Bryan Caldwell v. Trillium Mutual Insurance Company, 2025 CanLII 105112

Citation: Caldwell v. Trillium Mutual Insurance Company, 2025 ONLAT 24-014310/AABS-R

RECONSIDERATION DECISION

Before:

Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number:

24-014310/AABS

Case Name:

Bryan Caldwell v. Trillium Mutual Insurance Company

Written Submissions by:

For the Applicant:

Michael Gerhard, Counsel

Brandon Ferrante, Paralegal

For the Respondent:

Laura Emmett, Counsel

OVERVIEW

1On August 13, 2025, the applicant requested reconsideration of the Tribunal’s decision released July 24, 2025 (“decision”).

2Stemming from an incident that occurred on May 24, 2023 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a videoconference hearing. In the resulting decision, the adjudicator found the respondent was successful on both preliminary issues. Specifically, the adjudicator concluded the applicant had not been involved in an “accident”, as defined by s. 3(1) of the Schedule, and he did not notify the respondent of the circumstances giving rise to his claim for benefits within seven days of the incident. For both reasons, the adjudicator ordered the applicant was barred from proceeding to a further hearing to decide his claim for benefits.

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 relies on Rule 18.2(a) and Rule 18.2(b) to support his request for reconsideration. He is seeking an order to either reverse the adjudicator’s findings on the preliminary issues, or, in the alternative, to grant a rehearing.

5The respondent asks the Tribunal to dismiss the request.

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.

8As noted above, the adjudicator found the application was barred from proceeding in two ways: the applicant was not involved in an “accident”, and he did not alert the respondent about the alleged accident in accordance with the seven-day timeline set out in s. 32(1) of the Schedule. Though the applicant’s reconsideration request addresses both findings, it is sufficient for me to conclude that the latter ruling can be upheld. Put another way, by finding that the applicant has not successfully disputed the adjudicator’s finding about s. 32(1), the parties’ arguments about whether the applicant was in an “accident” become immaterial. For these reasons, I have focused my analysis on the applicant’s grounds for reconsideration about s. 32(1) of the Schedule.

Rule 18.2(a) – Jurisdiction and Procedural Fairness

9I find the applicant has not established a ground for reconsideration, pursuant to Rule 18.2(a), about the adjudicator’s findings regarding s. 32(1).

10Under this criterion, the applicant alleges that the adjudicator acted outside of his jurisdiction and committed material breaches of procedural fairness by not providing sufficient reasons to explain his findings about prejudice. In particular, the applicant takes issue with the adjudicator “failing to explain the prejudice” facing the respondent from the delay, and he also claims the adjudicator did not explain how this alleged prejudice “balanced against [the applicant’s] harm.”

11As noted by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”) at paragraph 79, reasons ensure the fairness and legitimacy of administrative decision-making by explaining how an adjudicator reached their conclusions (citations removed):

Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power…

12Further, as stated at paragraph 39 in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (“Baker”), reasons allow decisions to be questioned: “Reasons… are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.

13Considering the principles from Vavilov and Baker, I find the applicant has not shown that the adjudicator’s reasons fail to “explain how and why” his decision was made, nor do they inhibit review by another adjudicator.

14Section 32(1) of the Schedule provides that a person who intends to apply for benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement of the benefit, or as soon as practical after that day. A failure to meet this deadline means that, pursuant to s. 55(1), an application with the Tribunal may not proceed.

15At paragraphs 75 and 76 of the decision, the adjudicator concluded that the applicant did not inform the respondent he was involved in the incident on May 24, 2023 until August 18, 2023. The applicant does not challenge this finding in his reconsideration submissions. As such, a key determination in the decision was whether the applicant had provided a “reasonable explanation” for this 11-week delay, pursuant to s. 34 of the Schedule.

16Section 34 states: “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.”

17As set out in the oft-cited case of Horvath v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”), the analysis for determining whether an insured person has provided a “reasonable explanation” involves a two-stage test. First, the insured person must satisfy the decision-maker that their explanation is “credible or worthy of belief”. Second, if so satisfied, the decision-maker will assess the reasonableness of the explanation.

18At paragraph 74 of the decision, the adjudicator summarized the applicant’s position on prejudice as follows:

Lastly, the applicant argues that there is no prejudice to the respondent in having the merits of his claims for the substantive issues heard. The applicant argues, citing para. 4 of Hussein, that the Schedule is consumer protection legislation that must be interpreted broadly to reduce economic dislocation and hardship for victims of motor vehicle accidents. The applicant argues that an 11-week period (from one week post-accident to August 18, 2023) to report a claim is very short when dealing with an accident, and to require the insured to adhere strictly to the seven-day time frame of s. 32(1) poses potential hardship to the insured and does not balance against the consequences of the failure to comply.

