RECONSIDERATION DECISION
Before:
Rebecca Hines, Adjudicator
Licence Appeal Tribunal File Number:
22-009606/AABS
Case Name:
Anna Semyonov v. TD Home and Auto Insurance Company
Written Submissions by:
For the Applicant:
Kim Mohammed-Sieudham, Paralegal
For the Respondent:
Antonella Santi, Counsel
BACKGROUND
1The respondent is seeking a limited reconsideration of my decision released on December 6, 2024, where I determined that the applicant was entitled to payment of an income replacement benefit (“IRB”) in the amount of $9,783.83 inclusive of interest.
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 its request for reconsideration, the respondent identifies criteria b) of Rule 18.2 and argues that I made an error of law such that the Tribunal would have reached a different result had the error not been made. The respondent requested that the Tribunal vary its decision and make a finding that the applicant is not entitled to payment of an IRB in the amount of $9,783.63, or in the alternative send the matter back to a rehearing on the issue.
4The applicant opposed the respondent’s reconsideration request and submits that my decision is correct, and that the respondent is attempting to relitigate the same position that was already considered by the Tribunal at the hearing. Alternatively, the applicant submits that the respondent is making new legal arguments on this reconsideration request that should have been made at first instance.
RESULT
5The respondent’s request for reconsideration is dismissed.
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 did not make an error of law such that the Tribunal would likely have reached a different result had the error not been made
7The respondent submits that I erred in law in paragraphs 21, 22, 29, 30 and 33 of my decision in awarding the applicant $9,783.83 for past payment of IRBs because the respondent did not comply with its procedural obligations under s. 33 of the Schedule because its notice was deficient. It argues that no such remedy exists under s. 33 regarding the contents of a notice and that there is no consequence to an insurer set out in s. 33 for an insufficient s.33 request. It maintains that had I not made this error I would not have awarded the applicant payment of IRBs.
8The respondent asserts that the only relevant remedy for the purpose of this case is set out in s.33 (8)(a) and (b) of the Schedule which provides that if an insured subsequently complies with subsections (1) and (2), the insurer (a) shall resume payment of the benefit, if a benefit was being paid; and (b) shall pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay. In this case, no IRB had been paid to the applicant because additional financial documents were required to calculate her entitlement. As a result, it could not resume payment of the benefit. Moreover, the applicant did not comply with the request for financial documents or provide a reasonable explanation for the delay as per 8(b) so it did not have to pay any amounts withheld during the period of non-compliance. The respondent maintains that I incorrectly applied a remedy in awarding the IRB in the amount of $9,783.83 when I had no statutory authority to do so. Furthermore, as set out above, the remedies under s.33(8)(a) and (b) do not apply.
9The applicant argues that the respondent’s reconsideration request is an attempt to relitigate the issue of her entitlement to IRBs which is not appropriate on a reconsideration request. She also submits that it is well established law that the reconsideration process is not an opportunity for the unsuccessful party to advance new legal arguments that were not made at first instance. Consequently, the respondent’s arguments should not be considered on reconsideration. The applicant argues that my decision is correct and that I accurately determined that the initial and subsequent s.33 requests issued by the respondent in response to the OCF-3 were vague, unclear, and contained errors. In addition, I made findings of fact based on the evidence before me and provided various examples of the numerous errors in the respondent’s notices in paragraphs [29] to [30] of my decision in finding the notices deficient.
10The applicant submits that I did not error in law because I did not apply a remedy under s. 33 of the Schedule in ordering the respondent to pay the IRB. Instead, I determined that the applicant had a valid explanation for not providing the records because the s. 33 request was vague and unclear, and as a result, the suspension of the IRB was improper. Further, I found the respondent’s notice denying the applicant’s IRB deficient under s. 36(4) and ordered the respondent to pay the benefit as per s. 36(6) of the Schedule.
11The respondent has not persuaded me that I erred in law in my decision such that I would have reached a different result had the error not been made for the following reasons.
12First, it is well established that the purpose of reconsideration is not an opportunity for the unsuccessful party to relitigate the same arguments that were already considered at the initial hearing. I find that the respondent relies on the same arguments it did in the initial hearing that its s.33 requests and notices denying the applicant’s IRB were sufficient. Oddly, even on this reconsideration request I find the respondent is in denial about the various errors in its correspondence to the applicant in response to her OCF-3.
13Second, I find that the respondent made new legal arguments and relied on new evidence which was not before me at the initial hearing which is not appropriate on a reconsideration request. For example, the respondent did not argue that there is no prescribed requirement for a s. 33 notice or consequence under that section for an insufficient notice. Nor did it make any arguments regarding the remedies available under s. 33 (8)(a) and (b) at the initial hearing. Moreover, on this reconsideration request it relied on a chart documenting all the correspondence it sent to the applicant regarding its s. 33 request. It also relied on call log notes which it maintains supports all the efforts it took to follow up with the applicant’s legal representative regarding its s.33 request. I find the respondent did not provide any explanation in its reconsideration submissions for why this evidence was not relied on in the initial hearing. From a review of this evidence, I find it would have been available to the respondent when it made its initial submissions. For these reasons I have not considered it further.
