RECONSIDERATION DECISION
Before: Daniela Corapi
Licence Appeal Tribunal File Number: 21-001365/AABS
Case Name: Samuel Tagoe v. The Personal Insurance Company
Written Submissions by:
For the Applicant: Shahen Alexanian, Counsel
For the Respondent: Bruce Chambers, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2The applicant was involved in an automobile accident on April 28, 2016. On February 3, 2021, the applicant filed an application with the Tribunal seeking income replacement benefits from the respondent, for the time period pertaining to May 5, 2016 to date and ongoing.
3The respondent raised a preliminary issue on the basis that the applicant was substantially past the 2-year limitation period to contest his IRB denial and sought a s. 56 statute-bar against the applicant from proceeding with his dispute before the Tribunal.
4By way of decision dated February 28, 2022 (“decision”), the Tribunal found that the applicant is statute-barred from proceeding with his application for IRBs as the limitation period has expired following a valid denial by the respondent.
5On March 14, 2022, the applicant requested reconsideration of the Tribunal’s decision pursuant to Rule 18.1 of LAT Common Rules of Practice and Procedure and submitted:
a. I acted outside of my jurisdiction or violated the rules of natural justice and procedural fairness;
b. I made a significant error of law or fact such that I would likely have reached a different decision;
c. I heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; and
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
6The applicant is seeking an order:
a. Varying the previous decision to conform with the applicant’s submissions; and
b. Allowing the applicant to proceed to hearing on the issue of entitlement to IRBs.
7The Respondent submits that the adjudicator conducted the correct legal analysis and there is no basis for the applicant’s claim.
8Pursuant 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
9For the reasons provided below, I am not satisfied that the applicant has met his onus to show that the adjudicator made significant errors of law or fact such that the Tribunal would have reached a different decision. I am also not satisfied that serious breaches of the rules of natural justice and procedural fairness occurred that would entitle the applicant to a reconsideration of the decision.
10The Applicant's request for reconsideration is dismissed.
ANALYSIS
11The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
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;
c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; and/or
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
12Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
13Here, the basis for the Applicant’s request for reconsideration falls under Rule 18.2 (a), (b), (c) and (d), as listed above.
14The applicant raised four arguments in his submissions. For ease of reference, I have used the same four headings to address the issues as they appear in the applicant’s reasons for reconsideration:
Alleged use of the wrong legal test in determining whether the purported denial was “clear and unequivocal”
15The applicant states that the Tribunal failed to apply an objective test when determining whether the purported denial was “clear and unequivocal” and submits that this is an error of law pursuant to Rule 18.2(b). The applicant states that the test “is not that the purported denial be understandable by a “reasonable person”, but rather by an “unsophisticated person”, and that this standard was not applied when examining the sufficiency of the purported denial.
16On the totality of evidence before me at the hearing and for the reasons outlined in the decision, I concluded that the respondent’s notice of denial was proper in accordance with the principles outlined in Smith v. Co-Operators General Insurance Company.1 The applicant’s argument that a “subjective test” was applied in the decision is unsupported and unpersuasive. For instance, utilizing the objective criteria and principles found in Smith, the decision outlined how the respondent’s EOB letter satisfied the basic Smith requirements in providing a clear denial: it provided reasons for the denial of the IRBs; clearly indicated the applicant is not eligible for IRBs; provided particulars as to why he is not eligible; and it provided the dispute process available.
17The applicant submits that I examined the respondent’s notice “as a whole” and submits that an unsophisticated person would not read the notice in such a way. I disagree. The applicant has failed to persuade me regarding how use of a contextual approach in the reading of the notice would be limited to a sophisticated person.
18I find that the applicant’s further submission that a “clear and concise” test was used, rather than a “clear and unequivocal” test, to be vague and lacking particulars. Even though the phrase “clear and concise” was used, a fair reading of the decision demonstrates that my analysis of the EOB was focused on whether it was clear and unequivocal.
Finding that the applicant was represented by counsel instead of a paralegal
19The applicant submits that the Tribunal made an incorrect factual finding that the applicant was represented by counsel rather than a paralegal when the denial was received and submits that this is an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made (Rule 18.2(b)).
