Perrigard v. Primmum Insurance Company, 2024 CanLII 2665

Citation: Perrigard v. Primmum Insurance Company, 2024 ONLAT 19-010651/AABS - R

RECONSIDERATION DECISION

Before: Theresa McGee, Vice-Chair

Licence Appeal Tribunal File Number: 19-010651/AABS

Case Name: Ian Perrigard v. Primmum Insurance Company

Written Submissions by:

For the Applicant: Maciek R. Piekosz, Counsel

For the Respondent: Allison Webster, Counsel

OVERVIEW

1On July 27, 2023, the applicant requested reconsideration of the decision issued by the Licence Appeal Tribunal (“Tribunal”) on July 6, 2023 (“decision”). In the decision, Vice-Chair Chloe Lester dismissed the application based on her finding that the applicant failed to apply to the Tribunal within the limitation period and failed to attend properly requested insurer’s examinations.

2The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“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 violated the rules 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;

c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d) 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.

3The applicant submits the Tribunal erred in law as:

a) The April 12, 2022 Preliminary Issue Reconsideration Decision of Vice-Chair Jesse Boyce which allowed the applicant to proceed with her claim for an income replacement benefit remains in force and effect;

b) The Tribunal failed to consider subsequent conduct by the respondent rendering its denial of an income replacement benefit ambiguous; and

c) The Tribunal failed to award an income replacement benefit to the applicant despite finding that the respondent owed payment.

4The respondent submits that the Tribunal made no such errors of law.

5The applicant seeks an order varying the decision to find that he is non-compliant with the Schedule and is eligible to claim an income replacement benefit once he returns to compliance, and that he is entitled to payment of an income replacement benefit from August 4, 2017 to August 8, 2022 with interest, or alternatively, from March 28, 2017 to June 19, 2017 with interest.

RESULT

6The request for reconsideration is dismissed.

ANALYSIS

7The test for reconsideration under Rule 18.2 sets 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.

The Tribunal did not err in dismissing the application as time-barred

8The applicant has failed to establish grounds for reconsideration under Rule 18.2(b). In 2020, the respondent raised a limitation defence in this matter. The Tribunal ordered the limitation defence to be heard in writing as a preliminary issue. On November 25, 2021, Vice-Chair Boyce released a Preliminary Issue Decision finding in favour of the respondent and dismissing the application, in part, because it was commenced outside the limitation period.

9Within weeks of the release of Vice-Chair Boyce’s Preliminary Issue Decision, the Divisional Court released its decision in Varriano v. Allstate, 2021 ONSC 8242 (“Varriano ONSC”), a case with similar facts that conflicted with Vice-Chair Boyce’s analysis regarding the notice requirements for terminating an income replacement benefit. Based on Varriano ONSC, the applicant requested reconsideration of the Preliminary Issue Decision. Given the clear jurisprudential shift in Varriano ONSC, Vice-Chair Boyce granted the request, issuing a Preliminary Issue Reconsideration Decision on April 12, 2022 that allowed the applicant to proceed to adjudication of his claims on their merits.

10The application progressed towards a merits hearing, undergoing further case management. Several motions were also filed by the parties during this time. On February 6, 2023, the Court of Appeal for Ontario reversed the Divisional Court’s ruling in Varriano, affirming Vice-Chair Boyce’s original interpretation of the reasons requirement in the Schedule for terminating an income replacement benefit: see Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano ONCA”), leave to appeal denied Nunzio Varriano v. Allstate Insurance Company of Canada, 2023 CanLII 98009 (SCC). The law is now settled: when an insurer terminates an income replacement benefit, it is not required to provide a “medical reason” under s. 37 of the Schedule; returning to work is a valid “other” reason for the stoppage of benefits.

11In the wake of Varriano ONCA, the Tribunal sought supplementary submissions from the parties on the effect of the Court of Appeal’s decision on these proceedings. Submissions were ordered before, during, and after the videoconference hearing, by way of a Motion Order dated April 27, 2023, by oral order of Vice-Chair Lester at the hearing, and by way of a Motion Order dated June 7, 2023. Based on these submissions, the Tribunal determined that the respondent properly terminated the applicant’s income replacement benefit; that the limitation period was triggered by the termination; and that the applicant failed to dispute the termination by commencing an application with the Tribunal before the limitation period expired.

