Denise Schuknecht v. Economical Insurance Company, 2023 CanLII 4451

Citation: Schuknecht v. Economical Insurance Company, 2023 CanLII 4451

RECONSIDERATION DECISION

Before: Ian Maedel, Vice-Chair

Licence Appeal Tribunal File Number: 19-013098/AABS

Case Name: Denise Schuknecht v. Economical Insurance Company

Written Submissions by:

For the Applicant: Gordon Harris, Counsel

For the Respondent: Hermina Nuric, Counsel

BACKGROUND

1On August 9, 2022, the respondent requested reconsideration of the Tribunal’s Decision that was released to the parties on June 29, 2022 (“Decision”). In that Decision, the Tribunal determined the applicant was entitled to an income replacement benefit (“IRB”) from October 2, 2014 to date and going, a repayment in the amount of $4,872.90, income replacement benefits in the amount of $172.00 per week after the applicant reaches age 65, and any applicable interest as per the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”).

2The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure.² To grant a request for reconsideration, the Tribunal must be satisfied that 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 respondent is seeking a reconsideration of the Decision pursuant to Rule 18.2(a) and (b). The respondent requests that the Decision be varied to remove any reference to “entitlement” and “up to age 65” at paragraphs 7, 30, 37 in relation to IRB. The respondent is also seeking to vary the Decision by removing paragraphs 30-35, 39 which relate to entitlement to a post age 65 IRB.

RESULT

4The respondent’s request for reconsideration is granted.

PARTIES’ SUBMISSIONS

5At the written hearing, neither party disputed that the applicant is eligible for IRB. However, the parties disagreed on the quantum of the benefit. The quantum of the applicant’s benefit was affected by a brief return to work between February 9, 2015 and October 30, 2015, receipt of collateral benefits for Short Term Disability, Long Term Disability, and CPP-Disability benefits.

6In its request for reconsideration, the respondent argues that the Tribunal made an error of fact and law with respect to entitlement to IRB, and erred in awarding a post age 65 IRB. Specifically, the respondent submits IRB entitlement was never an issue in dispute before the Tribunal, and it never made any submissions regarding entitlement to IRB. The respondent argues the Tribunal conflated the position of the respondent on entitlement to IRB post age 65 with the opinion provided by the respondent’s expert accountant. The respondent submits it did not adopt the accountant’s analysis regarding calculation of the IRB quantum post-65.

7The respondent further submits the Tribunal acted outside of its jurisdiction to adjudicate IRB entitlement and quantum at or beyond age 65 as these issues were not before the Tribunal. The respondent submits it has not yet made a determination of these benefits as mandated by s. 8(1) of the Schedule. In its submissions at the written hearing, the respondent took the position that quantum of IRB post-65 was premature and irrelevant to the issues in dispute.

8The respondent submits that it has not made a determination regarding quantum at or beyond age 65, as the applicant has not yet reached this threshold as per s. 8(1) of the Schedule. The respondent argues that any application of s. 8(1) regarding calculation of post-65 IRB would be to speculate about the future of the dispute. Specifically, that the respondent would live to age 65 (she is currently 57 years old), that she would be entitled to IRB at age 65, and the law would not change in the next eight years. Insurers cannot pre-emptively adjudicate or deny potential future claims. To do so would undermine the insurer’s obligation to adjust the claim on an ongoing basis.

9The respondent further submits that the Tribunal erred in both fact and law at paragraphs 31-32 of the Decision. The respondent submits it never argued that post-65 IRB is calculated by determining the quantum immediately before the applicant’s 65th birthday. The respondent argues that the Tribunal’s analysis and conclusion at paragraphs 30-35 result from the Tribunal conflating the opinion of the respondent’s expert accountant with the respondent’s position. By making a determination regarding future benefits eight years in advance, up to and including the applicant’s 65th birthday, the Tribunal imposed the consequences of s. 281 of the Insurance Act, without permitting the respondent an opportunity to process IRBs for this period. The respondent submits this inhibits the public policy objectives underlying the Schedule and the insurer’s obligation to adjust the claim on an ongoing basis.