20The applicant also submits that Rule 18.2(c) and (d) may “possibly” also apply in this regard, however, does not provide reasoning to support his position.
21The applicant notes that Mr. Alexanian, counsel for the applicant in this reconsideration request, became involved in this matter after the LAT appeal was commenced. Prior to Mr. Alexanian’s involvement, the applicant was represented by a paralegal. In the decision, I indicated that the “applicant was represented by counsel”, rather than distinguishing between the time periods when the applicant was represented by counsel and paralegal.
22I find that my misstatement of “counsel” rather than “paralegal” was an error of fact. However, this error was inconsequential given that the applicant was represented, whether by counsel or paralegal. As a result, I find that the high threshold under Rule 18.2(b) to warrant a reconsideration is not met.
23I find that the applicant had a full opportunity to argue his case pertaining to the preliminary issue and do not find any error of law or fact to have been made such that a reconsideration of the decision is warranted under Rule 18.2 (c) and (d).
Alleged failure to consider discoverability or prematurity of the denial
24The applicant submits that the Tribunal made an error of law by allegedly failing to apply the Court of Appeal’s decision in Tomec2 and address the argument relating to discoverability and prematurity of the denial in its decision, such that the applicant was denied procedural fairness pursuant to Rule 18.2(a).
25I disagree. Discoverability and prematurity of a denial were addressed in the decision. For instance, paragraph 34 outlines the applicant’s arguments with respect to pre-emptive denial, and paragraph 35 goes on to outline my position on premature benefit claims:
…there is a considerable body of case law that deals with premature benefit claims that are denied pre-emptively by an insurer. I find that a benefit can be denied by an insurer pre-emptively and that the use of the phrase “you do not qualify” would be found to be acceptable under the Schedule.
26I find no violation of the rules of procedural fairness. Contrary to the applicant’s submissions, his evidence and submissions were considered in their entirety. The evidence is referred to in the decision, where necessary.
27The Tribunal need not expressly address in its decision every piece of evidence and submission provided by a party.3 Moreover, the Tribunal has held that the exclusion of findings, with respect to certain arguments raised by the parties, is not a deprival of procedural fairness or a breach of natural justice, nor is it a ground for reconsideration.4
28I find that the applicant had a full opportunity to argue his case pertaining to the preliminary issue and do not find any violation of procedural fairness such that a reconsideration of the decision is warranted on the basis of Rule 18.2(a).
Alleged failure to consider estoppel argument
29The applicant submits that the Tribunal made an error of law and denied the applicant procedural fairness by allegedly failing to consider the applicant’s argument that the respondent was estopped from relying on the statutory limitation period by its conduct, contrary to Rule 18.2(a) and (b).
30I disagree. In its submissions, the respondent correctly notes that the issue of whether the applicant relied to his detriment on the insurer’s post-denial conduct such that the insurer’s denial should be invalidated is addressed at paragraphs 37 and 38 of the decision.
31I find no violation of the rules of procedural fairness. Contrary to the applicant’s submissions, his evidence and submissions were considered in their entirety.
CONCLUDING REMARKS
32While I am alive to the four allegations of error that form the basis of the Applicant’s request, after reviewing my decision I find no errors of law or fact that would materially affect the outcome, as alleged.
33Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
34The applicant’s request for reconsideration is essentially a request for a re-hearing of the evidence and is based on his dissatisfaction with the outcome of the decision. The Tribunal’s Rules do not permit it to grant a reconsideration on this ground.
35The findings I made, as set out in the decision, are all factual findings supported by the evidence before me at the hearing. I correctly considered the evidence and made appropriate findings and find no error in doing so.
CONCLUSION
36The applicant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant has requested reconsideration, the onus is on the applicant to establish his grounds and he has not done so.
37For the reasons noted above, I deny the applicant's request for reconsideration.
Daniela Corapi
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 19, 2022
Footnotes
- 2002 SCC 30, at para 14.
- Tomec v Economical Mutual Insurance Company, 2019 ONCA 882, at paras 36-49.
- Chiarello v Aviva General Insurance, 2020 CanLII 94800 (ON LAT) at para 8; Patel v Allstate Insurance Company, 2021 CanLII 124053 (ON LAT), at para 29.
- Ibid [Chiarello] at para 11