RECONSIDERATION DECISION
Before: Terry R. Prowse, Adjudicator
Licence Appeal Tribunal File Number: 21-004669/AABS
Case Name: Jolanta Zuchelkowski v. Zenith Insurance Company
Written Submissions by:
For the Applicant: Meghan Fyall, Counsel
For the Respondent: Linda Kiley, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated April 17, 2023, in which the Tribunal found that the applicant was statute-barred, under s. 55 of the Schedule, from proceeding with her claim for statutory accident benefits.
2The reconsideration of a Tribunal decision involves a high threshold, 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. To that end, Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, version I, effective October 2, 2017 as amended (the “Rules”) describes the criteria for granting a reconsideration, as follows:
a. The Tribunal acts outside its jurisdiction or violates the rules of procedural fairness;
b. The Tribunal makes 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 hears false evidence from a party or witness, which was discovered only after the hearing and would likely affect the result; or
d. There was evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.
3A reconsideration request is not an opportunity for a party to ask the Tribunal to re-weigh the evidence or to reargue their case.
4The applicant submits that the Tribunal made errors of fact and law and seeks reconsideration of the matter, under Rule 18.2(b). The applicant contends that a different conclusion would have been reached if the error had not been made because the Tribunal would have considered the applicant’s catastrophic impairment claim.
RESULT
5The applicant's request for reconsideration is dismissed.
ANALYSIS
There was no error of fact or law
6The applicant submits that the Tribunal made an error of law and fact. Specifically, she submits that the Tribunal erred by failing to consider whether she was catastrophically impaired, and by failing to apply the rule of discoverability when concluding that she was statute barred from applying to the Tribunal. The applicant notes that from the date of her application, on August 18, 2017, to the date of the case conference, on July 30, 2021, the respondent never raised an issue with the application or requested an explanation for her delay in applying to the Tribunal.
7The respondent submits that the rule of discoverability has no application in the subject case. It states that the present case is distinguishable from Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 because the benefits sought were not preemptively denied before the applicant was eligible to claim them.
8In Tomec, an insured applied for and received specified benefits, including attendant care and housekeeping benefits, from their insurer. Because the insured was not designated catastrophically impaired during her first two years of entitlement to benefits, the specified benefits ended at the two-year mark. Her condition deteriorated and by year five post-accident she was designated catastrophically impaired. The Court of Appeal held that the limitation period was subject to the discoverability rule, in that the limitation period does not start to run until the insured knew or ought to have known that she had a claim.
9The respondent submits that the Tribunal applied the correct legal tests under s. 32(1) and s. 34 of the Schedule when concluding that the applicant was statute-barred from applying. The respondent submits that the applicant did not provide a reasonable explanation for the delay and her claim is therefore statute barred. The respondent further submits that the applicant did not advance any arguments at the hearing regarding discoverability, the applicability of s. 32(6) or s. 32(10) of the Schedule and did not take the position that s. 55(1) had no force or effect on her claim.
10I do not agree that the rule of discoverability was applicable in this case and see no error of law or fact as a result. I concur with the respondent that the applicant did not provide submissions during the hearing related to Tomec or the discoverability rule. Consequently, it follows that she cannot advance those arguments now on reconsideration and it was not an error of law for the Tribunal to not consider an argument the applicant failed to advance. Even if the applicant had made such submissions, the discovery rule would still not apply to this case because my findings at first instance were based on a lack of a reasonable explanation for the delay in notifying the respondent about the accident.
11In the present case, the applicant did not notify the respondent of the circumstances giving rise to her claim until more than two years after the accident, contrary to s. 32(1) of the Schedule, which requires that notice to be given within seven days. The applicant was therefore barred from claiming benefits. However, the Tribunal still considered whether the applicant had a reasonable explanation for the delay so that her claim for benefits was not disentitled, in accordance with s. 34 of the Schedule, but found that she had not provided a reasonable explanation for her non-compliance.
12In my view, the facts in Tomec are distinguishable and cannot be applied to the present case. Here, at paragraph 22, the Tribunal found that the applicant knew that she had psychological impairments before, at the time of, and immediately after the subject motor vehicle accident. At paragraph 23, the Tribunal found that the evidence did not support the applicant’s allegation that her psychological issues only emerged in 2017 following the accident or that they contributed to her delay in applying for accident benefits. In Tomec, the entitlement to the disputed benefit did not even arise until after the insurer alleged the limitation period had expired and the Court determined that in those circumstances the discoverability rule should be applied.
13The preliminary issue at first instance concerned s. 32(1) of the Schedule, which provides the time limits within which the applicant must inform the respondent of her intent to apply for accident benefits. As discussed at paragraphs 10-15 of the decision, I find she did not comply with the timelines of s. 32(1), as there was a 27-month delay between when the accident occurred and when she reported the accident to the respondent.
14While section 34 of the Schedule provides an avenue to applicants who do not meet the time limit prescribed by s. 32 but have a reasonable explanation for failing to do so, the Tribunal did not agree that the applicant’s explanation was reasonable. These reasons are stated at paragraphs 16-25 of the decision. I see no basis to depart from those reasons.
15The Tribunal found that the applicant did not inform the respondent of the accident within the requisite time limit and did not provide a reasonable explanation for the delay. The discoverability rule was not applicable and no error in fact or law was committed by the Tribunal for not engaging it.
ORDER
16The request for reconsideration is dismissed.
Terry R. Prowse Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: October 6, 2023