19Applying the framework from Horvath, the adjudicator made the following determination at paragraph 79 about the parties’ respective levels of prejudice:

I find I am not persuaded by the applicant’s argument that there is no prejudice to the respondent by filing a claim 12 weeks after the incident. In my view, the applicant had several opportunities in his discussions with [Josslin Insurance Brokers Limited, Orr Insurance Huron Inc.] and the respondent to mention an accident. The timelines for filing and handling claims in the Schedule, including the seven-day deadline of s. 32(1), exist so that accident benefits claims can be adjusted and resolved fairly and promptly, based on timely information. After the 12-week period had passed, the respondent would have little ability to assess the applicant’s then-claimed injuries. I find that the prejudice towards the respondent outweighs any detriment to the applicant.

20Though the adjudicator’s explanation of this balancing act is brief, there is a logical chain of reasoning that demonstrates how this conclusion was reached. Specifically, the adjudicator found the respondent’s inability to assess the applicant in the immediate aftermath of the incident caused a level of prejudice that outweighed “any detriment” he may experience. The adjudicator further notes that the seven-day deadline set out in the Schedule helped him to establish the extent of the respondent’s prejudice, as the deadline is based on the goal of facilitating the “timely” assessment of a claim.

21I find the applicant has not shown how this assessment amounts to an act outside of the adjudicator’s jurisdiction, nor has he shown that the adjudicator committed a material breach of procedural fairness by providing insufficient reasons.

Rule 18.2(b) – Errors of Fact or Law

22I find the applicant has not established a ground for reconsideration, pursuant to Rule 18.2(b), about the adjudicator’s findings regarding s. 32(1).

23The applicant highlights several alleged errors in this part of the decision. First, the applicant claims that the adjudicator’s s. 32(1) analysis was not done in accordance with the Divisional Court’s guidance from Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”). The applicant highlights the significant importance that the Court placed on the Schedule’s consumer protection mandate to argue that “a claimant ought not to be denied benefits for purely technical reasons, without any real prejudice to the insurer.”

24Relatedly, the applicant claims the adjudicator erred by not describing any real prejudice that the respondent would experience because of the breach, nor did he explore whether this prejudice could be remedied, whether it outweighed the applicant’s own prejudice, etc. The applicant also claims that the respondent admitted during the hearing that it would not have requested an insurer’s examination (“IE”) in the period leading up to finding out about the incident on August 18, 2023.

25Second, the applicant challenges the adjudicator’s application of the Horvath test, claiming that he did not account for both the subjective and objective aspects of this framework. In particular, the applicant submits that it was objectively reasonable to wait “to apply for benefits until one is confident that their impairments came from, or were worsened by the accident”.

26Third, stemming from Hussein, the applicant takes issue with the adjudicator’s handling of “the duty of the insurer to ask probing questions”. Citing several paragraphs in the decision, the applicant says he told the respondent’s manager of underwriting, Rhonda Ryan, about a Ministry of Transportation (“MTO”) investigation.

27Finally, the applicant alleges the adjudicator (italics in original) “failed to consider the very short length of the delay”. The applicant contends this analysis is required by Horvath, and he also argues that the adjudicator’s conclusions are at odds with the s. 32(1) case law presented by the parties during the hearing.

28To start, I find these arguments are, in effect, requests to have the Tribunal re-weigh evidence and arguments considered at first instance. As noted above, this kind of re-assessment is not a proper use of the reconsideration process. Rather, the requesting party has the onus to demonstrate a specific error in the analysis at hand. This identification of a specific error is particularly important in cases involving s. 34 and the highly fact specific analysis required by Horvath, as the personal circumstances of the applicant and the relative levels of prejudice facing the parties must be assessed.

29Relatedly, I find Tribunal case law about delay and reasonable explanations are of little assistance. Aside from how I am not bound by the decisions of my fellow adjudicators, the remedial authority provided by s. 34 is highly discretionary.

30Taken together, I find the applicant has not established any factual or legal errors in the adjudicator’s analysis, but he is instead contesting the result of this analysis. For instance, while the applicant contends that the adjudicator did not properly assess the subjective and objective aspects of the Horvath test, this alleged error is better understood as a complaint about the results of the analysis itself. The following considerations were weighed by the adjudicator at paragraph 78:

I find that the applicant’s stated reasons for the delay in reporting the accident are not reasonable. I take note of the applicant’s personal health circumstances and the potential ambiguity of determining whether his injuries were due to his pre-existing osteopenia. Regarding the applicant’s claim of a delayed onset of symptoms, I rely on Dr. Giles’ assessment that concussion-like symptoms will improve over time, and not get progressively worse. For these reasons, I find that that the applicant has not met his burden, under Horvath, that the delay in informing the respondent of an accident was “reasonable”.

31Parties are entitled to disagree with the outcome of a decision. However, to trigger a reconsideration under Rule 18.2(b), the requesting party must show that a specific error of fact or law was committed. The applicant has not shown how the adjudicator’s application of the Horvath test was incorrect.

