RECONSIDERATION DECISION
Before: Tavlin Kaur, Adjudicator
Licence Appeal Tribunal File Number: 21-008322/AABS
Case Name: Nichols v. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant: Andrew Frankze Franzke, Counsel
For the Respondent: Rosalind Eastmond, Counsel
OVERVIEW
1This Request for reconsideration was filed by the applicant. It arises out of a decision dated November 18, 2022, in which the Tribunal found that the applicant was statute barred from proceeding with her application. The applicant relies on Rule 18.2(b) of the Common Rules of Practice and Procedure in support of her reconsideration request.
Parties’ positions
2The applicant submits that the Tribunal made a finding of fact that the respondent never at any point supplied the applicant with the OCF-1 as required by Section 32(2)(a). However, it relied on section 32(5) of the Schedule in disposing of the motion. The applicant submits that this constituted an error of law such that the result of the motion would have been different had it not been made. Given the Tribunal’s finding of fact that the applicant never received the “application forms” contemplated by Section 32(5), then it follows that the applicant’s obligation to provide those forms to the insurer within 30 days never began to run at all.
3The applicant also submits that the Tribunal erred in law by deferring to the presumed intent of the legislature when it should have exercised its jurisdiction by necessary implication to fill in a legislative gap. This could and should have been done interpreting the phrase “shall promptly provide” in accordance with its plain and ordinary meaning.
4The Tribunal has acknowledged that there is a gap in the legislation and declined to step into the shoes of the legislature in order to fix it. The applicant submits that the Tribunal does not need to exceed its jurisdiction in order to address the unfairness complained of. It need only interpret the phrase “shall promptly provide” as contained in Section 32(2) so as not give rise to an absurd result.
5The respondent submits that the Tribunal adequately considered and applied the correct interpretation of the law. The Tribunal adequately considered the principles of law in M.O. v Jevco Insurance and applied its interpretation to distinguish the circumstances from the index circumstances.
6The respondent submits that the Tribunal’s interpretation of the law was in keeping with the modern approach of statutory interpretation, which is the prevailing and preferred approach according to case law decisions including the Vavilov case. The Tribunal limited its interpretation of s. 32(2), to the plain and textual meaning and declined to apply the golden rule of interpretation to modify or “read in” provisions. The respondent further submits that even under the application of the golden rule of interpretation that it is not legitimate to use consequences as an excuse to place an unreasonable construction on words that can have only one reasonable grammatical construction.
7The respondent further submits that the applicant’s request for the Tribunal to step in the shoes of the legislature to fix a gap in legislation, would equate to the Tribunal exceeding its jurisdiction and also would be beyond the limits of the Tribunal’s powers, as conferred by statute. The respondent submits that the Tribunal considered the provision of “shall promptly provide” and applied the correct rules of legal interpretation as to the consequences of alleged non-compliance in the decision.
8The respondent denies that the consequence of an explicit remedy for non-compliance with s. 32(2) results in an absurdity. Further, the respondent submits that the relief permitted by the Tribunal’s discretionary powers under s. 55 (2) can be considered a remedial avenue to permit the applicant to continue an application to the Tribunal. The Tribunal considered its discretion under s. 55 (2) and found no compelling reason to exercise the discretion.
RESULT
9The applicant’s request for reconsideration is granted.
ANALYSIS
10The grounds for a Request for Reconsideration 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 of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
11Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
12I am satisfied that the Tribunal may reconsider the decision dated November 18, 2022 because it finally disposed of the appeal.
Sections 32(2) and 32(5) of the Schedule
13The applicant argues that Rule 18.2(b) applies. The applicant submits that the Tribunal made errors of law such that it would have reached a different decision had those errors not been made. Upon reviewing the submissions of the parties, I am persuaded by the applicant’s position. Section 32(5) of the Schedule states that the applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. The receipt of the OCF-1 from the respondent is the precondition for the clock to start running with respect to submitting the OCF-1. Simply put, if the applicant does not receive the OCF-1, then the 30-day time limit to file the OCF-1 does not start.
14In this case, the Tribunal found that the applicant was not provided with the OCF-1. I agree with the applicant that the clock to submit the OCF-1 did not start running because the respondent did not provide her with the OCF-1. Once she received the OCF-1, then she had 30 days to submit it. The respondent did not provide submissions that counter this argument.
15For these reasons, I find that the Tribunal committed an error of law when it barred the applicant from proceeding with her application. In light of the fact that the clock never started running because of the respondent’s failure to provide the OCF-1, I find that there was no delay in the applicant submitting the completed OCF-1 to the respondent. Consequently, the precondition in s. 55(1)1 to bar the application does not exist. As I determined that there is an error of law in the Tribunal’s decision that warrants granting reconsideration, I do not find it necessary to consider the arguments regarding the legislative intent.
CONCLUSION
16The applicant’s request for a reconsideration is granted. Pursuant to Rule 18.4(b), I cancel the order dated November 18, 2022. It is ordered that the matter proceed to the substantive issues hearing on the date set by the Tribunal. Except for the provisions contained is this order, all previous orders made by the Tribunal remain in full force and effect.
Tavlin Kaur
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 7, 2023