Quackenbush v. Economical Mutual Insurance Company, 2025 CanLII 23483

Citation: Quackenbush v. Economical Mutual Insurance Company, 2025 ONLAT 22-004192/AABS - R

RECONSIDERATION DECISION

Before: Brian Norris

Licence Appeal Tribunal File Number: 22-004192/AABS

Case Name: Robert Quackenbush v. Economical Mutual Insurance Company

Written Submissions by:

For the Applicant: Sandra L. DiMeo, Counsel

For the Respondent: Veronica Gorrell, Counsel

OVERVIEW

1This request for reconsideration was filed by Robert Quackenbush (“the Applicant”). It arises out of a decision, dated October 4, 2024 (“the decision”). In the decision, I found that the Applicant was not entitled to an award or interest in relation to his claim for IRBs.

2The Applicant submits that I committed a material breach of procedural fairness by improperly raising the issue of capacity that was not raised by the parties, and that it resulted in negative findings.

3He further submits that I made an error of law when addressing the evidentiary burden regarding the presumption of capacity under the Substitute Decision Act, 1992, and that the Tribunal would likely have reached a difference result had the error not been made.

4The Applicant also submits that I made an error of mixed fact and law such that the Tribunal would likely have reached a different result had the error not been made when I determined there was no evidence to rebut the presumption of capacity prior to October 4, 2019

5The Applicant seeks leave to introduce evidence that was not before the Tribunal when rendering its decision that rebuts the presumption of capacity. He submits that this evidence was either not available or not introduced into evidence because the presumption of capacity was not raised as an issue by the parties, and that the evidence would likely have affected the result.

6The Applicant further submits that I made an error of law such that the Tribunal would likely have reached a different result had the error not been made, when I found that the Respondent did not have a duty to ensure that the Applicant was capable of, and able to, apply for benefits.

7The Applicant submits that I made an error of mixed fact and law such that the Tribunal would likely have reached a different result had the error not been made when I determined that the Applicant did not meet the test for an award under section10 of Regulation 664.

8The Applicant also submits that I committed a material breach of procedural fairness by failing to consider the application of section 34 of the Schedule, as well as the Human Rights Code.

9Lastly, he submits that I made an error of mixed fact and law such that the Tribunal would likely have reached a different result had the error not been made when I determined that it did not have the authority to order payment of IRBs prior to his submission of an OCF-3.

10The Respondent frames this request for reconsideration as an attempt to relitigate the issue at the initial hearing. It submits that the Applicant was not denied procedural fairness and that the Tribunal made no errors of law that would have affected the overall outcome.

RESULT

11The Applicant’s request for reconsideration is dismissed.

ANALYSIS

12The 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.

13Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

14The 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.

Background

15The Applicant’s story is tragic. He was the victim of a hit and run accident while cycling and was left unconscious on the side of the road. He suffered a traumatic brain injury, as well as multiple broken bones and other issues. He was hospitalized for months following the accident and since the accident he has not returned to work as a labourer on a farm.

16The Applicant suffered from a pre-existing learning disability, causing him to require assistance with reading and understanding documents. Following the accident, he relied primarily on his stepfather for communications with the Respondent. Despite this reliance, the Applicant’s stepfather did not submit an OCF-3 to initiate a claim for IRBs.

17The Applicant retained counsel in September 2019, and a disability certificate was submitted on or around January 6, 2020. The Respondent accepted the claim for IRBs but refused to pay any amounts towards IRBs prior to the submission of the OCF-3.

18On or before January 21, 2022, the Motor Vehicle Accident Claims Fund (“MVACF”) accepted priority of the Applicant’s claim. Following, MVACF paid the Applicant IRBs, backdated for the period from the date of the accident to present, together with interest.

19The focus of the decision was whether the Respondent’s refusal to pay IRBs prior to the submission of an OCF-3 warranted an award, pursuant to section 10 of Regulation 664. I concluded that it did not, primarily on the basis of section 36(3) of the Schedule. That section states that an applicant who fails to submit a completed OCF-3 is not entitled to a specified benefit for any period before the completed OCF-3 is submitted.

Capacity

20The first four issues on this reconsideration relate to the Applicant’s capacity following the accident. In the initial decision, I noted that the Applicant is assumed to have capacity until there is clear medical evidence that finds otherwise.

21The Applicant claims that I raised the issue of capacity in a procedurally unfair way and without the input of the parties. This position is fallacious considering that the Applicant raise the issue of capacity in the first paragraph of his submissions at the hearing. He submitted that he “lacked the mental capacity to submit a completed (disability certificate) prior to December 20, 2019”. Further, the Applicant submitted and referred to a capacity assessment report, dated October 4, 2019. Thus, I conclude that the Applicant was live to the issue of capacity when making submissions and find no error of procedural fairness in addressing the issue.

22I find no error in my application of the presumption of capacity. Section 2(1) of the Substitute Decisions Act (“SDA”) provides that a person 18 years of age or older is presumed to be capable of entering into a contract. Section 2(3) of the SDA allows for the presumption of capacity to be upset by reasonable grounds to believe that the person is incapable of giving or refusing consent. In this case, there is no reasonable grounds addressing the Applicant’s capacity prior to the submission of a capacity assessment report dated, October 2019.