32In a similar vein, I find the applicant’s argument about “the duty of the insurer to ask probing questions” was adequately addressed by the adjudicator. In his reconsideration submissions, the applicant highlights this duty as it relates to Ms. Ryan’s knowledge of an MTO investigation. This argument was considered at length in the decision at paragraph 77:

I disagree with the applicant’s argument that Rhonda Ryan should have asked probing questions about an accident when the applicant made her aware of an MTO investigation. The emails disclosed at the hearing indicate to me that the applicant’s discussion with Ms. Ryan revolved around NSF payments and making arrangement to pay his premium. While the applicant mentioned to Ms. Ryan that there was an MTO investigation, I accept Ms. Ryan’s testimony that an MTO investigation, by itself, would not lead to her to inquire about an accident. The vehicle was over 20 years old and had an odometer reading of over 270,000 km, so I accept Ms. Ryan’s testimony that she had reason to believe the applicant simply had a dispute with Canadian Tire over inspection and maintenance of the vehicle. Absent any mention of an accident from the applicant, she had no basis to ask probing questions about an accident.

33The applicant has not explained how these findings are incorrect.

34Turning to the applicant’s concerns about the adjudicator’s analysis of Hussein (a Divisional Court ruling which involved the duty of an insurer to ask probing questions when alerted to an accident), I find the adjudicator’s handling of this binding case law was again comprehensive (at paragraphs 65 and 76):

The Divisional Court decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) directs me further, in that it upholds that the notice requirement under the Schedule is met when the insured advises the insurer of an accident, at which point the insurer should ask probing questions about the accident and whether the insured sustained any injuries, in keeping with the consumer protection purpose of the Schedule.

I find that the respondent did not fail to ask probing questions about the incident of May 24, 2023, per its requirements under Hussein, because I find that the applicant did not mention to the respondent there was an accident, or any incident, until August 18, 2023. This present matter is distinguishable from Hussein; in Hussein, the insured informed the insurer of an accident with seven days but the insurer failed to ask the insured about whether he had sustained any injuries. In this case, I have found that the applicant did not tell the respondent that he was involved in an accident before August 18, 2023.

35While the applicant may disagree with this outcome, I find there are no identifiable errors in the adjudicator’s understanding and application of the principles from Hussein. He accepted the Court’s guidance about the duty to ask probing questions (along with the role of the consumer protection mandate), and he applied this guidance to the case at hand. Reasons were provided to explain this analysis.

36Finally, I do not accept the applicant’s position that the adjudicator “failed to consider” the length of the delay, nor do I find the applicant has shown an error in his assessment of the parties’ relative levels of prejudice.

37First, at paragraph 79 of the decision, the adjudicator makes a clear reference to the length of the delay when weighing the parties’ prejudice: “I find I am not persuaded by the applicant’s argument that there is no prejudice to the respondent by filing a claim 12 weeks after the incident.”

38Second, I am not only satisfied that the adjudicator provided sufficient reasons to explain his findings about prejudice (as I determined in my analysis of Rule 18.2[a]), but the applicant has not shown any errors with this part of the Horvath test. There is no requirement that the Tribunal assess whether prejudice can be remedied through other means, especially as the Horvath analysis states that a lack of prejudice “does not make an explanation automatically reasonable”. This aspect of the test suggests that, even if prejudice can be remedied, an adjudicator may still conclude that s. 34 is not triggered.

39Similarly, I find the applicant’s contention that there was no weighing of the respondent’s prejudice against his own is not made out in the adjudicator’s reasons. As quoted above, this comparison was done at paragraph 79 of the decision when the adjudicator found “… the prejudice towards the respondent outweighs any detriment to the applicant.”

40Third, though I recognize that the accident benefits adjuster testified that the timing of when the respondent learned about the incident would not have impacted the scheduling of its IEs, I find this part of the applicant’s reconsideration submissions is based on a narrow reading of the decision. The adjudicator does not solely base his findings about the respondent’s prejudice on its inability to conduct a timelier IE. Rather, he is concerned about the respondent’s inability to “assess” the claim in general (at paragraph 79, emphasis added):

I find I am not persuaded by the applicant’s argument that there is no prejudice to the respondent by filing a claim 12 weeks after the incident. In my view, the applicant had several opportunities in his discussions with [Josslin Insurance Brokers Limited, Orr Insurance Huron Inc.] and the respondent to mention an accident. The timelines for filing and handling claims in the Schedule, including the seven-day deadline of s. 32(1), exist so that accident benefits claims can be adjusted and resolved fairly and promptly, based on timely information. After the 12-week period had passed, the respondent would have little ability to assess the applicant’s then-claimed injuries. I find that the prejudice towards the respondent outweighs any detriment to the applicant.

41There are several tools available to insurers to obtain information about an insured person’s medical condition aside from IEs, e.g., document requests made under s. 33(1), Examinations Under Oath, etc. Therefore, even if the respondent’s adjuster conceded that it was not typical for IEs to take place within the first couple of months following an accident, I do not find the applicant has established an error in this part of the decision.

42Taken together, the applicant has not established an error that would trigger a reconsideration under Rule 18.2(b).

CONCLUSION & ORDER

43The applicant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal