RECONSIDERATION DECISION
Before:
Tyler Moore, Vice-Chair
Licence Appeal Tribunal File Number:
24-003339/AABS
Case Name:
Teresa Roperti v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant:
Peter Galway, Counsel
For the Respondent:
Andrew Rodrigues, Counsel
OVERVIEW
1On January 6, 2025, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated December 16, 2024 (“decision”).
2In that decision, I found that the applicant did not notify the insurer of the claim for accident benefits in accordance with s. 32(1) of the Schedule, nor had she provided a reasonable explanation for the delay, pursuant to s. 34. Therefore, I found that her application to the Tribunal was statute-barred pursuant to s. 55(1) of the Schedule.
3Given that this decision was released after August 21, 2023, this reconsideration is governed by the Licence Appeal Tribunal Rules, 2023 (“Rules”). The grounds for a request for reconsideration are found in Rule 18.2 of 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.
4The applicant seeks reconsideration under Rule 18.2(a) and Rule 18.2(b) on the basis that the Tribunal acted outside of its jurisdiction or committed a material breach of procedural fairness; and, in the alternative, the applicant asserts that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a difference result had the error not been made.
5The applicant seeks an order cancelling or varying the preliminary issue decision and order, and requests that the matter proceed to a hearing on the substantive issues. The respondent opposes the applicant’s reconsideration request.
RESULT
6The applicant’s request for reconsideration is granted.
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.
Did the Tribunal act outside its jurisdiction or commit a material breach of procedural fairness?
8I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(a) for the following reasons.
9In her reconsideration submissions, the applicant submits that the Tribunal erroneously applied settled case-law and failed to properly apply the tests set out in the Schedule and the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, including addressing the proper preliminary issue before the Tribunal as per the case conference report and order (“CCRO”).
10The applicant submits that the Tribunal breached procedural fairness by finding that she was statute-barred because she did not notify the Motor Vehicle Accident Claims Fund (“MVACF”) of her claim for accident benefits within the prescribed time period, which was not the preliminary issue before the Tribunal. Rather, the applicant submits that the actual preliminary issue before the Tribunal, as defined in the CCRO dated August 23, 2024, limited the consideration to whether she “failed to notify the respondent”, Allstate Insurance, of her claim, and if not, whether she provided a reasonable explanation for the delay.
11I acknowledge that the preliminary issue outlined in the CCRO is identified as follows: “Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?” I also acknowledge that the wording of the issue in dispute refers to the respondent, being the applicant’s insurer and the opposing party at the tribunal, Allstate, and not the MVACF. I find that the Tribunal erred in its decision by considering steps the applicant may have taken to notify the MVACF, when the narrow issue before it was limited to the applicant’s notification to Allstate under s. 32, as the respondent. I also find that this constitutes a material breach of procedural fairness.
12For these reasons, I find that the applicant has established grounds for reconsideration under Rule 18.2(a). Having found grounds for reconsideration, I do not need to consider the applicant’s additional reconsideration arguments.
13Rule 18.4(b) provides that upon reconsidering a decision, the Tribunal may confirm, vary, or cancel the decision or order, or order a rehearing on all or part of the matter. As noted above, the applicant is requesting that the Tribunal cancel or vary the findings and that the matter proceed to hearing on the substantive issues.
14In my view, given the nature of the Tribunal’s error, I am ordering that the previous decision is cancelled. In turn, I find that the applicant may proceed with her application to a substantive issues hearing for the following reasons.
15I accept the following facts:
a) The applicant was hit by an automobile as a pedestrian on November 5, 2018.
b) The applicant received redacted Toronto Police records on March 13, 2019. The applicant subsequently appealed for unredacted records and obtained contact information for a witness to the accident on November 14, 2019. The witness was unable to identify the motorist.
c) The applicant then filed a Motion for unredacted Toronto Police records which was heard on May 14, 2021.
d) The applicant submitted an application for accident benefits to the MVACF on March 29, 2021, while the motorist was not yet identified.
e) On August 16, 2021, an Order was made granting the applicant the unredacted Toronto Police records, which were received on October 28, 2021.
f) The motorist involved in the accident was successfully identified on October 28, 2021, nearly three years following the accident.
g) Following further private investigation by the applicant, the motorist’s address and contact information were identified on December 10, 2021.
h) The applicant was then able to identify Allstate as the respondent on February 25, 2022.
i) The applicant notified Allstate’s Bodily Injuries Department of the accident by way of letter on February 28, 2022.
j) The applicant submitted accident benefit OCF forms to the respondent on May 25, 2022, including an OCF-3 dated December 3, 2018.
