RECONSIDERATION DECISION
Before: Ludmilla Jarda
Licence Appeal Tribunal File Number: 21-013400/AABS
Case Name: Carrie-Anne Wildman v. Economical Mutual Insurance Company
Written Submissions by:
For the Applicant: Tina Radimisis, Counsel
For the Respondent: Stephen Whibbs, Counsel
OVERVIEW
1On January 5, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) decision dated December 19, 2023 (“decision”).
2In its decision, the Tribunal found that the applicant was not entitled to attendant care benefits, various treatment plans, interest, and an award. The Tribunal also found that the applicant was barred from pursuing her claims for income replacement benefits (“IRB”) and for a treatment plan for a psychological assessment as she failed to dispute the respondent’s denials within the timeframe prescribed by s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg 73/20.
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 Rules 18.2(a) and (b). The applicant submits that the Tribunal erred in law by finding that she was barred from claiming IRB and a psychological assessment and that the Tribunal would likely have reached a different decision had the error not been made. The applicant also submits that the Tribunal committed a material breach of procedural fairness in barring her claims.
5The respondent denies that the Tribunal committed a material breach of procedural fairness or that it made an error of law or fact, and it submits that the applicant’s request for reconsideration should be dismissed in its entirety.
6The applicant seeks a determination that the applicant’s claims for IRB and for a psychological assessment are not barred and for the Tribunal to order a hearing on the merits for these claims.
RESULT
7The applicant’s request for reconsideration is dismissed.
PROCEDURAL ISSUE
8In her reconsideration reply submissions, the applicant submits that the respondent delivered its reconsideration responding submissions in violation of the Reconsideration Order dated January 8, 2024. The Tribunal invited the respondent to deliver its responding submissions by February 5, 2024, and the applicant indicates that the respondent’s reconsideration responding submissions were not delivered until February 5, 2024 via email at 11:00 pm. The applicant argues that pursuant to Rule 6.2, receipt of the respondent’s submissions is deemed to have occurred on February 6, 2024.
9Given the respondent’s breach of the Reconsideration Order, it falls within my discretion to determine whether to consider its late-filed reconsideration responding submissions (see: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 23(1) and 25.0.1).
10In the circumstances, I am prepared to consider the respondent’s late-filed reconsideration responding submissions. Here, the applicant did not identify what relief, if any, she was seeking as a result of the respondent’s breach. Further, the applicant had the opportunity to respond to the respondent’s submissions, and she exercised her participatory right through her reconsideration reply submissions. This is consistent with the principles of procedural fairness.
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 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): Material breach of procedural fairness
12I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness pursuant to Rule 18.2(a).
13The applicant submits that she was not afforded a fair and balanced opportunity to respond to the limitation defence raised by the respondent. The applicant states that she was prejudiced in her ability to present her case fully and fairly by being forced to respond to the limitation defence along with responding to all other issues raised by the respondent within the constraints of her written hearing reply submissions, i.e. responding within 7 days with a page limit of 10 pages as per the Case Conference Report and Order released on December 7, 2022. The applicant also argues that being forced to respond to a limitation defence by way of written hearing reply submissions is not consistent with the duty of fairness.
14Further, although the applicant acknowledges that the respondent has the right to raise a limitation defence, it argues that it should have been raised and addressed at the case conference or by way of a notice of motion, in advance of the hearing on the merits. She relies on 17-004874 v. Economical Mutual Insurance Company, 2018 CanLII 83515 [17-004874] and Tamayo v. Travelers Insurance, 2022 CanLII 70282 [Tamayo].
15The applicant claims that, in the circumstances, her legitimate expectations were violated, and she notes that no adjournment of the written hearing was considered to allow the applicant more time and additional pages to respond to the limitation defence.
