RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 22-007951/AABS
Case Name: [S.C] v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Alexander M. Voudouris, Counsel Anu Malhotra, Counsel Tanner Blomme, Counsel
For the Respondent: Eric Grossman, Counsel Melissa Baxter, Counsel
OVERVIEW
1On January 20, 2025, the applicant requested reconsideration of the Tribunal’s decision released December 30, 2024 (the “decision”).
2Stemming from an automobile accident on February 14, 2020, the applicant requested accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Following a written hearing, I found the applicant was not entitled to payment of the non-earner benefit (“NEB”) from March 12 to July 7, 2020. I also found no interest was owing.
3The crux of the decision was the interpretation and constitutionality of s. 36(3) of the Schedule, i.e., the provision that states no specified benefit is owing until an applicant has submitted a completed disability certificate (“OCF-3”). The applicant proposed an interpretation that states only a “capable applicant” who fails to provide a completed OCF-3 will be barred from payment. Since she was found to have been likely incapable of making reasoned decisions about insurance forms following the accident, the applicant argued that s. 36(3) should not apply to her NEB claim.
4Despite accepting her interpretative framework and the seriousness of her condition, I did not accept the applicant’s interpretation of s. 36(3). Instead, I found the applicant was not entitled to the NEB until the date when she submitted a completed OCF-3 to the respondent. I further concluded that the applicant’s challenges pursuant to the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”), and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Sch. B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”) lacked a sufficient basis to establish any breach.
5The 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.
6The applicant relies on Rule 18.2(b). She is seeking “an order declaring she is entitled” to payment of the NEB from March 12 to July 7, 2020, with interest.
7The respondent opposes the applicant’s request for reconsideration. It claims the applicant is “attempting to reargue her case.”
RESULT
8The applicant’s request for reconsideration is dismissed.
ANALYSIS
9The 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.
10The applicant submits I erred in my interpretation of s. 36(3) of the Schedule, as I interpretated the provision too narrowly. She also claims I incorrectly found her interpretation would render the provision “inoperative” for all incapable insured persons. She then argues I did not properly account for the purpose and goals of the Schedule. Turning to her arguments about the Charter and the Code, the applicant submits I erred by failing to conduct an analysis of whether a “strict” interpretation of s. 36(3) constituted a breach of these constitutional and quasi-constitutional protections. Finally, the applicant challenges my treatment of s. 34 of the Schedule.
11I find that the applicant has not established that any these grounds meet the standard for granting a reconsideration, pursuant to Rule 18.2(b).
Interpretation of s. 36(3)
12Section 36(3) of the Schedule states: “An 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.” In the decision, I interpreted this provision to mean that, until an insured person provides a completed OCF-3 to their insurer, they are not entitled to payment of a specified benefit.
13To start, I find the applicant’s submissions about my “narrow” interpretation are largely an attempt to re-litigate the position she took during the written hearing. For instance, the applicant argues on reconsideration that:
Despite acknowledging the Court of Appeal’s ruling in Tomec v. Economical Insurance Company, 2019 ONCA 882 (“Tomec”), the LAT does not explain in their reasons why a narrow interpretation of s. 36(3) does not produce a result that is absurd in this instance. The LAT’s reasons do not explain how a person who is, by law, not capable of completing their own disability certificate, can simultaneously be required by law to complete a disability certificate.
14Similar arguments were addressed in the decision. After accepting the applicant’s position that the modern principle of statutory interpretation governs this exercise, and that my interpretation must consider the object and intent of the legislation (all the while avoiding the “absurd results” mentioned in Tomec), I concluded at paragraph 23:
However, despite my acceptance of the interpretative framework presented by the applicant, as well as the seriousness of her condition, I reach a different conclusion about how to interpret s. 36(3). Starting with the wording of s. 36(3), I find this provision is not a case where there is an ambiguity that needs to be clarified, nor are there multiple, possible interpretations to choose from. Rather, the wording of s. 36(3) is clear—until a completed OCF-3 is provided to the insurer, the insured person will not receive payment of a specified benefit.
15I then proceeded to find that not only the text of s. 36(3) supported this interpretation, but the context of the provision, along with the object and legislative intention of the Schedule, all supported an interpretation that legislators did not intend to exempt incapable applicants from this requirement. These reasons addressed the applicant’s arguments from the written hearing, and I am satisfied that she has not shown that this “narrow” interpretation constitutes an error, pursuant to Rule 18.2(b).
16Regarding the applicant’s argument about how I found her interpretation would render s. 36(3) “inoperative” for incapable applicants, I turn to paragraph 26 of my decision (emphasis added):
Turning to the object and legislative intention behind the Schedule, I find it necessary to consider the impact of the applicant’s proposed interpretation on s. 36(3). If the applicant’s interpretation were accepted, s. 36(3) would be inoperative for any specified benefit claim made by an incapable applicant. I find such a conclusion is inconsistent with the object and legislative intention of this provision. Considering how the Schedule is focused on the provision of benefits for accident victims, the object behind this regulation necessarily engages the constitutional and quasi-constitutional protections of persons with disabilities. As such, I find legislators must have been aware of how this regulation (and the larger accident benefits regime) would impact these individuals, including those with capacity issues. Therefore, I find that an interpretation that would effectively remove these same individuals from the purview of s. 36(3) would, in turn, require the Tribunal to ignore the legislative intention at hand. Put another way, this interpretation would amount to assuming that a clearly identifiable group was not considered when drafting s. 36(3).
17The applicant argues that, if I had accepted her interpretation, the “only effect… would be to delay the operation of s. 36(3) until legal competency is gained or regained or when a guardian/substitute decision maker/power of attorney steps forward.” Put another way, the use of the word “inoperative” does not capture the possibility of another person stepping in to act on behalf of an incapable applicant—an act that would render s. 36(3) “operative” for these applicants.
18Even if I accepted that using the term “inoperative” was an error, I find the applicant has not shown how I “would likely have reached a different result had the error not been made”, pursuant to Rule 18.2(b). For instance, as demonstrated by the rest of the paragraph quoted above, this use of the word “inoperative” was part of a larger discussion about the object and legislative intention that the applicant has not successfully challenged. The interpretation of s. 36(3) that I endorsed would still require the delivery of a completed OCF-3 for both capable and incapable applicants alike. In other words, the requirement for a completed OCF-3 under s. 36(3) would still be mandatory, even if I accepted the applicant’s contention that “a guardian/substitute decision maker/power of attorney” could step in to make the provision “operative”. The use of the word “inoperative” is of no substantive consequence to the result of my decision.
19Finally, the applicant claims that I erred by finding that the purpose and goals of the Schedule, namely the consumer protection mandate, can be achieved through my “strict reading” of s. 36(3). The applicant highlights aspects of D.C. v. TD Insurance Meloche Monnex, 2023 CanLII 77319 (ON LAT) (“D.C.”) to support this position. Both the consumer protection mandate of the Schedule and the holding from D.C. were considered in my decision, namely, at paragraphs 21, 27, and 28. I find the arguments now raised on reconsideration are, in effect, challenges to findings made at first instance. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision.
Alleged Breaches of the Charter and the Code
20Regarding her arguments involving alleged breaches of the Charter and the Code, I find the applicant has not established an error, pursuant to Rule 18.2(b).
21In the decision, I found the applicant did not provide a “sufficient basis” to challenge the constitutionality or Code compliance of s. 36(3). Instead, I found the applicant’s submissions were limited to general comments about how this provision breached the Charter and the Code. For instance, the applicant’s written hearing submissions included no case law about s. 15(1) of the Charter to ground an analysis of how the Schedule offends the equality guarantee. As such, I concluded there was no basis to establish a breach of either the Charter or the Code. I further found the applicant’s inability to establish a breach meant the respondent’s silence on this aspect of the case was immaterial.
22In her reconsideration submissions, the applicant claims I erred by not engaging in any Charter or Code analysis. The applicant also contends that my comment about a lack of s. 15(1) case law should not have been “determinative”. Finally, the applicant argues that I “erred in ignoring the insurer’s failure to challenge [her] Charter and Code submissions.”
