Mahhamoud v. Aviva General Insurance, 2022 CanLII 65564

RECONSIDERATION DECISION

Citation: Mahhamoud v. Aviva General Insurance 2022 ONLAT 19-010985/AABS-R

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 19-010985/AABS

Case Name: Falis Mahhamoud v. Aviva General Insurance

Written Submissions by:

For the Applicant: Alex Nikolaev, Counsel

For the Respondent: Nisaa Khan, Counsel

BACKGROUND

1The respondent, Aviva General Insurance, filed a request for reconsideration of the February 15, 2022 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).

2In the decision, I found, among other things, that Falis Mahhamoud, the applicant, was entitled to non-earner benefits (NEBs) in the weekly amount of $185.00 plus interest in accordance with s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)² from February 5, 2018 to December 11, 2019.³

3The respondent requested a reconsideration of my finding that the applicant was entitled to NEBs as it submitted that I violated the rules of natural justice or procedural fairness and/or made a significant error of law and fact such that I would have come to a different decision had the error not been made.

4The applicant requested that I dismiss this reconsideration request and took the position that the respondent is simply trying to re-litigate the same evidence or is advancing new arguments that should not be considered as they were not made at first instance.

RESULT

5The respondent’s request for reconsideration is granted and I find that the applicant is not entitled to NEBs.

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 respondent submitted apply in this matter are Rules 18.2(a) and (b), as it submitted that I:

(i) 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.

7For the reasons that follow, I agree that I erred in fact and, had I not made the error, I would not have found that the applicant was entitled to NEBs for the period of February 5, 2018 to December 11, 2019.

Error of Fact and/or Law

8The respondent relied upon Rule 18.2(b) of the Rules for its position that I erred in fact and/or law on several grounds including erring by finding that the applicant had complied with its January 26, 2018 request for information under s. 33 which ultimately led to my finding that the applicant was entitled to NEBs.

9The respondent’s January 26, 2018 correspondence requested under s. 33 of the Schedule that the applicant provide to it: consent forms to obtain clinical notes and records (CNRs) from the applicant’s family doctor and post-accident hospital records and a completed activities questionnaire.

10In the decision, I found that the January 26, 2018 correspondence met the requirements of s. 36(4)(c) of the Schedule⁴ but further went on to consider s. 36(5) which is only triggered after the applicant complies with the s. 33 request.

11I agree with the respondent that I erred in fact by incorrectly finding that the applicant had complied with the s. 33 request once she had provided her family physician CNRs to the respondent on December 18, 2018.⁵ Indeed, there was no evidence before me that she provided any of the additional information requested. I find, however, that this was a reasonable error to make given the contents of the respondent’s December 28, 2018 correspondence as particularized in the decision at paragraph [43].

12In any event, as a result of this error of fact, I accepted that s. 36(5) was triggered, found that the respondent’s December 18, 2018 correspondence failed to meet the requirements of s. 36(4)(b), and, ultimately, held that the applicant was entitled to NEBs due to the respondent’s breach of its obligations under the Schedule. I further agree with the respondent that had I not made the error in fact, I would not have determined that the applicant was entitled to NEBs in the weekly amount of $185.00 for the period of February 5, 2018 to December 11, 2019.

13Further, I do not agree with the applicant that this is a new argument or that the respondent’s reliance upon its s. 33 request was raised for the first time in the respondent’s reconsideration submissions. In its sur-reply hearing submissions, the respondent submitted that the applicant’s submissions regarding the December 28, 2018 letter were irrelevant because the respondent complied with s. 36(4)(c) by way of its January 26, 2018 correspondence. Section 36(4)(c) refers to a request sent under s. 33 of the Schedule. While I agree with the applicant that none of the respondent’s written denials of her claim for NEBs was on the basis of its January 26, 2018 s. 33 request being outstanding, it is clear that the respondent was relying upon its s. 33 request at the hearing to demonstrate compliance with s. 36(4) of the Schedule. Moreover, the applicant has not provided me with any authority that the respondent has somehow waived its right to rely upon its s. 33 request or is otherwise precluded from doing so to support its position at the hearing.

14As I found in the decision that the respondent’s January 26, 2018 correspondence complied with s. 36(4)(c) of the Schedule, I now find that the applicant is not entitled to NEBs because:

(i) No evidence was submitted that the applicant fully complied with the respondent’s January 26, 2018 s. 33 request;

(ii) As a result, sections 36(5) and 36(6) of the Schedule are not triggered; and

(iii) The applicant’s position at first instance was that she was entitled to NEBs based solely on the procedural breach of the respondent’s obligations under the Schedule.⁶ As I have now correctly found that s. 36(5) and s. 36(6) of the Schedule were not triggered such that the respondent would be in breach of s. 36(5), I find that the applicant is not entitled to NEBs because she provided no evidence or submissions at first instance regarding her substantive entitlement to NEBs under s. 12(1) of the Schedule.

Procedural Fairness

15Given my finding that I made an error of fact and, had I not made the error, I would not have arrived at the decision that I made regarding the applicant’s entitlement to NEBs such that the respondent’s request for reconsideration is granted, I do not need to decide whether the rules of procedural fairness were violated.

CONCLUSION

16The respondent’s request for reconsideration is granted. The applicant is not entitled to payment of NEBs.

Lindsay Lake
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Mahhamoud v. Aviva General Insurance, 2022 CanLII 11144 (ON LAT) (the “decision”).
2. 2O. Reg. 34/10 as amended.
3. 3Supra note 1 at para. 46.
4. 4Ibid. at para. 40.
5. 5Ibid. at paras. 42 and 44(ii).
6. 6Hearing Submissions of the Applicant, para. 16.