`Citation: Petch v. TD General Insurance Company, 2025 ONLAT 23-015315/AABS-R
RECONSIDERATION DECISION
Before: Tanjoyt Deol
Licence Appeal Tribunal File Number: 23-015315/AABS
Case Name: Matthew Petch v. TD General Insurance Company
Written Submissions by:
For the Applicant: Joseph Y. Obagi, Counsel
For the Respondent: Cody Moskovitz, Counsel
OVERVIEW
1On September 12, 2024, the applicant requested reconsideration of the Tribunal’s preliminary issue hearing decision dated August 22, 2024 (“decision”).
2In that decision, I found that:
a) The applicant was non-compliant with his obligation to attend Insurer’s Examinations (“IEs”) pursuant to s. 44 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”); and
b) As a result, the applicant was barred from proceeding with his claim under s. 55 of the Schedule because the respondent, TD General Insurance Company, made reasonable efforts to schedule the IEs at a location that was convenient for the applicant and as required by s. 44(9)2(i) of 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). He requests that the decision be reconsidered and replaced with a decision that the respondent failed to make reasonable efforts under s. 44(9)2(i) and, therefore, he is not statute-barred from proceeding with his application.
5The respondent’s position is that the decision is not subject to reconsideration as it does not finally dispose of an appeal as required by Rule 18. Alternatively, it submits that the decision was correct and the reconsideration request ought to be dismissed.
RESULT
6The applicant’s request for reconsideration is granted. The decision is cancelled and the preliminary issue shall be reheard by way of a written hearing based on the existing written record before a different adjudicator.
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.
The decision finally disposed of an appeal
8I find that the decision was a final decision that disposed of an appeal because the applicant was found to be barred from proceeding forward with his entire application under s. 55 of the Schedule. Therefore, the applicant’s reconsideration request falls within the scope of Rule 18.1.
9Rule 18.1 provides that the Tribunal may reconsider any decision that finally disposes of an appeal if the request for reconsideration is made within 21 days of the date of the decision.
10In this matter, the respondent argues that the decision is not final because the applicant is only statute-barred to the extent that he has failed to attend the s. 44 IEs. Therefore, the respondent’s position is that there is nothing to suggest that the applicant may not proceed with the application following his compliance with the Schedule. To this end, it relies upon the following authorities: Cura v. Aviva Insurance Canada, 2021 ONSC 2290 (“Cura”); and Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (“Tipping”).
11The applicant takes the position that the decision was final and not interlocutory as he was found to be barred from proceeding and his application was dismissed. In support of this position, the applicant relied upon the Divisional Court’s decision in 2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., 2023 ONSC 5569 (“2541005 Ontario Ltd.”). The applicant further argues that the authorities cited by the respondent are distinguishable from the facts in this matter.
[12]
13At paragraph 27 of 2541005 Ontario Ltd., the Divisional Court determined:
The determination of what amounts to an interlocutory order versus a final order is not always simple. An interlocutory decision has been defined as follows:
a. “If the merits of the case remain to be determined”…
b. “Does not finally dispose of the appellant’s accident benefits application, nor does it dispose of any substantive issue or claim in that proceeding”…
c. “Where the effect of an order is to continue the inquiry, it is not final.”
13I find that the decision was a final decision that disposed of the application for several reasons. First, I determined the preliminary issue of whether the applicant was barred under s. 55 because he did not attend IEs under s. 44 of the Schedule. I found that he was barred and, as a result, the substantive hearing was vacated pursuant to the May 28, 2024 Case Conference Report and Order (“CCRO”). Paragraph 6(i) of the CCRO stated that if the application was disposed at the preliminary issue stage, the Tribunal would dismiss the application, order closure of the file, and the substantive hearing would be vacated. In other words, once I determined in the preliminary decision that the applicant was statute-barred, he was unable to proceed with the substantive hearing on whether he sustained a catastrophic impairment, and whether he was entitled to an award and interest.
14I am bound by 2541005 Ontario Ltd. and, in applying the criteria noted above, I agree with the applicant that my decision was a final decision. Against the respondent’s argument, I did not order a stay of the proceedings, rather as noted at paragraphs 3, 23 and 48 of the decision, I barred the applicant from proceeding forward with his application. Thus, the merits of the case do not remain to be determined and the appeal was finally disposed of.
15I also find that the authorities cited by the respondent are distinguishable from the facts before me in this matter. In Cura, the Tribunal stayed the application until the applicant consented to the release of her IEs through an assessment vendor. Here, as stated above, I did not order a stay of the proceedings in my decision. Rather, at paragraphs 3, 23, and 48 of the decision, I found that the applicant was barred from proceeding with his application under s. 55 of the Schedule.
16Likewise, in Tipping, the Divisional Court noted at paragraph 4 that the application for judicial review was dismissed because Mr. Tipping had failed to exhaust his right of an appeal and there were no exceptional circumstances warranting the court’s interference. Moreover, the court made a comment in obiter that if the applicant were to proceed with the appeal, then he “may” face an additional issue that the appeal is premature because the decision barring his application from moving forward was “arguably” not a final order: see Tipping at para. 42.
17In my view, the Divisional Court did not make an express finding that the decision by the Tribunal was interlocutory and, therefore, not subject to appeal, as argued by the respondent. There is nothing in the Court’s reasons in Tipping to suggest that prematurity was even argued before the Court. Rather, the Court’s commentary on this issue is framed as a possible barrier the applicant might face if he decided to proceed with a subsequent appeal. The Divisional Court’s focus in Tipping was on whether an application for judicial review should proceed where the applicant had not exhausted his right to appeal.
