Zoes Giannoylis v. Travelers Insurance, 2022 CanLII 33250

Licence Appeal Tribunal

Citation: Zoes Giannoylis v. Travelers Insurance, 2022 CanLII 33250

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 20-000280/AABS

Case Name: Zoes Giannoylis v. Travelers Insurance

Written Submissions by:

For the Applicant: Joel E. Lewis, Paralegal

For the Respondent: Sara Baum, Counsel

BACKGROUND

1The applicant, Zoes Giannoylis, filed a request for reconsideration of the September 14, 2021 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).

2In the decision, I found, among other things, that the applicant:

(i) Was not entitled to income replacement benefits (IRBs) for the period of August 10, 2018 to February 19, 2019;

(ii) Failed to provide sufficient particulars to allow me to calculate the amount of IRBs payable during the entitlement period of February 20, 2019 to January 11, 2021; and

(iii) Was not entitled to IRBs from January 12, 2021 to date and ongoing.²

3The applicant requested a reconsideration of the decision on the basis that I:

(i) Made significant errors of law and/or fact such that I would likely have reached a different decision had the errors not been made; and/or

(ii) Acted outside of my jurisdiction and/or violated the rules of natural justice or procedural fairness.

4The respondent submitted that I did not make any errors of law and/or fact but agreed with the applicant that I acted outside of my jurisdiction and/or violated the rules of natural justice or procedural fairness. As a result, the respondent agreed that the applicant’s request for reconsideration of my decision that he was not entitled to IRBs from January 12, 2021 to date and ongoing be granted and the remainder of the reconsideration request be dismissed.

RESULT

5The applicant’s request for reconsideration is granted in part. The decision is varied such that paragraphs 4, 5, [24] to [26], and 30 that address and make findings regarding the applicant’s entitlement to post-104-week IRBs are struck. The remainder of the applicant’s request for reconsideration is dismissed.

ANALYSIS

6The 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 applicant submitted apply in this matter are Rules 18.2(a) and (b), as he submitted that I:

(i) Acted outside of my jurisdiction or violated the rules of procedural fairness; and/or

(ii) Made an error of law or fact such that I would likely have reached a different result had the error not been made.

Acting Outside of my Jurisdiction and Procedural Fairness

7The applicant submitted that I acted outside of my jurisdiction in finding that he was not entitled to IRBs from January 12, 2021 to date and ongoing. The applicant submitted that post-104-week IRBs were not disputed by the applicant in the application and that this issue was not “discussed or added to the [Case Conference Report and] Order.”³ I disagree.

8The June 25, 2020 Case Conference Report and Order clearly identifies as an issue in dispute between the parties the applicant’s claim for IRBs in the amount of $361.59 per week for the period of August 10, 2018 to date and ongoing [my emphasis added].⁴ Indeed, the respondent recited this issue in its original hearing submissions stating, “The claimant is disputing his entitlement to Income Replacement Benefits (“IRBs”) in the amount of $361.59 per week from August 10, 2018 to date and ongoing… [my emphasis added].”⁵ The applicant even referred to being denied IRBs in the post-104-week period in his initial hearing submissions.⁶

9From all of the evidence before me, it was not unreasonable or outside of my jurisdiction in making a determination regarding the applicant’s entitlement to IRBs from January 12, 2021 to date and ongoing in the decision. No motions were brought to the Tribunal following the release of the June 25, 2020 Case Conference Report and Order seeking to amend the issues in dispute, nor was it clear from the parties’ submissions that the applicant’s entitlement to post-104-week IRBs was not to be addressed in the decision.

10Nevertheless, it is clear from the reconsideration submissions that both parties never intended that I make a finding regarding the applicant’s entitlement to IRBs in the post-104-week accident period in the decision. In this regard, the applicant additionally relied upon procedural fairness to support his request for reconsideration. Procedural fairness 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.⁷

11I find that procedural fairness dictates that the applicant has an opportunity to be heard, and for the respondent to be able to respond accordingly, regarding the applicant’s entitlement to IRBs in the post-104-week accident period. As I agree with the respondent that neither party filed any medical evidence nor made submissions with respect to this period, the applicant’s request for reconsideration of this issue is granted. As a result, the decision is varied such that the following paragraphs are struck: 4, 5, [24] to [26], and 30.

Error of Fact and/or Law

12The applicant relied upon Rule 18.2(b) for its position that I erred in fact and/or law. Specifically, the applicant submitted that I erred by finding that he failed to provide sufficient particulars to allow for the calculation of the amount of IRBs payable during the entitlement period. The applicant’s position is that I calculated the weekly IRB amount payable in paragraph [18] of the decision but that this finding was not reflected in my conclusion. The applicant submitted that the decision should be varied to reflect the weekly amount payable subject to the provision of the sufficient particulars of any deductions that the respondent is entitled to make. I disagree.

13In the decision, I found that the applicant’s weekly IRB entitlement was $355.38 per week, but that the respondent was still permitted under s. 7(3)(a) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)⁸ to deduct 70 percent of any gross employment income received by the applicant after the accident and during the period in which he was eligible to receive IRBs.⁹

14In this matter, the respondent sought information from the applicant to prove the amount of any deductions that it was entitled to under s. 7(3)(a) by way of a s. 33 request for information first, followed by an order for further particulars which was made by Adjudicator Driesel in the June 25, 2020 Case Conference Report and Order. Ultimately, I found that because the respondent had requested additional information regarding the applicant’s post-accident income for 2019 and 2020 by way of an order by the Tribunal, and the applicant failed to provide sufficient particulars regarding this information, I was unable to determine the amount of IRBs payable for February 20, 2019 onwards to January 11, 2021 given the deduction that the respondent is entitled to make as a result of the applicant’s post-accident income.

15No error of fact or law was made regarding this finding. This is not a situation where it would be appropriate to simply order IRBs payable subject to the appellant having yet another opportunity to provide additional particulars given my finding in the decision that there was no evidence before me to support the information that the appellant provided to the respondent following the Tribunal’s June 25, 2020 Order. In this matter, the respondent took active steps in accordance with the Schedule to obtain further information that was in the control of the applicant to allow it to calculate any deductions from IRBs payable that the respondent is entitlement to make under s. 7(3)(a). I found that the information provided by the appellant in response to the Order, which was only an email from the applicant’s representative to the respondent, to not be evidence or provide sufficient particulars as ordered by the Tribunal.¹⁰ The applicant disagreeing with this finding does not point to any error in fact or law and is not a ground for reconsideration.

CONCLUSION AND ORDER

16The applicant’s request for reconsideration is granted in part. The decision is varied such that the following paragraphs are struck: 4, 5, [24] to [26], and 30. The remainder of the applicant’s request for reconsideration is dismissed.

Lindsay Lake Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Giannoylis v. Travelers Insurance, 2021 CanLII 88031 (ON LAT) (the “decision”).
2. 2Ibid. at para. [5].
3. 3Applicant’s Request for Reconsideration, para. 1(2).
4. 4Applicant’s Request for Reconsideration, tab 2, para. [8]1.
5. 5Written Submissions of the Respondent (for the hearing), para. 3.
6. 6Applicant’s Responding Submissions (for the hearing), para. 16.
7. 7See 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.
8. 8O. Reg. 34/10.
9. 9Decision, para. [18].
10. 10Decision, para. [21].