RECONSIDERATION DECISION
Before: Tanjoyt Deol
Licence Appeal Tribunal File Number: 23-014283/AABS
Case Name: Cameron Patton v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Maia Abbas, Counsel
OVERVIEW
1On August 2, 2024, the applicant requested reconsideration of the Tribunal’s Preliminary Issue Hearing Decision dated July 12, 2024, (the “decision”).
2In the decision, I found that the applicant was statute barred from proceeding with his claim for Income Replacement Benefits (IRBs) for the period outlined in his application to the Tribunal, pursuant to s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). I also found that the applicant had not established that an extension of the two-year limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999 (LAT Act) was warranted.
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 seeks reconsideration pursuant to Rules 18.2(b) and (c). The applicant requests that the decision be varied to be found that he is not statute-barred from proceeding with his IRB claim.
5The respondent argues that the applicant is attempting to relitigate the matter, and that the reconsideration request should be dismissed.
6I note that the applicant in his reply reconsideration submissions noted that the respondent ignored the page limit of eight pages, and as a result, his submissions were also a page longer. As the applicant has not specified what relief he is seeking from the Tribunal, I have not made an order with respect to this.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The 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.
Rule 18.2(b) – No errors of law or fact where I would have likely reached a different result had the error not been made
9I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
10The applicant submits that I made the following errors in law and fact:
a. I erred in finding the denial letter dated May 3, 2021 was compliant with the principles set out in Smith v. Co-operators General Insurance Co., 2002 SCC 30 (Smith) and that the denial of IRBs was conveyed in a clear and straightforward manner in the letter;
b. I erred by not analyzing the subsequent requests from the respondent for Employer’s Confirmation Forms (OCF-2s) on May 20, 2021, and June 30, 2021, and the impact of these requests on the denial of IRBs and the May 3, 2021 denial letter;
c. I erred by not considering the February 24, 2023, correspondence from the respondent to the applicant in the decision and the impact of this correspondence on the denial of IRBs and the May 3, 2021 denial letter;
d. I erred by not analyzing the impact of the respondent’s decision to not inform the applicant that no further action was required after the OCF-2s were received by the respondent and the impact that this lack of communication had on whether the applicant’s IRB claim was clearly and unequivocally denied;
e. I erred by not following the binding authority of Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (Rumball);
f. I erred in my application of Q.S.Z. v. TD General Insurance Company, 2020 CanLII 30394 (ON LAT) (Q.S.Z.);
g. I erred in my analysis of the interplay between Smith and Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 (Sietzema); and
h. I erred in finding that the applicant was not entitled to an extension of the limitation period under s. 7 of the LAT Act by:
i. Finding that the applicant did not show a bona fide intent to dispute the IRB denial;
ii. Finding that the applicant did not provide an explanation for the length of the delay in filing his appeal;
iii. Finding that there was prejudice to the respondent if the limitation period was extended; and
iv. Not assessing whether the applicant had a reasonable chance of success in his appeal.
(a) No error regarding the May 3, 2021 denial letter
11I did not err in finding that the May 3, 2021, denial letter was compliant with the principles set out in Smith and, therefore, the letter triggered the start of the two-year limitation period for IRB.
12In the decision, at paragraph 19, I determined that Aviva provided a denial that was compliant with the principles set out in Smith because the denial clearly advised the applicant that no IRBs were payable effective April 14, 2021. I noted that in my view, this denial was conveyed in a clear and straightforward manner as it was noted that no IRB was payable. I also noted that the denial was accompanied by notice of the two-year period for commencing the dispute resolution process and information on how to dispute the denial. As a result, I determined that the denial was Smith-compliant and triggered the two-year limitation period for IRBs on May 3, 2021.
13The applicant argues that I made an error of fact and law when arriving at this conclusion because the letter was not provided by Aviva but by Crawford & Company (Canada) on behalf of Echelon Insurance. He further argues that the denial letter was not clear or straightforward because it clearly requested the OCF-2, served as a request for information, and that they may provide a further determination of benefits. He argues that as a result, the denial letter was not clear and unequivocal and thus not compliant with Smith.
