RECONSIDERATION DECISION
Before: Kate Grieves
Licence Appeal Tribunal File Number: 22-008794/AABS
Case Name: Ann O'Boyle v. The Co-operators
Written Submissions by:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Emily Schatzker, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant in this matter. It arises out of an August 3, 2023 preliminary issue decision (“decision”) in which I found that the applicant was not eligible for income replacement benefits.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18 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.
3The applicant advances her request for reconsideration pursuant to criteria 18.2(a) and (b). The applicant submits that I violated the rules of natural justice and made errors of law and/or fact such that I would have reached a different result in my decision if the errors had not been made.
4The applicant seeks an order varying the decision for a finding that she is entitled to income replacement befits, or alternatively, that the matter be remitted back to the Tribunal for redetermination.
RESULT
5The applicant’s request for reconsideration is dismissed.
BACKGROUND
6As set out in the decision, the applicant was employed as a nurse for many years. She stopped working on September 5, 2019 and went on a medical leave. She received Employment Insurance (“EI”) benefits for the next 17 weeks, until the end of December, 2019. She resigned her position effective January 1, 2020; the date was extended to February 2, 2020 as she was paid out 216 hours of time she had banked during the course of her employment. The OCF-2 confirmed that the total number of weeks worked in the 52 weeks before the accident was 10.
7At issue was whether, during the period she was on leave but received remuneration, she met the 26-week requirement of employment. I found that the applicant was not entitled to income replacement benefits pursuant to section 5(1) of the Schedule. I found that the applicant was paid out banked time, she was not receiving wages for services being rendered, and that she had not rendered any services after September 5, 2019. I found that the timing of the services must be considered, as well as the remuneration.
ANALYSIS
8The 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. I find that the applicant has not pointed to a material error of fact or law, or a violation of the rules of procedural fairness. Her submissions are largely an attempt to relitigate her position.
9The applicant submits that my analysis and framework were incorrect. She submits I erred at paragraph 13 of my decision, when I disagreed with her submission that she was being paid wages for services rendered. I find no error. I considered the evidence and the case law and found that she was being paid for banked time, she was not receiving wages for services rendered, and she had not rendered any services after September 5, 2019. The applicant submits that this interpretation was not supported by the Schedule, and was contrary to the consumer protection nature of the legislation. I do not agree.
10I relied on the binding Divisional Court decision in Arab v. Unica, 2022 ONSC 5761 (“Arab”), which considered whether an applicant qualified as “employed” pursuant to the Schedule when they had ceased working before the accident. The applicant reiterates her arguments that this decision is distinguishable. The applicant submits that because Arab is distinguishable, procedural fairness is breached by relying on it.
11I find no error or breach of procedural fairness to rely on this binding decision. I explained why I found it relevant to the subject matter at paragraph 13 of my decision. At paragraph 12, I noted that in accordance with Arab, although the Schedule is consumer protection legislation and should be interpreted broadly, interpreting the term “employed’ to capture anyone in an employment relationship independent of their income-earning situation does not accord with the overall parameters of the Schedule. I found that the applicant was paid out banked time, she was not receiving wages for services being rendered, and she had not rendered any services after September 5, 2019
12The applicant also submits that I erred in my consideration of Nouracham v Aviva, 2023 CanLII 7274. Again, I find no error. In my view, this is an attempt to ask me to reweigh the evidence and case law. While I agree that there was a different employment arrangement, I found it persuasive, insofar as the timing of services rendered must be considered as well as the remuneration.
13The applicant’s reconsideration submissions also include references to how banked time is considered by employment and tax laws and rules, which is irrelevant for the purposes of interpretation of the Schedule.
14I find no error in my interpretation and application of the relevant law and case law.
CONCLUSION & ORDER
15The applicant’s request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 30, 2023