14Additionally, the respondent made arguments that its various notices complied with the requirements set out in the Supreme Court of Canada’s decision in Smith v. Co-operators General Insurance Co., 2002 SCC 30. Further, it submits that even if its s. 33 requests do not meet the standards set out in Smith, there is no remedy set out in the Schedule for an unclear or vague s.33 request. I find that the respondent did not make any of these arguments at the initial hearing.
15Furthermore, I find that Smith does not support the respondent’s position. It is well established law that Smith stands for the principle that the Schedule is consumer protection legislation and that an insurer’s communication with its insured must be clear and unambiguous when it comes to the denial of accident benefits. I agree with the respondent that s. 33 does not set out the requirements which should be included in a s. 33 request, nor does it specify the consequence of an unclear and ambiguous s.33 request. However, if I were to accept the respondent’s argument that s. 33 requests do not need to be clear and free of ambiguity it would lead to an absurd result and contrary to the consumer protection mandate of the Schedule. For example, insurance companies could make overly broad s. 33 requests for irrelevant information and then arbitrarily suspend payment of benefits indefinitely for non-compliance.
16I also find that this Tribunal routinely makes decisions on whether documents requested under s. 33 by insurers are reasonably required. In cases, where the Tribunal determines that the documents requested were reasonably required and the insured did not comply with the request then the consequence is that the insurer is not required to pay the benefit for the period of non-compliance. However, where the Tribunal determines that the documents were not reasonably required then it would flow that the suspension of benefits was improper. In this case, I determined that the respondent’s s. 33 requests were vague and unclear because there was no time span for the records requested and the notices suspending the benefit contained errors about deadlines. Although not specifically included in the language of s. 33, I find that the same requirement for clear communication regarding the denial of benefits extends to the suspension of benefits. This would be in line with the consumer protection mandate of the Schedule. However, even if I am wrong on my interpretation of this issue it would not lead to a different decision.
17I find that when paragraphs [29] to [33] of my decision is read as a whole it is clear that my findings describe a pattern of deficient notices responding to the applicant’s OCF-3 whether that be the respondent’s s.33 requests or notice denying the benefit. I find that I did not error in law in considering the s. 33 request improper or by finding the respondent’s subsequent notice of August 25, 2021, deficient because it did not provide a termination date when it was denying the applicant’s “entitlement” not “the quantum” of the applicant’s IRB in response to insurer examination (“IE”) reports.
18I disagree with the respondent’s interpretation of my decision that I applied a remedy under s. 33 which was not available. In paragraph [29] of my decision, I indicated that I found the various correspondence sent by the respondent in response to the OCF-3 to be vague, unclear, and contained errors. I then provided several examples in sub-paragraphs i. to iii.
19Further, I find the respondent’s argument that I did not find that the respondent’s notice terminating the benefit was deficient pursuant to s. 36(7)(b) of the Schedule is incorrect. In paragraph [32] of my decision I stated “I also find the respondent’s notice denying the applicant’s entitlement to the benefit deficient because it did not comply with s. 36(7)(b) and provide the amount it refused to pay or the termination date. Although I acknowledge the respondent’s argument that as of this date it had been unable to calculate the quantum of the IRBS because it had not received the financial information its notice should have stated that, and this did not prevent it from providing a termination date (August 25, 2021) because it was denying the applicant’s entitlement to the benefit on that date based on its IE reports.
20For the above-noted reasons, the respondent has not convinced me that I erred in law in rendering my decision or that this error would have resulted in a different result.
The applicant is not entitled to costs pursuant to Rule 19
21Rule 19.1 of the Tribunal provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
22The applicant submits that the respondent has repeatedly demonstrated a pattern of bad faith conduct and has acted unreasonably, frivolously, and vexatiously by filing this request for reconsideration. The applicant seeks costs in the amount of $1000 because she has had to incur additional costs in defending the initial decision.
23The respondent submits the applicant has not established that costs are warranted in this case because this request for reconsideration was filed in good faith. As such, the threshold for costs has not been met.
24I find the applicant has not proven that costs are warranted in this case based on the sole fact that the respondent filed a reconsideration request. In my view, just because the respondent exercised its rights under Rule 18 does not support that it has acted unreasonably, frivolously, vexatiously or in bad faith. For these reasons, I find the applicant is not entitled to costs.
CONCLUSION
25For the reasons noted above, the respondent’s reconsideration request is dismissed.
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 20, 2025