14The applicant is correct that I made an error of fact at paragraph 19 of the decision because I stated that Aviva provided the May 3, 2021 denial letter to the applicant. The applicant is correct that the denial letter was provided by Crawford & Company on behalf of Echelon Insurance, and not Aviva, and I incorrectly noted at paragraph 19 of the decision that Aviva provided the denial letter. However, I do not find that had I not made this error of fact that I would have likely reached a different decision because:
a. I found that the denial letter was compliant with the principles set out in Smith; and
b. As a result, the May 3, 2021 denial letter triggered the two-year limitation period, regardless of who sent the letter.
15The applicant’s reconsideration submissions with respect to the denial letter being not clear or straightforward because it stated a further determination of benefits may be provided is an attempt to raise a new argument for the first time. Notably, in the applicant’s hearing submissions, he argued that the denial letter was not clear and unequivocal as the denial letter requested further information, being the OCF-2, and that indeterminacy was caused by the request for an OCF-2. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. The applicant had an opportunity to raise this argument in his submissions for the initial hearing but did not do so.
16The applicant’s remaining submissions on this alleged error are largely a recitation of his submissions at first instance. I find that he is largely attempting to relitigate the Tribunal’s finding regarding the May 3, 2021 denial letter which is not the purpose of a reconsideration. The reconsideration process is not meant to be a reweighing of the evidence presented at first instance.
17At paragraphs 14, and 21 of the decision, I noted the applicant’s position that he disputed the denial letter, dated May 3, 2021, was clear and unequivocal because the respondent requested further information and an OCF-2 was requested.
18At paragraphs 19 to 21 of the decision, I found that the denial letter clearly advised the applicant that no IRBs were payable, which in my view, was conveyed in a clear and straightforward manner. I also noted that while the denial letter stated that it served as a request for information under s. 33(1), the denial letter also stated that no IRBs were payable effective April 14, 2021, due to the applicant not providing the OCF-2 that was requested on March 29, 2021. As noted at paragraph 21, I found that while a s. 33 request alone does not trigger a limitation period, a refusal to pay a benefit that stems from a s. 33 request does.
19In short, the fact that the applicant does not agree with my analysis or decision regarding the May 3, 2021 letter is not grounds for reconsideration and does not point to an error in fact or law.
(b) No error in not referencing all of the evidence presented by the applicant
20The applicant argues that I erred by not considering the subsequent requests for OCF-2s from the respondent on May 20, 2021 and June 30, 2021, the letter dated February 24, 2023, and his submissions that the respondent did not communicate that no further action was required after the OCF-2s were received and the impact that this evidence, or lack thereof, had on whether the applicant’s IRB claim was clearly and unequivocally denied. I disagree and find the applicant’s arguments do not identify an error of law or fact.
21First, it is well established that an adjudicator is not required to cite every piece of evidence, submission, and authority submitted by the parties in the reasons of a decision.
22Second, I find that this evidence and the applicant’s submissions on this evidence are immaterial to the turning point in this dispute, which is whether the May 3, 2021 denial letter complied with the principles set out in Smith and triggered the start of the two-year limitation period. As noted above, the applicant has not established that I committed an error of fact or law in arriving at my conclusion that the May 3, 2021 denial letter was compliant with the principles in Smith and triggered the two-year limitation period.
23The fact that the respondent made further requests for an OCF-2 from one of the applicant’s employers on May 20, 2021, and June 30, 2021, is immaterial because the two-year limitation period was triggered on May 3, 2021. As noted from paragraphs 22 to 25 of the decision, I found that insurer’s requests for more information does not detract from a valid denial or re-start the limitation period. This finding was made based on the binding authority of the Divisional Court in Landa v. The Dominion of Canada General Insurance Company 2024, ONSC 2871, (“Landa”) and a previous Tribunal decision of K.K. v. Coseco Insurance Company, 2020 CanLII 12713 (ON LAT) at para 18 (“K.K.”). I see no error of fact or law in not referencing the respondent’s requests for an OCF-2 on May 20, 2021, and June 30, 2021, because the limitation period was triggered on May 3, 2021.
24I acknowledge that the applicant argues that in the decision, I failed to consider that the February 24, 2023 letter included a statement that if the information was incorrect that the applicant was to contact the respondent and that a cheque for IRBs would follow. Therefore, the applicant submitted that the February 24, 2023 letter would have impacted whether there was a clear and unequivocal denial of IRBs in the May 3, 2021 letter.
25I disagree with the applicant’s position regarding the February 24, 2023 letter because, as stated above, I found that the May 3, 2021 denial letter was a clear and unequivocal denial of IRBs and the limitation period would not be restarted by the February 24, 2023 letter. As the Court of Appeal held in Bonilla v. Preszler, 2016 ONCA 759, the limitation period in s. 56 of the Schedule is triggered by a single event, the refusal to pay an IRB claimed. There is no rolling limitation period. Accordingly, the applicant’s arguments at first instance with respect to the February 24, 2023 letter were irrelevant because the May 3, 2021, letter triggered the two-year limitation period because it complied with the principles in Smith.
26Third, the fact that I did not mention the applicant’s submission at first instance that the respondent did not communicate that no action was required by him upon receiving the OCF-2s does not amount to an error of law or fact because it is irrelevant. The applicant is also raising new arguments in this regard.
27At first instance, the applicant argued that while the respondent alleged that no further action was required by him as the applicant had returned to work, this was not communicated to the applicant. In summary, I did not commit an error of fact or law by not referencing this argument in my decision because the applicant made no submissions on how this was relevant to the key issue before me, which is whether the May 3, 2021 denial letter triggered the two-year limitation period. The applicant also did not provide any submissions on how the lack of such communication from the respondent made the May 3, 2021 denial letter non-compliant with the principles set out in Smith.
28Also, for the first time in his reconsideration submissions, the applicant argues that this lack of communication from the respondent renders the May 3, 2021 denial letter non-compliant with Smith because it shows that that the respondent made a decision but did not communicate it to him. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. Parties are expected to put their best foot forward when first called to do so. The applicant had an opportunity to address this argument in his hearing submissions, but he did not do so. The applicant has provided no explanation on why this argument could not have been raised with his initial hearing submissions when he noted that the respondent had not communicated its decision to him.
29The applicant in his reply reconsideration submissions also made new arguments with respect to Echelon Insurance and Aviva not considering the May 3, 2021 denial to be a clear and unequivocal denial. The applicant in his initial hearing submissions did not raise this argument and has provided no explanation on why he could not do so at first instance. Thus, I will not consider this new argument because the reconsideration process is not an avenue for advancing new arguments.
30In conclusion, the applicant has not established that I made an error of law or fact regarding the applicant’s evidence.
(c) No error regarding the authorities of Rumball, Q.S.Z, Smith, or Sietzema
31The applicant argues that I erred at paragraph 20 of the decision when I determined that I was not persuaded by the Tribunal decision of 17-004556 v. Aviva Insurance Canada, 2018 CanLII 13157 (ON LAT) (“17-004556”) because this decision was upheld by the Divisional Court in Rumball and, therefore, it is binding on me.
32I disagree that I made an error of law or fact because, as noted at paragraph 20 of the decision, I found that 17-004556 was factually distinguishable from the matter before me. I found that the May 3, 2021 denial letter clearly conveyed that no IRBs would be payable whereas in 17-004556, the insurer’s denial stated: “Should you be off work again due to the injuries sustained [in the] accident, we would require a updated Disability Certificate (OCF-3) to determine your eligibility.” Based on that wording, the Tribunal held that this denial could reasonably have led the applicant to believe that her options with respect to IRBs would be kept open in case her circumstances changed, and therefore her claim for IRB had not been denied with finality. This wording, however, was not used in this matter.
