RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Licence Appeal Tribunal File Number: 19-010651/AABS
Case Name: Ian R. Perrigard and Primmum Insurance Company
Written Submissions by:
For the Applicant: Maciek Piekosz, Counsel
For the Respondent: Allison Webster, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a preliminary issue decision dated November 25, 2021, in which I found the applicant was statute-barred under s. 56 of the Schedule from proceeding with his application, as he failed to commence his application within two years after valid denials by Primmum, the respondent, and for his failure to attend at properly scheduled s. 44 Insurer's Examinations (IE).
2In his request, the applicant submits that I erred in fact by finding that the letter dated February 27, 2017 met the requirements of s. 37(4) where no medical reasons were cited; that I erred in fact by finding the Notice of Examination dated June 9, 2017 met the requirements of s. 44(5)(a); erred in fact and law in not considering the applicant re-applying for income replacement benefits (IRB) and erred in law in my determination that he was late in submitting his application. The applicant requests that the decision be varied to find Primmum did not issue valid denials and that he be permitted to proceed with his application.
RESULT
3The applicant's request for reconsideration is granted. The applicant may proceed with his application at the Tribunal.
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. The test for reconsideration under Rule 18 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.
Medical reasons are required to terminate an IRB
5At para. 9 of my decision, I found that Primmum was not required to conjure up or fabricate a medical reason for terminating the applicant's IRB where there was a valid "other" reason for doing so: being the applicant's return to employment, which presumably entailed a sufficient ability to perform the essential tasks of their employment. However, the Divisional Court's decision in Varriano v. Allstate, 2021 ONSC 8242, was released in December 2021 after the release of my decision at first instance. As the adjudicator at first instance in Varriano, I find that the facts are very similar, and the rationale is applicable here.
6In Varriano, the Court found that insurers are required to provide "medical and other reasons" for discontinuing IRBs pursuant to s. 37(4) because the "and" in that section is to be read conjunctively rather than disjunctively. On one hand, the Court acknowledged that insurers are not required to manufacture a medical reason where one does not exist, but on the other hand, it found that insurers have to be explicit as to whether or not such reasons support denying or limiting coverage, so that applicant's will understand that their "impairment" is or is not in issue for future claims. While I understand that the Varriano decision has been appealed, the Court's direction remains binding on this Tribunal at this time.
7While I understand Primmum's position that it was not in receipt of supporting employment or medical documentation at the time, that the applicant failed to provide an OCF-3 and that there is no doubt that the applicant and his counsel appreciated its reasons for denying the IRB, Varriano invalidates the denial on the basis that Primmum's correspondence failed to include a medical reason, or, as I understand the Court's requirement, failed to provide an indication that the applicant's IRB was not being denied for a medical reason. The Court's rationale does not provide discretion to navigate the facts on which Primmum and I relied.
8Similarly, I am alive to Primmum's submission that even if "medical reasons" are held to be required in this case, the oft-cited case of Sietzema v. Economical Insurance, 2014 ONCA 111 provides that clear and unequivocal notice triggers the limitation period, even if the insurer gave legally incorrect reasons. However, again, it appears that this rationale no longer applies post-Varriano, as the Court specifically addressed this argument at paras. 27-28 of its decision, finding that Seitzema was of limited assistance because the pre-2010 version of the Schedule considered in that case did not explicitly require "medical and any other reasons" like the current version does. The Varriano Court determined that the Seitzema Court's "narrow focus on the clarity of the insurer's ultimate decision to deny benefits cannot be justified in the face of the legislature's 2010 amendments that clearly and explicitly require insurers to provide adequate reasons for their determination, including medical reasons." The effect of this reasoning on similar cases moving forward and on those already decided remains unclear, but the Court's direction is binding on me.
9Accordingly, it was an error of law and fact to find that Primmum's notice to the applicant of his IRB termination met the requirements of s. 37(4) to constitute a valid denial, as the Court in Varriano determined that citing a return to work is not a valid "medical or other reason" for discontinuing an IRB and that this legal error does not start the limitation period, as in Sietzema. This error would have resulted in a different outcome had it not been made, chiefly that the applicant would not be statute-barred from proceeding. On this basis, Primmum's denial of IRBs was invalid and did not start the limitation period, meaning the applicant may proceed with his application before the Tribunal.
10For completeness, I find no error of law or fact on the remaining grounds. On review, I find Primmum's s. 44 IE notices were sufficiently clear to allow the applicant to make an informed determination on whether to attend, which he elected not to. In any event, given my finding above that the applicant is permitted to proceed with his application, the remaining issues concerning the two-year limitation period and the applicant's failure to apply in time are moot.
ORDER
11The applicant's request for reconsideration is granted. The applicant may proceed with his application at the Tribunal. The parties are directed to contact the Tribunal to schedule a case conference to determine how to proceed.
Jesse A. Boyce
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 12, 2022