AMENDED RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 20-007977/AABS
Case Name: Jia Chen Wen v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant:
Philip Kai Kwong Yeung Sareena Samra, Counsel
For the Respondent: Hooman Zadegan, Counsel
OVERVIEW
1The respondent has requested a reconsideration of my decision dated May 26, 2023, in which I determined the applicant was entitled to payment of a non-earner benefit (“NEB”) from June 11, 2018, to September 14, 2018, because the respondent did not comply with its procedural obligations pursuant to s. 36(4) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent argues that I erred in law and breached the rules of procedural fairness. The respondent submits that had these errors not been made I would have reached a different decision.
3The applicant asserts that my decision is correct, and that the respondent’s reconsideration request is an attempt to relitigate issues which already failed at the hearing.
RESULT
4After reviewing the parties’ submissions, I order that the respondent’s reconsideration request be dismissed.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019) (“Rules”).
6Rule 18.2 states that a request for reconsideration will not be granted unless one or more of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
7The respondent relies on Rule 18.2 (a) and (b).
8The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
9The respondent requests that I cancel my decision and make a finding that the applicant is not entitled to a NEB for any time period.
ANALYSIS
I did not make an error in law or breach the rules of procedural fairness in rendering my decision.
10The respondent submits that I erred in law because I failed to apply the preconditions set out in s. 12(1) (2) (i) of the Schedule in determining that the applicant was entitled to a NEB. In my decision, I found that the applicant did not meet the test for entitlement to a NEB because there was evidence that he was working prior to the accident, and he was not enrolled as a full-time student. I also determined that he did not meet the complete inability test for entitlement. Despite these findings, I ordered the respondent to pay the applicant a NEB for a period of approximately three months, because it failed to comply with its procedural obligations pursuant to s.36(4) of the Schedule.
11The respondent asserts that after I determined that the applicant did not meet the initial test for entitlement, my analysis should have stopped there. It maintains that this was an error in law which would result in a different decision.
12The applicant submits that the respondent is relitigating its position that already failed at the hearing which is not the purpose of the reconsideration process. Further, he maintains that I did not error in my determination that the respondent must pay the NEB for its failure to comply with s.36 (4) of the Schedule. I agree with the applicant for the following reasons.
13I find the respondent is relitigating its position and making new legal arguments which were not before me at the hearing. In paragraph [13] of my decision, I state “The respondent did not address this argument at all or provide any evidence to support that it complied with its procedural obligations under s. 36(6) of the Schedule.” Therefore, I agree with the applicant that the respondent must pay the NEB from June 11, 2018, to September 14, 2018, plus interest.”
14On this reconsideration request, the respondent relied on the Court of Appeal’s decision in Stranges v. Allstate Insurance Co. of Canada, 103 O.R. (3d) 73, 2010 ONCA 457 (“Stranges”) to support its position that procedural non-compliance does not create substantive entitlement to benefits on its own. It also relied on decisions from this Tribunal, which I am not bound by. These are new arguments which is not permitted in a reconsideration request and, therefore, was not properly before me. Even if the argument was considered, I find Stranges distinguishable because it dealt with a previous version of the Schedule. Further, the present case is not about deficient notice or the two-year limitation period, it is about the respondent’s failure to respond to an application for benefits within the 10-day time period provided in s.36(6) of the Schedule.
15It is well established law that a request for reconsideration is not an opportunity for the unsuccessful party to make new legal arguments following the receipt of a decision. As highlighted above, the respondent did not address this legal argument at all or submit the case law, which it relies upon in support of this reconsideration request. Therefore, I conclude that I did not error in law by failing to consider a legal argument or case law that was not before me in the initial hearing.
I did not act outside of my jurisdiction or breach the rules of procedural fairness.
16The respondent submits that I breached the rules of procedural fairness in determining that the applicant was entitled to the NEB because there cannot be substantive entitlement to a benefit because of a procedural error where there is misrepresentation. It submits that the applicant misrepresented his claims because he refused to produce documents to help the Tribunal assess the benefit. Further, the applicant misrepresented his situation regarding his performance at work, effectively lying about his state of disability. Finally, the applicant must not be awarded NEB because it is a breach of procedural fairness and natural justice fairness to allow the applicant to profit from his conduct.
17I find the respondents allegation that I breached the rules of procedural fairness or natural justice in my decision has no merit. Of significance, in my decision I determined that the applicant did not meet his onus in proving his entitlement to NEBs. There was no finding in my decision that the applicant’s claim for benefits was barred for misrepresentation other than the fact that I found his self-reports about his psychological symptoms inconsistent in paragraph [20] of the decision. There is another remedy in the Schedule available to the respondent should it wish to raise a preliminary issue where it believes there is misrepresentation. This was not before me in the present case, nor did the respondent allege misrepresentation in its submissions for the written hearing. Consequently, there was no breach in procedural fairness in my failure to consider an argument that was not properly before me in the decision. Finally, I find the respondent was given a fair opportunity to participate in this hearing and defend the case against it as it filed written submissions. In my view, that was the time for it to raise all of the above-noted arguments. I find the respondent simply disagrees with my decision which is not the purpose of reconsideration. For these reasons, I do not find that I breached the rules of procedural fairness and natural justice in my decision.
CONCLUSION
18For the reasons noted above, I deny the respondent's request for reconsideration.
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 24, 2023