12I find that the Tribunal’s decision to request supplementary submissions was within its authority and executed in a procedurally fair manner. There is no error in the Tribunal’s dismissal of the application after considering these submissions. Vice-Chair Lester’s decision to order submissions on the limitation issue is not akin to an adjudicator restating an issue without communicating the change to the parties before releasing a decision, as was the case in Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546. Having reviewed this file’s procedural history in detail, I conclude that both parties were given a full and fair opportunity to make their submissions on the effect of the Court of Appeal’s decision on the Tribunal proceeding. Varriano ONCA squarely engages issues which had been front-and-centre in the dispute between the parties for several years, and the Tribunal’s orders gave both parties notice that its impact on this application was to be heard and considered by Vice-Chair Lester.

13I am unpersuaded by applicant’s submission that Vice-Chair Boyce’s Preliminary Issue Reconsideration Decision was a final decision and that Vice-Chair Lester erred in law by concluding otherwise. I decline to follow Stoiantsis v. Spirou, 2008 ONCA 553, a case that discusses the doctrine of res judicata in the context of an appeal from a medical malpractice action governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because it has limited application to this reconsideration request. The governing authority on what constitutes a final decision of the Tribunal is Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (“Penney”). In Penney, the court held that a decision of the Tribunal that does not finally dispose of an applicant’s accident benefits application and that does not dispose of any substantive issue or claim in that proceeding is interlocutory.

14The applicant’s submission that the respondent could have sought reconsideration or appeal of the Preliminary Issue Reconsideration Decision is unhelpful. The Preliminary Issue Reconsideration did not finally dispose of the application for accident benefits. Nor did it dispose of any substantive issue in the proceeding. It was interlocutory, ordering the matter to proceed to a merits hearing. Interlocutory decisions are not subject to reconsideration under Rule 18.1. And while an appeal of the Preliminary Issue Reconsideration Decision might have been sought, the respondent would have had to overcome the doctrine of prematurity, as the underlying Tribunal proceedings were still underway. Since that time, Penney has settled the question: the courts have no jurisdiction to hear an appeal from an interlocutory decision of the Tribunal, given the objective of avoiding fragmentation and delay in administrative proceedings: see para. 26.

15In ordering additional submissions on the limitation issue and determining that the application should be dismissed under s. 55 of the Schedule, the Tribunal acted within its authority, upheld procedural fairness, and made no error of law. The Tribunal has clear statutory authority to control its process under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. It offered the parties more than one opportunity to make submissions on the effect of Varriano ONCA on these proceedings. The applicant availed himself of this opportunity, and the fact that his submissions on the relevance of the Court of Appeal’s ruling on the application were rejected by the hearing adjudicator is not a basis for reconsideration.

16I see no error in the Tribunal’s application of res judicata and issue estoppel that would have influenced the outcome in this case. It is well within the Tribunal’s authority to revisit prior interlocutory rulings to correct any errors they may contain before the conclusion of a proceeding: see Connor Homes v. Director, 2021 ONSC 3195 at para. 72. The applicant submits that the decision sets a precedent that will result in future absurdity and open the floodgates to the relitigation of final decisions. On the contrary, the Tribunal’s course-correction in response to shifting precedent in an ongoing proceeding serves to promote, rather than threaten, the principles of finality and merit-based dispute resolution.

17Not only was it open to the Tribunal to order submissions on the effect of Varriano ONCA, but it was incumbent on it to do so. To have ignored the effect of the Court of Appeal’s decision, which is binding on this Tribunal, Vice-Chair Lester would have left undisturbed an interlocutory decision that was patently legally incorrect, leading inevitably to further litigation and delay. The Supreme Court of Canada’s denial of leave to appeal from Varriano ONCA leaves the law on what constitutes a valid termination of an income replacement benefit clear and uncontested, and it is almost certain that the limitation issue, if argued before this Tribunal or an appellate court today, would ultimately be adjudicated in favour of the respondent. To have ignored Varriano ONCA in this matter would have unreasonably and unacceptably led to appellate litigation and would have offended fundamental legal principles governing the review of administrative decisions, namely efficiency and fairness in adjudication and the avoidance of fragmentation and delay.

