RECONSIDERATION DECISION
Before: Harry Adamidis, Adjudicator
Licence Appeal Tribunal File Number: 23-005473/AABS
Case Name: Trinidad Soto v. Pembridge Insurance
Written Submissions by:
For the Applicant: Michelle Jorge, Counsel
For the Respondent: Ryan Kirshenblatt, Counsel
OVERVIEW
1On February 14, 2025, the respondent requested reconsideration of the Tribunal’s decision dated January 24, 2025 (“decision”).
2Following a written hearing, I issued the decision. In the decision, I found that the applicant was entitled to an income replacement benefit (“IRB”) of $307.23 per week, less what has already been paid, from May 18, 2021 and ongoing. I further found that that applicant is entitled to an in-home occupational therapy assessment and interest on overdue payments of benefits. Additionally, I found that the applicant is not entitled to attendant care benefits, a certain amount for physiotherapy, nor costs or an award.
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 respondent relies on criteria from Rule 18.2(a) and Rule 18.2(b) to support its request for reconsideration.
5The respondent submits that the only issue before me during the written hearing was the quantum of the IRB, and that I acted outside my jurisdiction by ordering an ongoing IRB. The respondent also argues that I committed a material breach of procedural fairness by making an order that negates its ability to adjust the applicant’s claim to an IRB, including being able to deduct future collateral benefits from the IRB. The respondent further submits that it was a material breach of procedural fairness and an error of law to order an ongoing IRB without giving it the opportunity to address this part of the IRB issue.
6The applicant submits that the Tribunal can order ongoing IRB payments, and that this application for reconsideration should be dismissed.
7The respondent asks for the decision be amended to read “(1) The Applicant’s weekly IRB base amount under s. 7(2) para. 1 of the SABS is $307.23 per week and (2) the Applicant is entitled to an income replacement benefit in the amount of $307.23 per week, less amounts paid, from May 18, 2021 to the date of this order.” In the alternative, the respondent asks for the decision be varied with proper language to reflect that the Tribunal only adjudicated the applicant’s weekly IRB quantum.
RESULT
8The respondent’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.
Rule 18.2(a) – Acting outside jurisdiction
10I find the respondent has not established that I acted outside my jurisdiction when I found that the applicant' entitlement to an IRB is “ongoing.”
11The accident took place on May 10, 2021. The parties subsequently agreed that the applicant is entitled to an IRB starting from May 18, 2021. The applicant filed an application with the Tribunal on May 11, 2023. The respondent points out that on the application, under the heading “What is being disputed” for the IRB issue, the applicant checked off the “Amount of weekly benefits.” The applicant did not check off “Length of time benefits paid.” The respondent argues that the only issue in dispute was quantum and there was no need to consider whether the IRB should be “ongoing.”
12In my view, the respondent’s reading of the application is incomplete. The period of IRB entitlement noted on the application is from May 18, 2021 and “ongoing.” As such, the applicant made clear that her “ongoing” entitlement to an IRB was an issue before the Tribunal.
13The Tribunal issued a case conference report and order (CCRO) on December 27, 2023 that sets out the issues in dispute. The IRB issue is described as follows:
Is the applicant entitled to an income replacement benefit in the amount of $162.71 per week ($307.23 per week less $144.52 per week paid) from May 18, 2021 to date and ongoing (emphasis added)
14The CCRO clearly indicates that the period of entitlement to the IRB is in dispute. There is no indication that the respondent disagreed with how the IRB issue is set out in the CCRO at the case conference, nor at any time prior to their request for reconsideration.
15In paragraph 2 of the respondent’s own written hearing submissions, dated June 21, 2024, it describes the IRB issue as follows:
Income replacement benefit (“IRBs”) in the amount of $167.71 per week ($307.23 per week less $144.52 per week paid) from May 18, 2021 to date and ongoing (emphasis added)
16The application, the CCRO, and the respondent itself indicate that the issue of an ongoing IRB was before the Tribunal. Consequently, the Tribunal was required to determine the period of the applicant’s entitlement to an IRB.
17The respondent stopped paying the IRB on March 21, 2024. This was about 10 months after the application to the Tribunal was filed. This decision was based on a report by Jessy Hawley, a chartered professional accountant with Davis Martindale LLP, dated March 12, 2024 (the “DM report”). As noted in paragraph 24 of the decision, this report determined that the applicant is entitled to receive Canada Pension Plan Disability (“CPP-D”) payments, and these payments would reduce the IRB quantum to zero and was the reason the respondent stopped IRB payments.
