RECONSIDERATION DECISION
Before: Bonnie Oakes Charron
Licence Appeal Tribunal File Number: 23-007692/AABS
Case Name: Sivakannan Sivakumaran v. The Dominion of Canada General Insurance Company (Travelers)
Written Submissions by:
For the Applicant: Domenic Pellegrino, Counsel
For the Respondent: Anna Dylewski, Counsel
OVERVIEW
1On April 23, 2024, the applicant requested reconsideration of the Tribunal’s decision dated April 2, 2024 (“decision”).
2In the decision, the Tribunal found that the applicant was statute-barred from proceeding with his claim for accident benefits because he failed to submit the application (OCF-1) within the time prescribed in the Schedule.
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 a reconsideration pursuant to Rule 18.2 (b) and requests that the Tribunal vary the order made on April 2, 2024, such that the applicant is not barred from proceeding with his application, or, that there be a re-hearing of all the issues in dispute.
5The respondent seeks to have the reconsideration request dismissed and the decision upheld.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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.
No errors of fact and law pursuant to Rule 18.2(b).
8I find the applicant has not established grounds for reconsideration and no errors of fact or law were made such that the Tribunal would likely have reached a different result had the error not been made.
9The applicant submits that the Tribunal made an error of fact or law in its assessment of the communications between the parties, where the applicant claimed a lack of clarity led to him submitting his accident benefits claim over a year after the accident. Further, the applicant submits that the Tribunal also did not assess the reasonableness of his explanation for the delay, specifically regarding prejudice, when it considered the guiding principles in Horvath v Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”) for assessing an applicant’s onus to establish a reasonable explanation for a delay.
10The applicant agrees with the Tribunal at paragraph 6 of the decision, that the onus is on the applicant to establish a reasonable explanation for any delay in applying for benefits. Further, the applicant also agrees that the relevant principles for consideration are those found in Horvath.
11However, the applicant disagrees with the Tribunal’s findings, as follows:
a. First, the applicant disagrees with the Tribunal’s finding at paragraph 29 of the decision that the applicant ignored the respondent’s ongoing communications across many months. Instead, he points to an allegedly confusing email from the respondent dated May 3, 2022, as the reason for his lack of communication with the respondent. The applicant submits that it is the respondent’s duty to clarify the process of applying for benefits, and that the disputed email outlined certain preconditions before applying for accident benefits. He also states that the Tribunal failed to interpret the email in a manner that is aligned with a focus on consumer protection.
b. Second, the applicant does not agree with the Tribunal’s finding at paragraphs 34 and 37 of the decision that the May 3, 2022 email should be read as part of a broader context of related communications and that it was not prescriptive with regard to the actions required of the applicant.
c. Third, the applicant disagrees with the Tribunal’s finding at paragraphs 34 and 35 of the decision that there was nothing to prevent the applicant from seeking clarification or further information if he was not clear about the process for applying for benefits, given the evidence of the extensive attempts at communication made by the respondent in various formats and over many months.
12Beyond the disputed email, the applicant submits that the Tribunal erred when it did not consider the reasonableness of the explanation provided, as outlined in Horvath, nor consider the prejudice that would be caused if he were deprived of the opportunity to seek accident benefits.
13I find no error of law or fact in the decision. The Tribunal did not consider the reasonableness of the explanation nor the prejudice to the applicant given that it did not find his explanation credible, a precursor to considering the remainder of the Horvath principles.
14In paragraph 40 of the decision, the Tribunal found that the applicant’s explanation that he based his actions solely on the content of one email, despite a plethora of other communications, is not a credible basis for failing to apply until over a year after the date of loss.
15Much of the applicant’s reconsideration submissions is simply disagreeing with the Tribunal’s findings and re-arguing the same positions advanced in the hearing. The Tribunal has already weighed the evidence appropriately and dissatisfaction with the outcome is not a reason to re-weigh the evidence.
16The Tribunal considered not just the email of May 3, 2022, but the totality of the communications between the parties from April 29, 2022, through to the closing of the respondent’s file on August 17, 2022, with consideration for all the emails, letters, phone calls, and voice mail messages received by the applicant in the months after the accident.
17The Tribunal considered that the applicant did not present any evidence to indicate that he did not receive the many communications, and therefore concluded that the lack of response was intentional. There is no evidence that the applicant ever acknowledged any of the communications, nor sought any information or clarification about the process from the respondent, despite several clear invitations to do so.
18Consequently, the Tribunal concluded that the applicant’s explanation for not applying for benefits within the timeframe established in the Schedule was not credible.
19As a result, the Tribunal did not consider all the Horvath principles because the applicant did not meet the first requirement – credibility of the explanation. To assess the reasonableness of the explanation, and consider the remaining Horvath principles, including prejudice, the explanation must first be found credible. The applicable law is described in paragraph six of the decision.
20The applicant has not established grounds for reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
21For the reasons outlined above, the applicant’s request for reconsideration is dismissed.
Bonnie Oakes Charron
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 11, 2024