Switzer v. Waterloo Insurance
RECONSIDERATION DECISION
Before: Lindsay Lake, Vice Chair
Tribunal File Number: 19-011403/AABS
Case Name: Michael Switzer v. Waterloo Insurance
Written Submissions by:
For the Applicant: Michael Switzer, Counsel
For the Respondent: Kathleen O’Hara, Counsel
BACKGROUND
1The respondent, Waterloo Insurance, filed a request for reconsideration of the May 12, 2021 decision1 of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).
2In the decision, I found, among other things, that the applicant, Michael Switzer, was entitled to income replacement benefits (IRBs):
(i) In the amount of $711.15 per week from February 10, 2018 to December 31, 2018 plus interest in accordance with s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule);2 and
(ii) In the amount of $1,000.00 per week for the period of January 1, 2019 to date and ongoing plus interest in accordance with s. 51 of the Schedule.
3The respondent requested a reconsideration of these two findings. The respondent submitted that I violated the rules of procedural fairness and that I made significant errors of law and/or fact such that I would likely have reached a different decision.
4The applicant was provided until June 30, 2021 by the Tribunal to deliver responding submissions on the request for reconsideration. It was not until January 17, 2022, however, that the applicant filed his responding submissions. The respondent objected to the late filing of the applicant’s submissions and requested that they not be accepted by the Tribunal.
5The respondent has also appealed the decision to the Divisional Court.
RESULT
6The respondent’s request for reconsideration is dismissed.
ANALYSIS
7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules). The grounds that the respondent submitted apply in this matter are Rules 18.2(a) and (b), as the respondent submitted that:
(i) I violated the rules of procedural fairness; and/or
(ii) I made an error of law and/or fact such that I would likely have reached a different result had the error not been made.
Procedural Fairness
8The respondent submitted that I violated the rules of procedural fairness in reversing the onus of proof in determining that the applicant was entitled to IRBs in the amount of $1,000.00 per week from January 1, 2019 to date and ongoing.
9Procedural fairness, however, has been defined as primarily encompassing the following:
(i) Ensuring that parties understand the case they must meet; and
(ii) Ensuring that the parties have an opportunity to be heard to allow them to respond accordingly.3
10At the March 23, 2020 Case Conference, the Tribunal set out the issues that were in dispute between the parties and a combination hearing was scheduled. At the hearing, both parties called evidence and made written submissions, all of which was considered in rendering the decision.
11Therefore, I find that the respondent had a full opportunity to argue its case pertaining to the applicant’s claim for IRBs from January 1, 2019 to date and ongoing. Therefore, I do not find any violation of procedural fairness such that a reconsideration of the decision is warranted under Rule 18.2(a). Furthermore, I find that the respondent’s arguments regarding my alleged reversal of the onus of proof is more appropriately analyzed under errors of fact and/or law.
Error of Fact and/or Law
12The respondent relied upon Rule 18.2(b) for its position that I erred in fact and/or law. In order to interfere with a decision under Rule 18.2(b), however, I must not only have made an error of law or fact, but that error of law or fact must be enough that, had it not been made, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.
13For the reasons that follow, I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made. Therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.
Interpretation of s. 4 of the Schedule and Failing to Follow Binding Caselaw
14The respondent submitted that I erred:
(i) In my interpretation and application of s. 4 of the Schedule; and/or
(ii) By failing to follow the Divisional Court decision of Surani v. Perth Insurance Company (Surani)4 which analyzed sections 4 and 7 of the Schedule regarding the calculation of IRBs for self-employed individuals.
15The respondent’s submissions regarding my interpretation of s. 4 of the Schedule do not point to any error and, instead, reiterate substantially similar arguments made by the respondent in its closing hearing submissions at first instance. While it is open to the respondent to disagree with my interpretation of the Schedule, it is not a ground upon which a reconsideration may be granted.
16The respondent also submitted that I erred by reading the word “full” into s. 4 of the Schedule prior to the term “fiscal year.” The respondent submitted that the applicant did in fact have a fiscal year with Switzer PC that ended on September 30, 2017 prior to the accident. The respondent submitted that I provided no explanation in the decision as to why I did not consider the 2017 fiscal year in determining the quantum of IRBs to which the applicant was entitled. I disagree.
17At paragraph [68] of the decision, I relied upon the evidence of Jessy Hawley, an accountant and expert witness called to testify at the hearing by the respondent, that Switzer PC did not have a completed fiscal year prior to the accident as Switzer PC’s first ever fiscal year ended on September 30, 2018. Therefore, I find that I did provide an explanation as to why I did not consider a fiscal year in 2017 in determining the quantum of IRBs.
