RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
Licence Appeal Tribunal File Number: 24-002844/AABS
Case Name: Sonia Marchese v. CAA Insurance Company
Written Submissions by:
For the Applicant: Lawson Hennick, Counsel
For the Respondent: Ken Yip, Counsel
OVERVIEW
1On January 6, 2025, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated December 16, 2024 (“decision”).
2In the decision, I found that the applicant was not entitled to non-earner benefits from November 13, 2021 to July 20, 2023, prior to the submission of a completed disability certificate (“OCF-3”) on July 21, 2023.
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 applicant relies on Rule 18.2(b). The applicant submits that I erred in failing to consider that the respondent had a legal obligation to communicate to the applicant the consequences of a delay in submitting a completed disability certificate. The applicant requests that the Tribunal allow the application to proceed to a hearing on the merits of the claim for non-earner benefits.
5The respondent requests that the request for reconsideration be dismissed, as all of the applicant’s arguments were previously addressed in the decision, and there is no error of law or fact that would likely have resulted in a different outcome.
RESULT
6The applicant’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.
8I find the applicant’s submissions on reconsideration are an attempt to re-litigate the same positions she argued at first instance. The applicant argues that she was an unsophisticated person, and it was unreasonable for the insurer to justify its non-payment of the benefit because it did not advise her that no benefits are payable prior to the submission of the disability certificate. The applicant argues that any consequences of non-compliance with the Schedule should be communicated by the insurer to the insured before an insurer can rely on them. The applicant relies on Elkhidir v. Intact Insurance Company, 2023 CanLII 1449 (ON LAT) (“Elkhidir”) in support of her position.
9I addressed similar arguments at paragraph 11 to 13 of the decision. I found Elkhidir did not stand for the proposition that the respondent had an obligation to cite section 36(3) of the Schedule in order to rely on it. At paragraph 13, I found that the respondent met its obligation to inform the applicant of the application process in accordance with section 32(2). I also noted that the applicant had retained legal representation within a few months of the accident, who was also informed that a disability certificate had not been submitted.
10The applicant also relies on two cases from the Financial Services Commission of Ontario in her reconsideration submissions, neither of which were raised at first instance, and neither are binding on my determination. Reconsideration is not an opportunity for a party to raise new case law that it could have raised at first instance.
11I also addressed the applicant’s consumer protection arguments at paragraph 11 of the decision.
12The decision addresses all of the arguments raised by the parties, and, as such, I am satisfied that the applicant has not established that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
13The applicant has not established her reconsideration request, pursuant to Rule 18.2(b).
CONCLUSION & ORDER
14The applicant’s request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 2, 2025