[ZR] v. Gore Mutual Insurance Company, 2023 CanLII 19871

18-000017/AABS - R

RECONSIDERATION DECISION

Before: Rebecca Hines

Licence Appeal Tribunal File Number: 18-000017/AABS

Case Name: [ZR] v. Gore Mutual Insurance Company

Written Submissions by:

For the Applicant: Muhammad A. Alam, Counsel

For the Respondent: Arthur R. Camporese, Counsel

BACKGROUND

1This reconsideration request follows a Tribunal decision dated September 27, 2022, in which I determined that the applicant was not statute-barred from proceeding with his application disputing the respondent’s denial of pre-104 attendant care benefits (“ACBs”) pursuant to section 56 of Schedule.

2The respondent has requested a partial reconsideration of my decision. The respondent argues that I erred in law in my determination that the limitation period did not apply to the applicant’s entitlement to pre-104 ACBs. In particular, that I erred in my application and interpretation of the principle of discoverability as highlighted in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”).

3The applicant opposes this request for reconsideration, stating that my decision is correct.

RESULT

4The respondent's request for reconsideration is granted in part. I find that I erred in law when I determined that the applicant was not statute-barred from disputing the respondent’s denial of ACBs within the two-year limitation period pursuant to section 56 of the Schedule. Consequently, I vary the Tribunal’s decision dated September 27, 2022 and find he is not entitled to payment of ACBs from September 5, 2015 to June 14, 2016.

RECONSIDERATION CRITERIA

5Rule 18 states that a request for reconsideration will not be granted unless one or more of the following criteria are met:

(i) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(ii) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision;

(iii) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(iv) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

6The 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.

7The respondent relies on Rule 18.2(b), arguing that I erred in law in finding that:

a) the applicant is not statute-barred from proceeding with his application disputing the respondent’s denial of pre-104 ACBs benefits within the two-year limitation period pursuant to s.56 of the Schedule.

b) in applying the principle of discoverability to the applicant’s claim for pre-104 ACBs.

8The respondent submits that had I not made the above-noted errors of law, that I would have reached an alternative decision in relation to the applicant’s claim for pre-104 ACBs. The respondent requests that I cancel my decision and make an alternative finding that the applicant is statute-barred from disputing the respondent’s denial of pre-104 ACBs.

ANALYSIS

9For the following reasons, I agree with the respondent and find that I erred in law in my decision. Further, I agree that had this error not been made I would have reached an alternative decision. However, I find that this only applies to my finding regarding the applicant’s entitlement to pre-104 ACBs claimed from September 5, 2015 to June 14, 2016.

10I agree with the respondent that I made a finding of fact in paragraph [70] of my decision that the applicant did not dispute the respondent’s denial of ACBs for the first Form 1 (for the time period of September 6, 2015 to June 14, 2016) within the two-year limitation period as stipulated by section 56 of the Schedule. I determined that the limitation period for the denial of ACBs for this time period began to run on November 12, 2015, making the deadline for the applicant to dispute the denial November 12, 2017. The applicant did not file his application with the Tribunal until January 2, 2018.

11I also agree with the respondent that I erred in law in that I did not properly apply the principle of discoverability to the facts of this case as per the Court of Appeal’s guidance in Tomec. In particular, I determined that the principle of discoverability applied to the applicant’s claim for pre-104 ACBs in paragraph [74] of my decision. I agree with the respondent and find that I did not properly consider the fact that the applicant’s entitlement to pre-104 ACBs was not dependent on a catastrophic designation (“CAT”) as he did not submit an application for CAT determination until March 2017. I agree that the principle of discoverability does not apply to this period, as the maximum payable under the Schedule for non-CAT ACBs for the time period in dispute was $3,000.00 per month. Consequently, there was no barrier to the applicant disputing the respondent’s denial. I find that had I properly applied the principle of discoverability to the facts, I would have rendered an alternative decision—chiefly, a finding that the applicant was statute-barred from disputing his entitlement to ACBs for the above-mentioned time-period for failing to dispute the denial within two years.

12I also agree with the respondent that my rationale for my finding in paragraph [74] of my decision was inconsistent with my finding on the applicant’s entitlement to ACBs. As part of my rationale, I stated that the applicant did not have a chance of success as he was not CAT at the time the ACBs were denied. This was irrelevant to the analysis as the principle of discoverability is tied to the cause of action, which is the application for CAT, and was an error in law. I agree with the respondent that had these errors not been made, I would have reached an alternative decision and found that the applicant was time barred to dispute the respondent’s denial of the first Form 1.

13However, while I agree with the respondent that I erred in law in applying the rule of discoverability to the respondent’s denial of the first Form 1, I find the applicant is not statute-barred from disputing the respondent’s denial of ACBs in the second Form 1 dated June 14, 2016. The respondent did not deny that Form 1 until July 19, 2016. Since the application was filed with the Tribunal on January 2, 2018, I find the applicant filed his dispute on the second period of entitlement within the two-year limitation period.

14I agree with the applicant that the decisions relied upon by the respondent in Haines v. Aviva, 2021 CanLII 53157 (ON LAT) and D.G. v. RSA Insurance, 2020 CanLII 35518 (ON LAT) are distinguishable from the present case. For example, these decisions did not involve multiple Form 1’s addressing different time periods and multiple denials. Therefore, my finding regarding the applicant’s entitlement to ACBs from June 14, 2016 to December 22, 2016 in paragraphs [94] to [106] of my decision stands.

CONCLUSION

15Rule 18.2(b) requires the Tribunal to be satisfied that the error is such that the Tribunal would likely have reached a different result had the error not been made. I agree with the respondent that the error is significant.

16As a result, the Tribunal’s decision of September 27, 2022 is varied. The applicant is statute-barred from proceeding with his application disputing the respondent’s denial of ACBs from September 5, 2015 to June 14, 2016 for failing to dispute the denial pursuant to s. 56 of the Schedule. Consequently, my findings in relation to his entitlement for that time period is cancelled. The applicant is not entitled to ACBs in the amount of $1,628.45 per month from September 5, 2015 to June 14, 2016.

Rebecca Hines Adjudicator Tribunals Ontario – Licence Appeal Tribunal