18Further, the respondent submitted that I improperly distinguished Surani on the basis that the applicant in this case had been self-employed at two different business in the year prior to the accident. Again, the respondent provided no basis upon which an error was made but rather simply disagreed with how I distinguished Surani from the facts in this matter which is not a basis to grant a reconsideration.
19Therefore, I find that the respondent failed to prove on a balance of probabilities that I erred in my interpretation of s. 4 of the Schedule or by failing to follow binding case law from the Divisional Court such that a reconsideration should be granted on either of these grounds.
Failed to Appropriately Apply the Onus of Proof / Ordering Payment of an IRB Quantum without Sufficient Financial Disclosure from the Applicant
20The respondent submitted that I erred by ordering IRBs payable to the applicant in the amount of $1,000.00 per week from January 1, 2019 to present and ongoing because at the hearing, “there was insufficient evidence of the Applicant’s income/losses during that period.”5 The respondent submitted that all of the relevant documentation showing the applicant’s income from January 1, 2019 and ongoing was entirely within the power and control of the applicant at all material times, but yet none of this evidence was before the Tribunal for the hearing. The respondent claims that I penalized it for the applicant’s failure to disclosure financial records by finding that he was entitled to the maximum amount of IRBs from January 1, 2019 when it was undisputed that Switzer PC continued to operate during this period.
21The respondent also alleged that I erred by suggesting that the respondent should have requested the applicant’s financial documentation under s. 33 of the Schedule and, in doing so, reversed the onus of proof. The respondent submitted that it is well settled that the applicant has the onus to prove entitlement to IRBs and there is no obligation on the respondent to make requests for documentation under s. 33. To support its position, the respondent relied up on the decision of S.T. v. Dominion of Canada General Insurance Company (Travelers).6 This decision, however, was in reference to medical documentation to determine whether the applicant’s injuries fell within the Minor Injury Guideline (MIG).7 It is distinguishable on the facts as it speaks to the MIG and not IRBs.
22In any event, I do not disagree with the respondent that the onus is upon the applicant to prove the quantum of IRBs that they are entitled to, and this is what the applicant did as discussed in paragraphs [61] to [77] of the decision. Where I do disagree with the respondent is in its assertion that the applicant has somehow failed in his onus by not proving the deductions under s. 7(3) for post-accident income that the respondent is relying upon from January 1, 2019 and onwards. While I do not dispute that the relevant financial documents that would assist in determining these deductions are in the control of the applicant, the respondent has directed me to no applicable authority that permits me to withhold or suspend payment of IRBs because the applicant has not produced this information.
23Simply put, the applicant proved the quantum of entitlement of IRBs to which he was entitled, and the respondent took no enforceable steps to prove the deductions it was seeking to rely upon if it was not successful in arguing that the appropriate amount of IRBs payable was $Nil. This is by no means improperly reversing the onus of proof. It well settled that when a respondent is seeking a repayment of IRBs under s. 52(1)(c) of the Schedule for any amount of IRBs paid that were deductible under the Schedule, the onus remains on the respondent to prove the amount of the repayment. Similarly, the onus is on the respondent to prove on a balance of probabilities the amount of any deductions of IRBs that it is relying upon by taking steps in accordance with the Schedule to obtain this information. When they fail to do so, I am unclear how such inaction would fall to the feet of the applicant.
24Finally, as mentioned above, s. 52(1)(c) of the Schedule allows the respondent to seek a repayment for any amount of IRBs paid to the applicant that were deductible under the Schedule subject of course to certain conditions. Therefore, the respondent’s characterization that my decision as a “windfall” to the applicant is not correct.
25For these reasons, I find that the respondent has failed to prove on a balance of probabilities that I made any error of law or fact by finding that the applicant was entitled to IRBs in the amount of $1,000.00 per week from January 1, 2019 to present and ongoing or that I incorrectly change the onus of proof.
OTHER MATTERS
26The respondent requested that the applicant’s late reconsideration submissions not be accepted by the Tribunal. As I did not need to turn to the applicant’s submissions in arriving at this decision, this request is moot and need not be determined.
CONCLUSION
27For the reasons noted above, the respondent’s request for reconsideration is dismissed.
Lindsay Lake Vice Chair Tribunals Ontario – Licence Appeal Tribunal
Released: April 5, 2022
Footnotes
- Switzer v. Waterloo Insurance, 2021 CanLII 111146 (ON LAT) (the “decision”).
- O. Reg. 34/10 as amended.
- See the reconsideration decision of IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
- 2018 ONSC 7254.
- Reconsideration Submissions of the Respondent, para. 54.
- 2020 CanLII 34469 (ON LAT).
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
