RECONSIDERATION DECISION
Before:
Deborah Neilson
Licence Appeal Tribunal File Number:
20-014372/AABS
Case Name:
Abiodun Omoniyi v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Andrew Franzke, Counsel
For the Respondent:
Kathleen O'Hara, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a decision in which the Tribunal dismissed the applicant’s claims.
2The issues that were before the Tribunal were whether the applicant was entitled to attendant care benefits, chiropractic and physiotherapy treatment, income replacement benefits (“IRB”) from December 24, 2019 to April 4, 2021, the quantum of IRBs, repayment of IRBs and interest. The Tribunal found that the respondent met the test of entitlement to IRBs up to October 1, 2020, but that the quantum was $0 after the deduction for post-accident income earned.
3The applicant submits that the Tribunal:
i. Erred in law by adopting the respondent’s IRB calculation in the absence of any supporting evidence;
ii. Erred in law by failing to dismiss the respondent’s claim for a repayment; and
iii. Was biased and thereby violated the applicant’s right to procedural fairness.
4The applicant is seeking an order:
a. Cancelling the Tribunal’s order / decision and remitting the hearing to a new adjudicator.
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 Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria in Rule 18.2 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.
8Reconsideration is only warranted in cases where the Tribunal 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.
The Tribunal did not err in law in failing to specify the evidence or its calculations
9The applicant submits that the Tribunal failed to specify how it calculated IRBs and reached a conclusion of law put forth by the respondent when there was no evidence to support it. Essentially, she submits that the Tribunal relied on the respondent’s calculation of IRBs when there was no evidence to substantiate the respondent’s calculation.
10The applicant submits that the issue that the Tribunal was required to determine was the quantum of IRB. However, the issue listed in the case conference order was whether the applicant was entitled to IRBs in the amount of $334.06 per week from December 24, 2019 to April 4, 2021. The Tribunal determined she was not. The Court of Appeal has clearly stated in Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA), that the applicant has the burden to prove the IRB quantum to which she was entitled. This burden never shifts to the insurer. The Tribunal is bound by this decision and determined that the applicant failed to satisfy her burden to show that she was entitled to a higher IRB than that calculated by the respondent.
11Accordingly, I find the Tribunal did not abdicate its jurisdiction to determine an issue. The Tribunal found that the applicant failed to prove that she was entitled to a weekly IRB any greater than what the respondent submitted it was required to pay. The applicant has not alleged any error in the Tribunal’s determination that the applicant failed to prove that the quantum of IRB she was entitled to was $334.06 per week.
12It is correct that the Tribunal made assumptions that not all of the evidence necessary to calculate the weekly IRB was before the Tribunal. However, based on the evidence before it, the Tribunal preferred the respondent’s submission that the IRB quantum was $298.23 per week out of the following possible calculations because based on the evidence, it allowed for the highest amount of weekly IRB payable:
a. $20,803 gross earnings for 2019 as per the applicant’s Notice of Assessment dated April 27, 2020 divided by 52 x 70% = $280.04 base income per week;
b. $533.32 gross earnings for the 4 weeks before the accident according to the Employer’s Confirmation of Income form of Susan Agley, controller of KW Habilitation, dated December 31, 2019 and the KW Habilitation employment file x 13 divided by 52 x 70% = $93.33 base income per week; or
c. $22,154.03 gross earnings for the 52 weeks pre-accident based on the Record of Employment (“ROE”) from Sbrareit Independent Living dated June 12, 2019 for $2,132.46 plus the ROE from Schlegel Villages dated December 13, 2019 for $18,647.06 plus $1,374.51 from the payroll record and file of KW Habilitation divided by 52 x70% = $298.23 base income per week.
13The ROE from Schlegel Villages dated December 13, 2019 states the applicant’s insurable earnings were $17,866.17. When one adds up all of the earnings listed in the ROE, it amounts to $18,647.06. As the evidence was before the Tribunal to substantiate the insurer’s submission of $298.23 per week amount, the Tribunal preferred this amount.
