RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 21-012213/AABS
Case Name: Maimuna Elias v. Wawanesa Insurance
Written Submissions by:
For the Applicant: Victoria Tchilikova, Paralegal
For the Respondent: James Schmidt, Counsel
OVERVIEW
1On November 27, 2023, the applicant requested reconsideration of the Tribunal’s decision dated November 8, 2023 (“decision”).
2In that decision, I determined that the applicant was entitled to payment of a non-earner benefit (“NEB”) from February 14, 2020 to March 2, 2020, plus interest, but that she was not entitled to the benefit for the remaining period in dispute. I further determined that the applicant’s accident-related impairments fit within the Minor Injury Guideline (“MIG”), but that she was entitled to the outstanding balance of the treatment plan dated July 2, 2020, plus interest, as a result of the respondent’s non-compliance with s. 38(8) of the Schedule. Finally, I found that the applicant was not entitled to the remaining treatment plans in dispute, or an award.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or
c) 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.
4The applicant is seeking reconsideration pursuant to Rule 18(2)(a) and (b). She submits that I violated the rules of natural justice and procedural fairness, and that I made an error of law or fact such that I would have reached a different result in my decision if the errors had not been made.
5The applicant requests that the decision be set aside, and that the matter be remitted to a new hearing in front of a different adjudicator. The respondent submits that there are no valid grounds for a reconsideration appeal, and that the reconsideration request be dismissed.
RESULT
6The applicant’s request for reconsideration is allowed, in part.
7I vary the Tribunal’s decision on the issue of the NEB entitlement period and find that the applicant is entitled to NEBs from February 12, 2020 to March 2, 2020, plus interest.
8The remainder of the applicant’s request for reconsideration is dismissed.
ANALYSIS
9The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
10The applicant submits that I:
i. Erred in law and fact and acted outside of my jurisdiction in relation to the NEB claim;
ii. Violated the rules of procedural fairness in relation to the OCF-18 dated July 2, 2020;
iii. Erred in law and fact in relation to the OCF-18 dated May 5, 2021;
iv. Violated the rules of procedural fairness by inappropriately acting as an advocate for the respondent.
11I will address each of these claims in turn.
NEB claim – Rule 18.2(a) and (b)
12I find that the applicant has established that I erred in law and fact in my calculation of the eligibility period for NEBs. In para 6 of my decision, I identify the entitlement period for NEBs as being from February 14, 2020 to March 2, 2020. However, the applicant submits that the start date for the payment period should be February 12, 2020, rather than February 14, 2020.
13I agree with the applicant that I erred in my calculation of the start date for NEB entitlement by two days. As such, the correct period of entitlement to NEBs is from February 12, 2020 to March 2, 2020.
14As part of her reconsideration request, the applicant did not request that my decision be varied, but rather, that the decision be set aside in its entirety and remitted to a new hearing before a different adjudicator. Pursuant to Rule 18.4, when considering a reconsideration request, the Tribunal may order a rehearing, or confirm, vary or cancel the decision. While a new hearing before a different adjudicator is not required, I find that a variation of my decision is appropriate. As such, on reconsideration, I amend the decision on the issue of the NEB entitlement period and find that the applicant is entitled to NEBs from February 12, 2020 to March 2, 2020, plus interest.
OCF-18 dated July 2, 2020 – Rule 18.2(a)
15I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) on this issue. The applicant submits that I violated the rules of procedural fairness, by referencing caselaw and statutory provisions which had not been raised by the parties in their respective initial hearing submissions. The applicant argues that it is procedurally unfair for the Tribunal to research and rely on cases of its “own accord without providing notice to the parties”.
16I find that there was no error. The applicant refers to paras 24 to 27 of my decision, where when addressing the parties’ arguments on whether a treatment plan must be incurred to be payable in cases of s. 38(8) non-compliance, I reference s. 38(15) of the Schedule, and the Ontario Divisional Court decisions Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 and Aviva General Insurance Company v. Catic, 2022 ONSC 6000. The applicant submits that as the parties did not address these decisions or the Schedule provision in their submissions, it was procedurally unfair for me to consider them.
17I disagree. Unlike Tribunal caselaw, the Divisional Court decisions I referenced in paras 24 to 27 are binding upon me. The Tribunal is expected to know relevant statutory provisions and binding caselaw when assessing a party’s claim. The applicant has not established grounds for reconsideration under Rule 18.2(a) with respect to my consideration of the OCF-18 dated July 2, 2020.