18In sum, I found that the applicant was barred under s. 55 of the Schedule in the decision from proceeding with his application, his file was closed by the Tribunal, and the substantive hearing was vacated. Therefore, the applicant could not continue with his application. Thus, the decision finally disposed of the appeal, and the applicant’s request for reconsideration falls within the scope of Rule 18.1.
Rule 18.2(b) – Error of fact and law has been established
19I find that the applicant has established grounds for reconsideration under Rule 18.2(b) because I erred in law when I reversed the onus under s. 44(9)2(i) onto the applicant. The applicant has also established that if I had not made this error, I would have likely reached a different result. Therefore, the reconsideration is granted.
20The applicant argues that I reversed the onus because I determined that the respondent made reasonable efforts to schedule the IE for a location that was convenient for the applicant based on the information, or lack thereof, provided by the applicant at the material time. He argues that the decision imposes a duty on the applicant to explain the hardship he would suffer with reference to compelling evidence-medical or otherwise- as to why the assessment is more convenient for him to take place locally.
21The respondent argues that there is no basis for the assertion that I reversed the onus of proof onto the applicant. It argues that the fact I addressed the applicant’s arguments regarding the alleged significant hardship to him and the lack of medical evidence to show that he is unable to attend the IEs in Ontario shows that I did not reverse the onus.
22The respondent is correct that at paragraphs 21, and 25 of the decision, that I correctly noted that the respondent had the onus under s. 44(9)2(i). However, I find that I committed an error of law in my application of the evidentiary onus because I required compelling evidence (medical or otherwise) from the applicant to prove that Toronto was an inconvenient location. This interpretation was contrary to s. 44(9)2(i). The applicant has no obligation under the Schedule to establish that the examination location proposed by the respondent was inconvenient for him.
23Rather, s. 44(9)2(i) is clear that the statutory burden is on the respondent to prove that it took reasonable efforts to schedule the examination for a location that is convenient for the applicant, not the other way around. In other words, under s. 44(9)2(i), there is no statutory requirement for the applicant to provide evidence, medical or otherwise to establish why the location proposed by the respondent is inconvenient. I find that by requiring the applicant to provide such evidence effectively reversed the onus imposed by s. 44(9)2(i), which is an error of law.
24Notably, the decision contained very little analysis of the respondent’s evidence and why it satisfied its onus under s. 44(9)2(i). Rather, my analysis focused on why the applicant did not produce evidence to the respondent as to why he could not fly. I also found that the applicant’s representative office should have provided more information (medical or otherwise) during an informal phone call that took place on January 16, 2024 and correspondence, dated January 19, 2024, and that the applicant had to refer the respondent to medical evidence to establish why he could not attend. One of the three factors that grounded my finding that the respondent had met its onus was that the applicant did not provide compelling evidence in support of his position. In short, where the burden of proof is on the respondent to establish reasonable efforts were made under s. 44(9)2(i), and the decision focused instead on the sufficiency of the applicant’s evidence (who does not have the onus), I find that the applicant has established that I committed an error in the decision, which meets the first part of the test under Rule 18.2(b).
25I also agree with the applicant that had I not committed this error of law, I would have likely reached a different result. This is because if I had correctly applied the onus onto the respondent and appropriately evaluated its evidence and arguments, it is likely I would have reached a different result. Therefore, I find that the applicant also meets the second part of the test under Rule 18.2(b), and is successful with his reconsideration request.
26Finally, the applicant submits that I made three other errors of law or fact in the decision and that I would have likely reached a different result had these errors not been made. Given that the applicant has already established grounds for his reconsideration request to be granted under Rule 18.2(b), I do not consider it necessary to engage with the other errors he asserts.
Rule 18.4 – Outcome of Reconsideration
27The appropriate remedy for this reconsideration is a rehearing by way of the existing written record by a different adjudicator.
28Rule 18.4 provides that upon reconsidering a decision of the Tribunal, the Tribunal may dismiss the request, or, after providing the responding parties with an opportunity to make submissions, confirm, vary or cancel the decision or order, or order a rehearing on all or part of the matter. Having found that the applicant has established grounds for reconsideration, I will now turn to the outcome.
29The applicant requests that the decision be replaced with a decision that the respondent failed to make reasonable efforts under s. 44(9)2(i) and, therefore, he is not statute barred under s. 55 of the Schedule. However, that would be a factual finding and I find that given the nature of the error, it would be beyond the scope of this reconsideration for me to make factual findings or re-weigh the evidence from the original decision.
30As a result, I find that the appropriate remedy in this instance is for a re-hearing in writing to take place before a different adjudicator, based on the existing written record.
CONCLUSION AND ORDER
31The applicant’s request for reconsideration is granted and the decision is cancelled.
32I am ordering a rehearing on the preliminary issue in dispute. The rehearing will be conducted by a different adjudicator based on the existing written record. The parties do not need to file further submissions.
33The rehearing on the preliminary issue shall take place within 60 days of the date of the release of this reconsideration decision.
34The substantive issues in dispute will proceed to a 5-day videoconference hearing on a date to be set by the Tribunal. The Tribunal will contact the parties to set the dates and times for the hearing.
35If the application is disposed at the preliminary issue stage, the Tribunal will dismiss the application and order the closure of this file. The substantive issues hearing will be vacated.
36If the matter is not disposed at the preliminary issue stage, all procedural and case management orders set out in the May 22, 2024 Case Conference Report and Order pertaining to the substantive issue hearing will remain in effect. No case conference resumption will be ordered.
37If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
Tanjoyt Deol
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 12, 2025