33I also disagree that I made an error of law by not following the authority of Rumball because the court held that the appeal with respect to the denial letter was a question of mixed fact and law and not subject to appeal. Therefore, the court in Rumball did not endorse that the approach taken in 17-004556 is binding on other Tribunal decisions, or the only correct approach, but rather noted at paragraph 32 of the decision that the Tribunal’s finding that the letter was ambiguous and did not trigger the limitation period was a plausible interpretation. Therefore, I disagree with the applicant’s position that Rumball is binding on me because the court noted that the appeal with respect to the denial letter was not subject to appeal. Nevertheless, as noted at paragraph 20 of the decision, I provided reasons on why the factual scenario before me was distinguishable from 17-004556.
34The applicant again is making new arguments that the denial letter contained the wording that the insurer may provide a further determination of benefits, however as noted above, this was not raised in his initial hearing submissions. Instead, in his initial hearing submissions, the applicant argued that his case was similar to 17-004556 because the correspondence allowed reintroduction of the case with the provision of another form or if there is a disagreement as to the status of his return to work or a change in circumstances, which he argued created indeterminacy.
35I further find that I did not make an error in my application of Q.S.Z. and, rather, find that the applicant is attempting to relitigate my finding at paragraph 21 of the decision. The applicant argues that the May 3, 2021 denial letter did not contain a valid s. 33 request and, therefore, it was unclear and equivocal. He argues that instead the respondent included a further s. 33 request. This argument was already considered and rejected in the decision at paragraph 21. Although, the applicant disagrees with the Tribunal’s finding and application of Q.S.Z., this does not establish an error of law.
36At paragraph 26 of the decision, I noted the applicant’s arguments that the respondent was non-compliant with the Schedule because an improper request was made for an OCF-2 under s. 33(1), that Aviva did not assess whether a reasonable explanation was provided for the non-compliance under s. 34, that Aviva did not calculate his IRB entitlement based on the other OCF-2 in its possession, and that Aviva had not paid IRBs up until April 14, 2021. I noted that as a result of the above, the applicant was arguing that, as outlined in Smith, no refusal can be said to have been given if Aviva did not comply with the Schedule.
37At paragraph 27 of the decision, I provided reasons on why I disagreed with the applicant’s position because Smith does not stand for the proposition that a refusal is only given when an insurer complies with the Schedule in its entirety, rather the denial letter must meet the principles in Smith, which it did here. At paragraph 28 of the decision, I further determined that the applicant was mistakenly conflating the legal requirements for a valid denial with the substantive legal requirements for denying a benefit. From paragraphs 27 to 30, I referred to the authorities of Sietzema and Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (“Turner”) and that the purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. I further determined in the decision that the reasons for the denial do not have to be legally correct to start the limitation clock but instead the denial must be compliant with the principles in Smith.
38The applicant argues that I erred in my analysis of the interplay between Smith and Sietzema. The applicant argues that contrary to paragraphs 28 to 30 of the decision, he did not conflate the legal requirements for a valid denial with the legal requirements for denying a benefit. He submits that the reasons given do not need to be legally correct, but rather the insurer must act in compliance with the Schedule when denying a benefit and to hold otherwise would run contrary to the consumer protection principles articulated in Smith.
39I find that these arguments made by the applicant are an attempt to relitigate the position he took at first instance which is not the purpose of a reconsideration. In both his initial submissions and reconsideration submissions, the applicant has maintained his position, as noted at paragraph 26 of the decision, that the respondent was non-compliant with the Schedule and therefore no refusal can be said to be given if the respondent did not comply with the Schedule.
40From paragraphs 27 to 30 of the decision, I provided numerous reasons on why I disagreed with the applicant’s interpretation of Smith, being that the respondent has to be compliant with the Schedule in its entirely. Instead, as noted at paragraph 11 of Smith (and paragraph 27 of my decision), the respondent must be compliant with s. 54 and provide a clear and unequivocal denial, which it did here. Therefore, the applicant’s arguments with respect to Smith is an attempt to reargue his position, which does not establish an error of law or fact.
41I also do not find that I erred in my application of Sietzema and that the applicant was conflating the legal requirements for a valid denial with the substantive legal requirements for denying a benefit. The applicant argues that rather he is arguing that the insurer must act in accordance with the Schedule when denying a benefit and to hold otherwise would run contrary to the consumer protection principles set out in Smith.