16The applicant also submits that the Tribunal failed to seek her position on whether to extend the time to claim entitlement to the denied psychological assessment pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (“LAT Act”). The applicant argues that barring the applicant’s claim because of a lack of submissions when none were requested is a breach of procedural fairness and relies on V.M.L. v. Aviva General Insurance Company, 2019 CanLII 94130 (ON LAT) [V.M.L.].
17I do not agree with the applicant’s submissions, and I find that the Tribunal did not commit a material breach of procedural fairness.
18I find that the applicant had the opportunity to fully argue her case and to respond to the position taken by the respondent against her, and that she is attempting to relitigate her response to the limitation defence on reconsideration.
19In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 [Baker], the Supreme Court of Canada indicated at paragraph 22 that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.”
20As stated at paragraph 27 of the decision, in her reply submissions, the applicant submitted that the limitation issue should not be considered as it was not raised at the case conference. The applicant indicated that she had been prejudiced by having limited time to respond, and she submitted that she was denied a fair and justifiable opportunity to adequately address this issue. The applicant further argued that the Tribunal should exercise its discretion under s. 7 of the LAT Act to extend the limitation with respect to her entitlement to IRB.
21The Tribunal considered the submissions made by the parties regarding the limitation defence raised by the respondent, and as stated at paragraph 29 of the decision, the Tribunal did not find that the applicant had been prejudiced by the respondent raising an issue with the limitation period. The applicant did not direct the Tribunal to any authority to support that a respondent cannot raise a limitation defence at a hearing. Further, in terms of procedural fairness, the applicant had the opportunity to respond to the issues raised by the respondent, and she exercised her participatory rights by delivering reply submissions. This was consistent with the duty of fairness.
22Further, I do not agree with the applicant’s submissions that her legitimate expectations were violated.
23In Baker, the Supreme Court of Canada indicated, at paragraph 26, that “the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances” and “if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.” Further, as noted at paragraph 21 of Baker, “[t]he existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances” and “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.”
24As indicated above, the applicant did not direct the Tribunal to any authority to support that a respondent cannot raise a limitation defence at a hearing for the Tribunal’s consideration. Although the applicant now relies on 17-004874 and Tamayo, neither of these decisions stand for the proposition that a respondent cannot raise a limitation defence at a hearing. Furthermore, I am not bound by these decisions, and they are being cited for the first time on reconsideration.
25Additionally, as indicated above, the applicant previously argued that she was prejudiced by having limited time to respond to the respondent’s limitation defence. Although the applicant now suggests that an adjournment of the written hearing ought to have been considered by the Tribunal to allow the applicant more time and additional pages to respond to the limitation defence, the applicant did not file a request for an adjournment when this defence was raised. Nor did she seek to increase the number of pages for her reply submissions by filing a notice of motion.
26Finally, it cannot be said that there is a breach of procedural fairness when the applicant chose not to make submissions on whether to extend the time to claim entitlement to the denied psychological assessment pursuant to s. 7 of the LAT Act.
27In Scarlett v. Belair Insurance Company Inc., 2015 ONSC 3635, the Divisional Court held that procedural fairness requires that the parties have notice of the case to be met and the opportunity to present their case fully and fairly.
28While the applicant knew that the respondent had raised a limitation defence to her claim for a psychological assessment and that she had the opportunity to present her position, as noted at paragraph 42 of the decision, the applicant’s reply submissions were silent regarding whether to extend the limitation period for the denied psychological assessment. Further, as noted at paragraph 45 of the decision, the applicant did not specifically request that the Tribunal extend the time to appeal her claim for a psychological assessment, nor did the applicant tender evidence or make submissions to that effect. As a result, the Tribunal found that the applicant did not meet her onus to establish reasonable grounds for an extension under s. 7 of the LAT Act.
29I find that the applicant had a full opportunity to respond to the limitation defence raised by the respondent as it relates to her claim for a psychological assessment, and she was accorded participatory rights to respond by filing written hearing reply submissions, consistent with the duty of procedural fairness.
