application to the insurer’s administrative processes and procedures;
ii. that s. 25(1)5 of the Schedule does not cover the disputed report;
iii. that controlling automobile insurance costs is consistent with the Schedule’s consumer protection purpose; and
iv. that s.7(4) of the Schedule addresses the costs which the legislature intended insurers to bear in relation to income replacement benefit claims.
6None of the findings highlighted by the applicant constitute errors of law.
7Procedural fairness is a public law doctrine. It does not apply to insurers in their dealings with insured persons. The Tribunal discussed the nature and scope of the duty of procedural fairness at paragraphs 10 and 11 of the decision. Characterizing insurance adjusting as “administrative processes and procedures” does not bring it within the ambit of the public law duty of procedural fairness.
8In his reconsideration submissions, the applicant continues to mistakenly conflate the duty of procedural fairness owed by an administrative decision-maker to participants in legal proceedings with the substantive obligations between parties to those proceedings. Again, the respondent owes no duty of procedural fairness to the applicant. Nothing is preventing the applicant from responding to the respondent’s Section 44 reports. He must simply do so at his own cost, as nothing in the Schedule obligates the respondent to cover the expense the applicant claims. The Tribunal has no jurisdiction to impose a substantive obligation on the respondent that is not provided for in the Schedule.
9The applicant submits that the Tribunal interpreted s. 25(1)5 of the Schedule restrictively, and thereby made an error of law. He submits that because the language of the provision does not specifically oust expenses like the ones he claims, it should be interpreted to include them.
10There is no error in the Tribunal’s analysis of this provision. As is noted at paragraph 15 of the decision, the language of s. 25(1)5 is clear: it extends funding to
[r]easonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. [Emphasis added.]
11The applicant focuses on the language “any assessment or examination” to advance his argument that the provision can be interpreted to include the expense he claims. But one only needs to read the full sentence the applicant highlights to conclude that the provision covers assessments and examinations necessary for the purpose of preparing an application for a determination of whether the insured person has sustained a catastrophic impairment.
12The applicant submits that since the provision does not expressly stipulate that the list of covered expenses is exhaustive, that it must be interpreted to include other expenses like the one he claims. That argument is inconsistent with the principles of statutory construction and is wholly unpersuasive. The language of s. 25(1)5 is clear and unambiguous. If the legislature intended to extend coverage to the assessments and examinations the applicant claims, it would have included them in the Schedule. It did not.
13The applicant attempts to re-argue to his misguided submission, rejected by the Tribunal in the decision, that procedural fairness operates to grant him a substantive remedy. He submits that the principles of procedural fairness should be applied to the interpretation exercise and that the provision should be read to favour the interests of vulnerable accident victims. These are not new arguments. A reconsideration is not an opportunity to re-argue the merits of the dispute. There is no error in the Tribunal’s conclusion on this issue.
14There is no error in the Tribunal’s finding at paragraph 18 of the decision that controlling costs to the no-fault automobile insurance system is consistent with the consumer protection purpose of the Schedule. The applicant’s submissions proceed on the misunderstanding that the Schedule’s consumer protection purpose necessarily mandates substantive outcomes favourable to insured persons. Stabilizing automobile insurance premiums has been identified by the Court of Appeal as one of the policy objectives underpinning the Schedule: see Aviva Insurance Company v. McKeown, 2017 ONCA 563 at paras. 27 and 28; Wawanesa Mutual Insurance v. Axa Insurance (Canada), 2012 ONCA 592 at para. 7. Controlling excess costs to the system benefits not only insurers, but insured persons as well. Requiring insurers to pay for all examinations and assessments requested by insured persons to advance their claims would dramatically increase automobile insurance premiums and limit access to benefits available to those injured in automobile accidents. These are policy problems which the Schedule was enacted to address.
15Finally, the applicant’s submissions on the Tribunal’s reference to s. 7(4) of the Schedule do not accurately reflect the findings made in the decision and fail to identify an error of law. Section 7(4) of the Schedule is referenced at paragraph 17 of the decision not because it applies to the disputed report, but because it shows that the legislature contemplated funding for expenses associated with income replacement benefit claims. The Schedule is a complete scheme and must be read holistically. Funding for income replacement benefit reports is limited to the circumstances set out in s. 7(4). There is no rationale for reading in coverage for other income replacement benefit-related reports.
CONCLUSION
16The applicant has not met his onus of establishing any of the grounds for reconsideration set out in Rule 18.2 of the Common Rules. He had identified no error of law in the Tribunal’s decision. Because the applicant has not met his onus, it is unnecessary for the Tribunal to receive submissions from the respondent. The request for reconsideration is dismissed.
Theresa McGee
Vice Chair
Tribunals Ontario
Released: June 24, 2021
Footnotes
- Decision header amended to include second counsel for the respondent on June 4, 2021 [Citation: Green v. Intact Insurance Company, 2021 CanLII 40765 (ON LAT].
- O. Reg. 34/10.