RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 22-010255/AABS
Case Name: Mir Wais v. Coachman Insurance Company
Written Submissions by:
For the Applicant: Slavko Ristich, Counsel
For the Respondent: Ibrahim Farag, Counsel
OVERVIEW
1On November 6, 2024, the applicant requested reconsideration of the Tribunal’s decision dated October 16, 2024 (“decision”).
2In this decision, the Tribunal found that the applicant was not an “insured person” as defined in s. 3(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), that the respondent was not required to provide a claim number pursuant to s. 32(3)4 of the Schedule and that the respondent was not liable to pay 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 applicant seeks reconsideration pursuant to Rules 18.2(a) and (b). He submits that the Tribunal erred in law in finding that he was not an “insured person” as defined in s. 3(1) of the Schedule. The applicant further argues that as a result of this legal error, the Tribunal stepped outside of its jurisdictional boundary and interfered with the priority regime outlined in O. Reg. 283/95 and s. 268 of the Insurance Act. He requests that the decision be varied to be found that the applicant is an “insured person” under s. 3(1), that the respondent be ordered to provide a claim number pursuant to s. 32(3)4 of the Schedule and that the respondent be found liable to pay an award with interest.
5The respondent submits that the applicant has failed to establish any error of law, or that the Tribunal acted beyond its jurisdiction. It further argues that the applicant presents new arguments and evidence in his reconsideration submissions, which should have been made at the initial hearing. The respondent requests that the reconsideration request be dismissed.
RESULT
6The applicant’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.
Applicant’s reconsideration position
8The applicant submits that I erred in law and overstepped the Tribunal’s jurisdiction in finding that he did not meet the definition of an “insured person” under s. 3(1) of the Schedule. He argues that when considering the definition of “insured person”, the well-established principles of statutory interpretation outlined in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), and Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, required the consideration of the Insurance Act together with all relevant regulations, including the priority regime set out in O. Reg. 283/95. The applicant submits that in finding that he was not an “insured person” I encroached on the exclusive jurisdiction of arbitrators to resolve priority disputes pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17 and O. Reg. 283/95.
9Specifically, the applicant argues that I erred in law in finding at paragraph 20 of my decision that the applicant was not a named insured in any insurance policy or driving an insured automobile. The applicant submits that the Motor Vehicle Accident Claim Fund (“Fund”) is an “insurer” and as such, he is an “insured person”. In support of this claim, the applicant references:
a. Sections 0.1 and 2(1) of O. Reg. 283/95 which the applicant argues, establishes that the Fund is an “insurer” which can receive a completed application for benefits;
b. Section 4(1) and s. 6 of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41;
c. Section 268(2)1(iv) of the Insurance Act, which holds that if recovery is unavailable under the previous subparagraphs, an occupant would have recourse against the Fund;
d. The Court of Appeal decision Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund (2007), 2007 ONCA 61, 84 O.R. (3d) 401, where the Fund was found to be an insurer.
10The applicant submits that anyone involved in a motor vehicle accident is entitled to benefits under the Schedule, since they have recourse to the Fund as an insurer. As such, he argues that he is an “insured person” for the purposes of s. 3(1) of the Schedule. The applicant further submits that since the respondent was the first insurer to receive the completed application for benefits, it is required to pay the benefits pending the resolution of any priority dispute pursuant to O. Reg. 283/95. The applicant argues that by finding that he was not an “insured person” under s. 3(1), an absurd result was reached, rewarding the respondent’s overt breach of its duty to pay and dispute.
Respondent’s position on reconsideration
11The respondent submits that the applicant is raising new arguments and presenting new evidence in his reconsideration request. Specifically, the applicant is raising new arguments on the purpose of the priority regime, with reference to new caselaw and legislation. It argues that the applicant’s position that he is an insured person under the Fund’s policy, that he had recourse against the Fund, that the Fund is an insurer and as such, he was an “insured person” and in an “insured vehicle”, are all new arguments that should have been raised at first instance. Similarly, the evidence in support of the applicant’s argument of the Fund as an “insurer”, including legislation and caselaw, is new evidence which was not adduced at the underlying hearing. The respondent submits that the new arguments and evidence should be disregarded.
12Rather, the respondent submits that at the initial hearing, the Tribunal correctly found that the applicant did not meet the definition of an “insured person” under s. 3(1). The evidence at the initial hearing established that the applicant had failed to provide any evidence that he was a named insured in any policy at the time of the accident, or in an insured automobile. As such, the respondent argues that the Tribunal did not err in law or overstep its jurisdiction by encroaching on a priority dispute, since there was no priority dispute. It states that the decisions cited by the applicant at the underlying hearing, particularly Zurich Insurance v. Chubb Insurance, 2014 ONCA 400, were all distinguishable since in these cases, the applicant had met the prima facie requirement of being in an “insured” vehicle.