16Though the applicant submits that the MCACF is not considered an “insurer” for the purposes of the Schedule, I find that the Schedule does apply to the MVACF. At paragraph [24] of the applicant’s reconsideration submissions, she acknowledges that according to s. 6(2)(a) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 (“MVAC Act”), “a reference to an insurer in the Statutory Accident Benefits Schedule shall be deemed to be a reference to the Fund”. I accept that the Schedule does not specify what constitutes an “insurer”. However, s. 280 of the Insurance Act, R.S.O. 1990, C. I.8, clearly sets out that the Tribunal has exclusive jurisdiction over disputes in respect of the Schedule, and s. 6(2) of the MVAC Act deems the MVACF to be an insurer for the limited purposes of the Schedule. The narrow preliminary issue before the Tribunal in this case, however, limits the analysis of the applicant’s notice to the respondent, Allstate.
17There is no question that the applicant did not notify the respondent of the circumstances giving rise to her claim for approximately three years and three months after the accident, but I accept on reconsideration that this was through no fault of her own. Section 32(1) provides that a person who intends to apply for one more accident benefits shall notify their insurer of their intention no later than the seventh day after the circumstances arose “or as soon as practicable after that day.” Further, s. 34 provides that a person’s failure to comply with a time limit like the one in s. 32 does not disentitle them to a benefit if they have a reasonable explanation for the delay. I find that the applicant notified the respondent as soon as was practicable upon identifying the motorist involved in the accident and who the respondent was. While it is clear that it took several years and considerable work to locate the insured, I find that within three days of identifying Allstate as the respondent on February 25, 2022, the applicant notified Allstate’s Bodily Injuries Department of the accident.
18I accept that the applicant took many steps and encountered lengthy delays that were out of her control in her efforts to identify the respondent and motorist following the accident. The applicant’s efforts were stalled by Toronto Police services. As a result, I find that the applicant notified the respondent as soon as practicable and, in any event, has provided a reasonable explanation for the notification delay, such that her application for benefits should not be barred.
19The respondent submits that the applicant still did not comply with s. 32 of the Schedule because she did not provide notice of the accident until May 25, 2022, or almost three months after identifying Allstate as the respondent. However, according to the recent Divisional Court decision of Hussein v. Intact Insurance Company, 2025 ONSC 842, when an insured advises an insurer that there has been an accident, a reasonable insurer would assume that the insured intends to access all the benefits available to them, including accident benefits. In this case, I find that the applicant provided notice to the respondent of the accident through its Bodily Injuries Department by way of letter on February 28, 2022. That was just three days after identifying Allstate as the respondent.
20In considering the reasonableness of the applicant’s explanation and applying the principles set out the Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, that was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT), I find that the prejudice to the applicant in denying the matter to proceed is significant, whereas I find that there is limited prejudice to the respondent. It is the applicant’s burden to demonstrate substantive entitlement and the respondent has its own rights under the Schedule available to it to secure medical opinions on the applicant’s impairments. I also find that it is inequitable and procedurally unfair to bar the applicant at the preliminary issue stage when she has provided a reasonable explanation for the delay in notifying the respondent, Allstate.
CONCLUSION & ORDER
21The applicant’s request for reconsideration is granted. I am satisfied that the applicant has met the criteria of Rule 18.2(a) that the Tribunal committed a material breach of procedural fairness.
22I order under the provisions of Rule 18.4(b)(i), that the decision is cancelled, and replaced with the finding that the applicant is not barred from proceeding to a hearing because she notified the respondent as soon as practicable and has provided a reasonable explanation for the delay.
23Pursuant to Rule 18.4, I order the hearing on the substantive issues proceed as provided for in the CCRO.
24I further order the Tribunal to canvass the parties’ availability to schedule a four-day videoconference hearing, with an Italian language interpreter, in accordance with the procedural orders for the substantive issues hearing set out in the CCRO dated August 23, 2024.
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 14, 2025