AMENDED RECONSIDERATION DECISION
Before:
Jeffery Campbell, Vice-Chair
Licence Appeal Tribunal File Number:
21-004696/AABS
Case Name:
Moiz Taksali v. Aviva Insurance Company
Written Submissions by:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Rebecca Brown Greer, Counsel
OVERVIEW
1On 11/03/2023, the respondent requested reconsideration of the Tribunal’s decision dated 10/13/2023 (“decision”).
2By way of background, the respondent required the applicant to attend insurer examinations (“IEs”) with respect to his entitlement to income replacement benefits and medical benefits. In notifying the applicant of those IEs, the respondent sent denial letters and Notices of Examinations (“NOE”) to the applicant. I found that those notice letters did not provide sufficient medical and other reasons for the applicant’s requirement to attend the IEs. I found that income replacement benefits and medical benefits were payable, plus interest.
3The respondent argues that I erred in law and breached the rules of procedural fairness. The respondent submits that had these errors not been made I would have reached a different decision.
4The applicant asserts that my decision is correct, and that the respondent’s reconsideration request is an attempt to relitigate issues which already failed at the hearing.
RECONSIDERATION CRITERIA
5The 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.
6The respondent submits their request for reconsideration based upon Rule 18.2(a) and (b).
7The respondent is requesting a determination that:
a. The Applicant is not entitled to IRBs in the amount of $388.35 per week from November 13, 2019 to date and ongoing in relation to the 2018 accident;
b. The Applicant is not entitled to IRBs in the amount of $388.35 per week from October 17, 2019 to date and ongoing in relation to the 2019 accident;
c. The Applicant is not entitled to funding of an OCF-18 in the amount of $2,082.85 in relation to the November 2018 accident;
d. The Applicant is not entitled to an OCF-18 in the amount of $4,568.94 in relation to the November 2018 accident; and,
e. e. The Applicant is not entitled to interest.
RESULT
8I dismiss Aviva’s request for reconsideration of the Tribunal’s decision with respect to Mr. Taksali’s claims, pursuant to Rule 18.4.
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.
Rule 18.2 a - The Tribunal did not act outside its jurisdiction violated the rules of procedural fairness
10While the respondent lists Rule 18.2(a) as a ground for their request for reconsideration, it did not present any submissions with respect to this ground. I therefore find that the respondent has not established grounds for reconsideration under Rule 18.2(a).
Rule 18.2 b – The Tribunal did not make an error of law or fact
11I find that the respondent has not established grounds for reconsideration for the following reasons.
12The first error of law that the respondent alleges is that the Tribunal required an enhanced level of specificity and medical knowledge on the respondent which is not consistent with ss. 36(4) and/or 38(8) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) or prior Tribunal decisions.
13The respondent submits that the NOEs effectively communicated the basis of the respondent's principled decision in clear language which allowed the applicant to challenge the denial or decide whether to attend an IE. The respondent cites Tribunal decisions as well as Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”) and Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563, which it argues establishes that the Tribunal’s’ decision imposed a higher level of specificity and medical knowledge than is required by the Schedule.
14The applicant submits the introduction of new Tribunal decisions and Court decisions amounts to an attempt to reargue the case made before the Tribunal in a new way.
15I agree with the applicant. It is well established that reconsideration is not a venue for putting forth new arguments or buttressing the arguments made in the hearing of the matter. This was addressed by Adjudicator Grant in Catic v. Aviva General Insurance, 2021 CanLII 73546 (ON LAT):
It is well settled that reconsideration submissions are not the opportunity for an applicant to restate or attempt to bolster their arguments. The limited scope of reconsideration is intended to specifically address the grounds set out in Rule 18. Reconsideration is not an opportunity for a party to restate its argument. Any new evidence, caselaw or arguments, unless it could not previously be obtained, is not allowed to be relied on for reconsideration. [para 12]
16Of the decisions that the respondent cites in its submissions regarding this alleged error, I note that only M.B. v. Aviva Insurance Canada, 2020 CanLII 87160 ON LAT (“M.B.”) was put forward in his response to the application. The other decisions constitute new caselaw and will therefore be disregarded, with exception of Varriano, as it was released after the respondent’s initial submissions. With respect to M.B., the argument in the respondent’s submissions mirror those in its original submissions, thereby constituting a re-argument of its position.
17In addressing Varriano, I find that case to be distinguishable. In Varriano, the insured was denied income replacement benefits on the basis of s. 37(2)(e) of the then Schedule; that he had “resumed his pre-accident duties”. Section 37(4) of the then Schedule states that when terminating a specified benefit, the insurer shall provide the insured with “medical and any other reasons for its determination”. The “sole” issue in Varriano was, “does an insurer always have to provide a medical reason when denying benefits under the SABS?” (paragraph 19). The Court determined that it does not. It found that the reason found in s. 37(2(e) was a sufficient reason for terminating income replacement benefits and the insurer is not required to fashion a medical reason for termination where none exists. The Court was not required, however, to determine what constitutes sufficient medical reasons, as was the issue in the case at hand.
