RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 22-014111/AABS
Case Name: Jakupovic Hussein v. Intact Insurance Company
Written Submissions by:
For the Applicant: Vanessa Liang, Counsel
For the Respondent: Kevin R. Motley, Counsel
OVERVIEW
1On January 5, 2024, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated December 22, 2023 (“decision”).
2In the decision, the Tribunal found that applicant was barred from proceeding with his claim for accident benefits under section 55 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).
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 Rule 18.2(b) and (c). He is seeking an order overturning the Tribunal’s decision.
5The respondent argues the request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is dismissed.
PROCEDURAL ISSUES
7The deadline for the applicant’s reply submissions set out in my January 9, 2024 Reconsideration Order was February 13, 2024. On March 29, 2024, the applicant filed a Notice of Motion requesting that the Tribunal consider a decision of the Social Benefits Tribunal (“SBT decision”) dated February 15, 2024. The applicant indicated that the respondent opposes the motion.
8The applicant submits that the SBT decision shows the significance of his impairments caused by the accident. He makes arguments for its admission pursuant to Rules 3.1 and 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). He submits that the SBT decision is evidence that was not available by the reconsideration submissions deadline. He argues that admitting the SBT decision is consistent with the Tribunal’s mandate of ensuring efficient, proportional and timely resolution of the merits of the case.
9I decline to grant the applicant’s motion for the following reasons. The applicant relies on Rule 3.1 which guides the Tribunal’s interpretation of its Rules. The applicant also relies on the factors in Rule 9.3 in support of his request to have the SBT decision admitted into evidence, but this is not the Rule applicable to a request for reconsideration. Rule 9.3 deals with the consequences for noncompliance with an order for production, exchange, disclosure, or inspection of documents or things.
10Rule 18 governs requests for reconsideration. As set out above, Rule 18.2(c) provides that one of the criteria for granting a request for reconsideration is that 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. The onus is on the requestor to demonstrate that they have met this test. In his motion submissions, the applicant does not argue that the SBT decision meets the test under Rule 18.2(c). In any event, I find it does not meet the test in Rule 18.2(c). The SBT decision is not relevant to the preliminary issue that is the subject of this reconsideration decision. The question for the Tribunal at the preliminary issue hearing was whether the applicant is barred from proceeding with this claim under section 55. The question of the extent of the applicant’s injuries or whether or not his injuries were caused by the accident was not before the initial decision-maker. Therefore the SBT decision is not relevant to the applicant’s reconsideration request.
11For the reasons set out above, the applicant’s motion is denied.
ANALYSIS
12The 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. As noted above, the requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(b)
13I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b) for the following reasons.
14The applicant submits that the Tribunal erred in law in failing to observe the consumer protection nature of the legislation; in interpreting section 32(1) incorrectly; in failing to consider prior interpretations of section 32 by the Tribunal; and in mistaking the law surrounding the OCF-3.
15I see no error of law in the Tribunal’s interpretation of the requirements of section 32. The Tribunal set out the legal test at paragraphs 5 to 7 of the decision. At paragraphs 8 to 10, the Tribunal set out the position of the parties. It found, as set out in paragraph 11, that the applicant’s explanation for the delay in notifying the respondent of his intention to apply for benefits was not credible. In other words, it found that the explanation was not reasonable as interpreted by the leading cases Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003 and more recently K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT).
16In coming to this conclusion, the Tribunal acknowledged that the applicant had reported the accident within seven days, but found it was clear from the evidence that the applicant did not notify the respondent of his intention to apply for one or more benefits within the timeframe set out in section 32(1). While the applicant argued at the initial hearing and on reconsideration that the notice requirement in section 32(1) is met by advising the respondent of the accident, the Tribunal found that is not what is required by section 32(1). I see no error in this finding, or in the related finding that there is no duty on the respondent in the Schedule to contact the applicant once it was advised of the accident to ascertain whether or not he intended to apply for benefits.
17I find the remainder of the applicant’s arguments that the Tribunal’s interpretation of section 32(1) was narrow, incorrect, did not take into account decisions of the Tribunal, and was inconsistent with the consumer protection nature of the legislation also do not establish grounds for reconsideration. Reconsideration pursuant to Rule 18 is a discretionary, narrow, error-correcting exercise. The applicant advances several arguments with respect to the interpretation of section 32(1) which appear to be an attempt to re-litigate his case, which is not the purpose of reconsideration.
