RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 24-001015/AABS
Case Name: Xhermi Trimi v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Michael Smitiuch, Counsel
For the Respondent: Maia Abbas, Counsel
OVERVIEW
1On November 20, 2024, the respondent requested reconsideration of the Tribunal’s decision dated November 1, 2024 (“decision”).
2In this decision, I found that the applicant was barred from proceeding with his application pursuant to s. 55 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), as he had failed to attend properly scheduled s. 44 insurer examinations.
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 respondent requests a reconsideration pursuant to Rule 18.2(b) arguing that the Tribunal made a significant error of law or fact by failing to address one of the preliminary issues in dispute: whether the applicant had failed to dispute the denial of benefits claimed within the two-year limitation period. The respondent requests a determination that the applicant is barred from proceeding to a hearing for all of the benefits claimed in the application, because of his failure to dispute their denial within the two-year limitation period.
5The applicant submits that the decision was not a final decision, but interlocutory, and therefore is not open to reconsideration. Alternatively, he submits that the respondent’s request for reconsideration should be dismissed.
RESULT
6The respondent’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.
Final Decision
8I do not agree with the applicant’s reconsideration submissions that the decision was interlocutory and as such, was not open for reconsideration pursuant to Rule 18.1 of the Rules.
9The Divisional Court in Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 has considered the issue of what constitutes a final decision of the Tribunal giving rise to a right of appeal under s. 11 of the Licence Appeal Tribunal Act (“LAT Act”). The Court in Penney defined a “final decision” in the Tribunal context as a decision that a) finally disposes of an accident benefits application, or b) that finally disposes of a substantive issue or claim in a proceeding.
10I find that there was no ambiguity in paras 4 and 24 of my decision where I stated that the applicant was barred from proceeding with his application pursuant to s. 55 of the Schedule, as he failed to attend a properly scheduled s. 44 insurer’s examination. As such, my decision definitively disposed of the applicant’s application before the Tribunal. The respondent has further submitted evidence that the Tribunal file was closed subsequent to my decision and the substantive hearing was vacated.
11As such, I find it is clear that the decision was a final decision as per Rule 18.1 and can be the subject of a reconsideration request.
Rule 18.2(b) - No Error of Law or Fact
12I find that the respondent has not established an error in law or fact in the decision such that a reconsideration is warranted on this basis.
13In my decision, I rendered a determination on one of the preliminary issues in dispute, that of the applicant’s failure to attend a properly scheduled s. 44 insurer’s examination (“IE”). As a result of the non-compliance with s. 44, I found that the applicant was barred from proceeding with his application pursuant to s. 55 of the Schedule. In its reconsideration request, the respondent submits that my failure to render a decision on the second preliminary issue as well, that of the applicant’s failure to dispute the claim within the 2-year limitation period, is a significant error of law or fact.
Parties’ Positions
14The respondent submits that both preliminary issues should have been considered at the initial preliminary issue hearing. It argues that my failure to address the second preliminary issue, has left the respondent in an “absurd position” where the applicant can still attend the IE. The respondent submits that had I considered the second preliminary issue of the failure to dispute the denial within the two-year limitation period, the underlying income replacement benefit (“IRB”) claim could have been “finally disposed”. However, it argues that the applicant can now agree to attend the IE or bring another application to the Tribunal on the issue of IRBs, since the question on the limitation period has not been definitively resolved.
15The respondent further submits that in the decision I failed to provide any guidance as to whether the statutory bar for non-compliance with s. 44 was “permanent and/or whether Aviva was obligated to reschedule the IE assessment.” It argues that it is still a “live question” as to whether the respondent still needs to provide the applicant with the opportunity to attend the s. 44 assessment. It cites the Tribunal decision Perrigard v. Primmum Insurance Company, 2023 CanLII 67905 where the Tribunal not only decided both of the preliminary issues in dispute, but also addressed in its reasons whether the applicant was required to subsequently attend the missed IE.
16The applicant submits that the reconsideration request should be dismissed and that the respondent be required to arrange the s. 44 assessment. He argues that the decision was interlocutory, in that it only stated that the applicant could not continue with his application until he complied with the s. 44 IE request, which he is now agreeing to attend. The applicant submits that the underlying substantive issue of IRBs remains an issue to be determined.
