RECONSIDERATION DECISION
Before:
Craig Mazerolle, Adjudicator
Licence Appeal Tribunal File Number:
21-008080/AABS
Case Name:
Joel Angus v. Aviva General Insurance
Written Submissions by:
For the Applicant:
Jessica Friend, Paralegal Ryan Jeffries, Paralegal
For the Respondent:
Alicia Edwards, Paralegal
OVERVIEW
1On October 24, 2023, the respondent requested reconsideration of the Tribunal’s decision released October 4, 2023: Angus v Aviva General Insurance, 2023 CanLII 91431 (ON LAT) (the “decision”). I released the decision following a written hearing held on May 31, 2023.
2In addition to denying the applicant’s requests for benefits, I also denied the respondent’s request for repayment of the income replacement benefit (“IRB”). Briefly, I accepted that the respondent had established the applicant received an IRB overpayment in the amount of $713.44. However, I found the respondent did not satisfy me that its repayment request was made in accordance with the timeline prescribed by s. 52(3) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
3The respondent is seeking reconsideration of my decision about the IRB repayment.
4The 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.
5In its reconsideration request, the respondent relies on the criteria from Rule 18.2(b). Specifically, the respondent argues the decision is based on an incorrect timeline. It argues that if I had not used this incorrect timeline, I would have likely reached a different result had the error not been made. The applicant disagrees, contending that there is no error in the decision.
6The respondent is seeking an order for repayment of the IRB in the amount of $713.44, “plus interest on the said amount in accordance with the provisions of section 51 of the Schedule.”
RESULT
7The respondent’s request for reconsideration is granted.
8I vary my decision to find that the applicant is required to pay the respondent a repayment of the IRB in the amount of $713.44, plus interest.
RESPONDENT’S REPLY SUBMISSIONS
9The Tribunal’s reconsideration order (dated October 26, 2023) set out the deadlines and page limits for the applicant’s responding submissions and respondent’s reply. The reply was limited to one page, double-spaced. There was no subsequent order to amend this limit.
10The respondent’s reply is two pages in length. As such, I did not consider the second page of its reply.
ANALYSIS
11The 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.
12I find the respondent has established grounds for reconsideration under Rule 18.2(b). Briefly, I am satisfied that the respondent demonstrated that the decision was based on an incorrect date of the IRB payment, and, if the correct date had been relied upon, I would likely have come to a different result.
13Section 52(3) of the Schedule states:
If the notice required under subsection (2) is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.
14The respondent argues that in the decision I conflated the pay period when the alleged IRB overpayment took place with the date when this payment was, in fact, issued to the applicant. Put another way, though the overpayment related to the period between August 11 to August 23, 2019, the applicant received this payment as part of a lump sum payment following correspondence dated December 3, 2019. Since the respondent requested the repayment in a letter to the applicant dated November 11, 2020, the request was made within 12 months “after the payment”, a timeline that complies with s. 52(3).
15The applicant opposed the reconsideration request for several reasons. First, the applicant argued that “as the letter of November 11, 2020 is not within 12 months of the payment amount”, I correctly found there was a breach of s. 52(3). Next, the applicant challenged the respondent’s service of the November 11, 2020 repayment notice by claiming that it sent this letter via e-mail, which is a breach of s. 64 of the Schedule. Finally, after stating that the IRB payment at issue was received “months after the period of entitlement arose”, the applicant argued that the respondent “should not gain a benefit from delaying payments”.
16In reply, the respondent submits the applicant did not provide any evidence to challenge the timeline laid out in its initial reconsideration submissions. Further, the respondent adds that it is not appropriate for the applicant to raise “new arguments regarding service” during the reconsideration process.
17After reviewing the parties’ submissions and evidence, I find the respondent has established grounds for reconsideration. Specifically, I find the respondent has established an error which affected the outcome of the decision by demonstrating that the repayment request was made in compliance with the timeline prescribed by s. 52(3). Briefly, in the letter dated December 3, 2019, the respondent informed the applicant that an IRB payment “will cover” the period between June 30, 2019 to December 8, 2019. This language confirms that the relevant IRB payment was made no earlier than December 3, 2019, a date that is within 12 months of the November 11, 2020 letter requesting the repayment.
18Turning to the applicant’s submission about service, I accept the respondent’s position that it is not appropriate for a party to raise new arguments during the reconsideration process. As I noted in the decision, the applicant did not address the IRB repayment in his initial submissions, nor did he file a reply. The applicant had the opportunity to raise the issue of service, but he chose not to. Further, even if I were to consider this new argument, I note that the applicant did not provide a copy of the alleged e-mail that is the basis of this argument with his reconsideration submissions.
19Then, in regard to the applicant’s argument about “delaying payments”, I do not find the applicant has established why this argument impacts my findings above regarding the timeline of events concerning the IRB payment and the respondent’s repayment request.
20Finding the respondent has established grounds for reconsideration, I also conclude that the respondent has satisfied me that I should exercise my discretion under Rule 18.4 to vary my denial of the IRB repayment. In the decision, I concluded that the respondent’s repayment request was only deficient due to s. 52(3). Therefore, I find the most reasonable way to proceed is to vary this part of the decision and reverse my finding that the applicant is not required to make the repayment requested by the respondent.
21Finally, as there is an outstanding repayment owing to the respondent, I will further vary the decision as it related to the applicant’s requirement to pay this repayment amount with interest, pursuant to s. 52(5) of the Schedule. I will note that the respondent erroneously lists s. 51 in its reconsideration submissions when discussing its request for interest. However, I do not find this minor error removes the applicant’s obligation to pay interest on this repayment amount.
CONCLUSION & ORDER
22The respondent’s request for reconsideration is granted.
23I vary my decision to find that the applicant is required to pay the respondent a repayment of the IRB in the amount of $713.44, plus interest.
Craig Mazerolle
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 21, 2024