13The respondent further submits that the applicant’s argument, that the only issue in dispute was whether the applicant was an “insured person”, is not consistent with the issues set out in the Case Conference and Report and Order (“CCRO”). Rather, the CCRO expressly framed the issue as whether the applicant was an “insured person” per s. 3(1) of the Schedule. In that sense, the Tribunal was specifically tasked pursuant to s. 280(1) of the Insurance Act with determining whether the applicant was entitled to statutory accident benefits, including whether the applicant met the definition of “insured person” under s. 3(1). As such, it did not exceed its jurisdiction in rendering its decision.
Rule 18(a) – The Tribunal did not act outside its jurisdiction
14I find that the applicant has not established a basis for reconsideration on the grounds that I exceeded my jurisdiction in finding that he did not meet the definition of “insured person” under s. 3(1) of the Schedule.
15The applicant argues that I should not have considered whether he had a valid insurance policy in place with the respondent, as such a determination encroaches on the exclusive jurisdiction of arbitrators in a priority dispute. Rather, in his reconsideration request the applicant is arguing that the sole issue for the Tribunal to consider at the underlying hearing was whether the applicant was an “insured person” entitled to claim benefits from any insurer, including the Fund.
16I am not persuaded by the applicant’s argument. The issues in dispute at the underlying hearing were issues raised by the applicant. As specified in the CCRO, the applicant requested that the Tribunal make a determination as to whether he was “an ‘insured person’ per s. 3(1) of the Schedule”. As noted in paragraph 19 of my decision, s. 3(1) requires that “in respect of a particular motor vehicle liability policy”, an insured person be a named insured in an insurance policy or be a person involved in an accident involving the insured automobile. As such, in paragraph 20 of my decision I considered whether the motor vehicle in question was insured or if the applicant was a named insured in a motor vehicle liability policy at the time of the accident.
17I agree with the respondent that the applicant requested the determination of the issues in dispute and attorned to the jurisdiction of the Tribunal. Pursuant to s. 280(1) of the Insurance Act the Tribunal is granted the authority to apply the Schedule and determine entitlement to statutory accident benefits. Part of such a determination is whether the applicant meets the threshold definition of “insured person” under s. 3(1) of the Schedule. I find that I did not exceed my jurisdiction in determining that he did not meet this definition.
18I further do not agree with the applicant that “only a priority arbitrator can decide” whether the respondent was liable to pay accident benefits to the applicant and that by concluding that the applicant was not an “insured person”, the Tribunal exceeded its jurisdictional boundary and encroached on a priority dispute.
19While I agree with the applicant that arbitrators under the priority regime have the exclusive jurisdiction to determine priority disputes about which insurer is obliged to pay benefits pursuant to the Schedule, the Tribunal has exclusive jurisdiction to determine entitlement to accident benefits. This can lead to a situation where both the Tribunal and a priority adjudicator must determine the same fundamental question, potentially leading to conflicting or inconsistent results and re-litigation, see Northbridge General Insurance Corp. v. Jevco Insurance Co. 2024 ONSC 1520, leave to appeal denied, Northbridge General Insurance Corporation v. Jevco Insurance Company, 2025 ONCA 74 .
20However, I agree with the reasoning in Northbridge that such a discrepancy would not result in an abuse of process or miscarriage of justice, since a priority arbitrator does not owe deference to the determination of a Tribunal adjudicator. Similarly, my determination that the applicant did not meet the definition of “insured person” under s. 3(1) with respect to the respondent’s policy, would not be binding in a priority dispute pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17 and O. Reg. 283/95. As such, I do not find that I exceeded the Tribunal’s jurisdiction in my consideration of whether the applicant met the definition of “insured person” under s. 3(1) of the Schedule.
Rule 18(b) – error of law
21I find that the applicant has not established grounds for reconsideration under Rule 18(b).
22In paragraph 20 of my decision, I found that the applicant had not established, as was required by s. 3(1), that he was a named insured in any insurance policy in effect at the time of the accident, or driving an insured automobile. I noted that the evidence established that the applicant’s policy with the respondent had lapsed prior to the accident, and that a new policy with Nordique Insurance had not been put in place by the applicant’s broker prior to the accident. As such, there was no active automobile policy in place with any insurer at the time of the accident.
23The applicant submits that I erred in law in finding that he was not an “insured person”, since anyone involved in an accident is an “insured person” by virtue of their recourse to the Fund. The applicant also argues that the binding principles of statutory interpretation required me to take an expansive view and consider the Insurance Act together with all relevant regulations, including the priority regime set out in O. Reg. 283/95, in my consideration of s. 3(1) of the Schedule. He submits that my failure to consider the priority regime led to an “absurd result”, undermining the fundamental tenants of the legislative regime governing insurance law, and emboldening insurers to breach their statutory duty to accept the claim for benefits, pay and dispute their liability in accordance with the priority regime.
Definition of “insured person” - the Fund as an “insurer”
24I find that the applicant has not established that I erred in law by failing to consider whether the Fund is an “insurer” for the purposes of s. 3(1).
25In his reconsideration request, the applicant submits that when considering the definition of “insured person”, the principles of statutory interpretation outlined in Rizzo and Tomec required the consideration of the Insurance Act together with the priority regime set out in O. Reg. 283/95, and other applicable statutes such as the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M. 41. He argues that section 0.1 and 2(1) of O. Reg. 283/95, s. 4(1) and s. 6 of the Motor Vehicle Accident Claims Act, and s. 268(2)1(iv) of the Insurance Act, cumulatively establish that the Fund is the payor of last resort, and as such, even if the applicant did not have a policy in place with the respondent or another insurer, he would have had recourse against the Fund. However, I note that the applicant did not submit that I should consider all of these statutes and regulations together in harmony at first instance.
26The applicant also cites the Ontario Court of Appeal decision Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund (2007), 2007 ONCA 61, 84 O.R. (3d) 401, which held that “a reference to an insurer in the Statutory Accident Benefits Schedule shall be deemed to be a reference to the Fund and a reference to an insured person shall be deemed to be a reference to the person who has recourse against the Fund.” As such, the applicant argues that he meets the definition under s. 3(1) of the Schedule, since he was a “named insured” under the Fund’s “policy”.
27I agree with the respondent that the applicant’s argument that the Fund is an “insurer” and that as such, he meets the definition of an “insured person”, is a new argument which had not been raised by the applicant in the underlying hearing. Similarly, the applicant’s reference to the Motor Vehicle Accident Claims Act, and the Court of Appeal decision Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, were also not raised by the applicant at the initial hearing. 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.
28However, even if I were to consider the applicant’s reconsideration submissions on the Fund as an “insurer”, I do not find that the applicant has established an error of law in my failure to consider the Fund under the definition of “insured person” under s. 3(1).
29Firstly, although the applicant argues that he had recourse to the Fund and as such he is the “named insured” under the Fund’s “policy”, he has not led evidence in support of this claim either at first instance or as part of his reconsideration materials. The applicant points to s. 268(2)1(iv) of the Insurance Act which holds that if recovery is unavailable from the applicant’s insurer, or the insurer of any other automobile involved in the accident, then the occupant has recourse against the Fund. However, the applicant has not led evidence that recovery was unavailable under subsection (iii) of s. 268(2)1. As noted in para 20 of the decision, the evidence led at the initial hearing established that the applicant did not have his own insurance policy in place with the respondent or Nordique Insurance at the time of the accident.
30However, although neither party provided submissions on the issue of third party insurance, from the Motor Vehicle Collision Report tendered at the initial hearing, it appears that there was an additional driver involved in the accident. This other driver was noted to be insured with Certas Direct Insurance Company. As such, it appears that the applicant may have had recourse against the insurer of the other automobile involved in the accident pursuant to s. 268(2)1(iii). If the applicant is arguing that the Fund is his “insurer”, he bears the onus to prove that he has met the requirements of s. 268(2)1(iv) and has exhausted his recourse against all other insurers. The applicant has not met his burden on this point. As such, I do not find that my failure to consider the Fund as the applicant’s “insurer” under s. 3(1) was an error in law.
31The applicant makes the alternative argument that it was unnecessary for him to identify any other insurers, since he undoubtedly would have had recourse against “either the Fund, the Respondent, Nordique Insurance, or some other potentially identified insurer”. However, I note that there is a specific chain of recourse that must be followed to access the Fund as a payor of last resort, including identifying other insurers.
32Under s. 3(1)(b) of the Schedule, an “insured person” means, in respect of a particular motor vehicle liability policy, a person who is involved in an accident involving the insured automobile, if the accident occurs in Ontario. As such, the applicant submits that he should meet the definition of “insured person” in s. 3(1)(b) as he was involved in an accident involving an “insured automobile” given that he would have had recourse against someone. He further argues that the use of the phrase “particular motor vehicle liability policy” is not limiting, since the word “particular” denotes a “group”.
33I am not persuaded by the applicant’s argument. I do not agree with the applicant’s interpretation that the word “particular” denotes a “group” rather than a specific policy. In my view, the phrase “particular motor vehicle liability policy” in the present matter, would be a policy with the respondent that pertains to the accident in dispute. However, as previously noted, the applicant did not establish that he had an active motor vehicle liability policy with the respondent which insured his automobile at the time of the accident. The applicant has not provided any authority for the argument that a “particular” policy means any indeterminate policy or is a reference to a “group” of insureds that automatically get coverage from the Fund.
34I further do not agree with the applicant that the definition of “insured person” in s. 3(1) should be broadly interpreted to apply to anyone involved in an accident in Ontario, because they would have recourse against “someone”. In my view, this would render the definition in s. 3(1)(b) meaningless, if every automobile involved in an accident was an “insured automobile” and if a claimant was not required to identify a specific motor vehicle liability policy simply because they have access down the line to the Fund.
35As such, I find that the applicant has not established that I erred in law in finding that he did not meet the definition of “insured person” under s. 3(1).
Failure to consider the priority regime leading to “absurd consequence”
36The applicant makes the additional argument that when considering the definition of “insured person”, the principles of statutory interpretation required the consideration of the Insurance Act together with the priority regime set out on O. Reg. 283/95. He submits that my failure to consider the priority regime led to an “absurd consequence”, undermining the fundamental tenants of the legislative regime governing insurance law, and emboldening insurers to breach their statutory duty to accept the claim for benefits, pay and dispute their liability in accordance with the priority regime.
37I find that the applicant has not established grounds for reconsideration pursuant to Rule 18(b).
38The applicant provides extensive submissions on the priority regime. He submits that pursuant to O. Reg. 283/95 and s. 268 of the Insurance Act, the respondent was required to accept his claim and commence paying benefits pending the resolution of a priority dispute. However, since the respondent refused to accept his claim, the applicant argues that he had no recourse to the priority regime outlined in O. Reg. 283/95. As such his “only option” to receive accident benefits was to file an application with the Tribunal to confirm his status as an “insured person” who was entitled to receive accident benefits. The applicant argues that my failure to properly consider “insured person” in the context of the priority regime was an error in law, leaving the applicant with “no benefits more than three years post-accident, while rewarding the respondent’s overt breach of its statutory duty to pay and dispute”.
39While I make no comment on the respondent’s initial response to the applicant’s OCF-1, on the narrow issue before me, I do not find that I erred in law in my consideration of s. 3(1) of the Schedule. I agree with the applicant that O. Reg. 283/95 and s. 268 of the Insurance Act establish a priority regime which requires the first insurer who receives a completed application to commence paying benefits to the insured person pending resolution of a potential priority dispute. O. Reg. 283/95 outlines the specific obligations of the insurer and the consequences for failing to accept an applicant’s claim, including that the insurer may not be able to subsequently dispute its obligation to pay benefits under s. 268, or that the arbitrator may make a special award finding against the insurer.
40However, as previously noted, arbitrators appointed under the Arbitration Act, 1991 have the exclusive jurisdiction to administer the priority regime and O. Reg. 283/95. This is not a task assigned to Tribunal adjudicators. The applicant does not direct me to any provision in the Schedule that requires a Tribunal adjudicator to consider the priority regime, when determining entitlement to accident benefits.
41Moreover, I do not agree with the applicant that my failure to confirm that he meets the definition of “insured person” under s. 3(1) has led to an “absurd consequence”, undermining the priority regime and emboldening insurers to breach their statutory duty to accept the claim for benefits. As previously noted, my findings in the present hearing would not be binding on a potential priority dispute. Further, in terms of emboldening insurers to breach their statutory duty under the priority regime, O. Reg. 283/95 clearly sets out the statutory consequences for insurer non-compliance.
42Finally, I am not persuaded by the applicant’s argument that his only option to obtain accident benefits was to file the present application with the Tribunal against the respondent, for confirmation that he is an “insured person” and that he has no recourse to the priority regime. The applicant does not dispute that his policy with the respondent had lapsed and concedes that he may have had recourse against the Fund or another insurer. However, no explanation was provided by the applicant as to whether another insurer or the Fund, as payor of last resort, were notified of the claim.
43In his submissions, the applicant argues that he is now “out of time” to apply to another insurer. However, the parties agree that the applicant submitted an OCF-1 to the respondent on September 30, 2021. On October 7, 2021, the respondent declined to accept the application, stating that its policy with the applicant had lapsed. Although the applicant argues that his only option was to bring the existing application to compel the respondent to accept his claim, it is unclear why the applicant did not similarly engage the other driver’s insurer, or potentially the Fund, in the intervening years. This would have then provided the applicant with recourse to the priority regime if needed. If the applicant submitted OCF-1s to these other parties, no evidence has been provided to establish this.
44As such, I find that the applicant has not established that my failure to consider the priority regime has led to an absurd consequence or resulted in an error of law.
45Finally, the applicant has not provided any submissions on the additional requested relief, that the respondent be ordered to provide a claim number pursuant to s. 32(3)4 of the Schedule or that the respondent be found liable to pay an award. Without specific submissions on these issues, I find that the applicant has not established grounds for reconsideration on the remaining issues in dispute.
CONCLUSION & ORDER
46The applicant has not established grounds for reconsideration under Rule 18.2(a) or (b).
47The applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 5, 2025