17The applicant further argues that he would suffer prejudice and it would be a denial of natural justice for the Tribunal to now consider the second preliminary issue of the two-year limitation period. He submits that at the initial hearing, I had found certain affidavit evidence to be inadmissible, which the applicant argues was crucial to the issue of the two-year limitation period. As such, the applicant argues that if the second preliminary issue is to be considered, a new hearing would be required on the complete evidentiary record.
Failure to make a determination on the second preliminary issue is not an error in law or fact
18I find that the respondent has not established grounds for reconsideration under Rule 18(b).
19I do not agree with the respondent’s submissions that my decision was unclear as to the status of the applicant’s application. I further do not agree with the applicant’s submissions that my decision stated that “no proceeding can continue until the Applicant agrees to attend the section 44 assessment.” At no point in the decision do I state that the applicant can subsequently attend the IE in question and resume the present application.
20While in the past, the Tribunal has in some cases ordered a stay of proceedings pending the applicant’s compliance with s. 44 attendance, this was clearly not the case in the present matter. In the decision cited by the applicant, Smith v Intact Insurance, 2023 CanLII 1463 (ON LAT), the Tribunal expressly stated that pursuant to s. 55(2) and (3) of the Schedule, the applicant was permitted to proceed with his application but the proceedings were “stayed”, subject to the applicant attending the s. 44 examination. The parties were further instructed to contact the Tribunal once the IE was completed to schedule a case conference in reference to resumption of the substantive hearing.
21In contrast, at para 4 and 24 of my decision, I expressly state that the applicant is barred from proceeding with his application under s. 55. I find no ambiguity in my decision and I do not agree with the applicant that the underlying substantive issue of IRBs was not disposed of. Rather, the respondent in its reconsideration submissions confirmed that the Tribunal file has been closed and that the underlying substantive hearing on the issue of IRBs has been vacated.
22I further do not agree with the respondent that I was required in my decision to specifically address whether the applicant was required to attend a newly rescheduled IE. The respondent cites Perrigard v. Primmum to argue that in this decision, the Tribunal provided “guidance” as to whether the applicant was to now attend the IE. However, I note that in Perrigard, the insurer expressly requested that the Tribunal invoke s. 55(3) of the Schedule and impose an obligation on the applicant to attend the IEs before the substantive hearing, which the Tribunal declined to do. In the present matter, the respondent made no such request at the underlying hearing. As such, I do not agree with the respondent that I was obliged to provide a ruling or reasons as to whether the applicant should now attend an IE.
23The respondent appears to be arguing that there is still some ambiguity as to whether it is required to reschedule the IE in question. I do not believe that my decision has created any such ambiguity. While it is always open to an insurer to continue to adjust a claim or choose to invite a party to attend a new IE for the purpose of determining entitlement to a benefit, no such obligation would stem from the findings in my decision. My decision clearly disposed of the issue of IRB entitlement by barring the application, and the substantive hearing was ultimately vacated.
24I further am not persuaded by the respondent’s argument that I was required to consider the second preliminary issue listed as an issue in dispute – that of the two-year limitation period. In the present matter, the respondent was already successful in obtaining an order barring the application pursuant to s. 55 of the Schedule. As such, it was not necessary to then consider the second preliminary issue of whether the applicant should be barred with proceeding with the same application pursuant to s. 56 of the Schedule. The issue was now moot. While I agree with the respondent that the Tribunal in Perrigard v. Primmum rendered a decision on both preliminary issues, I do not agree with the respondent that this was necessary and I note that this decision is not binding upon me.
25The Tribunal is mandated by Rule 3.1 of the Rules to ensure efficient, proportional, and timely resolutions of the merits of the proceedings before it. The Tribunal is also able to determine its own procedures and practices: s. 25.0.1, Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. It is well settled that procedural fairness does not require an administrative decision-maker to consider and make findings on all positions raised by a party. This is especially the case when such arguments would have no impact on the outcome of a decision. In the present matter, a decision was rendered barring the applicant from proceeding with his application. As such, rendering a separate finding barring his application on other grounds would be unnecessary.
26As such, I find that the respondent has not established that I erred in law or fact by not rendering a determination on the second preliminary issue.
CONCLUSION & ORDER
27The respondent’s request for a reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 7, 2025