RECONSIDERATION DECISION
Before: Rebecca Hines, Adjudicator
Licence Appeal Tribunal File Number: 21-011865/AABS
Case Name: Marie-Louise de Boyrie v. TD Insurance Meloches Monnex
Written Submissions by:
For the Applicant: Nick de Koning, Counsel
For the Respondent: Al Alilovic, Counsel
OVERVIEW
1The respondent has requested a reconsideration of my decision dated April 19, 2023, in which I determined the applicant was entitled to payment of an income replacement benefit (“IRB”).
2The respondent argues that I acted outside of my jurisdiction and made errors of law and/or fact such that I would have reached a different decision.
3The applicant asserts that my decision is correct, and that the respondent has raised new legal arguments that were not before me at the hearing.
RESULT
4The respondent’s reconsideration request is granted in part. Paragraphs 2, 3, 30 and 37 of my decision are varied as follows:
i) The applicant is entitled to an IRB in the amount of $400.00 per week from September 22, 2020, to date and ongoing, less any deductions for post-accident income.
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).
8Upon reconsidering a decision, the Tribunal under Rule 18.4 may:
(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 vary my decision and make various edits to the language I used throughout. In the alternative, it requests that the matter proceed to a rehearing before another adjudicator on the IRB issue.
ANALYSIS
Rule 18.2(a) - I did not act outside of my jurisdiction in my decision.
10The respondent did not articulate in its submissions how I acted outside of my jurisdiction in rendering my decision. Therefore, I conclude that I did not act outside of my jurisdiction.
Rule 18.2(b) - I find I made an error of law and/or fact in my decision, which would result in a different decision had the error not been made.
11The respondent’s reconsideration request takes issue with the language I used in my finding that the applicant was entitled to payment of an IRB. In paragraph [3] of my decision I stated:
“After considering the parties submissions and all of the evidence I find the applicant is entitled to an IRB in the amount of $400.00 per week from September 22, 2020, to date and ongoing.”
12The respondent submits that in making the above order I erred in fact and/or law in the following ways:
By not stating that the respondent is entitled to deduct any post-accident income. It submits that I erred in law because the evidence supports that the applicant made post-accident income between September 22, 2020, and the date of the decision, which the respondent is eligible to deduct pursuant to s. 7(3) of the Schedule. Further, she also applied for CPP and if it is approved the respondent is entitled to future deductions. Consequently, it requests that I vary paragraphs 2, 3, 30 and 37 of my decision to include the phrase, "less any applicable deductions", to provide clarity regarding the IRB to be paid, in keeping with s. 7(3) of the Schedule;
By using the word “entitled” in paragraphs 2, 3, 30 and 37 of my decision. It submits that my choice of the word “entitled” is open for interpretation in that the applicant is to be paid an IRB forever. It requests that I replace the word “entitled” with “shall be paid” or “is owed” in the above noted paragraphs; and
By not including an end date for payment of the IRB. The respondent submits that I erred in law because I did not provide any clarity that the payment of IRBs to the applicant may have an end date, in keeping with ss. 5 and 6 of the Schedule. It requests that I vary paragraphs 2, 3, 30 and 37 of my decision to include the phrase, "until no longer owing”.
13The applicant agrees that s. 7(3) of the Schedule permits an insurer to deduct post-accident income earned by an insured from IRB payments. However, she submits that the principle of res judicata applies to this matter because the respondent is attempting to relitigate an issue which has already been decided. She submits that the respondent had an opportunity to make these arguments regarding the quantum of the IRB at the hearing, but failed to do so. Further, it would be improper and unfair to allow the respondent to make these arguments for the first time on this reconsideration request. Further, she submits that s. 281 (1) of the Insurance Act, R.S.O. 1990 c. I.8 (“Act”) prohibits an insurer from reducing benefits following a decision of the Licence Appeal Tribunal on the basis of an alleged change of circumstances, alleged new evidence or an alleged error except as provided under that section.
14I find that I erred in law and/or fact by failing to apply s. 7(3) of the Schedule in paragraphs 2, 3, 30 and 37 of my decision in ordering the quantum of IRBs payable to the applicant. I agree with the respondent that there was evidence before me that the applicant earned income post-accident in which the respondent would be entitled to deduct from past amounts payable. I find this was an oversight on my behalf and I failed to address this fact throughout my decision. In addition, I find this error would result in a different decision because it will impact the amount of past IRBs the applicant is entitled to because the respondent is entitled to make deductions for post-accident income. Although I agree with the applicant that the respondent did not address the quantum of IRBs payable in its submissions at the hearing, I find that s.7(3) of the Schedule is clear that the respondent may deduct any post-accident income earned by the applicant from past and ongoing payment of benefits.
15In addition, I find that the principle of res judicata does not apply because the decision is subject to the reconsideration power in Rule 18, which explicitly provides the Tribunal with the discretion to reconsider and correct errors. I find that res judicata only applies to a final decision after a hearing where the party has failed to apply for reconsideration or seek an appeal to the Divisional Court. This is a request for reconsideration which permits the Tribunal to vary its decision where an error of law and/or fact has been made which would result in a different decision. Lastly, section 281(2)(c) of the Act provides that an insurer may reduce benefits to an insured person where the Tribunal authorizes it to do so. While the applicant refers to s. 281(1) as prohibiting an insurer from reducing benefits after the Tribunal’s decision, that provision must be read with s. 281(2)(c), which prohibits the respondent from reducing benefits unless the applicant agrees, the Divisional Court grants the respondent’s appeal from the Tribunal’s decision, or if the Tribunal authorizes such. In my view, varying the Tribunal’s order as set out below is consistent with s. 7(3) of the Schedule and s. 281(2)(c) of the Act.
16For the above noted reasons, I vary paragraphs 2, 3, 30 and 37 of my decision as follows:
“The applicant is entitled to an IRB in the amount of $400.00 per week from September 22, 2020, to date and ongoing, less any deductions for post-accident income.”
17I reject the remaining arguments made by the respondent on this reconsideration request, namely, that I should vary the language in my decision addressing hypothetical future deductions for CPP benefits or edit other language. I find that I did not err in law and/or fact by not considering the respondent’s right to deduct benefits the applicant has not even been approved for from future IRB payments. In my view, should the applicant be approved for CPP benefits in the future, the respondent can address same through the regular adjusting of its file.
18I find the respondent’s allegation that I erred in law and/or fact by using the term “entitled” throughout my decision has no merit. I find the language used throughout my decision is consistent with the entire body of jurisprudence of both the courts and this Tribunal addressing accident benefits. The respondent has not met its onus in establishing that the language used by me throughout the decision amounts to an error of law and/or fact that would likely result in a different decision.
19Finally, the respondent relied on the reconsideration decision of the Executive Chair in 16-000179 v Old Republic Insurance Company, 2016 CanLII 93137 (ON LAT), in support of its position that I erred in law by not providing an end date for payment of the IRB. In that decision the Executive Chair determined that the adjudicator erred in law because they ordered benefits payable to a future date. As acknowledged by the respondent in its submissions, this decision is distinguishable from the present case because I did not order IRBs payable to a future date. I find that I made no error of law and/or fact in the language used throughout my decision that would likely result in a different decision. This is the test that must be met on a reconsideration request.
CONCLUSION
20For the reasons noted above, the respondent’s reconsideration request is granted in part. Paragraphs 2, 3, 30 and 37 of my decision are varied as follows:
i) The applicant is entitled to an IRB in the amount of $400.00 per week from September 22, 2020, to date and ongoing, less any deductions for post-accident income.
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 1, 2023