20-007628/AABS - R
RECONSIDERATION DECISION
Before:
Vice Chair Terry Hunter
Licence Appeal Tribunal File Number:
20-007628/AABS
Case Name:
Darko Darkov v. Dominion of Canada General Insurance Company (Travelers)
Written Submissions by:
For the Applicant:
Ryan Naimark, Counsel
For the Respondent:
Michelle Mainprize, Counsel
BACKGROUND
1On October 25, 2022, the applicant filed a request for reconsideration of the Motion Order of October 3, 2022, which found the applicant did not provide a reasonable explanation for filling his application outside of the time limits in the SABS.
2In his request, the applicant relies on Rule 18.2(b) of the Licence Appeal Tribunal, Animal care Review Board and Fire Safety Commission Rules of practice and Procedure, Version 1, October 2, 2017 (Tribunal Rules), namely that:
a) 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.
3In particular, the applicant alleges the Tribunal made three errors of fact which if not made would have supported a different conclusion.
4The applicant requests the Tribunal vary the motion order to entitle the applicant to receive accident benefits.
5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
6The Applicant's request for reconsideration is dismissed.
ANALYSIS
7The 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 Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019 (Rules). Here, the applicant makes his request under Rule 18.2 (b), as amended, which is that I made a number of errors of law and fact such that I would likely have reached a different result had the errors not been made.
8Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
9More specifically, the applicant submits that I erred in:
i. Finding that the applicant likely had knowledge of the Statutory Accident Benefits Schedule.
ii. Failing to find that the applicant did not apply for SABS because he thought he was going to get better.
iii. Finding that the respondent’s letter dated March 16, 2016 advised the applicant of the potential consequences of permanent disentitlement for the late application.
Error of fact that Mr. Darko likely had knowledge of the Statutory Accident Benefits Schedule.
10The applicant submits he attested he had no knowledge of the SABS, had never applied for SABS, and never knew he had a right to SABS on the date of the accident. The evidence it is claimed is uncontested and uncontradicted.
11The test to determine whether the explanation for delay is reasonable must first determine whether the explanation is credible and worthy of belief. I accept that the applicant provided both sworn testimony and sworn affidavit evidence he was unaware of the SABS. In his evidence the applicant makes a number of assertions but what he does not do is provide evidence to substantiate those assertions. By way of example there is no evidence as to why in 2016 he discovered he could claim accident benefits. The applicant following the accident was able to obtain short- and long-term disability payments, seek WSIB benefits with the help of his union, return to his employment on a temporary basis and navigate the health care system to resolve his injuries. The applicant provided no direct evidence in support of his sworn statements. I found this explanation not to be credible. On the facts of this particular case, it was open to me to make this finding on the record before me. Accordingly, I did not determine whether the explanation offered was reasonable. This does not constitute an error of fact.
Error of fact in not finding the applicant did not apply for accident benefits because he thought he was going to get better.
12At paragraph 23 of the applicant’s Reconsideration Submission, it is submitted that in paragraph 19 of my motion order I state there is no evidence provided as to why the applicant felt his injuries were not serious and would resolve. This the applicant submits is an error in fact because the applicant provided affidavit and sworn evidence that he believed his injuries were not that serious and that given time and treatment the injuries would completely resolve. As indicated in the motion order I was provided no evidentiary basis to evaluate the evidence of the applicant. The applicant in the 22 months following the accident continued to receive medical attention, continued to miss time from work and applied for and received short- and long-term benefits from his employer. I do not find it credible that the applicant was under the belief his injuries were not serious. I place more weight on the statement provided by the applicant dated May 17, 2016. The applicant in his statement made in the presence of his legal representative advised after 4 weeks from his return to work he was provided modified work which he found difficult because of the amount of pain he was in. The applicant used 160 sick days once he returned to modified duties and that 6 months previous to May 17, 2016 the applicant was seeing a pain doctor for injections to his lower back. Clearly the applicant between the accident on May 6, 2014 and the date of his statement, May 17, 2016 experienced a number of medical treatments when his injuries flared up. In the absence of medical evidence, the applicant’s statement he thought his injuries would resolve is not credible.
13The respondent in paragraph 8 of their responding submissions on this reconsideration submits that if such an error exists, it would not lead to a different result. The Motion Order in paragraphs 17, 28 and 29 states that ignorance of the law is not a reasonable explanation under s. 34 for the failure to notify the insurer within the timelines under s. 32 of the SABS. I agree with this submission.
Error of fact in finding that the insurer’s letter of March 16, 2016 advised the applicant of the potential consequences of permanent disentitlement for the late application.
14The applicant relied on the decision in 17-004690 v Unifund Insurance Company 2018which held an insurer who seeks to rely on the time limit imposed by s. 32(3) must clearly explain to the insured person the potential consequences of their failure to comply with the time limit as well as the right to provide a reasonable explanation for any failure. The insurer’s letter of march 16, 2016, in paragraph 1 requested the applicant to; “please provide an appropriate explanation for why the claim was reported late”. The letter has the following warning; “If you do not comply with our request (to provide a signed statement) by April 1, 2016, your entitlement to all accident benefits will be suspended effective April 1, 2016 until we receive the requested information.”
15The applicant takes issue with my finding that the March 16, 2016 letter advised the applicant he was required to provide a reasonable explanation for his late application and advise he may as a result be permanently disentitled to benefits. Although not perfect I find the notice given by the insurer adequately notified the applicant he was required to provide an explanation for the delay and that his benefits if he did not would be suspended.
CONCLUSION
16For the reasons noted above, I deny the Applicant's request for reconsideration.
Terry Hunter
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 4, 2023