18For these reasons, I find the first ground for the applicant’s reconsideration request to be without merit.

The applicant has not established a failure by the Tribunal to consider his submissions on the post-notice conduct of the respondent

19The applicant has not established that the Tribunal failed to consider the respondent’s correspondence following the termination of his income replacement benefit, which he submits rendered the termination notice ambiguous.

20A reconsideration is not an opportunity to make arguments not raised at the hearing. The applicant has not shown that he raised this argument to the hearing adjudicator. It appears nowhere in his written supplementary submissions filed in advance of the hearing on May 15, 2023. The applicant has supplied no record of this submission being made orally to the hearing adjudicator.

21The only reference to the respondent’s post-termination conduct is found in the applicant’s written reply submissions, filed after the videoconference hearing on June 23, 2023. Even then, no reference is made to any ambiguity in that conduct rendering the termination notice invalid. In his reply submissions, the applicant argues that Vice-Chair Boyce erred in failing to consider the respondent’s multi-year correspondence with him allowing the re-introduction of an income replacement benefit claim with the provision of a further disability certificate; repeatedly indicating that he could not apply to the Tribunal; and repeatedly indicating that once he satisfied certain conditions, the respondent would consider his claim for the benefit. The applicant submits that had Vice-Chair Boyce properly considered this evidence, he would have concluded that the respondent failed to issue a clear and unequivocal denial of the benefit.

22A reconsideration is not an opportunity to restate arguments that were rejected at first instance. The applicant’s dissatisfaction with the way Vice-Chair Boyce addressed the issue of the respondent’s post-termination correspondence is a step further removed from the proper scope of a reconsideration request: it challenges a prior procedural ruling of the Tribunal made by a different adjudicator in a decision not under reconsideration.

23Regardless of whether the applicant raised this specific submission to the hearing adjudicator, it is apparent to me upon reviewing Vice-Chair Lester’s decision that she did consider, and thoughtfully so, the post-termination correspondence of the respondent in her analysis. Paragraphs 58-81 of the decision set out a detailed chronology of the correspondence between the parties after the applicant’s employment was terminated in March of 2017. Vice-Chair Lester turned her mind to the respondent’s invitation to the applicant to file a new disability certificate and the validity of its various notices of examination during this period. The decision contains a detailed discussion of these matters. Had Vice-Chair Lester been persuaded on the facts before her that the correspondence rendered the termination of the income replacement benefit ambiguous, Vice-Chair Lester would not have concluded that the February 17, 2017 termination letter was clear and unequivocal.

24The mere fact that Vice-Chair Lester did not specifically reference the possible ambiguity generated by the respondent’s post-termination conduct does not establish an error of law that would have led the Tribunal to a different conclusion, as required by Rule 18.2(b). Administrative decision-makers cannot be expected to respond to every argument or line of possible analysis or make explicit findings on each constituent element of a party’s position, however subordinate, leading to a final conclusion: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at para. 128.

25The applicant has not satisfied me that the Tribunal erred in law by failing to consider a key submission made to the hearing adjudicator.

The Tribunal did not err in refusing to order payment of a benefit

26The applicant has not established any error of law in the Tribunal declining to order payment of income replacement after finding that the respondent owed payment of this benefit from March 28, 2017 until June 19, 2017, as the issue before the Tribunal was whether the benefit was payable beginning August 4, 2017. The scope of the underlying claim for the income replacement benefit is clear. Parties are entitled to know the case to meet, and expanding the time period for the payment of a disputed benefit at the final stage of the adjudicative process would be improper and procedurally unfair.

27Therefore, I am not satisfied that this third and final ground warrants the remedy the applicant seeks. I decline to issue an order varying the decision. The decision stands, and the applicant’s request for reconsideration is denied.

CONCLUSION & ORDER

28The applicant has failed to establish that the Tribunal erred in law in dismissing the application. The applicant’s request for reconsideration is dismissed.

Theresa McGee

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal