Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Kate Grieves
Licence Appeal Tribunal File Number: 23-009021/AABS
Case Name: Shaaban Moustafa v. Travelers Insurance Company of Canada
Written Submissions by:
For the Applicant: Joshua Meshack, Counsel
For the Respondent: Sarah Scott, Counsel
OVERVIEW
1On May 21, 2024, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated April 29, 2024 (“decision”).
2In that decision, I found that the applicant failed to submit his initial application for benefits within the timelines established by section 32 of the Schedule, nor had he provided a reasonable explanation for the delay. Therefore, his application to the Tribunal was statute-barred pursuant to section 55(1)1 of the Schedule.
3Given that this decision was released after August 21, 2023, this reconsideration is governed by the Licence Appeal Tribunal Rules, 2023 (“Rules”). The grounds for a request for reconsideration are found in Rule 18.2 of the 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 seeks reconsideration under Rule 18.2(a) and (b) on the basis that the Tribunal acted outside of its jurisdiction or committed a material breach of procedural fairness; and, in the alternative, made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The applicant seeks an order “cancelling” the preliminary issue decision and order, and requests that the matter proceed to a hearing on the substantive issues.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
The applicant’s submissions are largely an attempt to re-argue his position
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 reconsideration process is not an avenue for a party to advance new arguments that should have been made during the hearing on the merits. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
8The applicant’s request for reconsideration is largely an attempt to re-argue his position that the Tribunal would be in breach of Rule 3.1(a) and (b) if it were to dismiss the application on the basis of a “technical issue” rather than a full hearing of all the substantive issues on the merits. I addressed those arguments at paragraphs 16 and 17 of the decision. The applicant reiterates that position by now arguing that the decision effectively prevents the applicant from participating in the adjudication of the substantive merits of the application per Rule 3.1(a) and (b), which he argues is inconsistent with a liberal interpretation of Rule 3.1. Those arguments were already addressed in the decision. Reconsideration is not an opportunity for a party to re-litigate its position.
9The applicant attempts to re-argue the application of section 32 is incongruent with the decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”). Again, I addressed that argument in paragraphs 16 and 17 of the decision. I considered the applicant’s arguments and found that Tomec did not nullify sections 32 and 34, and that to do so in the context suggested by the applicant would override those provisions of the Schedule, rendering them meaningless. The applicant also re-argues the application of Tomec in the context of the consumer protection purpose of the Schedule, and submits that I would likely have reached a different result had I applied it correctly. The applicant argues that the Tribunal not finding in his favour regarding the issue of his late application means that the Tribunal misapplied the principles outlined in Tomec.
10I agree that the Schedule is consumer protection legislation that should be given a broad and liberal interpretation. The Schedule sets out a code for administering and adjudicating no-fault accident benefits claims. It sets out the rights and obligations of both insurers and insureds, from the initiating documents to start a claim, to the consequences of a failure to comply with those obligations in a timely manner. The obligations on the parties are mutual. No level of broad and liberal interpretation can help an insured who does not meet their obligations.
11The applicant failed to file his application within the timelines established by the Schedule. If he had provided a reasonable explanation for the delay, he would be able to proceed with his application. I found that he did not. To allow the application to proceed on the basis that his alleged claims have merit would override the provisions of the Schedule.
No error in considering whether there was a reasonable explanation
12The applicant submits that in considering whether the applicant had provided a “reasonable explanation”, I misapplied the fourth factor in Horvath, which is:
The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.
13The applicant did not actually engage with the Horvath factors in his original submissions. In fact, he did not explicitly provide an explanation for the delay.
14In his original submissions the applicant argued that the preliminary issue hearing should not proceed without a fulsome analysis of how his personal profile, social circumstances, and medical conditions contributed to the delay or to the quality of his explanations offered. In doing so, the applicant did not provide an explanation for the delay, and he did not explain what those personal profiles, social circumstances, or medical conditions were or how they contributed to the delay, or to the quality of his explanation. The applicant argued that the preliminary issue hearing should not proceed in that forum. Rather than actually making his argument, the applicant argued that the forum for the decision was not appropriate. The format for the preliminary issue hearing, however, was already decided by the adjudicator at the case conference.
15The applicant submits that my analysis lacked culturally-specific, subjective elements, that may have contributed to the nature of the responses he provided, and perception of those responses, that required a fulsome hearing. It was open to the applicant to explain what culturally-specific elements affected his responses in his original submissions but he did not. I find no misapplication of the factors in considering whether the applicant had a reasonable explanation. There was no error of law.
CONCLUSION & ORDER
16The applicant’s request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 27, 2024