RECONSIDERATION DECISION
Before:
Harry Adamidis
Licence Appeal Tribunal File Number:
21-007170/AABS
Case Name:
Monica Schroter v. Economical Insurance
Written Submissions by:
For the Applicant:
Julia Vilorio Peguero, Counsel
For the Respondent:
Martin Forget, Counsel
OVERVIEW
1On August 2, 2023, the respondent requested reconsideration of the Tribunal’s decision dated July 14, 2023 (“decision”).
2The Tribunal found, among other things, that the applicant is not catastrophically impaired and that she can change the election of the non-earner benefit (“NEB”) to the income replacement benefit (“IRB”).
3The grounds for reconsideration to be allowed are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Rules”). 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.
4The respondent argues that in determining that the election of the NEB was invalid, the Tribunal made errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made.
5The respondent seeks an order that the applicant is not entitled to income replacement benefits as she had elected to receive non-earner benefits.
RESULT
6The respondent’s request for reconsideration is dismissed.
PROCEDURAL ISSUES
7On August 4, 2023, the Tribunal advised the applicant that her responding submissions shall be limited to 12 pages.
8The applicant submitted 17 pages of submissions and asked for permission to include the five extra pages. The applicant submits that the respondent submitted 20 pages in its initial submissions. Therefore it would be prejudicial to not offer the same page count to the applicant in their responding submissions.
9I am denying this request. In my view, 12 pages are sufficient to address the issues raised by this request for reconsideration. As such, I stopped reading at page 12.
ANALYSIS
10The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
11I find that respondent has not established grounds for reconsideration under Rule 18.2 (b) for the following reasons.
Errors of fact and law
12The respondent submits that the applicant made clear representations to the respondent that she may be eligible for either the NEB or the IRB. These representations were not referenced in paragraph 170 of the decision which states, “the applicant gave no indication that she may qualify for two or more benefits.” The respondent argues this is an error of fact.
13Specifically, the respondent references the applicant’s OCF-1 in which the applicant answers “No” to the question “Were you able to return to your normal activities following the accident.” According to the respondent, by answering “No” the applicant gave an indication that she qualifies for an NEB.
14I do not find the Tribunal made an error of fact. Section 5(1)(1)(i) of the Schedule states that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if the insured person “was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.”
15There is no dispute that the applicant qualifies to receive the IRB. As noted in paragraph 170 of the decision:
The applicant’s Application (OCF-1) indicates she is “employed and working.” No other box is checked off in Parts 5-7. The applicant indicates that her injuries prevent her from working and that she had been working for the previous 52 weeks in Part 8 of the form. The respondent also received an OCF-2 from the applicant’s employer that confirmed the applicant was working at the time of the accident.
16Section 12(1)(1) of the Schedule states that the insurer shall pay an NEB if “the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit” (emphasis added).
17An insured person who qualifies for an IRB does not meet the criteria for an NEB. As noted in paragraph 171 of the decision, the insurer acted in a manner that is consistent with s. 12(1)(1) when it wrote to the applicant on August 30, 2017 and advised her that she is not eligible for the NEB and that she may be eligible for just one benefit, the IRB.
18A full reading of the information provided in applicant’s OCF-1 shows that she was not eligible to receive the NEB because she qualified for the IRB. Stating this in the decision is not an error.
19The respondent alleges a second error of fact. It submits that the Tribunal misread the respondent’s letter dated August 30, 2017 and incorrectly found that section 35(1) did not apply. It argues that a correct reading of the letter shows that the respondent notified the applicant that she may qualify for the IRB and NEB.
20The respondent’s letter of August 30, 2017 states, “Based on the information you have provided, it has been determined you are not eligible to receive this benefit” referring to the NEB. At paragraph 171 of the decision, the Tribunal noted that the respondent clearly indicated that they reviewed the applicant’s application and determined that she cannot receive an NEB. The Tribunal found that this is one of the reasons s. 35(1) does not apply.
21On reconsideration, the respondent points to the second page of the same letter which states:
Your Application for Accident Benefits states that you have been unable to complete your normal activities following the accident. In order to determine if you qualify for this benefit we require the submission of a completed Disability Certificate (OCF 3).
22According to the respondent, this constitutes notification to the applicant that she may qualify for an NEB and IRB.
23I disagree that this is an error of fact. As indicated in paragraph 171 of the decision, the respondent told the applicant that she is not eligible for an NEB.
24The statement on the second page, read in the manner suggested by the respondent, is confusing. It cannot be viewed as notice to the applicant that she qualifies for both the NEB and IRB.
25The respondent submits that the Tribunal made an error of law by creating a remedy for the applicant because it did not comply with the temporal requirement in s. 35(1) of the Schedule. This section states that if an application for benefits indicates that an applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit, then the insurer shall give notice to the applicant to elect the benefit the applicant wishes to receive. The respondent agrees that it gave notice to the applicant after 10 business days. However, according to the respondent, the Schedule does not impose consequences for the respondent’s failure to comply with 35(1). According to the respondent, the principle of implied exclusion applies. Specifically, if legislation is silent on providing a specific remedy, then there is no jurisdiction to impose a remedy. As a corollary, if the Legislature intended to have a consequence for failing to provide an election form within 10 business days, then it would have been stated in the legislation. The silence in the Schedule makes clear that there are no consequences for failing to comply with section 35(1). Therefore, the respondent argues, it was an error of law for the Tribunal to craft a remedy for the applicant and order that the applicant’s election of the NEB is not final under s. 35(3) of the Schedule.
26I disagree that the Tribunal made an error of law. The Tribunal addressed this issue at paragraph 172 where the Tribunal found that respondent did not comply with the temporal requirements of s. 35(1) of the Schedule and, therefore, the applicant’s election of the IRB was not made under 35(1).
27The respondent argues that the temporal requirement in s. 35(1) is optional because there is no explicitly stated consequence for non-compliance. I disagree with this reading of the statute. The section states that “the insurer shall, within 10 business days after receiving the application, give a notice” (emphasis added). The Legislature makes clear that compliance with temporal requirements in s.35(1) is mandatory.
28The respondent did not comply with the temporal requirement in s.35(1). As such, there was no election of benefits under 35(1). Consequently, the applicant’s election cannot be final under 35(3). This is explained in paragraphs 172 and 173 of the decision.
29The Tribunal did not fabricate a non-existent remedy, as alleged by the respondent. Instead, the Tribunal made a ruling based on a plain reading of the statute. I find that doing so is not an error of law.
CONCLUSION & ORDER
30For the reasons noted above, I dismiss the respondent’s request for reconsideration.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 23, 2023