18The applicant cites Tomec v. Economical Mutual Insurance Co. 2019 ONCA 882 in support of his position that the Tribunal erred in failing to observe the Schedule’s consumer-protection nature and the significant disparity between the applicant, who is high-school educated, and the respondent, which is a corporation. The applicant argues that the consumer-protection nature of the Schedule establishes an error of law in the Tribunal’s decision that the applicant is barred under section 55. I do not agree. The question for the Tribunal in this case did not involve the issues that were before the court in Tomec. Rather, the applicant’s arguments in this case rely on the principle that the respondent has an obligation to “take reasonable steps to introduce the insured to the available accident benefits and the application process”. As noted above, these arguments were considered by the Tribunal in the initial decision and as there is no such obligation in the Schedule, the applicant’s arguments do not establish an error that is grounds for reconsideration. The related public policy arguments advanced by the applicant also do not establish an error of fact or law, nor does the applicant’s argument that the Tribunal failed to consider any of the existing Tribunal decisions in its reasoning. As noted in the applicant’s reconsideration submissions, the cases cited by the parties are not binding on the Tribunal. The Tribunal is not required to cite non-binding case law in its decisions.
19The applicant also submits that the Tribunal erred at paragraph 11 of the decision with respect to the OCF-3. He argues that neither the applicant nor his legal representative could complete the OCF-3 on their own but could only refer it to a healthcare practitioner for completion. He argues that the Tribunal’s statement that “the applicant provided the documents without the OCF-3” is an error of law.
20I disagree. Paragraph 11 of the decision states as follows (emphasis added):
I do not find the applicant’s explanations credible or worthy of belief. Based on the evidence before me, it is clear that the applicant did not notify the respondent of his intention to apply for one or more benefits within the timeframe set out in section 32(1) of the Schedule. On February 14, 2019, the applicant contacted Regina Baker, adjuster, to report that he was in an accident. There is no mention made of any injuries sustained by the applicant in the adjuster’s log notes. Nor did the applicant convey that he sustained any injuries to the adjuster. It was not until December 2, 2020, when an employee by the name of Pavinder from Gustan Legal Services informed the respondent that the applicant had sustained injuries as a result of the accident. The applicant sent an OCF-1 on December 12, 2023. The respondent provided the applicant with the accident benefits package on December 16, 2020. On December 30, 2020, the applicant provided the documents without the OCF-3.
21The Tribunal did not make a finding that it was the applicant’s obligation to complete the OCF-3, only that on December 30, 2020 the applicant provided documents without the OCF-3. This is not an error of law or fact and is certainly not an error that would likely lead to a different result.
22The applicant also submits the Tribunal erred in fact by ignoring and neglecting important facts; finding the applicant was not credible or worthy of belief; and failing to balance the prejudice to the insurer and hardship to the claimant.
23I see no error of fact in the decision. The Tribunal is entitled to make findings of credibility when assessing the reasonableness of the applicant’s explanation for not complying with section 32(1). It is also the Tribunal’s role to weigh the evidence before it. The applicant argues that his life is completely altered by the accident, and that he lost the opportunity to present his case. He cites medical evidence of his injuries and argues the Tribunal erred in not considering these facts. While I am sympathetic to the applicant’s situation, these arguments do not establish an error in the decision and are not grounds for reconsideration.
Rule 18.2(c)
24I also find the applicant has not established grounds for reconsideration under Rule 18.2(c), for the following reasons.
25The applicant submits that surveillance evidence from November 2023 that was served on the applicant by the respondent on December 8, 2023 meets the test under Rule 18.2(c). He argues it shows the applicant is walking with a limp. He argues this is consistent with the medical evidence and the applicant’s testimony at the EUO. The applicant also submits that an OCF-19 completed on December 11, 2023 and an OCF-18 completed on December 15, 2023 are new evidence that meet the test in Rule 18.2(c).
26I find that this evidence does not establish grounds for reconsideration. As noted above, the preliminary issue was not about whether the applicant was injured, the extent of his injuries, or whether they were caused by the accident. It was about whether he was barred from pursuing his claim under section 55. Therefore, even if it was otherwise admissible under Rule 18.2(c), additional evidence about the nature of the applicant’s injuries would not likely change the outcome of the decision.
CONCLUSION & ORDER
27For the reasons set out above, the applicant’s request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Licence Appeal Tribunal
Released: May 21, 2024