Samuel Agyapong v. Aviva Insurance Canada, 2025 CanLII 62724

Citation: Agyapong v. Aviva Insurance Canada, 2025 ONLAT 18-004309/AABS - R

RECONSIDERATION DECISION

Before: Ulana Pahuta

Licence Appeal Tribunal File Number: 18-004309/AABS

Case Name: Samuel Agyapong v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Kwaku Bona, Paralegal (Rita) Margaret Gratsias

For the Respondent: Geoffrey Keating, Counsel

OVERVIEW

1On April 7, 2025 the respondent requested reconsideration of the Tribunal’s decision dated March 17, 2025 (“decision”).

2In this decision, I found that the applicant was entitled to non-earner benefits (“NEBs”) for the period in dispute. I further found that the applicant was not entitled to attendant care benefits, the treatment plans in dispute, interest 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 is seeking a reconsideration pursuant to Rule 18.2(a) and (b). It submits that I committed a material breach of procedural fairness and made errors of law and fact in finding that the applicant was entitled to NEBs. The respondent did not request a reconsideration of my findings with respect to the remaining issues in dispute. Although not expressly stated, I infer that the respondent is requesting that the decision be varied and that a finding be made that the applicant is not entitled to NEBs.

5The applicant argues that the request for reconsideration should be dismissed.

RESULT

6The respondent’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.

Rule 18.2(b) - Error of law in NEB quantum

8I find the respondent has not established grounds for reconsideration of the NEB quantum pursuant to Rule 18.2(b) for the following reasons.

9The respondent submits that at para 27 of the decision, I erred in law in my summary of s. 12 of the Schedule in force at the time the subject policy was renewed. At para 27, I state that an NEB is not payable for the first 26 weeks after the onset of the complete inability and the $185 weekly rate increases to $320 after the first 104 weeks from the onset of the disability.

10The respondent argues that this description is legally incorrect, in that the increased quantum of $320 weekly would only be applicable if the applicant fulfilled the requirements of s. 12(1)2 of the Schedule, such that he was enrolled in education on a full-time basis or had completed his education less than one year before the accident and was neither employed nor self-employed before the accident. The respondent submits that since the applicant did not fulfill either of these requirements, para 27 of the decision is legally incorrect.

11The applicant submits that there was no error of law in my citation of s. 12 of the applicable version of the Schedule. He argues that my summary fairly characterizes the nature of the law on the NEB quantum, and that if the applicant fulfilled the criteria in s. 12(1)2, he would be eligible to receive the increased quantum of $320 weekly. However, the applicant agrees that since he did not fulfill the criteria, his NEB quantum would remain at $185 weekly. The applicant argues that the omission of the additional criteria is a minor or typographical error, that could be corrected under Rule 17 of the Rules.

12I agree with the respondent that my summary of NEB quantum at para 27 of the decision was incomplete, as it did not specify the additional requirements of s. 12(1)2 of the prior version of the Schedule. However, even if this summary was legally incorrect, I find that this was not an error of law such that I would likely have reached a different result had the error not been made.

13I agree with the applicant that in the decision I did not make a ruling on the quantum of NEBs. Rather, in paras 4 and 55 of the decision, I found that the applicant had established entitlement to NEBs. My findings were silent on the quantum of the specified benefit. As such, I find that the respondent has not established that the truncated summary of NEB quantum in para 27 would likely have led to a different result had the error not been made.

Rule 18.2(b) - Error of law and fact in finding entitlement to NEBs

14I find the respondent has not established errors of law or fact with respect to my findings on NEB entitlement.

15The respondent argues that in finding that the applicant met the test for entitlement to NEBs, I erred in law and fact on two grounds:

i. That the applicant had not led direct evidence of his pre- and post-accident activities; and

ii. That I improperly attempted to delineate between the applicant’s non-accident-related low back issues and his pain/psychological impairments in direct contradiction of the evidence.

16For the following reasons I find the respondent has not established grounds for reconsideration pursuant to Rule 18.2(b) with respect to either of its arguments.

Error of fact and law - lack of direct evidence

17The respondent argues that given that the initial hearing was conducted in written format as opposed to videoconference, the applicant had failed to lead direct evidence of his pre- and post-accident activities. It cites Tribunal decision Ge v. Aviva General Insurance Company, 2022 CanLII 120014 (ONLAT) to argue that where the applicant opted to proceed to a written hearing, the Tribunal has previously noted the lack of direct evidence. Given the lack of testimony evidence, the respondent argues that my finding that the applicant met the test of entitlement to NEBs was an error of fact and law.

18I find that the respondent has not established an error of fact or law. The respondent’s reconsideration submissions with respect to the lack of direct evidence is an attempt to raise a new argument. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. Further, I note the applicant’s submissions that in the almost six years since these proceedings have started and in its initial hearing submissions, the respondent did not object to conducting the hearing in a written format.

19With respect to the decision cited by the respondent, Ge v. Aviva, I find that this decision is distinguishable from the present case. In Ge, in addition to the lack of direct evidence, the Tribunal noted the lack of medical reports and evidence of post-accident restrictions. In the present case, there was extensive medical evidence supporting NEB entitlement presented at the initial hearing.

Error of fact – cause of inability

20The respondent submits that in the decision, I erred in fact by attempting to delineate between functional restrictions caused by the applicant’s non-accident low back issues versus his other pains/psychological issues. It argues that based on the medical evidence presented, it was “not possible” to separate the applicant’s functional restrictions from his non-accident-related low back pain. The respondent references the evidence presented by the applicant at the initial hearing, including the s. 25 occupational therapy and psychological reports and the applicant’s catastrophic reports, to argue that I erred in my consideration of these reports and that my finding that the applicant’s psychological impairments were accident related was factually incorrect.

21I find that the respondent is attempting to re-litigate its position. I find no error of fact in my analysis of the applicant’s and respondent’s evidence at the initial hearing. I agree with the applicant that at the initial hearing, the submissions and evidence presented by the applicant, including the cited reports, established his pre-accident activities of daily living, and his post-accident restrictions. In paras 32 to 38, I provided detailed reasons as to why I determined that the applicant had established, on a balance of probabilities, that he suffered from a complete inability to carry on a normal life. The respondent may disagree with my findings, however, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision.

Rule 18.2(a) – material breach of procedural fairness

22I find that the respondent has not established a material breach of procedural fairness.

23The respondent submits that in finding that the applicant had established entitlement to NEBs, I had prefaced my decision on arguments not advanced by the parties. It argues that at the initial hearing, the applicant had advanced only the narrow argument that since he had been found to be catastrophically impaired by Dr. Gavett-Liu, he should qualify for non-earner benefits. The respondent submits that my consideration of the various reports tendered into evidence at the initial hearing to determine whether the applicant met the test for NEBs, was not a specific argument advanced by the applicant, and as such constitutes a material breach of procedural fairness.

24I agree with the applicant that in his submissions at first instance, he did not solely advance the narrow argument that since he had been found to be catastrophically impaired by his assessors, he should qualify for NEBs. Rather, in his submissions at the initial hearing the applicant stated that “regardless whether Mr. Agyapong had been deemed catastrophic”, his various assessors had evaluated his pre- and post-accident impairments. As such, I do not find that my consideration of the various assessors’ reports and their description of the applicant’s restrictions on his pre-accident activities was an argument not advanced by the applicant, or a material breach of procedural fairness.

CONCLUSION & ORDER

25For the reasons above, I find no violation of procedural fairness and no error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

26The respondent’s request for reconsideration is dismissed.

Ulana Pahuta Adjudicator Tribunals Ontario – Licence Appeal Tribunal