23First, I find much of the applicant’s reconsideration submissions about the Charter and the Code consist of new arguments and case law that were not presented during the written hearing. For instance, to support her position that s. 15(1) of the Charter is focused on substantive equality, the applicant provides case law that was not cited during the written hearing: e.g., R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC); Law Society of British Columbia v. Andrews, 1989 CanLII 2 (SCC); and Fraser v. Canada (Attorney General), 2020 SCC 28. Parties are expected to put their best foot forward during the hearing. The reconsideration process is not meant to be a venue for bolstering a case that did not succeed at first instance.
24Relatedly, turning to the applicant’s argument about the lack of case law, I note that this earlier finding was not “determinative” for my Charter analysis. Rather, as explained at paragraph 34 of the decision, I cited the lack of Charter case law as an example of how there was an insufficient basis to conduct the analysis being asked for by the applicant.
25Finally, I find the applicant’s argument about the “insurer’s failure” to address her Charter and Code submissions was addressed during the hearing. Specifically, at paragraph 37 of the decision, I found the applicant’s inability to establish a breach meant “no weight [was] placed on the respondent’s decision not to address these arguments.” The reconsideration process is not a venue for re-litigating submissions made at first instance.
26Taken together, I find the applicant has not established an error based on this ground, pursuant to Rule 18.2(b).
Section 34 of the Schedule
27The applicant makes two arguments about my treatment of s. 34 in the decision. I find neither of these arguments establishes a ground for reconsideration.
28Section 34 of the Schedule states: “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.”
29The applicant’s alternative requests for relief, which included a finding that there was a “reasonable explanation” under s. 34 for when her OCF-3 was delivered, were addressed at paragraph 40 of the decision: “These arguments were first raised in reply, and, therefore, the respondent was not provided with a chance to respond. Due to the respondent’s inability to present a potential defense to these requests, I will not consider these requests.”
30Section 34 was also mentioned when I analyzed the context of s. 36(3) during my assessment of the applicant’s proposed interpretation (at paragraph 25):
Additionally, when considering the context of s. 36(3), I would note that the Part of the Schedule where this provision resides, i.e., “Procedures for Claiming Benefits”, includes s. 34… Whether this remedy applies to s. 36(3)—and, if so, whether it should be used in this particular dispute—will not be considered at this time for the reasons detailed below. However, the existence of a general, remedial provision within a part of the Schedule concerned with “Procedures for Claiming Benefits” highlights how legislators did not have to build specific exemptions into every procedural provision…
31On reconsideration, the applicant first argues that my treatment of s. 34 amounted to turning this remedial “shield” into a “sword”. Specifically, she claims I “erred in considering section 34 in order to interpret section 36, while refusing to consider section 34 to relieve [her] of any potential non-compliance.” I do not accept this argument. The modern principle of statutory interpretation requires decision-makers to consider the broader statutory context that a provision exists within. In this case, I found it was appropriate to consider what impact the remedial nature of s. 34 might have on my interpretation of s. 36(3). I am satisfied that the applicant has not demonstrated how this analytical choice constitutes an error, pursuant to Rule 18.2(b).
32Second, in her reconsideration reply, the applicant asks the Tribunal to engage s. 34, but there is also a suggestion that she is unclear whether this provision applies to s. 36:
Should section 34 be considered, and should it apply to section 36, then [the applicant] submits the LAT erred in not considering a mental and legal inability to deliver a timely OCF-3 to be a reasonable excuse. Notwithstanding the above and previous submissions, [the applicant] raises the possibility that section 34 may not have an application to the issue herein, whereby it deals with time limits, while section 36 does not.
33Regardless of what appears to be an inconsistent position over the applicability of s. 34, I find the applicant has not shown how I erred by concluding that I would not address the remedies she first asked for in her written hearing reply. The concern I expressed over the “respondent’s inability to present a potential defense” remains.
34The applicant has the onus to demonstrate that a ground for reconsideration meets at least one of the criteria from Rule 18.2. Overall, I find she has not met her onus.
CONCLUSION & ORDER
35The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 29, 2025