Smith v. Intact Insurance Company, 2021 CanLII 73539
RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice-Chair
Tribunal File Number: 19-014019/AABS
Case Name: Moreen Smith v. Intact Insurance Company
Written Submissions by:
For the Applicant: Gordon Harris, Counsel
For the Respondent: Leanne Zawadzki, Counsel
OVERVIEW
1The Applicant, Moreen Smith, requests reconsideration of my preliminary issue decision wherein I found that she had not completed the requisite steps to claim an income replacement benefit (“IRB”). I held that failure to complete the requisite steps resulted in her application to the Tribunal being premature and the Tribunal could not hear it in the absence of an application and a denial from the respondent, Intact Insurance Company (“Intact”).
2Ms. Smith submits that I made an error of fact or law such that I would likely have reached a different result had the error not been made (a “material error”). She relies on s. 18.2(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). She asks that I cancel or vary my decision to permit her claim for an IRB to proceed to a hearing.
3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
4Having reviewed Ms. Smith’s submissions, I find that she has not satisfied her onus on a reconsideration of identifying an error of fact or law such that that I “would likely have reached a different result had the error not been made” (“material error”). Her submissions are no more than an attempt to relitigate the matter and restate her earlier submissions. Her request for reconsideration is denied.
BACKGROUND
5Ms. Smith was involved in a motor vehicle accident on November 10, 2017. She claimed entitlement to an IRB. To do so, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) required her to file two documents, an Application for Accident Benefits (“OCF-1”) and a Disability Certificate (“OCF-3”), Intact acknowledged receipt of the OCF-1 but denied receipt of the OCF-3 until after Ms. Smith had applied to the Tribunal. Intact took the position that the Tribunal had no jurisdiction to adjudicate entitlement to the IRB because there had been no application and therefore no denial. In their absence, there was no dispute. I reviewed the applicable case law at paragraph [27].
6Ms. Smith made three factual assertions to support her position that she had delivered the OCF-3. She pointed to an OCF-3 prepared by her treating healthcare practitioner, Grand River Physiotherapy (“Grand River”). Written on the OCF-3 were the words “faxed December 13, 2017.” Ms. Smith submitted at the hearing that this is proof that Intact received the OCF-3 on December 13, 2017. After reviewing the evidence in paragraphs [8] through [13] and [18] through [21] of the decision, I rejected this assertion.
7Ms. Smith also asserted that Intact had the OCF-3 in its possession because its assessor, Dr. Khaled, noted on his report that he had reviewed the Grand River file. I reviewed that evidence at paragraphs [14] and [15] of the decision and determined that there was no evidence that the documents delivered to Dr. Khaled were as extensive as Ms. Smith suggested.
8The last factual assertion for the delivery of the OCF-3 was that it was included in a bundle of 120 pages of general disclosure documents delivered to Intact on November 25, 2019. At paragraph [24], I found that Ms. Smith’s failure to identify that she was serving the OCF-3 at that time as part of a claim for an IRB did not result in filing the document as required under the Schedule.
Grounds for the Reconsideration
9Ms. Smith sets out the grounds for the reconsideration in her submissions:
- The grounds for the applicant’s submission that the Tribunal made an error of law or fact are as follows:
a. A denial from the insurer is not necessary to begin the appeal process;
b. There are no governing rules regarding how an OCF-3 should be sent to the insurer;
c. The adjudicator failed to maintain the consumer protection purpose of the Schedule by finding that the applicant should have been triggered into action by cheques not arriving in time;
d. Part of the Decision and reason to dismiss Ms. Smith’s claim states that the OCF-3 was not completed prior to the application. The OCF-3 was, in fact, clearly completed prior to the application to the Tribunal being made, on December 18, 2019;
e. The Adjudicator states the billing notation regarding the Certificate is more likely for the OCF-1 that for the OCF-3. There are several alleged mistakes within this conclusion;
f. The Adjudicator states that Ms. Smith’s intentions were ambivalent because an OCF-3 was not completed and provided;
g. Insurers do not pay for forms they do not have/have not received; and,
h. The Adjudicator has introduced new “facts” that were not entered into evidence by either the Applicant or the Respondent.
ANALYSIS
10Reconsideration is not an opportunity to reargue the original decision or findings of fact. The onus is on the applicant to clearly identify the alleged error of fact or law and demonstrate how, if the error was not made, the outcome would have been different. Where, as here, the Tribunal’s findings were made after considering the evidence, drawing reasonable inferences from it, and reaching a decision, the disagreement of one of the parties with those findings does not constitute an error. I find that Ms. Smith has not pointed to a material error of fact or law. Her submissions do no more than ask me to reweigh the evidence.