14There is no requirement that the Tribunal precisely cite all the evidence before it in reaching a decision. Nor has the applicant provided any case law that requires the Tribunal to precisely provide its calculations when the methodology for calculating the amount was already properly set out in the Tribunal’s decision. The applicant has not pointed to any error of law in the methodology cited in the decision. Accordingly, I see no error in the Tribunal’s.
15The applicant submits that if the Tribunal was unable to calculate the quantum payable on the basis of the evidence adduced by the parties, then it was open to the Tribunal to request submissions from the parties. Although the Tribunal has some power to require a party to produce evidence necessary to make a determination, it is not the Tribunal’s job to prove the applicant’s case for her. The onus was not on the Tribunal to ask for further evidence from the parties in order to calculate a higher weekly base amount than that submitted by the respondent, it was on the applicant. Since the applicant was disputing the IRB quantum determined by the respondent, the onus was on her to provide proof that she was entitled to a higher IRB than what the respondent calculated. She failed to do so.
16Accordingly, I find the applicant has not established grounds for reconsideration in relation to the calculation of IRB quantum.
The Tribunal did not Err in determining EI Benefits are Deductible
17The applicant submits that by failing to provide a precise calculation of the applicant’s IRB, the applicant is exposed to a repayment of EI benefits. She relies on the Divisional Court decision of Aviva Insurance Company of Canada v. Spence, 2022 ONSC 4988 (Spence) which allowed for a deduction of EI sickness benefits from gross employment income as defined in s.4(1) of the Schedule. The applicant submitted that the Tribunal’s decision mirrored the determination of the Divisional Court in Spence. The applicant submitted that in the absence of an explicit calculation, the determination in Spence can result in inconsistencies because of a finding by the Federal Court of Appeal in Sennikova v. Canada (Attorney General), 2022 FCA 215 (Sennikova). Sennikova determined that where an automobile insurer does not account for EI benefits received after an accident in the calculation of IRBs, EI is entitled to deduct IRBs from the EI benefits payable.
18According to the applicant’s submissions, the Tribunal created uncertainty by allowing the respondent to deduct EI benefits from IRBs. I disagree. As pointed out by the applicant, the Tribunal’s decision mirrors Spence, which the Tribunal is bound by. Further, in this case, since the applicant’s EI benefits were deducted from the IRB, IRBs are not deductible from her EI benefits. As pointed out by the respondent, this is set out in s. 35(2)(d) of the Employment Insurance Regulations, SOR/96-332. I fail to see how an imprecise calculation of IRBs would result in any uncertainty of whether EI has been deducted in the face of a finding of fact that EI was deducted. In any event, since the quantum of IRB that the Tribunal preferred was supported by the evidence before it, I find the applicant’s submissions on uncertainty do not support her claim that the Tribunal erred in law and do not establish grounds for reconsideration.
If the Tribunal erred by failing to dismiss the respondent’s claim for a repayment it did not affect the Tribunal’s decision
19The applicant submits that it was an error of law for the Tribunal not to dismiss the claim for a repayment of IRB based on the Tribunal’s findings of fact. The applicant relied on the Tribunal’s statement that the only evidence before it as to when the respondent sought a repayment and that stated the amount was the letter of June 27, 2022, which was served well beyond the twelve-month period. Accordingly, the Tribunal ought to have dismissed the claim for repayment. The respondent submitted that this was an error and that the Tribunal had in evidence its letter of January 7, 2021, which set out the amount of repayment requested, the type of benefit that was overpaid and the period of time for which the overpayment was paid. I agree with the respondent that its letter of January 7, 2021, which requested a repayment of IRBs of $ $2,425.86, was before us, and that it stated the IRBs were paid between December 25, 2019 to October 18, 2020.
20The respondent submits that the 2022 letter was merely a revision of the amount claimed and that it was entitled to rely on its January 7, 2021 letter of request as qualifying as a request within the 12 months of payment of IRBs, despite the amount listed for payment being incorrect. I agree. Accordingly, it was an error for the Tribunal to say the only evidence was the 2022 letter. There was a letter in evidence dated January 29, 2020 that said a cheque had been issued for payment of IRBs from December 24, 2019 to February 3, 2020. However, the Tribunal did not have a copy of the cheque with the issuance date on it or any payment printout confirming when the cheque was issued. The Tribunal gave the respondent an opportunity to make further submissions to point the Tribunal to the evidence that showed when the first and subsequent IRBs were paid after January 7, 2020 (or within the 12-month period of when the notice dated January 7, 2021 was sent) and the respondent failed to do so within the 30-day timeframe the Tribunal specified.
21The Tribunal had asked for submissions on the amount of overpayment of the IRB from the parties within 30 days of the release of the decision, if the parties could not agree on the amount of the overpayment of IRBs claimed by the respondent. The decision was released to the parties on January 18, 2023.
22The respondent made its submissions outside the 30-day timeframe, specifically in its responding submissions to the applicant’s request for reconsideration. Between March 10 and March 13, 2023, the respondent filed responding submissions that include the IRB repayment issue, which the respondent states were in response to the Tribunal’s request. The respondent also submits for the first time in its responding reconsideration submissions that the applicant made a material misrepresentation. The time for making such submissions was at the hearing, or at least within the 30 days allowed for submissions on the repayment amount.
23Since the respondent failed to serve and file any submissions or evidence within 30 days of the release of our decision to confirm when the IRB payments were first made to the applicant, the respondent’s request for a repayment is dismissed. As a result, the alleged error identified in the applicant’s request for reconsideration does not change the outcome of our decision.
The Tribunal did not deny the Applicant procedural fairness
24In this case the applicant stated during the hearing that she thought the Tribunal was prejudiced against her on the basis she was black because the Tribunal asked her to repeat her responses to a number of questions. The request was made by the Tribunal because at times the applicant spoke very quickly and, due to the videoconference static, some of her testimony could not be heard. During the hearing, the Tribunal addressed the applicant’s allegation of bias. It determined the Tribunal was not biased, and that the requests for the applicant to repeat her testimony were because it was important that the Tribunal hear her testimony and for no other reason.
25The applicant submits that the Tribunal’s determination with respect to bias was based on a misunderstanding of her submissions on prejudice at the conclusion of the hearing as a claim that the Tribunal was systemically biased. The applicant submits that this was a mischaracterisation of what her submissions were. At the end of the hearing the applicant cautioned the Tribunal not to let anti-black stereotypes play a part in the applicant’s credibility. She asked that judicial notice be taken of stereotypes and referred the Tribunal to a decision. She submits that by failing to reference her submission, the Tribunal made a determination of the applicant’s credibility that failed to consider the applicant’s caution to the Tribunal. The applicant submits that this amounts to procedural unfairness. I disagree for the following reasons.
26There is no requirement that the Tribunal list every submission made by a party or every case filed in its reasons. The Tribunal provided sufficient reasons for its determination on the applicant’s credibility that were supported by the evidence. I have been provided with no case law that a failure to list every submission made by the parties is an error in law.
27The applicant relies on Abara v. Hall and Lee, 2022 ONSC 7093 (Abara v. Lee), a landlord tenant case in which the Divisional Court dismissed the applicant’s submissions that the Landlord Tenant Board deprived the applicant of procedural fairness because its errors in mischaracterizing pleadings and its errors of law amounted to an apprehension of bias. The Divisional Court reiterated that the test for an apprehension of bias is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude.
28The onus rests on the applicant to demonstrate reasonable apprehension of bias, and the threshold is a high one. I find the reasonable person would conclude there was no bias in this case. There was no cogent evidence of bias. Further, the cumulative effect of all the Tribunal’s conduct, comments and interventions show that the Tribunal assessed the evidence and the law impartially, regardless of the applicant’s frustration with the process. For these reasons, I find that the applicant has not shown that she was deprived of procedural fairness or established bias. Accordingly, I find she has not established grounds for reconsideration.
CONCLUSION
29For the reasons noted above, I deny the applicant's request for reconsideration.
Deborah Neilson
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 2, 2023