JunBo Liu v. Aviva Insurance Company of Canada, 2026 CanLII 39695

Citation: Liu v. Aviva Insurance Company of Canada, 2026 ONLAT 25-001294/AABS-R

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 25-001294/AABS

Case Name: JunBo Liu v. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Catherine H Zingg, Counsel

OVERVIEW

1On February 9, 2026, the respondent requested reconsideration of the Tribunal’s decision released January 19, 2026 (“decision”).

2Stemming from an accident on August 24, 2022 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a videoconference hearing. In the decision, the Tribunal found the applicant was entitled to an income replacement benefit (“IRB”) in the amount of $287.88 per week for the period of August 31, 2022 to September 21, 2023, plus interest. The Tribunal denied the applicant’s request for 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 Rule 18.2(a) and Rule 18.2(b) to support its request for reconsideration. It takes issue with the IRB quantum, and so it is seeking to have the decision varied to find the applicant is only entitled to $265.24 per week for the period of February 12 to September 21, 2023.

5The applicant asks the Tribunal to dismiss the request. She is also seeking costs.

RESULT

6The respondent’s request for reconsideration is granted.

7Pursuant to Rule 18.4, paragraph 35(i) of the decision is varied to read as follows: “The applicant is entitled to an income replacement benefit in the amount of $265.24 per week for the period of February 6 to September 21, 2023.”

8The applicant’s costs request is denied.

ANALYSIS

9The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. 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.

10As an initial comment, though the respondent relies on both Rule 18.2(a) and Rule 18.2(b), its arguments about these two grounds are intertwined. As such, I have addressed its grounds for reconsideration with an eye to both procedural fairness and alleged errors.

11Further, the respondent’s submissions can be categorized as either issues with the applicant’s pre-accident income, or the lack of post-accident deductions for Employment Insurance (“EI”) benefits. I will address these two categories in turn.

Rule 18.2 – Pre-Accident Income Calculations

12After laying out the sections of the Schedule that govern the calculation of an insured person’s pre-accident income, the Tribunal completed its IRB quantum calculation at paragraphs 24 – 26 of the decision (emphasis added):

The applicant submits that the quantum was calculated with the applicant’s income 52 weeks pre-accident to the date of loss. This amount was $21,385.27 according to tax records and EI payments. This amount was divided by 52 weeks and multiplied by 70% which equalled $287.88/week, which is the disputed amount.

The respondent submits that the applicant did not meet their onus to prove quantum of IRB and was not calculated correctly as the amount being disputed changed in the hearing. The respondent did not provide their own calculation of IRBs.

I find, that based on the tax records provided that the applicant met their onus to prove quantum at $287.88 per week.

13The respondent challenges this calculation in two ways.

14First, according to the respondent, the applicant’s pre-accident employment should be calculated as both a combination of her pre-accident work with an online grocery store, as well as the EI payments she received between losing this job on June 23, 2022 and the accident on August 24, 2022. By combining these amounts, the respondent claims the applicant only earned $19,703.85 in the 52 weeks preceding the accident, i.e., her Record of Employment from the online grocery store shows she made $18,637.71 between August 16, 2021 and June 23, 2022, and she received EI payments totaling $1,066.41 prior to the accident. Once you divide this total into 52 weeks (and multiply the result by 70%), the applicant is left with $265.24 per week, not the $287.77 ordered by the Tribunal.

15The respondent further argues that the Tribunal’s determination that the applicant made a total of $21,385.27 in the 52 weeks pre-accident is not based on the documentary record, but rather on unsubstantiated arguments made by counsel. Most notably, the respondent claims that applicant’s counsel referenced “our accountant” during closing submissions, but the identity of this expert was not revealed, nor was any report submitted from this accountant.

16In reviewing the records presented by the respondent, as well as the reasons provided by the Tribunal to support its conclusions about the IRB quantum, I find the respondent has shown that the Tribunal erred in accepting the applicant’s position on the correct weekly amount. Specifically, as quoted above, there is no indication of what evidence the Tribunal used to base this conclusion on. Rather, the Tribunal made a reference to “tax records” at paragraph 26. By not laying out a sufficient basis for showing what evidence was relied upon to support the conclusion that the applicant was entitled to an IRB in the amount of $287.77 per week, I find the Tribunal erred in a material fashion.

17Further, in reviewing the Record of Employment and EI file presented by the respondent, I accept that these amounts result in a weekly IRB payment of $265.24. I also recognize that it appears that the only employment the applicant was performing during this 52-week period was for the online grocery store: see paragraph 10 of the decision, where the Tribunal notes that this job forms the basis of her IRB claim.

18The applicant disputes the respondent’s position, claiming it did not present its own IRB quantum calculations during the hearing. Even though the adjudicator specifically asked for the respondent’s take on this part of the claim, the applicant highlights how it did not present its own position on quantum. Rather, it focused on the applicant’s substantive entitlement to the IRB. According to the applicant, the respondent cannot take a new position on reconsideration.

19Though the respondent may not have presented its own competing calculations during the hearing (and parties are discouraged from presenting new arguments on reconsideration), the onus was on the applicant to show that she was entitled to a given weekly amount. In fact, as the Tribunal noted in the quotation above, the respondent argued during the hearing that “the applicant did not meet their onus to prove quantum of IRB”. This statement shows that the respondent put the burden on the applicant to show she was entitled to the claimed amount. As the respondent has shown with its request for reconsideration, the applicant did not meet this onus, and I instead find the Tribunal erred in accepting that she was entitled to a weekly IRB in the amount of $287.77.

Rule 18.2 – Deductions for Post-Accident EI Payments

20As the calculations quoted above show, the Tribunal did not allow for any post-accident deductions. The respondent takes issue with this finding, claiming there should have been deductions made for the applicant’s post-accident EI payments. Specifically, the applicant received gross payments of $439.00 per week up and until February 5, 2023, an amount that should have reduced her IRB entitlement during this period to zero.

21I agree. The respondent has shown the Tribunal erred in this aspect of its IRB calculations, and I am satisfied that this error would likely have impacted the outcome of the decision, namely, the IRB amount ordered as payable.

22First, by reviewing the applicant’s EI file, I accept that she received weekly EI payments for the period both before and after the accident, yet no deductions were allowed for these post-accident payments. Section 7(3) of the Schedule states that “70 per cent of any gross employment income” earned by an applicant may be deducted “during the period in which he or she is eligible to receive an income replacement benefit”. Despite these payments, no deductions were granted by the Tribunal.

23I note that there is a discretionary element to s. 7(3). However, the applicant’s EI payments formed the basis for establishing her pre-accident income—payments that, in effect, allowed her to access a higher IRB quantum. Considering this impact that the pre-accident EI payments had on the resulting quantum, I see no reason why a deduction should not have been allowed for these same EI payments following the accident.

24Further, if this deduction had been allowed, 70% of the applicant’s gross weekly EI payments equal $307.30/week, i.e., more than the amount the respondent was ordered to pay during this period. As such, the IRB quantum for the period from the accident up and until the last EI payment on February 5, 2023 is zero.

25The applicant challenges this position by again claiming that the respondent did not provide its own IRB calculations during the hearing. Though I accept that the respondent focused its submissions on entitlement, I once again note that the applicant had the onus to establish the proper weekly amount. In this case, the Tribunal was aware of the applicant’s weekly EI payments, especially as she relied on these payments to establish her pre-accident income. Moreover, the applicant’s EI file (dated January 30, 2023) was marked as an exhibit during the videoconference hearing. This file shows the applicant receiving weekly EI payments during the post-accident period, and yet there is no explanation provided by the Tribunal for why deductions should not have been allowed. The onus remained with the applicant to establish the proper weekly amount, including in the face of these post-accident payments.

26Taken together, I find the respondent has again established grounds for reconsideration under Rule 18.2(b).

Rule 18.4 – Varying the Decision

27Following on my findings above, I am then satisfied that the most appropriate remedy under Rule 18.4 is to vary the decision. In light of the arguments and evidence presented by the parties as part of this reconsideration process, I find the fairest and most efficient way to address the errors established by the respondent is to vary the IRB quantum ordered in the decision to align with the findings I have made about the proper weekly amount and allowable deductions.

28This variation means the applicant is entitled to an IRB in the amount of $265.24 per week for the period of February 6 to September 21, 2023.

COSTS REQUEST

29I do not find the applicant has met the threshold necessary for ordering costs.

30Rule 19.1 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. The party requesting costs has the onus to demonstrate such an order is merited.

31The applicant supports her request for costs in two ways. First, she claims the respondent has not paid the amount ordered by the Tribunal in the decision. Second, the applicant argues that the respondent is attempting to improperly re-litigate its position from the hearing.

32I find the applicant has not established that the respondent’s behaviour merits an order for costs. Not only are costs limited to the parties’ conduct during the proceeding (such that the respondent’s actions in the adjusting and payment of the IRB fall outside of the scope of Rule 19.1), but parties are entitled to challenge a final decision of the Tribunal through Rule 18.1. Therefore, even though the applicant may have disagreed with the positions it took on reconsideration, the respondent had the right to pursue this relief. Further, I do not see how its actions during this part of the Tribunal’s proceedings would trigger the high threshold needed to order costs.

33In sum, the applicant’s costs request is denied.

CONCLUSION & ORDER

34The respondent’s request for reconsideration is granted.

35Pursuant to Rule 18.4, paragraph 35(i) of the decision is varied to read as follows: “The applicant is entitled to an income replacement benefit in the amount of $265.24 per week for the period of February 6 to September 21, 2023.”

36The applicant’s costs request is denied.

Craig Mazerolle

Vice-Chair