10In response, the applicant submits the Tribunal’s Decision should be reconsidered regarding the overpayment of benefits and retroactive payment of IRB, plus interest. The applicant also provides submissions on reconsideration regarding the date the applicant ceased work, the respondent’s previous improper notice of repayment, the Tribunal’s disregard for the caselaw, and makes renewed submissions regarding the calculation of IRB referencing gross versus net employment income.

ANALYSIS

11I will first turn to the submissions of the applicant. To be clear, the reconsideration of a decision is not a collateral means to reconsider or reweigh evidence when a party disagrees with the previous decision. Having said that, I have conducted a review of the evidentiary record for this matter, including a review of the submissions and evidence originally provided. I am not prepared to vary the date the applicant ceased work. The evidence from the LTD file provided on reconsideration was not provided at the time of the hearing. Similarly, the DM accounting report used October 30, 2015 as the date of work cessation based on the statements of earnings provided for review. The earnings statements show the last gross pay period ending as of October 29, 2015. I am also not prepared to address the respondent’s alleged improper notice of overpayment. Nor am I prepared to re-address the issue of gross versus net employment income in the calculation of the IRBs. These issues were canvassed in the previous Tribunal Decision.

Rule 18. (a) and (b) - Quantum and Entitlement to IRB

12I agree with the respondent that I made an error with respect to quantum and entitlement to IRB for the following reasons. At paragraph 4 of the Tribunal Decision, it is clear that the parties were not disputing entitlement to an IRB, but simply quantum.

13The respondent never terminated the applicant’s IRB and entitlement was never an issue in this hearing. To impute the additional issue of entitlement to IRB was an error of fact and law. Specifically, the Tribunal erred in attributing the expert opinion provided by Davis Martindale (“DM”) regarding calculation of IRB post age 65, in its report dated February 23, 2021, to the respondent’s position. Upon review, it is clear the respondent never adopted this position. It was also an error to state the respondent advanced this interpretation at paragraphs 31-32.

14As a result, the Decision shall be varied, and any references to “entitlement” or “up to age 65” at paragraphs 7, 30, and 37 shall be removed.

Rule 18.2 (a) and (b) - Calculation of IRB

15I agree with the respondent that I erred in fact or law and exceeded the Tribunal’s jurisdiction when I adjudicated entitlement and quantum of IRB at or beyond age 65. Again, entitlement was not an issue in dispute, and quantum post-65 was not an issue in dispute for this hearing.

16Upon review, the DM Reports dated November 23, 2017 and December 23, 2019, as well as the correspondence from the respondent dated November 28, 2017 and December 24, 2019 do not reference IRB quantum at or beyond age 65. The respondent simply has not made a determination of these benefits at or beyond age 65 as per s. 8 of the Schedule.

17I also agree with the respondent that I exceeded the Tribunal’s jurisdiction and violated the rules of natural justice or procedural fairness when I ordered entitlement to IRB to age 65 and after age 65. The applicant is currently 57 years old, so to impose an IRB eight years into the future is to speculate regarding the applicant’s condition, entitlement, and the status of the applicable law during this period. Imposing this specified benefit up to and beyond age 65 would also effectively remove the respondent’s ability to adequately adjust the claim during this period. Thus, the Decision shall be varied, and paragraphs 30-35, 39 shall be removed.

18As per the Tribunal Decision, the applicant remains entitled to an IRB from October 2, 2014 to date and ongoing. The term “ongoing” does not equate to “forever” in regard to quantum. However, the applicant is protected by terms of s. 281 of the Insurance Act. Section 281(2) states that following a Tribunal Decision, the insurer may reduce benefits only if the applicant agrees, the insurer is authorized to do so as a result of successful appeal of the Tribunal Decision, or the insurer is authorized to do so by the Tribunal.

19For the reasons set out above, I am satisfied the respondent has met the criteria under Rule 18.2 (a) and (b), and I will grant its request for reconsideration.

CONCLUSION

20For the reasons noted above, I grant the respondent’s request for reconsideration.

21The Decision dated June 29, 2022 shall be varied and amended. References to “entitlement” and “up to age 65” shall be removed from paragraphs 7, 30, 37. Paragraphs 30-35, 39 shall be removed.

22The remainder of the Decision shall remain in full force and effect.

Ian Maedel Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1O. Reg. 34/10.
2. 2The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended.