RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice-Chair
Licence Appeal Tribunal File Number: 20-000516/AABS
Case Name: Ghulam Alakoozi v. ACE INA Insurance
Written Submissions by:
For the Applicant: Mitchell Kent, Paralegal, No submissions received
For the Respondent: Jason Frost, Counsel
INTRODUCTION
1The respondent, ACE INA Insurance (ACE), has requested the Tribunal reconsider its preliminary issue hearing decision released on January 29, 2021. ACE asserts that:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness.
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
2ACE is seeking that the Tribunal’s order be varied to find that the applicant, Ghulam Alakoozi, is barred from proceeding to the LAT with respect to the quantum of income replacement benefit (IRB) to which he may be entitled, from one week after his accident to July 11, 2017.
RESULT
3The Respondent's request for reconsideration is dismissed.
BACKGROUND
4To fully put the original decision in context, I will review its underlying facts. Mr. Alakoozi was self-employed at the time of the accident, working as a taxi driver. Of necessity, this added a measure of complexity to the calculation of his pre-accident employment income. He applied to ACE for an IRB in and around January 9, 2017, received by ACE on March 14, 2017, making an election to receive an IRB.
5ACE sent Mr. Alakoozi for an orthopaedic and a psychological assessment and, based on the assessors’ reports, terminated the benefits on July 11, 2017. That letter made two statements that are potentially at odds with each other. The first is: “Based on the results of the above noted examination, this letter provides notice that the insurance company has determined that you are not entitled to an income replacement benefit.” In other words, it is a blanket denial of entitlement to an IRB from the date of the accident.
6The second statement is less definitive. It states: “Please be advised that the income replacement benefit will be terminated as of July 11, 2017 in accordance with Section 37 and Section 54 of the Statutory Accident Benefits Schedule.” It leaves open the question of entitlement before July 11, 2017.
7At paragraph 9. of its preliminary issue submissions, ACE sets out what happened next: “Throughout early 2018, the Respondent received various income documentation required to calculate the Applicant’s weekly amount. This was done to determine whether there were any amounts owing up to the stoppage date” [emphasis added]. It is clear then, that in ACE’s mind, the July 11, 2017 letter had not addressed entitlement to an IRB before the July 11, 2017 letter. It is also clear that Mr. Alakoozi had the same interpretation.
8On or around March 15, 2018, an accounting firm retained by ACE, MD&D Accounting issued a report that calculated the pre-July 11, 2017 IRB at $NIL.
9Mr. Alakoozi applied to the Tribunal to resolve the dispute over his entitlement to an IRB on January 20, 2020. This date is approximately two and a half years after he received the July 11, 2017 letter. It is less than two years from receipt of the accounting report in March 2018 calculating his IRB at $NIL. ACE brought a preliminary issue motion to strike the claim for an IRB on the basis that it was beyond the two-year limitation period in the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg 34/10 (SABS).
ANALYSIS
Denial of Procedural Fairness and Natural Justice
10The issue for the preliminary issue hearing was set out in the Tribunal’s case conference order released on June 17, 2020 as: “Is the Applicant barred from proceeding with his claim for an income replacement benefit pursuant to s. 56 of the SABS?” Mr. Alakoozi submitted in his Preliminary Issue Motion submissions that this question must be broken down to examine the pre-denial letter period and the post-denial letter period. With respect to the period after the July 11, 2017 letter, Mr. Alakoozi sought to invoke the Tribunal’s power under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999 c. 12, Sched G to extend limitation period. For the period before that date, he submitted that there was no denial of entitlement until the March 15, 2018 letter.
11ACE argued that the determination of the quantum was part and parcel of the whole denial of the IRB and could not be separated out. It submitted that the March 2018 letter enclosing the accounting report did not trigger the running of a new limitation period as it was simply part of its ongoing duty to adjust the file.
12The Tribunal accepted Mr. Alakoozi’s characterization of the issues in dispute. It held that the July 11, 2017 letter was a denial of entitlement to an IRB from the date forward. It declined to exercise it jurisdiction to extend the limitation period. It also held that the question of entitlement, and more importantly, the quantum of entitlement from the date of application to July 11, 2017 was still in issue. It permitted the matter to proceed to a hearing on that issue.
13ACE argues that it was a denial of natural justice to split the analysis into pre-July 11, 2017 entitlement and post-July 11, 2017 entitlement. In its submission, the question from the case conference order was clear and permitted only one interpretation.
14With respect, I disagree. The issue as defined in the case conference order asked the Tribunal to consider the impact of s. 56 of the SABS on the facts of the case, not just those facts ACE wanted it to consider. It was open to the Tribunal to recognize that there were two factual scenarios with a different application of the limitation period to each scenario. It was ACE, in its July 11, 2017 letter, that left open the question of entitlement for the period before the denial and the case conference order framing the issue did not preclude a dual analysis.
15The preliminary issue motion was brought by ACE. ACE made the initial submissions and had a right of reply to the Mr. Alakoozi’s submissions. It addressed Mr. Alakoozi’s submission that the two-year limitation period was applicable only to post-July 11, 2017 entitlement at paragraph 2.b. of its motion submissions and expands those submissions in paragraphs 12. through 18. ACE knew the case it had to meet and had an opportunity to make full answer and defence. There was no denial of procedural fairness or natural justice.
No Error of Fact or Law
16It is clear from its request for reconsideration submissions that ACE has failed to appreciate that its July 11, 2017 letter left open the question of entitlement to and quantum of an IRB up to the date of the letter. In fact, a liberal reading of the letter and ACE’s submissions in paragraph 9 of its preliminary motion submissions suggests that ACE has conceded entitlement to an IRB up to the denial letter, leaving only the question of quantum. Given that the Tribunal addressed only the question of quantum, it appears that this was its reading of the facts.
17The whole ACE’s submission is predicated on the idea that the July 11, 2017 letter is a clear and unequivocal denial of an IRB from the date of application. The Tribunal did not accept that position, and that was conclusion was open to it. It can be seen from my reasons above, that it is a conclusion I agree with. It was not an error of law to interpret the letter as the Tribunal did.
18There are numerous doctrines that result in the resolution of any ambiguity in the letter in favour of Mr. Alakoozi. With respect to the SABS, it is unnecessary to look further than Smith v. Co-Operators General Insurance Company, 2002 SCC 30, [2002] 2 SCR 129 which places a duty on ACE to communicate with Mr. Alakoozi “in straightforward and clear language, directed towards an unsophisticated person.” By leaving the question of entitlement to an IRB for the period up to July 11, 2017 ambiguous, the July 11, 2017 letter did not trigger the limitation period. It was not triggered until March 2018 when ACE informed Mr. Alakoozi he was entitled to $NIL per week.
CONCLUSION
19For the reasons noted above, I deny the Respondent's request for reconsideration.
20In accordance with the original case conference order, the parties shall contact the Tribunal within 10 days of the release of the preliminary issue decision to schedule a case conference.
D. Gregory Flude
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 7, 2022