42As noted above, at paragraphs 26 to 30, I addressed why I disagreed with his interpretation of Smith, and that under Smith, the insurer must be compliant with s. 54 and provide a clear and unequivocal denial. However, Smith does not stand for the proposition that a refusal is only given when an insurer complies with the Schedule in its entirety. Thus, against the applicant’s argument, the respondent does not have to be compliant with ss. 33 and 34 in order for a valid denial to be given. Likewise, the applicant’s alleged arguments that the respondent did not quantify his IRB based on the other OCF-2 it had in its possession and did not pay IRBs for the period up to April 14, 2021, does not detract from the fact that a valid denial was provided on May 3, 2021.
43I further concluded that the applicant was conflating the legal requirements for a valid denial with the substantive legal requirements for denying a benefit. This is because in order for a valid denial to be given the insurer has to provide reasons to permit the applicant to decide whether or not he wants to challenge the denial. Meanwhile, the applicant made arguments that the respondent has to be compliant with the Schedule by quantifying his IRB based on the other OCF-2 it had in its possession, and by paying him IRB up until April 14, 2021. The applicant also argued that the respondent has to be compliant with ss. 33 and 34 in order for a valid denial to have been given under Smith. In my view, these arguments made by the applicant, rose to the substantive legal requirement for denying a benefit and not the legal requirements for a valid denial. In order for there to be a valid denial under Smith, the respondent must be compliant with s. 54 and provide a clear and unequivocal denial, which it did. The applicant has established no error of law or fact in my interpretation of either Smith or Sietzema.
44In summary, the applicant has not demonstrated that I committed an error of law or fact in my interpretation and analysis of Rumball, Q.S.Z, Smith, and Sietzema such that a reconsideration is warranted on this basis.
(d) No error in not extending the limitation period under s. 7 of the LAT Act
45The applicant argues that I committed an error of law and fact regarding all four factors set out by the court in Manuel v. Registrar, 2012 ONSC 1492 (Manuel) when considering a request for an extension of a limitation period under s. 7 of the LAT Act.
46The applicant’s arguments with respect to the first factor (a bona fide intention to appeal within the limitation period) is an attempt to introduce new arguments which were not raised at first instance. In his initial submissions, the applicant submitted that the continuous correspondence, the service of the OCF-2s, and the intent to add the issue of IRB to an earlier hearing all demonstrated that the first factor was met, which was considered by me at paragraphs 34 to 36 of the decision.
47Now, the applicant is arguing in his reconsideration submissions that the continuous correspondence and documentation show that he did not know his IRB was denied, and that once he became aware that it was denied, he took immediate steps to add IRB as an issue in dispute. As already noted, the Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could have, but did not make, before the Tribunal during the hearing process. Again, the applicant has provided no explanation as to why these submissions could not have been made at first instance.
48The applicant’s reconsideration submissions with respect to the second factor (the length of delay) are also an attempt to introduce new arguments, which is not the purpose of a reconsideration. Indeed, at paragraph 37 of the decision, I noted that the applicant did not provide an explanation for the delay in his submissions and, instead, argued that the Tribunal was required to determine from which date the limitation period began.
49The applicant now on reconsideration argues that he did not understand when his IRB was denied due to the conflicting correspondence from the respondent and that is now the explanation for his delay in appealing the denial. With respect, the applicant did not raise these arguments at first instance, nor has he provided an explanation why these arguments were not raised with his initial submissions.
50The applicant argues that I committed an error of law in my decision as I found there to be prejudice solely based on systemic prejudice in respect to limitation periods, instead of determining whether there was prejudice to the respondent in this case on the facts before me.
51I find that I did commit an error of law when I did not consider whether there was prejudice to the respondent in this case. Instead, from paragraphs 42 to 43 of the decision, I provided reasons on why there was prejudice based on systemic prejudice in respect of limitation periods. I concur with the applicant that this was an error of law because the court in Manuel, at paragraphs 31 and 32, determined that the Tribunal was required to consider the prejudice to the Registrar as a result of the delay that would have resulted from the extension of the appeal period and, considering the general institutional need for respect of rules and deadlines, does not adhere to this.