18In paragraph 38 of the decision, I agreed with the respondent that CPP-D payments are deductible from the IRB quantum. At the time of the written hearing, there was no indication that the applicant had applied for CPP-D, and the applicant argued that she must be in receipt of these payments before the deduction can be made. In paragraph 38 of the decision, I disagreed with the applicant because accepting her position would lead “to an absurd result of requiring the insurer to pay an amount of IRB for which the insured person is not entitled.”
19However, as stated in paragraph 39 of the decision, I found that the amounts of CPP-D calculated in the DM report are speculative and unreliable, and cannot be used to calculate IRB quantum and that no deduction to the IRB could be made. Consequently, in paragraph 87 of the decision, I made an order that the applicant is entitled to a $307.23 IRB payment per week from May 18, 2021 and ongoing, less what has already been paid to her.
20As noted above, the respondent’s written submissions show that it was aware that the IRB issue included whether the applicant was entitled to an ongoing IRB. Even so, it argues that only the quantum of the IRB was in dispute and that I exceeded my jurisdiction because the issue of ongoing IRB entitlement was never before me.
21The applicant submits that I was within my jurisdiction to order IRB payments on an ongoing basis because the issue of entitlement was conceded by the respondent.
22I agree with the applicant. IRB payments continue until modified or stopped under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). For example, under section 6(2)(b) payments are stopped if the insured cannot meet new eligibility test that applies after 104 weeks. In this case, IRB payments were stopped because of the findings in the DM Report. I rejected the findings of that report, and in doing so, the statutory scheme requires ongoing IRB payments to be made.
23The respondent argues that the findings in the Tribunal reconsideration decision of A.P. v. Coachman Insurance Company, 2019 CanLII 51317 (ON LAT) apply to this case. In A.P. v. Coachman, the Vice-Chair Lester found that the adjudicator in the first instance ordered a pre- and post-104 IRB without clear submissions from the parties in regard to the time period of entitlement. She also noted that the sole issue in dispute was the quantum of the IRB. As a result, she returned the decision to the adjudicator to be amended. This case is distinguishable as both parties made submissions on whether the applicant can receive ongoing IRB payments. The applicant argues that she is entitled to an IRB up to the “present and ongoing” and disputes the stoppage of the IRB payments in her written submissions. The respondent argued that it is “entitled” to a CPP-D offset, and as such, can stop IRB payments. This shows that the issue of whether the applicant can receive ongoing IRB payments was being argued by the parties and needed to be resolved by the Tribunal. For this reason, I find that A.P. v. Coachman does not apply to this case.
24The issue of the applicant’s entitlement to an ongoing IRB was indicated in the application, the CCRO, and in the submissions of both parties. Therefore, I find that I did not act outside my jurisdiction when I found that the applicant is entitled to an ongoing IRB.
Rule 18.2(a) – Material breach of procedural fairness
25I find that I did not commit a material breach of procedural fairness when I decided that the applicant is entitled to an ongoing IRB.
26The respondent seems to argue that the applicant was not disputing the stoppage of the IRB payments at the hearing and that the Tribunal considered the issue of an ongoing IRB on its own without informing the parties. Respondent submits that this constitutes a material breach of procedural fairness because neither party received notice of this “new” issue and had no opportunity to address it.
27It is incorrect to say that the applicant was not disputing the stoppage of IRB payments. The applicant’s written hearing submissions state that s. 47 of the Schedule does not support the insurer’s position that CPP-D is deductible without it being received. As such, she addressed the stoppage of the IRB payments. The respondent’s written hearing submissions argue why the applicant cannot receive ongoing IRB payments. It is clear that both parties understood that the applicant’s ongoing entitlement to the IRB was an issue that they both addressed in their written hearing submissions.
28The respondent further argues that the language of the decision fetters its ability to adjust the applicant’s claim for an IRB, determining future eligibility for IRB, and from subtracting any future collateral payments from the IRB. I disagree. There is nothing in the decision which prevents the respondent from adjusting the applicant’s IRB claim in a manner that is consistent with the Schedule.
29Consequently, I find that the respondent has not established a material breach of procedural fairness on the ground that I made a decision on the IRB stoppage despite the fact that the stoppage was not in dispute. This is because the written hearing submissions show that the parties disagreed on the stoppage and made submissions to address this point.
Rule 18.2(b) Error of law
30The respondent submits that a breach of procedural fairness is also reviewable as an error of law. Having found there was no material breach of procedural fairness, I further find that there was no error of law.
CONCLUSION & ORDER
31The respondent’s request for reconsideration is dismissed.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 27, 2025