30Although the applicant now relies on V.M.L and argues that the Tribunal had an obligation to seek her position, I find that this decision is distinguishable, and I am not bound by this decision. In V.M.L., neither party raised the issue of the applicability of s. 7 of the LAT to their case. Despite this, and without providing the parties with the opportunity to put forward their views on the matter, the hearing adjudicator considered whether to invoke its discretion to extend the limitation period under s. 7 of the LAT Act. On reconsideration, the Tribunal found that the rules of procedural fairness had been violated because the hearing adjudicator had an obligation to seek submissions from the parties and to provide them with an opportunity to comment on the applicability of s. 7 of the LAT Act to their case before considering whether to invoke its discretion to extend the limitation period.
31In the present case, the applicability of s. 7 of the LAT Act was raised by the respondent, and both parties had the opportunity to provide submissions for the Tribunal’s consideration. The respondent requested that the Tribunal not exercise its discretion under s. 7 of the LAT Act to extend the limitation period to allow the applicant to proceed with her claim for a psychological assessment.
32Despite having the opportunity to do so, as indicated above, the applicant did not provide any submissions on whether the Tribunal should invoke its discretion to extend the limitation period. As a result, the applicant did not request that the Tribunal extend the time for the applicant to dispute her claim for a psychological assessment nor did she provide reasonable grounds for an extension under s. 7 of the LAT Act. In the circumstances, given that the applicant had the opportunity to provide submissions on s. 7 of the LAT Act and that she failed to provide any submissions, the Tribunal was not obligated to further seek submissions from the applicant.
33Accordingly, I find that there is no material breach of procedural fairness. As such, I find that the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): Error of law
34I find that the applicant has not established that the Tribunal made an error of law in its determination that her claims for IRB and for a psychological assessment were barred pursuant to s. 56 of the Schedule and Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
35The applicant submits that the Tribunal did not consider settled case law and principles of procedural fairness in determining that the applicant was not prejudiced by the respondent raising the limitation defence at the hearing. These submissions are closely tied to the argument made for reconsideration under Rule 18.2(a).
36The applicant further submits that the Tribunal erred in law by failing to apply the legal test for granting an extension of time to claim a psychological assessment pursuant to s. 7 of the LAT Act. The applicant argues that the Tribunal was obligated to consider four factors to determine whether the justice of the case required an extension of the applicable limitation period. The applicant relies on Brule v. Intact Insurance Company, 2021 CanLII 79676 (ON LAT).
37I do not agree with the applicant’s submissions, and I find no error of law in the Tribunal’s decision.
38I have already addressed the issue of the respondent raising the limitation defence at the hearing and the lack of prejudice to the applicant in the circumstances above.
39As for the applicability of the legal test governing granting an extension of time to claim entitlement to the denied psychological assessment, the Tribunal identified the legal test at paragraphs 23 and 24 of the decision. Additionally, in Manuel v. Registrar, 2012 ONSC 1492, the Divisional Court indicated at paragraph 17 that “as the Court of Appeal held in Frey v. Macdonald, page 2, the general rule is that the time for an appeal is not extended unless the appellant has shown that these factors apply to support an extension. The Appellant bears the onus of establishing the necessary factual foundation.”
40As indicated above, neither party requested that the Tribunal grant an extension with respect to this benefit, and the applicant did not tender any evidence or make submissions regarding whether to extend the limitation period for the denied psychological assessment. As a result, the applicant did not meet her onus and establish the necessary factual foundation to support an extension under s. 7 of the LAT Act.
41Accordingly, I find that the Tribunal did not make an error of law in finding that the applicant’s claims for IRB and for a psychological assessment are barred. The fact that the applicant does not agree with the Tribunal’s decision is not ground for reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
42The applicant has failed to establish grounds for reconsideration under Rule 18.2(a) or (b).
43The applicant’s request for reconsideration is dismissed.
Ludmilla Jarda Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: April 15, 2024