52However, I do not find that this error justifies reconsideration under Rule 18.2(b) because if an error is established, a reconsideration will only be granted when it is likely that the Tribunal would have reached a different result had such an error not been made. That is not the case here. As noted in paragraph 15 of Manuel, no one factor has ascendance over the other factors and no one factor is determinative in the analysis. I find that my error of not considering whether the respondent suffered prejudice based on the facts before me would not change the outcome of the decision because as noted at paragraphs 34 to 40 of the decision, I determined that the applicant failed to show a bona fide intention to appeal and the six month delay was significant. Thus, I found that the justice of the case did not favour an extension of time to file an application.
53The applicant further argues that I committed an error by not assessing whether he had a reasonable chance of success in the appeal. He argues that instead in my decision, I focused my analysis with respect of the merits of the appeal on public interest and legislative intent in respect of limitation periods in general. I disagree that this amounts to an error of law. As noted at paragraphs 44 to 45 of the decision, I noted the applicant’s argument that there was a reasonable chance of success, however based on my findings of the other factors, I determined that the applicant did not direct me to evidence of special circumstances that would tip the balance of justice in favour of granting the extension.
54Accordingly, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(b) regarding my analysis of s. 7 of the LAT Act in the decision.
Rule 18.2(c): New evidence
55I find that the applicant has not demonstrated that the undated resignation letter is a basis under Rule 18.2(c) of the Rules to grant a reconsideration because the applicant has not established that the evidence could not have been obtained previously by him.
56The applicant argues that the resignation letter is fresh evidence that he is unable to continue with his employment because his employer refused to provide further accommodations and, as a result, the applicant is no longer working. He argues that the resignation letter did not exist at the time of the hearing, so it could not have been included. However, his submissions are silent on when this resignation letter was created and how this resignation letter would have likely affected the result.
57The respondent argues that this resignation letter would not change my decision because the applicant worked for a period of three years and four months since May 7, 2021.
58As noted above, Rule 18.2(c) sets out a three-part test: 1) There is evidence that was not before the Tribunal when rendering its decision; 2) The evidence could not have been obtained previously by the party now seeking to introduce it; and 3) The evidence would likely affect the result.
59I accept that the applicant meets part one of the test because the resignation letter was not before me when I rendered my decision. However, I find that the applicant does not meet the second part of the test, which is the evidence could not have been obtained previously by him for several reasons. First, the letter is undated and, therefore, it is unclear when it was created. Second, while the resignation letter notes that the last day of the applicant’s employment was August 2, 2024, this does not establish that this letter was created after the hearing as argued by the applicant. Rather, this establishes that the last day of employment is August 2, 2024. The applicant has also provided no evidence to prove when this letter was created, which would be open to him to provide as he is the one who drafted it.
60The applicant also now raises new submissions that since he is now off work altogether, he would be eligible for post-104 IRB and that in accordance with the decision of Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (Tomec) he has just now discovered his post-104 IRB claim and, therefore, he cannot be statute-barred. Even if I agreed that Tomec applies in this situation, the applicant has provided no explanation on why discoverability and Tomec could not have been raised in his initial hearing submissions. As noted at paragraph 31 of the decision, the period in dispute for IRB was from November 25, 2021 to date and ongoing, which encompasses both the pre-104 and post-104 period.
61Yet, in his initial hearing submissions, the applicant did not argue that he was not claiming post-104 IRB because he had returned to work. Instead, he maintained that he was not statute barred with respect to his IRB claim because the respondent did not provide a clear and unequivocal denial. As IRB was in dispute for both the pre-104 and post-104 period, in my opinion, the applicant could have raised discoverability and Tomec arguments at first instance, but he chose not to do so. I am also not persuaded by the applicant’s position that he discovered he had a post-104 IRB claim when he submitted the resignation letter because he was already claiming IRB for the post-104 period in his application to the Tribunal.
62To summarize, the applicant has not tendered any new evidence which satisfies the three part test under Rule 18.2(c).
CONCLUSION
63The applicant’s request for reconsideration is dismissed.
Tanjoyt Deol Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: December 12, 2024