A denial from the insurer is not necessary to begin the appeal process
11Ms. Smith has misread the decision and the case law referred to in paragraph [27] of the decision. The nub of the decision is that there has been no proper application in the absence of an OCF-3, thus, no dispute. It is quite possible that, after a proper application, an insurance company’s delay in responding may be sufficient to find that the delay amounts to a denial of the benefit. Those are not the facts in this case.
There are no governing rules regarding how an OCF-3 should be sent to the insurer
12This statement is quite simply incorrect as a matter of law. There are extensive rules on delivering documents by fax, as Ms. Smith purported was done in this case, under s. 64 of the Schedule. She did not comply with those rules.
13If I take Ms. Smith to mean that there is no special rule with respect to the delivery of an OCF-3 as there are with Treatment and Assessment Plans under the Health Claims for Auto Insurance system, then her submission is that her delivery of productions to Intact’s counsel constituted good delivery of the OCF-3 to Intact. In paragraphs [22] to [24], the decision addresses my finding that simple inclusion of a dated OCF-3 in a large bundle of documents was insufficient to put Intact on notice that Ms. Smith was actively applying for an IRB approximately 18 months after Intact advised Ms. Smith it was putting her file in abeyance. There is no material error in this finding.
The adjudicator failed to maintain the consumer protection purpose of the Schedule by finding that the applicant should have been triggered into action by cheques not arriving in time
14The consumer protection aspect of the Schedule does not relieve Ms. Smith of her obligations under the Schedule. It was her obligation to respond to Intact’s requests for documents. The decision reviews the history of communication between Ms. Smith and Intact starting at paragraph [10], which outlines Ms. Smith’s right to benefits, as well as Intact’s requests for the appropriate documents and notification to her of its actions. The communication summarized in paragraph [10] satisfies the consumer protection dimension.
15It is important to note, in response to the allegation of Ms. Smith’s lack of knowledge, that she had retained counsel shortly after her accident to pursue her claim for benefits. There is no evidence that she or her counsel made any effort to follow up with Intact despite Intact’s clear communication of its actions.
16There is no material error in this finding.
Part of the Decision and reason to dismiss Ms. Smith’s claim states that the OCF-3 was not completed prior to the application. The OCF-3 was, in fact, clearly completed prior to the application to the Tribunal being made, on December 18, 2019
17There is no support for this statement anywhere in the decision. Throughout, I accepted that Grand River had completed the OCF-3 around December 13, 2017. At paragraph [25] I hold that “Ms. Smith did not complete her application for an IRB until May 28, 2020.” Perhaps that is what Ms. Smith is referring to. It is the core finding of the decision supported by the evidence. It is not a material error.
The Adjudicator states the billing notation regarding the Certificate is more likely for the OCF-1 that for the OCF-3. There are several alleged mistakes within this conclusion. Insurers do not pay for forms they do not have/have not received
18At paragraph [13] of the decision I address this argument. On the evidence before me, I concluded that the OCF-3 was not delivered on December 13, 2017. Indeed, the billing entry in dispute pre-dates the date of the OCF-3 calling into question the linkage between the entry and the OCF-3.
19This finding was open to me on the evidence. There is no material error in the analysis.
The Adjudicator states that Ms. Smith’s intentions were ambivalent because an OCF-3 was not completed and provided
20I have already pointed out above that I did not find that the OCF-3 was not completed on December 13, 20217. I also point out the lack of evidence that it was ever faxed to Intact.
21The only remaining issue relates to the delivery of a bundle of documents to Intact’s counsel in November 2019 that contained a copy of the OCF-3. At paragraph [24] of the decision, I review my findings regarding delivery of the bundle of documents.
The Adjudicator has introduced new “facts” that were not entered into evidence by either the Applicant or the Respondent.
22In her submissions Ms. Smith has not identified the “new” facts which she alleges I improperly introduced into my analysis. In light of this, I do not accept this submission as a ground for reconsideration.
CONCLUSION
23Ms. Smith’s request for reconsideration is no more than a request that the Tribunal reweigh the evidence and come to a different conclusion. I deny Ms. Smith’s request for reconsideration.
D. Gregory Flude
Vice-Chair
Tribunals Ontario - Licence Appeal Tribunal
Date of Issue: August 12, 2021