Zabarain v. Co-operators General Insurance Company, 2025 CanLII 18207
RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 22-010646/AABS
Case Name: Andres Zabarain v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Eric Winkworth, Counsel
For the Respondent: Daniel M. Himelfarb, Counsel
OVERVIEW
1This request for reconsideration was filed by Andres Zabarain (“the Applicant”). It arises out of the Tribunal’s decision, dated September 12, 2024 (“decision”). In that decision, I found that the Applicant had not met his onus to demonstrate entitlement to income replacement benefits (“IRBs”), was not entitled to the treatment and assessment plans in dispute due to exhausting the funding limit for medical and rehabilitation benefits, and was not entitled to lost educational expenses. I also found that the Applicant was liable to repay IRBs to Co-operators General Insurance Company (“the Respondent”) because the benefits were paid due to material misrepresentation.
2The Applicant submits that I made an error in law by failing to apply the consumer protection approach of the Schedule, and failed to confirm that the Respondent met its obligations. The Respondent submits that the Applicant has failed to provide the evidence that demonstrates that all the criteria for a reconsideration have been met, and the request must be denied. It submits that the evidence was considered and the correct law was applied to the totality of the evidence, resulting in a just determination on each issue.
RESULT
3The Applicant’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (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;
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.
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, or where genuinely new and undiscoverable evidence comes to light after a hearing.
6The 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 error of law regarding advice on accountant’s report
7The Applicant submits that an error of law occurred when I found that the Respondent was not obligated to inform him that he is entitled to funding for an accountant’s report. He submits that such advice is mandatory information required pursuant to section 32(2) of the Schedule. He further submits that by doing this, I acted outside of my jurisdiction in waiving conditions imposed on the Respondent by the Schedule. He submits that I am limited to waiving conditions on him and not the Respondent. He submits that where no remedy is available, the appropriate remedy is to waive the strict evidentiary rules based on the Respondent’s conduct, and instead of doing this, I placed “burdensome” requirements on him and made adverse inference findings based on the insurer’s misconduct.
8The Respondent submits that the Schedule provides no ramifications for section 32(2) non-compliance. It further submits that the Applicant has provided no authority to suggest that section 32(2) non-compliance reduces his burden and automatically grants him entitlement. It further submits that, despite its non-compliance, the onus remains with the Applicant to demonstrate entitlement to the benefits claimed.
9I find that the Applicant is re-litigating his position from the initial hearing. At paragraph 49 of the decision, I found that the Respondent is not obliged to advise the Applicant that he could claim the costs of an accountant’s report, and at paragraph 50 I found that a failure to inform the Applicant of same does not entitle him to IRBs. The Applicant has not provided any authority on which I could conclude that an error of law occurred in my interpretation and application of section 32(2) of the Schedule. Accordingly, I conclude that no error of law occurred such that the Tribunal would likely have reached a different result had the error not been made.
No error of law in weighing the evidence
10The Applicant submits that the reasons provided regarding his claim for IRBs are nonsensical and tainted by burdensome evidentiary requirements placed upon him. He submits that the burdensome requirements include requiring him to retain tax records form 2018-2019, requiring independent documents that would withstand additional security, finding evidence unpersuasive, and finding no independent information regarding the Applicant’s income before and after the accident.
11Specifically, the Applicant takes issue with my finding at paragraph 52 of the decision that he provided no medical evidence to support his claim for IRBs, and highlights that such a statement is contradicted in paragraph 65 of the decision, where I noted that the report of Dr. I Valentin, psychologist, dated July 4, 2022, was relevant but not persuasive enough for me to overlook that the Applicant failed to quantify his claim for IRBs.
12On this issue generally, the Respondent submits that the correct legal test was applied, and that quantum was not a surprise as the Applicant is required to establish it for entitlement to the benefit. It further submits that the Applicant’s claim for IRBs was denied based on him not meeting the legal test for entitlement first, and quantum was secondary.
13I find that this is an attempt to relitigate the issue and that the weighing of evidence is an adjudicative function, thus there is no error of law in preferring some evidence over others. The Applicant is selectively highlighting portions of the decision and, when reviewed in totality, I find the decision explains why Dr. Valentin’s assessment and report was not persuasive. At paragraph 65, I noted that Dr. Valentin was not called as a witness to test the evidence, had limited access to the Applicant’s medical record and never reviewed any contemporaneous documents other than a report by Dr. T. Getahun, dated January 5, 2022. I further noted that Dr. Valentin’s opinion was undermined because of comments that were offered outside the scope of a psychologist.
14I also find no error in requiring the Applicant to establish the quantum of his claim for IRBs. Establishing quantum is an essential part of the IRB test and it is no surprise to the Applicant that he must substantiate his loss in order to qualify for the benefit. This is because a person who meets the disability test for IRBs may not be entitled to any payment for IRBs if they continue to earn an income during the period of disability. Alternatively, a person may meet the disability test for IRBs, but may not qualify for the benefit because they did not report their income to the relevant authority, pursuant to section 4(6) of the Schedule.
15Accordingly, I find no error of law in how the evidence was weighed or in requiring the Applicant to base his claim for IRBs on his reported income.
No error of law in determining repayment
16The Applicant submits that I erred in law when weighing the evidence relating to the repayment claim. He further submits that I failed to explore the intent or materiality of his silence or failure to report things like his attempts to reemploy or his capacity as a corporate owner of the company that employed him. He submits that I failed to explore whether the Respondent advised him of his ability to return to work without impacting his claim. Lastly, the Applicant submits that I adopted a hostile approach towards him in light of the consumer protection mandate of the Schedule when I drew an adverse inference based on his failure to produce a notice of assessment or other income related documents, and that I failed to maintain the Respondent’s burden to demonstrate the amounts paid in order to claim a repayment.
17I find no error in law in my determination on the repayment and conclude that the Applicant is attempting to relitigate the issue while also raising a new argument on reconsideration.
18The issue of repayment was a live issue at the outset of the hearing. The Applicant had notice of it prior to the hearing and again during the opening statements of the hearing. He was permitted to tender evidence and make submission on the issue when presenting his case. At the hearing the Applicant’s submissions focused on the timing of the repayment request - suggesting that it was improper for being more than a year after the payment and that the Respondent was not entitled to a repayment without first seeking additional information to clarify the Applicant’s return-to-work status. The Applicant’s points were rejected at the hearing, as outlined in paragraphs 86 and 87 of the decision. There, I found that he had a positive obligation to disclose his work status, including his return-to-work efforts and his ownership of the company, in part or whole.
19I find no error in determining that the Applicant was on notice of the amount to be repaid. The Applicant suggests that the Respondent never established that it paid IRBs to him, and thus it cannot claim repayment because it has not satisfied that part of the test for entitlement. This is a new argument raised on reconsideration that was not raised at the hearing. Nevertheless, my determination on the amounts paid was based on the uncontroverted evidence before me. At paragraph 90 I found the letter dated October 12, 2021 to be compliant with section 52(2) of the Schedule and considered it to be proof that an overpayment was made and that the Applicant was advised of the request for repayment. I also note that in evidence before me is the letter from the Respondent to the Applicant, dated August 10, 2021, calculating the overpayment and imposing a repayment schedule. At no point did the Applicant challenge the veracity of the letters, except during reconsideration, which is not the venue to raise a new argument.
20Accordingly, I find no error of law or breach of procedural fairness in my determination that the Respondent is entitled to a repayment of IRBs.
Procedural fairness regarding the $65,000 limit
21The Applicant submits that I breached procedural fairness by failing to hear him, or I erred in law, when I concluded that the Respondent paid benefits totaling $65,000.00 and highlights the harm caused by that, because he was denied benefits based on his funding limit being exhausted.
22I find no breach of procedural fairness in my finding that the Respondent paid benefits totaling $65,000.00, and conclude that this is an attempt to relitigate a motion heard at the hearing, as outlined in paragraphs 18 to 24 of the decision. During the hearing, the Applicant submitted that the Respondent withheld documents from him based on a document created by the Respondent’s counsel, provided to the Applicant and counsel in an effort to clarify the payments made. In the motion, the Applicant submitted that $237.35 of the $65,000.00 was unaccounted for and asked that the hearing be adjourned and the matter be referred to the Divisional Court for contempt. I dismissed this motion based on the disproportional relief sought before exploring other remedies immediately available. I also noted that the Respondent would produce the adjuster on the file, permitting the Applicant to test the evidence via cross examination.
23I found no reason to further address the motion in my decision. The veracity of the clarification of payments made by Respondent’s counsel was dismissed, and the Applicant cross examined the adjuster on the issue. In closing submissions, counsel for the Applicant noted that it “appears” that the Respondent failed to pay up to the $65,000.00 limit, but referred to no evidence to support this claim. In the end, the Applicant’s concerns over the payments up to the funding limit were heard but outweighed by the benefit statement and testimony of the adjuster.
No error in law in permitting payment to the hospital
24The Applicant submits that I erred in law in finding that it was reasonable for the Respondent to make a payment to the hospital without a treatment plan. He submits that I ought to have addressed section 39 of the Schedule and that permitting the payment was contrary to the consumer protection mandate of the Schedule. The Respondent submits that section 39 of the Schedule does not apply to payments for hospital expenses and no notice was required.
25I did not address this issue at the initial hearing because I felt it did not factor into the overall disposition of the decision. I find that it remains a non-factor to-date.
26The Applicant was an international student at the time of the accident and sustained serious injuries in the accident, including a fractured hip that required surgical intervention and rendered him hospitalized for some time. He had no OHIP coverage at the time of the accident. As a result, the hospital invoiced the Respondent for the Applicant’s hospital expenses, and the Respondent paid them up to the policy limit of $65,000.00.
27Section 38(2) of the Schedule provides that the Respondent is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submitted a satisfactory treatment and assessment plan for the benefit. Section 38(2)(b) provides an exception for goods or services provided on an emergency basis not more than 5 business days after the accident.
28Section 39 of the Schedule provides guidelines for situations were an insurer gives the insured person notice that it will pay the expenses without the submission of a treatment and assessment plan.
29This issue regarding payment to the hospital is a non-factor because sections 38 and 39 are dominated by procedural instructions to enable a consistent and efficient claims process to ensure that an insurer is timely with its decisions and does not pay for goods and services that are not reasonable and necessary. Thus, the sections do not apply to the situation at hand because the Respondent does not dispute whether the expenses are reasonable and necessary and has paid the hospital expenses.
30Section 38(2) states that an insurer is not liable to pay an expense, but it does not prohibit it from paying the expense. The purpose of section 38(2) is to ensure a consistent and efficient claims process that permits the Respondent to review medical and rehabilitation benefits prior to approving or denying them. While the Respondent may not be liable to pay an expense, it is not prohibited from paying the expense, as was the case here.
31Section 39 of the Schedule applies to situations where insurer’s give notice to the insured person that a treatment and assessment plan is not required and provides parameters for the situation. Such parameters include what is required in the notice from the Respondent to the Applicant, and how quickly payment must be made.
32Moreover, section 39(d) provides that, in the event of a dispute over whether the expense is reasonable or necessary, or essential, the Respondent must pay the expense pending resolution of the dispute. Regardless of whether section 38(2) or section 39 applies to the situation, the fact is the Respondent did what section 39(d) proposes, which is to pay the benefit.
33Thus, I see no error in law in my determining that the payments made to the hospital were a non-factor in the decision and, instead, deciding the matter on the merits of the claims.
CONCLUSION & ORDER
34For the reasons above, I find no error of law such that the Tribunal would likely have reached a different result had the error not been made. Likewise, I find no material breach of procedural fairness.
35The Applicant’s request for reconsideration is dismissed.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 3, 2025