23The statements by the Applicant’s stepfather are not reasonable grounds to determine that the Applicant lacks capacity. As noted in the initial decision at paragraph [17], the Applicant’s stepfather advised the Respondent that the Applicant had a learning disability which caused him to require help when reviewing and understand the content of any written documents. I find that, in this case, the Respondent was not required to investigate an insured’s capacity based on passing comments made by a lay relative. Having sustained a traumatic brain injury coupled with a pre-existing learning disability does not automatically render the Applicant incapable. Indeed, it appears that the Applicant or his counsel understood this and initiated the process to address capacity, eventually producing a report by a Designated Capacity Assessor, dated October 4, 2019. Regardless, the capacity assessment report, dated October 4, 2019, is not retroactive. Thus, it would be improper for me to conclude that the Applicant was continuously incapacitated since the accident on May 13, 2017, based on that evidence.

24I find no error of law in my use of the term “clear medical evidence” instead of the term “compelling evidence” that would result in a different result. The Applicant is correct, and the legal test related to “compelling evidence” instead of “clear medical evidence”. However, I find virtually no difference in the terms and disagree that a different result would be reached had the error not occurred. As stated earlier, the Respondent is not required to investigate an insured’s capacity, based primarily on comments made by a lay relative.

25The additional evidence does not affect the result of the initial decision. The Applicant provided his post-accident medical records for this reconsideration and submits that the Respondent had this information when adjusting his claim, and that it should have understood his lack of capacity from those records and concluded that he lacked capacity for the period from the date of the accident to-date and ongoing. I reject the Applicant’s position that the evidence was not provided because the issue of capacity was not raised as an issue by the parties. Capacity was a live issue at the hearing, as discussed previously, and it is incumbent upon the Applicant to put his best foot forward when making his case. Here, it appears the information was provided after the deficiencies were outlined in the initial decision. This is not grounds for reconsideration.

26In any event, the issue of capacity does not affect the outcome of the decision because a person is not entitled to a specified benefit prior to the submission of a completed disability certificate. Section 36(3) unequivocally states that “(a)n applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.” Thus, the issue of the Applicant’s capacity is an unnecessary diversion when assessing whether the Applicant is entitled to an award because the Schedule does not entitle him to IRBs prior to submitting a disability certificate. Further, there is no reasonable excuse exception when it comes to the application for a specified benefit because reasonable excuses are connected to time limits, which is not applicable here.

27The initial decision addressed whether the Applicant was entitled to an award only, as his IRBs were paid retroactively following the submission of an OCF-3. The test for an award is whether the Respondent unreasonably withheld or delayed the payment of benefits, and whether that behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Regardless of the Applicant’s capacity, it cannot be said that the Respondent acted unreasonably when it required the submission of an OCF-3 to initiate a claim for IRBs as that is the requirement outlined in section 36(3).

28Accordingly, I dismiss the Applicant’s request for reconsideration as it relates to his capacity throughout the process.

[Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

29The Applicant submits that I failed to consider his submissions on the applicability of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). To the Applicant, the Respondent was aware that he had significant cognitive impairments following the accident and did not have the ability to fulfill the requirement to complete and submit an OCF-3. He submits that, pursuant to section 11 of the Code, the Respondent had a duty to accommodate him when it came to the completion and submission of an OCF-3. In response, the Respondent submits that framing the Applicant’s grievances as to its handling of the claim as human rights violations, does not grant him access to relief outside of that provided by the Schedule.

30The Applicant is correct that I failed to address his submission on the Code. However, I find that this is not an error of law that would likely has resulted in a different result had the error not been made. In his initial submissions, the Applicant submitted that the Respondent “…failed to accommodate (the Applicant’s) disability – contrary to the Human Rights Code, the UDAP Rule, and have thus treated him unfairly under O. Reg 7/00.”

31Decision making must comply with the relevant legislation, including the Code, but it is on the moving party to demonstrate the breach. It requires more than passing reference to a provision such as reference to the specific section at issue or case law, as well as an explanation for the asserted breach. In the initial decision, the Applicant’s submission on the Code was not specifically addressed because none of the above occurred in his initial submissions – there was no reference to a section of the Code or case law, and no explanation for the asserted breach.

32In reply submissions, the Applicant elaborated, and submitted that the Respondent had a duty to accommodate a person with mental incapacity. However, at paragraph [41] of the initial decision, I found that the Applicant had not established that he lacked capacity until he was deemed incapable on October 14, 2019. To me, this ended any argument over accommodating the Applicant’s incapacity because the Respondent was not aware of the incapacity. Therefore, even if I had undertaken an analysis of whether the Respondent discriminated against the Applicant on the basis of a Code-protected ground, it would not have changed the outcome of the decision because the Applicant did not establish a prima facie case for discrimination.

33I acknowledge the hospital records pre-dating October 14, 2019, the date when the Applicant was deemed to lack mental capacity, that indicate that the Applicant was a difficult patient who had behavioral issues. Those records were not provided for the initial hearing. Upon review of them now, I see that they do not address the Applicant’s capacity. Likewise, the speech language pathology records refer to cognitive communication deficits and difficulties with orientation. However, assessing capacity is not within the scope of a speech language pathologist and the records include no referral or recommendation for a capacity assessment. Thus, I was not persuaded that the Respondent has reasonable grounds to believe that the Applicant lacked the capacity to manage his personal affairs following the accident.

34Accordingly, I find that my failure to reference the Applicant’s submission on the Code is not an error of law or fact that would result in a different outcome.

CONCLUSION & ORDER

35For the reasons above, I find no error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.

36The Applicant’s request for reconsideration is dismissed.

Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal