Riley Sexsmith v. Certas Home and Auto Insurance Company, 2023 CanLII 50531

Citation: Sexsmith v. Certas Home and Auto Insurance Company, 2023 ONLAT 21-000943/AABS - R

RECONSIDERATION DECISION

Before: Stephanie Kepman

Licence Appeal Tribunal File Number: 21-000943/AABS

Case Name: Riley Sexsmith v. Certas Home and Auto Insurance Company

Written Submissions by:

For the Applicant: Bryan Rumble, Counsel

For the Respondent: Aly Pabani, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant. It arises out of a decision dated February 6, 2023, in which the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) found that the applicant was precluded from receiving benefits under section 31 of Statutory Accident Benefits Schedule Effective September 1, 2016 (including amendments effective June 1, 2016) (“Schedule”) by operation of section 31(1)(a) of the Schedule.

2The applicant submits that the Tribunal made significant errors of facts and law and seeks an order to either overturn or vary the decision or rehear the matter in part or in its entirety. The respondent disagrees.

3Pursuant 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

4The Applicant's request for reconsideration is dismissed.

BACKGROUND

5The applicant was involved in an accident on a motorcycle. The applicant owned several vehicles at the time of the accident. The issue before the Tribunal in the original, preliminary decision and order was if the applicant was able to proceed with his application. The applicant argued that under section 2.2.3 of the Ontario Automobile Policy (“OAP-1”), he was able to do so. The respondent disagreed.

ANALYSIS

6The 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’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). A request for reconsideration under Rule 18.2 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.

7Reconsideration 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.

8The grounds that the applicant argues apply are 18.2(b), namely that the Tribunal:

a. Erred in considering the applicant’s arguments regarding ownership of the vehicle.

b. Failed to consider if the applicant had a reasonable belief that the vehicle was insured based on section 2.2.3 of OAP-1.

c. Erred by not recognizing that condition 5 of section 2.2.3 of OAP-1 excludes accident benefits coverage.

9The respondent disagreed and requested that the request be dismissed.

The Adjudicator erred in stating that the Applicant argued that he had purchased the motorcycle within 14 days of the accident

10The applicant argued that the Tribunal made an error in determining that the applicant owned the motorcycle by section 2.2.1 of OAP-1. The applicant argued that the Tribunal chose to find that the applicant owned his motorcycle under section 2.2.3 of OAP-1 based on this reasoning, which was an error which would have resulted in a different finding.

11The respondent argued that the Tribunal found that the applicant was not insured by section 2.2.1 of OAP-1. The respondent also argued that because the applicant was unclear regarding the purchase date of the motorcycle, the respondent and the Tribunal were required to address this issue.

12I find that the Tribunal did not make an error in finding that the applicant did not purchase the motorcycle within 14 days of the accident. Though I understand the applicant’s arguments regarding this issue, I agree with the respondent, and that this finding needed to be made due to the ambiguity of the purchase date of the motorcycle in order to fully address section 2.2.3 of OAP-1.

13Though I agree that the applicant did not specifically make arguments regarding 2.2.1, to make an efficient and effective decision, I chose to address this issue, which is within my discretion and did so in paragraphs 35 and 37.

14In terms of my determination of ownership under section 2.2.3, the applicant relied on the Canadian Supreme Court decision of Hayduk v. Pidoborozny, 1972 CanLII 136 (SCC), [1972] S.C.R. 879, where the Court found that the registration of ownership of a vehicle is treated as proof of ownership unless and until the contrary is shown. However, in my original decision, in paragraph 26, I specifically rely on the applicant’s testimony where he stated that he received the motorcycle and signed the vehicle’s ownership. Therefore, I did not find this argument persuasive.

The adjudicator erred in failing to consider whether the Applicant could have a reasonable belief that his vehicle was insured under s. 2.2.3 of the OAP-1

15The applicant also submitted that the Tribunal did not address if it was reasonable for the applicant to believe his vehicle was insured at the time of his accident based on section 2.2.3 of OAP-1. The applicant argued that if the Tribunal had fully considered this issue, it likely would have come to a different outcome.

16The respondent submitted that the Tribunal’s original decision was correct, and that the applicant has not met his evidentiary onus, as he failed to produce any evidence supporting this position. Instead, the respondent submitted that based on section 31(1)(a)(i) of the Schedule, the applicant ought to have known at the time of his accident that his vehicle was not insured at the time of his accident, and therefore, is excluded from specified benefits. The respondent also argued that the applicant confirmed via affidavit that his vehicle was not insured at the time of his accident, thereby showing that his argument is not convincing.

17I disagree with the applicant and direct his attention to paragraphs 24 and 39. In paragraph 39, the Tribunal wrote:

“I also find Sadni v Allstate Canada applicable, as it dealt with a similar situation, and agree with its reasoning that as a mechanic, the applicant ought to be aware of how to obtain insurance in Ontario and that an existing policy would automatically provide insurance coverage. Moreover, I find that given the applicant’s job as a mechanic, he would be aware of insurance requirements and his obligation to notify the respondent of his new vehicle purchase.

18Though I did not specifically use the word “reasonable” when addressing this issue, it is clear when reading the entire decision that I was addressing this argument and have already found that this position was not persuasive. Therefore, no error was made.

Condition 5 of Section 2.2.3 of OAP-1

19The applicant also argued that the Tribunal made an error by not addressing the language of condition 5 of section 2.2.3 of OAP-1. The 5 conditions of this section are:

i. “Both the other automobile and a described automobile must not have a manufacturer’s gross vehicle weight rating (GVWR) of more than 4,500 kilograms.

ii. The named insured is an individual, or if the described automobile is owned by two people, the named insureds are spouses of each other.

iii. Neither you nor your spouse is driving the other automobile in connection with the business of selling, repairing, maintaining, storing, servicing or parking automobiles.

iv. The other automobile is not being used to carry paying passengers or to make commercial deliveries at the time of any loss.

v. For all coverages, except Accident Benefits, the other automobile cannot be an automobile that you or anyone living in your dwelling owns or regularly uses. (For the purposes of this paragraph, we don’t consider use of an automobile rented for 30 or fewer days to be regular use.) Nor can the other automobile be owned, hired or leased by your employer or the employer of anyone living in your household. However, if you drive one of these other automobiles while an excluded driver under the policy for that automobile, this policy will provide Liability and Uninsured Automobile coverage while you drive that automobile.”

20The applicant submitted that the proper reasonable interpretation condition v. would be that if a person fulfils the four other conditions of section 2.2.3, they are insured for the purposes of benefits under the Schedule. Therefore, the Tribunal erred in finding otherwise that would have led to a different outcome.

21The respondent disagreed and argued that not only was this argument considered, but it was rejected in paragraph 42 of the decision. Paragraphs 42 to 44 also detail that the applicant was found not to fulfil all five conditions, where the Tribunal found that the applicant did not fulfil condition v., as the Tribunal found that the applicant owned the vehicle at the time of his accident.

22The respondent also submitted that the applicant failed to fulfil condition iii. of 2.2.3, meaning that the applicant was driving his motorcycle for his personal use. The applicant objected to this argument being considered, as this was not raised at the hearing.

23I agree with the applicant that I did not specifically address the issue of part v. of section 2.2.3 not applying to accident benefits. However, this comment with respect to condition requires some background information; in his submissions, the applicant addressed each condition under section 2.2.3. For condition v, the applicant argued that the condition did not apply because: “This condition would only apply to a vehicle that is owned by the applicant. There is no evidence that the applicant regularly used the vehicle”.

24I note that in paragraph 42 of the original decision, the applicant’s argument regarding condition v and ownership of the vehicle was addressed. I also note that at no point in the applicant’s submissions did he make this argument. Though I can understand how the applicant could argue that this is an error of law that results in a different outcome, I also must ask why the applicant did not raise this. It is not for the Tribunal to act as an advocate for parties but rather to control the hearing process and address the parties’ arguments. In this case, I find that the applicant has not shown that the Tribunal committed an error that would result in a different outcome.

25I agree with the applicant’s submission regarding the respondent making improper submissions regarding condition iii., and will not consider them as they were not raised in the original hearing.

26Therefore, I find that the Tribunal did not make an error that would have led to a different outcome.

CONCLUSION

27For the reasons noted above, I deny the applicant's request for reconsideration.

Stephanie Kepman Adjudicator Tribunals Ontario – Licence Appeal Tribunal