20-010604/AABS - R

RECONSIDERATION DECISION

Before:

Jesse A. Boyce, Vice-Chair

Licence Appeal Tribunal File Number:

20-010604/AABS

Case Name:

Justice Scheltgen and TD Insurance Meloche Monnex

Written Submissions by:

For the Applicant:

David J. Medcalf, Counsel

For the Respondent:

Michelle Hatzikonstadinou, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant. It arises out of a decision dated December 1, 2021, in which I found the applicant was statute-barred under s. 55 of the Statutory Accident Benefits Schedule (“Schedule”) from proceeding with his application for an income replacement benefit (“IRB”) because of his failure to attend properly scheduled s. 44 Insurer’s Examinations (“IE”).

2The applicant submits that I made an error of fact in determining that TD accommodated the applicant, that I made an error of law by finding that TD had the right to insist on an in-person as opposed to a virtual IE of the applicant, and that I erred in law in finding that the applicant had not provided a reasonable explanation for his non-attendance. In the alternative, the applicant further submits that he should be permitted to proceed with his application for IRBs for the period August 20, 2020 to May 31, 2021.

RESULT

3The applicant's request for reconsideration is dismissed.

ANALYSIS

4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). The applicant’s request relies on criteria 18.2(b): that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

5The test for reconsideration under Rule 18.2(b) involves a high threshold. Reconsideration 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. 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.

6First, with respect to the applicant’s assertion that it was an error of fact to conclude that “it cannot be said that TD did not accommodate the applicant” where TD did not pay IRBs to the applicant pending the rescheduling of the s. 44 examinations. I agree with TD that nowhere in s. 44(9) of the Schedule does it state that an insurer’s duty to accommodate an insured includes continuing to pay an IRB that is under review and especially so where the responsibility for the delay falls at the applicant’s feet. Indeed, as TD points out, s. 37(7) provides that an insurer may refuse payment of a benefit where an insured fails or refuses to comply with an IE. I see no error of fact that would have affected the outcome.

7Second, regarding the applicant’s claim that I erred in law by finding that TD was within its right to insist the IE take place in person, I see no error. Section 44 provides the framework for an insurer’s right to schedule an IE, including the method of evaluation. While the applicant points to s. 44(9)2(i)—which states that the “insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured”—I find no error of law. My decision outlines how TD waited over eight months to reschedule the applicant’s IE to accommodate his hockey season, only for the applicant to leave the province just days before the final IE was scheduled to take place. In my view, TD made reasonable efforts to schedule the IE for a date, time and location convenient for the applicant, as I found at para. 13 of the decision:

13I also find it cannot be said that TD did not accommodate the applicant, as the applicant brazenly alleges in his submissions. Rather, after the applicant missed the first slate of IE’s on the basis that he did not update his mailing address and/or was simply not available for a significant period of eight months, TD took the applicant at his word that he would attend the rescheduled IE’s in April 2021 after the hockey season was complete. TD then accommodated the applicant by working around his hockey season and scheduling the post-104-week IRB IE’s for April 26, May 6, May 13, and May 31, 2021 upon his return to Ontario. This was prejudicial to TD, as it was robbed of the ability to procure timely, contemporaneous medical opinions. While the applicant attended for the first three IE’s in April and May 2021, he then departed Ontario again before he satisfied his obligation to attend the fourth IE scheduled for May 31, 2021, which runs contrary to his claim, on which TD relied, that he was ready and willing to attend.

8Further, I agree with TD that there is no merit to the applicant’s argument that it was an error not to find that the pandemic impacted his travel or that TD should have been more accommodating with its in-person IE request as a result. The applicant bears the burden of demonstrating why his non-attendance was reasonable or, in the alternative, why the IE was not reasonably necessary. The applicant was physically present in Ontario mere days before the IE that was scheduled to accommodate him and, as he testified to in his Examination Under Oath, he made the choice to return to the United States during the pandemic. It is unclear how my finding amounts to an error of law in light of the applicant’s decision to leave Ontario prior to the IE or how his argument on reconsideration assists him in meeting his burden.

9Next, the applicant asserts that it was an error of law where I did not make a finding on whether it was reasonable for TD to insist on an in-person IE. This ignores the fact, again, that the applicant was physically present in Ontario and chose to leave mere days prior to the IE and that it was his burden to prove that non-attendance was reasonable. In any event, contrary to the applicant’s submissions, I find I addressed this very point at para. 12 of my decision and see no error that would affect the outcome:

12In a similar vein, the insurer has a right to conduct an in-person IE to fairly assess a claim for benefits and to provide it with an opportunity to make a full response, so long as the IE’s are not conducted more than are reasonably necessary. The applicant was continuing to claim IRB—indicating he had a substantial inability to complete the essential physical duties of his previous job as a labourer—all while he was away in the United States playing competitive hockey. On these facts, and as the missed IE was for an orthopaedic assessment to assess his physical capabilities—chiefly from a tibia fracture and ACL and PCL knee injuries—I agree that it would not be reasonable to conduct this assessment virtually, as the applicant suggests. In any case, it was within TD’s rights under the Schedule to insist that the IE take place in person, and I find this is especially so where the applicant was continuing to play competitive hockey while claiming an IRB.

10Third, the applicant submits I made an error of law in finding that his explanation for non-attendance was not reasonable. In submissions, he posits that his inability to attend the IE was “entirely a result of the pandemic” and the hardship that would have involved him abandoning his hockey career. Again, the IE was scheduled by TD after a significant delay in order to accommodate the applicant. He was physically present in Ontario and chose to leave prior to the assessment, on his own accord, in order to pursue his hockey career, and not because of pandemic-related travel issues. In any event, I find I addressed this issue at paras. [14-15] of the decision and find no reason to depart from this finding on reconsideration:

14In submissions, the applicant asserts that his non-attendance at the fourth IE was reasonable because on May 27, 2021, his counsel wrote to TD and advised that the applicant was required to return for a hockey opportunity on short notice and that as such, he would not be available to attend the May 31, 2021 IE. However, as TD submits, at his examination under oath on June 3, 2021, the applicant was specifically asked why he left when he did—just prior to the May 31, 2021 IE that he had indicated he would attend—and whether he was specifically told to be back in Erie by a certain date. The applicant deposed that he returned to Erie because he could not train in Ontario and that it was his choice to return to Erie when he did. Again, TD initially requested the s. 44 IE’s in January 2020. The applicant did not attend for any assessments until April and May 2021 and only after TD rescheduled the IE’s on two occasions to accommodate him. The applicant then departed Ontario by choice before attending the final IE.

15As a result, I find the applicant’s decision not to attend the IE was not a reasonable one, as it was the applicant’s choice to leave the country mere days before he was required to attend an IE that was scheduled to accommodate his career and his claim for an IRB. Given the significant delay in getting the applicant to attend s. 44 IE’s that were originally scheduled in the summer of 2020, I agree with TD that the applicant’s choice to leave Ontario on his own accord mere days prior to fulfilling the last of his s. 44 obligations is not a reasonable explanation for non-attendance.

11Finally, the applicant submits in the alternative that he should be allowed to proceed with his IRB claim for the period August 20, 2020 to May 31, 2021 because I made no findings on his non-attendance for the IEs related to this period. I disagree. At para. [13], I found that the applicant failed to attend the first round of IEs because he either "did not update his mailing address and/or was simply not available for a significant period of eight months" and noted that TD was robbed of "the ability to procure timely, contemporaneous medical opinions" when it took the applicant at his word and rescheduled the IEs for a time when he would be able to attend. Again, at para. [15], I considered the significant delay in getting the applicant to attend the IEs. I see no error that would permit the applicant to proceed with his application despite his non-attendance.

CONCLUSION

12The applicant’s request for reconsideration is dismissed.

Jesse A. Boyce

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal