20-005734/AABS - R

RECONSIDERATION DECISION

Before:

Brian Norris, Adjudicator

Licence Appeal Tribunal File Number:

20-005734/AABS

Case Name:

Patricia Thompson v. Aviva Insurance Company

Written Submissions by:

For the Applicant:

Gus Triantafillopoulos, Counsel Shannon Kelly, Counsel

For the Respondent:

Maggie Morgan, Counsel J.C. Rioux, Counsel

BACKGROUND

1This request for reconsideration was filed by the Applicant in this matter. It arises out of a preliminary issue decision (the “Amended Decision”) in which I found that the Applicant was statutorily entitled to income replacement benefits (“IRBs”) for the period from May 31, 2019, when she made an application for IRBs by submitting a disability certificate to the Respondent, to January 20, 2020, when the Respondent replied to the Applicant. I also found that the Applicant was otherwise precluded from claiming entitlement to IRBs due to the fact that her impairments arose more than 104 weeks following the accident.

2The Applicant submits that I acted outside my jurisdiction or violated the rules of procedural fairness, and that I made a significant error in law or fact such that the Tribunal would likely have reached a different decision had the error not been made.

3The Applicant requests that the initial preliminary issue decision be cancelled, and an order be issued stating that she may proceed with her claim for IRBs and that a fulsome hearing on the merits of the issues in dispute be scheduled.

RESULT

4The Applicant's request for reconsideration is dismissed.

BACKGROUND

5The Applicant claimed entitlement to IRBs due to psychological injuries sustained as a result of caring for her partner after he sustained catastrophic injuries in a motor vehicle accident. The Respondent failed to respond to the Applicant’s application for IRBs for over six months but it then agreed to pay IRBs. However, a dispute arose over the Applicant’s entitlement to IRBs and the Respondent reconsidered its prior approval and determined that the Applicant was not entitled to IRBs because her impairment arose more than 104 weeks after the accident.

6A preliminary issue hearing was held on whether the Applicant was barred from claiming IRBs. I presided over that hearing and determined that the Applicant was barred form claiming IRBs because her impairment arose more than 104 weeks following the accident.

7In addition, I found that the Respondent was required to pay IRBs to the Applicant for the initial period following the application and ending when the Respondent finally replied to the application for IRBs. I found that the Respondent was subject to the ten-day response requirement outlined in section 36(4) of the Schedule. As a result, I concluded that section 36(6) of the Schedule entitled the Applicant to IRBs for the period from May 31, 2019, when she submitted her application, until January 20, 2020, when the Respondent provided a compliant response to the Applicant’s claim.

ANALYSIS

8The 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, Version I, (October 2, 2017) as amended (“Rules”). A request for reconsideration 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.

9The Applicant advances her request for reconsideration pursuant to criteria (a) and (b).

10Reconsideration 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.

Jurisdiction

11I find that I acted within my jurisdiction when I determined that the Applicant was precluded from claiming entitlement to IRBs, but also entitled to some IRBs due to the Respondent’s failure to respond to her claim on time.

12The Applicant submits that I never had jurisdiction to rule on her entitlement to IRBs. She submits that her entitlement to IRBs is an issue that was to be addressed in the substantive hearing, and that I had no jurisdiction to rule on anything other than the preliminary issue without giving parties a fair opportunity to make fulsome submission on the matter. The Respondent disagrees and submits that the issue was squarely within the jurisdiction of the Tribunal and that the parties had an opportunity to make submissions on the issue.

13The Tribunal derives its authority from section 280(2) of the Insurance Act. That section provides the Tribunal with the jurisdiction to resolve disputes in respect of an insured person’s entitlement to benefits under the Schedule.

14The issue before me was whether the Applicant is barred from proceeding with her claim for IRBs. Throughout the decision, I examined the interplay between sections 5(1)(1) and 32(1) of the Schedule and concluded that the Applicant was barred from proceeding with her Application for IRBs because her impairment arose more than 104 weeks after the accident.

15However, given the facts and the consumer protection nature of the Schedule, I also examined whether the Respondent was compliant with the response requirements outlined in section 36, and found that it was not. As a result, I found that the Respondent was required to pay IRBs to the Applicant during the period of non-compliance, as outlined in section 36(6) of the Schedule.

16Indeed, at the surface level it would appear that I acted outside my jurisdiction when I concluded that the Applicant was entitled to IRBs during the period of non-compliance. However, having found that the Applicant was barred from claiming IRBs due to the timing of the onset of her injuries, it was apparent that the Applicant was nevertheless entitled to IRBs for the period when the Respondent failed to comply with the Schedule. Further, having found that the Respondent failed to comply with the Schedule, it was incumbent upon me as the adjudicator and subject-matter expert to impose the correct remedy for non-compliance, which in this situation was to award the benefit to the Applicant for that period

17Accordingly, I find that the Applicant has not established grounds for reconsideration related to my jurisdiction.

Violated the rules of procedural fairness

18I find that the rules of procedural fairness were not violated during the preliminary issue hearing.

19The Applicant submits that any decision touching on any issue outside the preliminary issue would be a violation of the rules of natural justice and procedural fairness since it deprived her of the opportunity to address the issue and call the requisite evidence. To her, my finding that she was entitled to some IRBs means that she passed the preliminary issue test and should be afforded the opportunity to proceed on the substantive issues in dispute. The Applicant submits that if I was unable to rule on the preliminary issue without addressing entitlement, that the appropriate approach would be to find that the Applicant was not barred from proceeding to a substantive hearing where all the relevant evidence on the issue could be called by the parties.

20She submits that a fulsome hearing on the issues is required to address issues such as:

a. The application of section 34 of the Schedule as it relates to the Respondent’s failure to request a reasonable explanation for the delay in initiating her claim for IRBs;

b. The application of the relief from forfeiture as set out under section 129 of the Insurance Act; and

c. The application of waiver and estoppel as set out under section 131 of the Insurance Act.

21The Respondent submits that the Applicant participated fully in the hearing and made submissions on section 34 of the Schedule and relief from forfeiture as well as the application of waiver and estoppel to her case.

22I find no violation of the rules of procedural justice or the rules of natural justice as the Applicant was permitted the opportunity to present her case, call witnesses, and make submissions on the issues. It is within my authority to address issues as they arise before me, despite such issues not being expressly listed as an issue in dispute.

23From a statutory perspective, I note that section 3(2) of the Licence Appeal Tribunal Act (the “LAT Act”) states that, except where limited by the LAT Act, the Tribunal has all the powers that are necessary or expedient for carrying out its duties. Section 5(4) of the LAT Act states that the Tribunal has jurisdiction to determine all questions of fact or law that arise in matters before it.

24I agree with the Respondent and find that the Applicant made submissions on relief from forfeiture and section 34 of the Schedule, which was addressed in the Amended Decision. These submissions were live at the preliminary issue hearing and were addressed in the Amended Decision at paragraph [25]. There, I found that the Applicant’s impairment arose more than 104 weeks following the accident, which would disqualify her from the eligibility provisions in section 5(1)(1) of the Schedule. Alternatively, the Applicant’s impairment arose within 104 weeks of the accident but she never notified the Respondent of an intent to apply for benefits until more than three and a half years after the accident. I concluded that the Schedule intends to limit IRB claims, including those made by family members who develop psychological injuries while taking care of a loved-one, to insured persons whose entitlement arises within 104 weeks of the subject accident. A reasonable excuse does not change this finding.

25Similarly, the waiver of estoppel was considered and rejected. At paragraph [32] of the Amended Decision I addressed the Waiver of Estoppel when I addressed the Respondent’s right to request a repayment of benefits. I concluded that section 52 of the Schedule permits insurers to agree to pay IRBs but later request a repayment of benefits paid in error, like in the Applicant’s case. In the Amended Decision I found that the Applicant is precluded from claiming IRBs by operation of the eligibility criteria in section 5 of the Schedule, thus any benefits paid to her would have been done so in error.

26I am not required to seek additional submissions. While an adjudicator may seek additional submission from parties where issues arise during deliberation, it is not required nor was it necessary in this case. I derived the facts for this case on the undisputed evidence before me and applied the law to the fact scenario accordingly. I declined to seek additional submissions because my decision on the Applicant’s entitlement to IRBs was made entirely from her statutory entitlement due to the Respondent’s failure to comply with the Schedule and no additional information, evidence, or submissions were required for it. I concluded that requesting additional submissions was unnecessary to facilitate a fair and efficient resolution of the issue before me and my failure to do so is not a violation of the rules of procedural fairness and are not grounds for a reconsideration of the issue.

27Accordingly, I find that the Applicant has not established grounds for reconsideration on the basis that any rules of procedural fairness were violated.

Error of law or fact

28I find no error of law in concluding that the Respondent’s agreement to pay IRBs, while erroneous, was compliant with section 36 of the Schedule.

29The Applicant submits that I made a significant error of law by concluding that the Respondent’s notice on January 20, 2020 engaged section 36(4)(b) of the Schedule. Section 36(4)(b) provides that the Respondent must give the Applicant notice outlining the medical and any other reason why it does not believe the Applicant is entitled to the specified benefit. To the Applicant, the January 20, 2020 letter is the opposite of what section 36(4)(b) requires and thus, is not compliant with the Schedule.

30The Applicant’s position neglects to appreciate that, in this scenario, the Respondent is subject to section 36(4)(a) of the Schedule and not 36(4)(b). Section 36(4)(a) provides the Respondent with the option of paying the benefit and does not require a medical or any other reason. The Respondent complied with this provision by agreeing to pay IRBs in its letter dated January 20, 2020. It follows that the notice requirements outlined in section 36(4)(b) of the Schedule and addressed in cases such as M.F.Z. v. Aviva, 2017 CanLII 63632 (ON LAT), do not apply because the Respondent was not required to provide any medical or other reasons when it agreed to pay the benefit.

31Accordingly, I find that the Applicant has not established grounds for reconsideration on the basis that an error of law of fact occurred.

CONCLUSION

32For the reasons noted above, I deny the Applicant's request for reconsideration. The Applicant’s request for reconsideration is dismissed.

Brian Norris

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal