RECONSIDERATION DECISION
Before: Rebecca Hines, Adjudicator
Licence Appeal Tribunal File Number: 22-010822/AABS
Case Name: De Barros v. Wawanesa Insurance
Written Submissions by:
For the Appellant: Joshua Gatreau, Counsel
For the Respondent: Sophia Souffront, Counsel
BACKGROUND
1The applicant is seeking reconsideration of my decision released on November 15, 2024 (“decision”), which determined that the applicant was entitled to payment of an income replacement benefit (“IRB”) until September 29, 2023.
2The grounds for a reconsideration to be allowed are set out 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; 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.
3In her request for reconsideration, the applicant identifies criteria b) of Rule 18.2 as the basis for reconsideration. The applicant requested that the Tribunal vary its decision and make a finding that the applicant is entitled to an IRB from September 29, 2023, to date and ongoing.
4The respondent opposed the applicant’s reconsideration request and argues that my decision is correct, and that the applicant is attempting to relitigate the same position that was already considered by the Tribunal. Alternatively, the respondent submits that the applicant is making new legal arguments on this reconsideration request that should have been made at first instance.
RESULT
5The applicant’s request for reconsideration is granted. My decision and order issued on November 15, 2024, is varied as follows:
(i) The applicant is entitled to payment of an IRB in the amount of $4.75 per week from November 28, 2022, to date and ongoing, plus interest.
ANALYSIS
6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how the Tribunal’s decision falls into one or more of the criteria set out in Rule 18.2.
The Tribunal made an error of law such that the Tribunal would likely have reached a different result had the error not been made
7The applicant argues that I erred in law in my application of section 8 of the Schedule in my decision by stopping the applicant’s entitlement to an IRB on September 29, 2023, the 104-week mark. In paragraph [32] of my decision I calculated the applicant’s weekly entitlement to an IRB according to the ramp down provided for in section 8(1) of the Schedule when an individual turns 65. However, I erred in law by stopping the applicant’s entitlement to the benefit on September 29, 2023, because I determined that she did not meet the complete inability test. The applicant asserts that I failed to apply s. 8(2) of the Schedule which states:
Despite section 6, an income replacement benefit that has been adjusted under subsection (1) is payable, without any deductions under clause 7 (3) (a) or (b) until the person dies.
8The applicant submits that had I properly applied s. 8(2) of the Schedule I would have reached a different result. Specifically, I would have determined that the applicant is entitled to an IRB in the amount of $4.75 per week on an ongoing basis without any deductions for post-accident income. The applicant maintains that although she did not make this argument in the initial hearing, s. 8(2) of the Schedule automatically applies as a matter of statute. Further, if it was the legislature’s intent to apply the post-104 test for IRBs to persons over the age of 65, s. 8(2) would not have been specifically crafted by the legislature to ensure that the post 65 ramp down payment continue for seniors until death. The applicant submits that this interpretation is consistent with the consumer protection mandate of the Schedule.
9The respondent argues that the applicant’s reconsideration request is an attempt to relitigate the issue of her entitlement to post-104 IRBs which is not appropriate on a reconsideration request. Further, it submits that it is well established law that the reconsideration process is not an opportunity for a party to advance new legal arguments that were not made at first instance. The applicant did not make any arguments addressing the application of s. 8(2) of the Schedule in her initial and reply submissions for the written hearing. Consequently, these arguments should not be considered on reconsideration. Furthermore, the applicant did not rely on any case law to support her position that I erred in law on this reconsideration request.
10I find that I erred in law by not applying s. 8(2) of the Schedule to the facts before me in finding that there was a stoppage date of September 29, 2023 for the applicant’s entitlement to IRBs, and in my finding that the quantum of the benefit is subject to reductions for post-accident income. Although I agree with the respondent that the applicant did not make this legal argument in her initial or reply submissions, I find that this does not allow the Tribunal to make an order that is contrary to the wording of the Schedule.
11I find the wording of s. 8(2) of the Schedule clear that s.6 of the Schedule does not apply to the facts in this matter because the applicant was receiving an IRB when she turned 65 pursuant to s. 8(1). Consequently, she is not required to meet the complete inability test outlined in s.6 for ongoing entitlement to the benefit. According to s. 8(2) she is automatically entitled to payment of the benefit until death. I also agree with the applicant that the legislature included s. 8(2) of the Schedule to protect seniors’ access to benefits which is consistent with the consumer protection objective of the Schedule.
12Finally, I find that had I not made the above-noted error it would have resulted in a different result. Specifically, instead of finding that the IRB was payable to September 29, 2023, I would have determined that the applicant is entitled to payment of an IRB in the amount of $4.75 per week from November 8, 2022, to date and ongoing, plus interest.
13For the above-noted reasons, the applicant has persuaded me that I erred in law in rendering my decision and that this error would have resulted in a different result.
CONCLUSION
14For the reasons noted above, the applicant’s reconsideration request is granted. Paragraphs [5] 1 and 2, [15], [32], [39] and [51] 1 and 2 of my decision and order issued on November 15, 2024, is varied as follows:
- The applicant is entitled to payment of an IRB in the amount of $4.75 per week from November 28, 2022, to date and ongoing, plus interest.
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 7, 2025