RECONSIDERATION DECISION
Before: Michael Beauchesne
Licence Appeal Tribunal File Number: 22-011490/AABS
Case Name: Yuusuf Mahamud Jamow v. Certas Direct
Written Submissions by:
For the Applicant: Ivy So, Paralegal
For the Respondent: Yann Grand-Clement, Counsel
OVERVIEW
1On April 2, 2024, the applicant requested reconsideration of the Tribunal’s decision dated March 13, 2024 (the “decision”).
2The outcome of the decision was that the applicant was not entitled to an income replacement benefit (“IRB”) and that no interest was payable.
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.
4In this case, the applicant is arguing criteria (b) as outlined in Rule 18.2.
5The applicant requests an order to cancel paragraphs 17-24 of the decision and an order for the respondent to pay, with interest, an IRB under section 36(4)(b) and section 36(6) of the Schedule, from the time the certificate of disability (the “OCF-3”) was received until such time the respondent complies with section 36(4)(b) of the Schedule. In the alternative, the applicant requests an order to cancel paragraphs 17 to 24 of the decision and order a new hearing with respect to section 36(4)(b) of the Schedule.
RESULT
6The applicant’s request for reconsideration is dismissed.
PROCEDURAL ISSUE
7I note the applicant asked that his request for reconsideration in this matter not be heard by me, the same adjudicator who made the decision. The assignment of cases to members is entirely within the Tribunal’s discretion, and the Tribunal’s approach has been repeatedly upheld. In fact, the Divisional Court has found that having members reconsider their own decisions is a familiar feature in the administrative law landscape, promotes efficiency, and allows for timely resolutions as the hearing adjudicator is in best placed to assess the issues in a reconsideration request. This is reiterated in Warren v. Licence Appeal Tribunal, 2022 ONSC 3741. Further, as per the Tribunal’s reconsideration order for this matter, the Vice-Chair delegate stated that the matter would be assigned to an adjudicator, which may be the same adjudicator who made the decision.
ANALYSIS
8The 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.
9For context, during his closing submissions for the initial hearing, the applicant relied on Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”) to demonstrate the respondent was obligated to provide a medical reason in its denial notice per section 37(4) of the Schedule. The applicant’s position was that the respondent’s reasoning in its notice (i.e., “this information is inconsistent with a substantial inability to perform the essential tasks of your employment”) constituted reliance on a medical reason for its decision to deny the applicant’s IRB. The applicant also cited a lack of medical reasons to support his position that the respondent did not properly deny his IRB pursuant to section 36(4)(b) of the Schedule.
10In his reconsideration submissions, the applicant argues the Tribunal erred by relying on Varriano to support its decision that the respondent’s denial notice complied with section 36(4)(b) of the Schedule. The applicant contends that he never raised Varriano in the context of section 36(4)(b) of the Schedule because Varriano interprets only section 37(4). The applicant submits the Tribunal also erred by not addressing section 37(4) compliance in its decision.
11In his reply, the applicant explains that sections 36(4)(b) and section 37(4) are distinguished by section 37(2) of the Schedule, which per Varriano, permits insurers to deny specific benefits without a medical reason if that denial is based on the non-medical reasons specified at section 37(2). If I correctly understand the applicant’s arguments, which were difficult to follow, he reasons that because section 36(4)(b) does not point to specific denial reasons like section 37(4) does, the respondent must provide a medical reason under section 36(4)(b) because there is no provision in the Schedule to relieve the respondent from this obligation.
12The respondent argues that the Tribunal correctly determined the respondent’s IRB denial notice complies with the Schedule. The respondent asserts the Tribunal’s analysis correctly found the respondent relied on non-medical reasons in its denial notice.
The Tribunal did not err by failing to address the applicant’s section 37(4) argument.
13I agree that the Tribunal’s decision does not analyze Varriano in the context of 37(4) of the Schedule as raised by the applicant during his closing submissions. But in my view, this does not constitute an error of fact or law, and even if it did, I find such an error would not have led the Tribunal to a different result. While I accept section 37(4) must be read in conjunction with section 37(2) as argued by the applicant, I find that section 37 relates specifically to a scenario where the insurer discontinues a benefit. This is distinguished from the applicant’s claim, which pertains only to his initial entitlement to an IRB. The applicant did not point to evidence that established the respondent discontinued an IRB under this claim. As such, the Tribunal did not consider the sufficiency of the respondent’s notice pursuant to section 37(4) because it was not a discontinuation notice.
The Tribunal’s interpretation of the respondent’s reasons for denial was correct.
14I find the applicant’s contention that the respondent relied on a medial reason to deny an IRB is not an error of law or fact, but rather an attempt to re-litigate his case. At paragraphs 21 and 22, the Tribunal provided a clear rationale for determining that the respondent relied on non-medical reasons for its denial.
No error in applying Varriano to section 36(4)(b) of the Schedule.
15I find the applicant has not shown an error of law or fact that would have likely led to a different result with respect to the Tribunal’s application of Varriano to section 36(4)(b) of the Schedule.
16While I accept the Tribunal could have better articulated why it found it was appropriate to apply Varriano in this context, I disagree that Varriano is not applicable to section 36(4)(a) as argued by the applicant. Both sections 37(4) and 36(4)(a) specify that “medical and any other reasons” must be explained upon denying entitlement to a specified benefit.
17In Varriano, the court determined the insurer could rely on “any one or more grounds” in section 37(2) of the Schedule to terminate an IRB. The court also determined that some of the grounds listed in section 37(2) were medical and others were non-medical. As such, the court found the insurer did not have to state its position on the person’s medical eligibility if that is not the basis for its determination (i.e., if the insurer is relying only on a non-medical reason).
18In my view, this principle broadly applies contextually to section 36(4) of the Schedule where, although no specific grounds for denying entitlement are identified similar to section 37(2), both medical and non-medical reasons can be relied upon by the respondent. At paragraphs 22 and 23 of the decision, the Tribunal agrees the respondent’s notice did not refer to the applicant’s medical condition and injuries, and explains that the respondent need only provide a non-medical reason for its determination if it is not relying on a medical reason.
CONCLUSION & ORDER
19The applicant has not demonstrated an error of fact or law pursuant to Rule 18.2(b). The applicant’s request for reconsideration is dismissed.
Michael Beauchesne
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 23, 2024