RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Tribunal File Number: 20-006288/AABS
Case Name: Radcliffe Weathers v. Toronto Transit Commission Insurance Company Limited
Written Submissions by:
For the Applicant: Adam Ridolfi, Paralegal
For the Respondent: Justin Lim, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision dated May 20, 2021, in which I determined that the applicant was statute-barred from proceeding with his application for Non-Earner Benefits (“NEBs”), initially made when he was seven years old, as he failed to dispute the respondent’s denial within the limitation period prescribed by the Schedule.
2In the request, the applicant submits that I erred: in concluding that TTC was not required to send an accident benefits package to a minor applicant or re-adjust the file upon reaching the age of majority; that it was an error to rely on the OCF-3 from 2001 following the accident when the applicant was a minor; that I failed to consider further medical records evidencing the progressions of the contusion injury; and, that it was error to find that there were three valid denials that each triggered the limitation period; and that s. 7 of the Licence Appeal Tribunal Act should be applied. The applicant requests an order that he is not statute-barred from proceeding with his application.
RESULT
3The 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, the respondent relies on criteria 18.2(a) and (b), submitting that I acted outside of the Tribunal’s jurisdiction or violated the rules of procedural fairness and that I committed errors of law and fact in reaching my decision such that the Tribunal would likely have reached a different decision had they not been made.
5The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. I find that the applicant’s request here is precisely that. On review, I find no error of law or fact that in my original decision that would have led me to a different result had it not been made. The arguments offered by the applicant on reconsideration are largely similar to those made at first instance and, in many cases, are presented verbatim.
6The applicant first asserts that I erred in finding that he did not provide authority to support the proposition that the TTC was required to send an accident benefits package to a minor applicant when he reached the age of 16 or the age of majority, and the proposition that TTC was required to send an accident benefits package to a minor when he turns 16. On review, the applicant still did not provide authority to support this position and did not explain how s. 32 of the Schedule would require such action from TTC given the applicant’s inaction for significant periods of time post-accident and after two of TTC’s valid denials. Accordingly, I find no error.
7With regard to the second alleged error, the applicant asserts that I erred by relying on his initial OCF-3 from 2001 (when he sustained a leg contusion at the age of 7) and failed to consider the other medical records that followed over the next decade. I see no error. As TTC submits, I find that I addressed this at paras. 12-14 of my decision where I considered the OCF-3 from 2001, in the context it was submitted, as a valid reason for TTC’s first denial of January 17, 2001. Indeed, the applicant did not meet the NEB test in 2001.
8In any event, and critically, the applicant’s submissions fail to appreciate that the substantive merits of his claim—the applicant’s injuries and medical records, the alleged progression of his impairment, his condition as an adult, etc.—were not the subject of the preliminary hearing before the Tribunal. Rather, the issue before me in the preliminary hearing was whether the limitation period had elapsed. This analysis necessarily focuses on the formal documentation and correspondence between the parties, and not on the applicant’s medical records, as alleged. This is the documentation I considered. Accordingly, it was not an error to focus on the relevant and, indeed, determinative documentation given the threshold issue before me.
9The applicant submits that the third alleged error was my finding that it was unreasonable to expect an insured to re-adjust a file for every minor claimant that re-appears after a decade with purportedly progressive injuries. Again, on review, I find no error, and especially so where the applicant was attempting to claim a NEB as a minor and then 10 years later as an adult, where the initial injury was a leg contusion, where there were two valid denials (in 2001 and 2010) and where the applicant still took no action to dispute his claim for several years after the second denial.
10The fourth alleged error concerns my finding that TTC issued three proper denials in 2001, 2010 and 2017 that were all sufficient to trigger the limitation period. As TTC notes, this was the sole issue before the Tribunal and, on review, I find no indication that I committed an error of law or fact in my analysis that would have resulted in a different outcome had it not been made. Indeed, I identified and analyzed the relevant legislation and binding caselaw and correctly stated the law with respect to limitation periods in accident benefits disputes.1 While the applicant may take issue with the result, there was no error.
11For completeness, while it is well-settled that a decision-maker does not have to refer to every argument or piece of evidence before them, I also find that I considered all of the applicant’s secondary arguments—that he was a minor, that he only later reached the age of majority, that the Limitations Act applied, that his mother was not a litigation guardian, etc.—before finding, even on the most generous interpretation of the limitation period, that the applicant still failed to commence his application on time. I see no error. The applicant’s assertion in his reconsideration submissions that TTC’s third denial letter did not comply with the Schedule was not made at first instance and therefore cannot be reviewed here.
12Finally, and in a similar vein, the applicant’s request alleges that I acted outside of my jurisdiction or violated the rules of procedural fairness under Rule 18.2(a), but he did not offer specific submissions to support this position. On review, and in the absence of particulars, I find no evidence to support this contention.
ORDER
13For the reasons above, the request for reconsideration is dismissed.
Jesse A. Boyce
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 23, 2021
Footnotes
- At para. 11 of the decision, I cited to all of: Smith v. Co-Operators Gen. Ins. Co., 2002 SCC 30; Turner v. State Farm, 2005 CanLII 2551 (ONCA); Haldenby v. Dominion of Canada Gen. Ins. Co., 2001 CanLII 16603 (ONCA); Sietzema v. Economical Mutual Ins. Co., 2014 ONCA 111. At para. 15, I cited to both Bonilla v. Preszler, 2016 ONCA 759, [2016] O.J. No. 5315 and Blake v. Dominion Ins. Co., 2015 ONCA 165.