Citation: MARTIN v. The Personal Insurance Company, 2023 ONLAT 21-010949/AABS - R

RECONSIDERATION DECISION

Before:

Adjudicator Lyndra Griffith

Licence Appeal Tribunal File Number:

21-010949/AABS

Case Name:

Brandon MARTIN v. The Personal Insurance Company

Written Submissions by:

For the Applicant:

Ashlee Barber, Counsel

For the Respondent:

Brittanny Tinslay, Counsel

BACKGROUND

1This request for reconsideration was filed by the Applicant in this matter.

2The Applicant requests Reconsideration of my decision released on April 5, 2023. In that decision the Tribunal found that three out of four of the Applicant’s properties should not be included in the calculation of the Income Replacement Benefits (IRB) as they were investment income.

3The issues before the Tribunal were:

i. Is the Applicant entitled to an income replacement benefit (“IRB”) $325.00 (less amounts paid) per week from January 1, 2019, to date?

ii. Is the Applicant entitled to interest on any overdue payment of benefits?

4The Applicant is seeking a reconsideration of the Tribunal’s decision to include the income/losses from the one of the Applicant’s properties (the Wyld Street property) in the calculation of his IRB.

5The Applicant is seeking:

i. That this request for reconsideration be granted, and that Tribunal’s decision be set aside.

ii. That the relief sought in his initial Application be granted.

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 (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.

8Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2. Reconsideration 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.

9The Applicant seeks Reconsideration pursuant to Rule 18.2(b) of the Rules.

10The Applicant submits that I made significant errors in law when I included any of the Applicant’s rental properties in the calculation of his IRB. The Applicant submits that I erred in reaching my conclusion that the Wyld Street property was income from employment rather than investment income. The Applicant submits that I erred in law in two ways. First, that I applied the incorrect legal test to determine whether or not something is employment vs investment income. Second, that I incorrectly based my analysis on the Applicant’s level of activity in the venture, when this is inconsistent and contrary to the Divisional Court’s decision in Surani, 2018 ONSC 7254 and Revenue Canada’s guidelines about when rental income is business income, and has no support in either the Schedule or the caselaw.

11The Applicant submits that my analysis focuses on the amount of time the Applicant had spent working on the construction of the property and the fact that he acted as a general contractor in the construction. The Applicant submits that I used the same analysis with respect to the three other properties which was incorrect. The Applicant argues that had the correct analysis been applied, the decision would have remained the same because the three other properties were investment income and ought not to be included in the IRB calculation.

12The Applicant submits that my decision is inconsistent Surani because in that decision, the Court concluded that the activity level of the Applicant was not relevant in the calculation of her IRB. The Applicant further submits that there is nothing in the Schedule to suggest that the level of activity of a self-employed person is in any way determinative.

13The Applicant submits that I also erred in failing to consider Canada Revenue Agency’s Interpretation Bulletin IT-434 Rental of Real Property by an Individual. He submits that I should not have considered the Applicant’s activity level in determining whether or not Wyld Street was employment income, but rather, focused on the nature of the activity.

14The Applicant submits that even if his rental property was considered to be property development as opposed to a rental property, it would still be a significant error in law to include it in the calculation of the IRB because it was too early in the venture. The Applicant states that it runs afoul of the general purpose of IRBs which is to compensate for present loss of income rather than loss of opportunity.

15The Applicant submits that I also erred in law because concluding that the Wyld Street property was employment income runs contrary to the principle that IRBs are meant to compensate lost income rather than lost opportunity. The Applicant submits that the Wyld Street property did not earn an income at the time of the accident, it only had the potential to earn income in the future. The building was never built, it was never sold for a profit, and rent was never collected. The Applicant never paid himself for the work on Wyld Street and never made a profit from it. It may have gotten to the point in the future where the Applicant would have generated income from the property, but it had not yet occurred by the time of the accident.

16The Applicant submits that I made significant errors in law such that I would have reached a different decision had the errors not been made and therefore, the reconsideration ought to be granted.

17The Respondent submits that the Applicant seeks a “wholesale reweighing” of the evidence already considered by the Tribunal. The Respondent submits that the Tribunal’s analysis was based on numerous factors including several documents relied upon by the parties and the Applicant’s role in his business, were considered as the basis for the analysis.

18The Respondent further submits that the decision in this matter is entirely consistent with the relevant principles set out in Surani. The Respondent submits that the facts in Surani are distinguishable from this case as the Divisional Court was seeking to determine what deductions can be made after an IRB calculation was completed and when the claimant continued to earn income. This is distinguishable because in this case the Tribunal was tasked with making a determination as to how the IRB calculation should be initially calculated.

19The Respondent relies on FSCO’s decision in Surani, 2017 CarswellOnt 13620, at paragraph 37 and submits that one of the principles set out in Surani is that the IRB should realistically reflect the Applicant’s income situation. The respondent submits that the Applicant in this case had the benefit of tax deductions with respect to the Wyld Street property for income tax purposes and a realistic representation of that would be to consider any profits or losses from the Wyld Street property in the calculation.

20Finally, the Respondent submits that the notion of lost potential or future loss is not a consideration in the calculation IRB, nor is it a consideration for the payment of benefits.

21I agree with the Respondent that the Applicant’s submissions amount to an attempt to relitigate the original hearing before the Tribunal. Rather than identifying a significant error of fact or law, the Applicant simply presents evidence that was already presented at the hearing and asks the Tribunal to re-evaluate it in the hope that a different conclusion will be reached. This is not a permissible ground for exercising the Tribunal’s extraordinary and discretionary power to reconsider a decision. Reconsideration is not a venue for a party to make the same or similar arguments in hopes of reaching a different conclusion. I also agree with the Respondent that the facts in Surani are distinguishable as the Divisional Court was seeking to determine what deductions can be made after an IRB calculation was completed and the claimant continued to earn income.

22The Applicant states that I applied the incorrect legal test but does not explicitly state what that the correct legal test should have been. I find that I applied the applicable legal test and made no error in law.

23I also find I did not fail to consider Canada Revenue Agency’s Interpretation Bulletin IT-434 Rental of Real Property by an Individual (Bulletin) as it was not put in evidence by the Applicant. Further, in his Reconsideration Request, the Applicant has also failed to cite where this document could be found in the record. I see no error in not referring to a document that was neither included nor cited by the Applicant in his evidence and submissions. Further, I decline to admit the Bulletin now on reconsideration. The Applicant does not rely on Rule 18.2(d) to seek admission of new evidence that was not before the Tribunal when rendering its decision and, in any event, this Bulletin was reasonably available to the Applicant at the time of the hearing and yet he chose not to tender it then. Furthermore, even if it had been in evidence, the Bulletin referenced that “renting of real property by an individual is not, in itself, indicative of a business operation”. Although the Applicant consistently refers to the Wyld Street property as rental property, at no time was the property ever rented to any tenants and a building was never erected on the premises. Simply calling a real property a rental property does not make it so and therefore I do not see how the Bulletin is relevant or how not referring to it would constitute grounds for reconsideration.

CONCLUSION

24For the reasons noted above, I deny the Applicant's request for reconsideration. The request for reconsideration is dismissed.