Moffatt v. Aviva General Insurance, 2025 CanLII 69523

Licence Appeal Tribunal

Citation: Moffatt v. Aviva General Insurance, 2025 ONLAT 23-014149/AABS-R

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 23-014149/AABS

Case Name: Jason P Moffatt v. Aviva General Insurance

Written Submissions by:

For the Applicant: Angela Broccolini, Counsel Jennifer Hoffman, Counsel

For the Respondent: Tamara Tomomitsu, Counsel

OVERVIEW

1On April 17, 2025, the respondent requested reconsideration of the Tribunal’s decision released March 27, 2025 (“decision”).

2Stemming from an incident on August 1, 2022 and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties attended a videoconference hearing from December 2 – 4, 2024.

3In the resulting decision, the adjudicators concluded that the incident constituted an “accident”, pursuant to s. 3(1) of the Schedule. They also concluded that the applicant had a reasonable explanation for the late submission of his Application for Accident Benefits (“OCF-1”). Finally, they found the applicant was entitled to a treatment plan for an orthopedic assessment.

4The 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.

5The respondent relies on Rule 18.2(b) to support its request for reconsideration. It is seeking an order to vary the decision to state that the applicant has not established a reasonable explanation for the late submission of his OCF-1. In turn, the respondent seeks an order finding that the application be dismissed.

6The applicant opposes the respondent’s request for reconsideration.

RESULT

7The respondent’s request for reconsideration is dismissed.

ANALYSIS

8I find the respondent has not established grounds for reconsideration based on Rule 18.2(b).

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.

10Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement of the benefit, or as soon as practical after that day. A failure to meet this deadline means that, pursuant to s. 55(1), an application with the Tribunal may not proceed.

11As noted at paragraph 57 of the decision, the applicant accepted that he did not meet this deadline, as “he did not deliver his OCF-1 until June 13, 2023”. However, the applicant submitted that he had a “reasonable explanation” for the delay, pursuant to s. 34 of the Schedule. As such, a key determination in the decision was whether the applicant had provided a “reasonable explanation” for the late delivery of his OCF-1.

12As laid out in K.H. v. Northbridge General Insurance Company, 2019 CanLII 10613 (ON LAT) (“K.H.”), the analysis for determining whether an insured person has provided a “reasonable explanation” involves a two-stage test. First, the insured person must satisfy the decision-maker that their explanation is “credible or worthy of belief”. Second, if so satisfied, the decision-maker will then assess the reasonableness of the explanation.

13At paragraph 67 of the decision, the adjudicators determined that the applicant presented an explanation that was “credible and worthy of belief”:

The applicant’s explanation is credible and worthy of belief. The evidence supports a finding that the applicant experienced complications following the accident, and that he required multiple surgical interventions which resulted in the amputation of his right leg, below the knee. Further, I find it credible and worthy of belief that an unsophisticated party might not realize that one can apply for accident benefits in the circumstances of this case especially considering the dispute between the parties regarding whether an accident had occurred.

14The adjudicators then determined, at paragraphs 68 – 70, that the explanation was “reasonable”. As such, the applicant’s application could proceed.

15The respondent asserts that there are three errors in the adjudicators’ chain of reasoning that challenge the finding regarding the credibility and believability of the explanation. Without this key conclusion, it contends that there was no basis for the adjudicators to then assess the reasonableness of this explanation.

16First, while the adjudicators recognized that the applicant retained counsel in November 2022, the respondent argues that “this fact is absent from the ultimate analysis” in their decision. This fact is especially important to this analysis, because the Tribunal has found that any impact that an insured’s personal knowledge may have on the application process is effectively addressed once legal counsel is retained. It cites Adams v. Aviva Insurance Company, 2023 CanLII 4458 (ON LAT) (“Adams”) for this proposition.

17Second, the respondent highlights the applicant’s comment from his Examination Under Oath (“EUO”) where he claims that he retained counsel “because I was done wrong and I got hurt in a car”. According to the respondent, this comment alone should have alerted his counsel that the applicant “may be entitled to accident benefits, irrespective of any potential questions as to whether the subject incident constituted an accident”.

18Finally, the respondent claims that, while the decision notes that he experienced medical issues after the accident (including the amputation of his right leg below the knee), the applicant did not provide any evidence to show that these issues affected communication with his counsel or his ability to deliver the OCF-1.

19I find none of these arguments meet the high threshold needed to engage Rule 18.2(b), as they all amount to requests to re-weigh the evidence heard at first instance. As noted above, re-litigation is not a proper use of the reconsideration process. Rather, a party seeking to rely on Rule 18.2(b) must show more than mere disagreement with a finding made by the Tribunal—they must show why the finding was wrong in law and/or fact. The respondent has not met this onus.

20I also find that the kind of analysis the respondent is asking the Tribunal to make is akin to the “line-by-line treasure hunt for error” that the Supreme Court of Canada has cautioned against. Though this quotation from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 refers to the standard that courts should use when assessing administrative decision-making, this passage provides helpful guidance for my review [at para. 102, citations removed]:

To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”.

