RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Tribunal File Number: 19-013457/AABS
Case Name: Tania Spence v.` Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Teena Belland, Counsel Kaitlin Brennan, Counsel
For the Respondent: Brendan Carruthers, Counsel James M. Brown, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent, Aviva. It arises out of a decision dated February 16, 2021, in which I determined that the applicant was entitled to payment in the amount of $5,901.00 plus interest, representing the unpaid portion of her income replacement benefit (“IRB”) that was improperly deducted as a result of her receipt of Employment Insurance (“EI”) sickness benefits post-accident.
2In its request, Aviva submits that I erred in law in determining that the amounts the applicant had received for EI sickness benefits were not deductible as “gross employment income” under s. 7(3) of the Statutory Accident Benefits Schedule – Effective September 1, 20201 (the “Schedule”). Aviva maintains that there is no ambiguity between the relevant sections, that EI sickness benefits are deductible from IRB as “gross employment income”, that my interpretation contravened the wording of the Schedule and undermined the legislative purpose of same. Aviva requests that the decision be rescinded on the basis that the applicant is not entitled to the unpaid amounts for the period in dispute.
3The applicant submits that Aviva’s request is largely repetitive of its original submissions and failed to disclose a significant error of law that would have resulted in a different decision.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5The 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, Aviva relies on criteria 18.2(b), submitting that I committed errors of law in reaching my decision such that the Tribunal would likely have reached a different decision had they not been made.
6Contrary to Aviva’s submissions, on review, I continue to find that the statutory scheme that references EI benefits in four separate places in the Schedule is not a straightforward one that operates clearly and harmoniously. Paragraphs 7-11 of my original decision outlined the ambiguities that informed the parties’ dispute, and which led me to my finding at first instance. On review, I see no error in my finding at para. 15 that there is a “genuine conflict in the Schedule as to whether EI sickness benefits can be deducted from an IRB” and that “the other sections of the Schedule that pertain to EI benefit deduction create ambiguity that invites analysis beyond the plain meaning of s. 7(3)(a) and s. 4(1).” Where there is a genuine conflict between sections, it is well-settled that the Schedule is consumer-protection legislation.
7Further, with this conflict in mind, I find no error of law in my analysis and interpretation of these ambiguities at paras. 15-22 of my decision, nor do I find that this led to an absurd or unjust result. None of the cases relied on by Aviva squarely address the unique facts of this case or provide binding direction on the issue that would lead me to rescind my original decision based on an error of law. While I am alive to the fact that the Schedule does not expressly provide that EI sickness benefits are not deductible as a temporary disability benefit, on review, I remain of the belief that EI sickness benefits fall within the temporary disability benefit exclusion provided by s. 47(3)(f)(i)—contained within the “Payment of Benefits” section of the Schedule—as they are the only form of EI benefits that are received “in respect of an impairment” as “impairment” is defined by s. 3 of the Schedule. I rely on the reasons provided in my original decision.
ORDER
8For the reasons above, the request for reconsideration is dismissed.
Jesse A. Boyce
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: August 13, 2021
Footnotes
- O. Reg. 34/10, as amended.