18With respect to the sufficiency of medical reasons, the position of the respondent that it was an error of law for the Tribunal to place an enhanced level of specificity and medical knowledge which is not required by sections 36(4) and/or 38(8) of the Schedule, this was addressed in the decision of this matter at paragraph 19. As noted in the decision, the level of specificity of the reasons in an NOE does not necessitate in-depth medical knowledge on the part of the respondent but should include specific references applicant’s medical situation, such as the applicant’s diagnosis and/or medical condition.
19It is for that reason that I find the respondent has failed to establish an error in law with respect to the requirements of ss. 36(4) and/or 38(8) of the Schedule.
20The second error of law that the respondent alleges is that the Tribunal ultimately found that the applicant was entitled to the substantive benefits on the sole basis of the insufficient notice.
21The respondent submits that, based upon the Court of Appeal decision of Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457 (“Stranges”) an insufficient notice does not entitle an applicant to benefits. The applicant must also put forward proof of their entitlement to those benefits.
22The respondent’s reference to Stranges could have been advanced at the hearing and, as noted above, is not to be considered in this reconsideration. The parties are expected to put their best foot forward in their initial submissions. Even if Stranges was considered, I find that case distinguishable because it dealt with a previous version of the Schedule, before the Schedule was amended to include increased explicitness with respect to notice requirements.
23The Schedule outlines that until proper notice is provided, the respondent shall pay the benefit to which it applies (s. 36(6) with respect to income replacement benefits; s. 38(11)2 with respect to medical and rehabilitation benefits). There is no requirement in the Schedule for the applicant to otherwise establish their entitlement to these benefits until a proper notice is subsequently given.
24Based on the above, I find that the Tribunal did not err in finding that the applicant was entitled to the substantive benefits on the sole basis of the insufficient notice.
25The third error of law that the respondent alleges is that the Tribunal erred by concluding that the applicant may challenge the sufficiency of the reasons provided in the NOE regardless of attending the IEs.
26The respondent submits that the applicant accepted the sufficiency of the notices by his subsequent attendance at the IEs. The respondent submits that, if the applicant did not believe that the notices were sufficient, the Schedule has a mechanism in place for the applicant to challenge that insufficiency by his non-attendance at the IE and thereafter appeal to the Tribunal upon a denial of the benefit that was the subject of the notice.
27I disagree that the application of that mechanism ensures that an applicant has no provision to challenge the notice of an examination if he or she subsequently attends that subsequent examination.
28The respondent did not submit any precedent, nor a provision of the Schedule, that prohibits an insured from challenging the sufficiency of a notice of examination even if she or he attends that said examination. Indeed, s. 55(1) of the Schedule includes a prohibition of applying to the Tribunal if the insured does not attend an examination scheduled under s. 44 but is noticeably silent with respect to an applicant who does.
29I find, therefore that I did not err by concluding that the applicant may challenge the sufficiency of the reasons provided in the NOE regardless of attending the IEs.
30The fourth error of law that the respondent alleges is that the Tribunal found that any inadequacy of the notices is not cured by the subsequent medical reasons provided in the insurer examinations that were the subject of the notices.
31The Respondent submits that the medical reasons in the insurer examinations serve to cure any insufficiencies in the notices of examinations. The Respondent submits that I mischaracterized the respondent’s argument in stating that the “attempted to repurpose” the “improperly procured IEs” to “legitimize the improper NOE retroactively”. The respondent asserts that they “at all times acted in accordance with the SABS, and to suggest otherwise is an error of law”.
32The question of whether the respondent acted in accordance with the Schedule was a central issue in the appeal of this matter, and was argued accordingly by both parties. The respondent is now merely re-stating their original position. Therefore, I see no error of law in the decisions with respect to this argument.
33The fifth error of law that the respondent alleges is that the Tribunal failed to consider Afriat v. Aviva Insurance Canada, 2020 CanLII 94793 (ON LAT) (“Afriat”) with respect to the notices being cured by the subsequent medical reasons provided in the insurer examinations.
34The respondent asserts that Afriat is on point with the case at issue and to neglect to consider it is an error of law.
35The applicant submits that previous Tribunal decisions are not binding on it. The applicant refers to P.P. v. Wawanesa Mutual Insurance Company, 2021 CanLII 60480 (ON LAT) in which Vice-Chair Flude noted:
“While I acknowledge that prior Licence Appeal Tribunal decisions and FSCO decisions may be persuasive, I would point out that they are not binding. Each case before the Tribunal is unique. Previous decisions provide guidance and insight into interpretation of SABS, but they do not bind.”
36I considered the submissions of both parties in making my decision. It is well established that the Tribunal is not required to refer to every argument or authority cited by the parties in their submissions. I therefore find no error in law in not referring to Afriat.
CONCLUSION & ORDER
37Based upon the above, pursuant to Rule 18.4 of the Licence Appeal Tribunal Rules, I dismiss Aviva’s request for reconsideration for the Tribunal’s decision with respect to Mr. Taksali’s claims.
Jeffery Campbell
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 4, 2024