21Therefore, when the reasons are read as a whole, I am able to trace the adjudicators’ chain of reasoning such that I can see how the evidence presented during the hearing could result in their conclusion about s. 34.

22I will now turn to the respondent’s individual arguments on reconsideration.

23To start, as the respondent itself states, the applicant’s decision to retain counsel is highlighted by the adjudicators at multiple places in the decision, namely, paragraphs 58, 62, and 63. While I accept that these references were made under the heading “Parties’ Positions”, I am still satisfied that this fact was within the knowledge of the adjudicators. As such, I can infer that the applicant’s retention of counsel in November 2022 formed part of the factual matrix underpinning their determination. I find no error in this aspect of their analysis.

24Similarly, I do not find the holding in Adams helps the respondent to establish an error. Beyond the fact that I am not bound by the decisions of my fellow Tribunal colleagues (nor were the adjudicators when they rendered the decision), I note that a determination under s. 34 of the Schedule is, by its very nature, highly contextual and fact dependent. There is a weighing of several factors that speak to the specific nature of the case at hand, especially when questions of prejudice and an applicant’s personal characteristics are at play. Further, since it is a remedial provision, s. 34 necessarily involves an exercise of adjudicative discretion. Therefore, while the facts in Adams may have some overlap with the present set of circumstances, I find the respondent’s inability to identify a specific legal or factual error in the adjudicators’ analysis means that this prior case provides little assistance.

25Second, regarding the EUO, I again note that this evidence was mentioned by the adjudicators at paragraph 62 of the decision. Additionally, I find the respondent’s contention that the statement “I got hurt in a car” must have alerted applicant’s counsel to the potential of applying for accident benefits is speculative. This asserted connection also requires me to, in effect, disregard the finding made by the adjudicators at paragraph 67 that there was uncertainty caused by “the dispute between the parties regarding whether an accident had occurred”. The respondent challenges this finding, but again—unless a party can establish a legal or factual error—the re-litigation of findings made at first instance is not a proper use of the reconsideration process.

26Finally, the respondent contends that the adjudicators erred by concluding that the applicant “experienced complications” from the accident that impacted his ability to communicate with counsel. Specifically, the respondent claims: “… the Applicant never testified that his injuries and/or any complications arising therefrom had any impact on his ability to communicate with his counsel or provide notice to the Respondent.” Once again, the respondent highlights this alleged error as a basis for disrupting the finding that the applicant’s explanation for the delay was credible and worthy of belief.

27I find this argument is not an accurate reading of the decision. Rather, it conflates the adjudicators’ analysis with their summary of the parties’ positions.

28In paragraph 58 of the decision, the adjudicators laid out a part of the applicant’s proposed explanation for the delay [emphasis added]:

The applicant states that his explanation for the delay is credible and worthy of belief. He states that the delay was partially due to his injuries following the accident. Although he retained counsel in November 2022, he was concurrently undergoing various surgical procedures, leading to the amputation of his right leg, below the knee, and experiencing psychological trauma. As he was dealing with his injuries, he was often unable to communicate with his counsel.

29Then, moving forward to paragraph 67, the adjudicators provided their analysis for why they found the applicant’s explanation was credible and worthy of belief [emphasis added]:

The applicant’s explanation is credible and worthy of belief. The evidence supports a finding that the applicant experienced complications following the accident, and that he required multiple surgical interventions which resulted in the amputation of his right leg, below the knee. Further, I find it credible and worthy of belief that an unsophisticated party might not realize that one can apply for accident benefits in the circumstances of this case especially considering the dispute between the parties regarding whether an accident had occurred.

30As noted by the applicant in his reconsideration submissions (which included a copy of the hearing transcript), there are several references in his testimony to post-accident “complications”, including the amputation. While I accept the respondent’s argument that he does not then identify any part of his testimony that could be interpreted as him connecting these complications to the alleged communication issues, I conclude that the adjudicators ultimately made no such finding about communication issues. Rather, part of the basis for concluding that the applicant’s explanation was credible and worthy of belief was their finding that he experienced complications from his post-accident injuries. Considering the multiples references to these complications in the applicant’s testimony, this finding was well within the adjudicators’ purview to make.

31Further, I would contrast this conclusion about the alleged communication issues with my finding above regarding the respondent’s argument about when the applicant retained counsel. Though both these arguments were summarized in the “Parties’ Positions” section, they played different roles in the adjudicators’ chain of reasoning. On the one hand, the applicant’s argument about alleged communication issues was a proposed position that he wanted the adjudicators to accept. On the other hand, the respondent’s argument about when the applicant retained counsel was a request to have the adjudicators take this accepted fact into consideration when making their determination about s. 34. Put another way, the former involved a submission that the applicant wanted the Tribunal to accept as fact, while the latter involved an established fact that the respondent felt was important for the Tribunal to highlight in its analysis.

32Taken together, the respondent has not established how the decision meets the criterion under Rule 18.2(b). The request for reconsideration is dismissed.

CONCLUSION & ORDER

33The respondent’s request for reconsideration is dismissed.

Craig Mazerolle Vice-Chair Tribunals Ontario – Licence Appeal Tribunal