OCF-18 dated May 5, 2021 – Rule 18.2(b)
18I find that the applicant has not established grounds for reconsideration in my consideration of the OCF-18 dated May 5, 2021.
19The applicant submits that I erred in law and fact when considering the respondent’s March 1, 2022 denial letter. The applicant argues that in her initial hearing submissions, when she was disputing the sufficiency of the respondent’s final denial notice which included the s. 44 report, she did so on the basis of s. 38(11) of the Schedule. As such, the applicant argues I erred in law and fact in para 32 of my decision, when I considered the distinction between s. 38(14) and s. 38(11) of the Schedule. The applicant argues that since s. 38(14) of the Schedule was not raised in her submissions, I should not have considered it.
20I find no error in my analysis. The March 1, 2022 denial letter was the final denial notice, sent after a s. 44 assessment was conducted. Although in the applicant’s initial hearing submissions she argued that this second, final notice was subject to the shall pay provision of s. 38(11) of the Schedule, I disagreed. In para 32 of my decision, I note that while s. 38(8) and (11) of the Schedule were applicable to the initial denial notice, the final denial notice sent after conducting a s. 44 assessment, was subject to s. 38(14) of the Schedule. I further noted in my decision that unlike s. 38(8) and (11), there are no mirroring “shall pay” provisions in s. 38(14) and (15). As previously noted, the Tribunal is expected to know and reference the appropriate statutory provisions needed to adjudicate a claim. I find no error in my analysis relating to s. 38(14) of the Schedule.
21In her reconsideration submissions, the applicant cites a Tribunal decision Stewart v. Travelers Insurance Company of Canada, 2022 CanLII 92733 (ON LAT), in support of her claim that I erred in my assessment of s. 38(14). While I acknowledge that the adjudicator in Stewart came to a different determination, Tribunal caselaw, while instructive, is not binding upon me. I do not find that I erred in law or fact in my consideration of the May 5, 2021 OCF-18. The fact that the applicant does not agree with my analysis or decision is not grounds for reconsideration.
Violation of Procedural Fairness – Inappropriately acting as an advocate for the respondent – Rule 18(a)
22I find that the applicant has not established grounds for reconsideration pursuant to Rule 18(a).
23The applicant submits that I exhibited bias and inappropriately acted as an advocate for the respondent. She argues that the respondent did not provide detailed submissions as to the sufficiency of the various denial notices, but that in paras 30-31 and 36-37 of my decision, I provided reasons as to why I found the denial notices to be sufficient, despite these arguments not being raised by the respondent.
24I find that there was no error. In the applicant’s initial hearing submissions, she raised the issue of the non-compliance of the respondent’s denial notices. Indeed it was the central focus of her initial hearing submissions. As such, in my role as the hearing adjudicator, I was required to assess each of the denial notices in order to address their sufficiency, whether or not the respondent provided detailed submissions on the issue. My findings in paras 30-31 and 36-37 of my decision are not evidence of bias or advocacy on behalf of the respondent, but rather, my determination on the purported non-compliance of the notices, as had been alleged by the applicant.
25The applicant further submits I inappropriately acted as the respondent’s advocate by addressing the applicability of s. 38(14) of the Schedule, when not raised by the respondent. However, as previously stated, the Tribunal is expected to apply the appropriate provisions of the Schedule, whether or not they are raised by the parties. In Consolidated Bathurst, the Supreme Court of Canada explained that it would be impractical for tribunals to permit further submissions every time a new legal or policy argument arises. Tribunals are expected to rely on their specialized knowledge and expertise in deciding cases, which may include case law or aspects of the statutory context not alluded to or relied on by the parties: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 at para. 93 (QL).
26The applicant similarly argues that I acted as the respondent’s advocate by finding that certain denial notices complied with s. 38(8) of the Schedule and refers back to the caselaw cited in her initial hearing submissions. I find that the applicant is attempting to re-litigate her case by having me consider the same caselaw that I already considered when rendering my decision, and render an alternate finding. That is not the purpose of the reconsideration process. I find that the applicant has not established that I exhibited bias, or inappropriately acted as the respondent’s advocate.
CONCLUSION & ORDER
27The applicant’s request for reconsideration is allowed, in part.
28I vary the Tribunal’s decision on the issue of the NEB entitlement period and find that the applicant is entitled to NEBs from February 12, 2020 to March 2, 2020, plus interest.
29The remainder of the applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 5, 2024