Samuel Tagoe v. The Personal Insurance Company, 2026 CanLII 53787

Citation: Tagoe v. The Personal Insurance Company, 2026 ONLAT 21-001365/AABS-R

RECONSIDERATION DECISION

Before: E. Louise Logan, Vice-Chair

Licence Appeal Tribunal File Number: 21-001365/AABS

Case Name: Samuel Tagoe v. The Personal Insurance Company

Written Submissions by:

For the Applicant: David Kapanadze, Counsel

For the Respondent: Patrick Baker, Counsel

OVERVIEW

1On March 3, 2026, the applicant requested reconsideration of the Tribunal’s decision dated February 19, 2026 (“decision”). The decision was the result of a partial rehearing stemming from a reconsideration decision dated November 28, 2025. The rehearing was conducted by way of written submissions.

2The procedural history of this matter is lengthy. In brief, the Tribunal released a preliminary issue decision on February 28, 2022, finding that the applicant was statute-barred from proceeding with his application for an income replacement benefit (IRB) as he did not commence his application within two years of the respondent’s denial. This was upheld in a reconsideration decision dated December 19, 2022. In Tagoe v. The Personal Insurance Company, 2023 ONSC 5175, the Divisional Court allowed the applicant’s appeal and remitted the matter to the Tribunal for a rehearing.

3Following a four-day videoconference hearing, in August 2025, the Tribunal determined that the applicant was not catastrophically impaired, was not entitled to an IRB, the treatment plans in dispute, interest, or an award.

4The applicant requested reconsideration of the decision. The request was allowed, in part, by way of reconsideration decision dated November 28, 2025. The Tribunal ordered a rehearing of the issues of whether the applicant is entitled to an IRB pursuant to s. 36(6) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), interest and an award.

5The matter was reheard by way of written submissions. In a February 19, 2026 decision, which is the subject of the current reconsideration request, the Tribunal determined the applicant is not entitled to an IRB pursuant to s. 36(6) of the Schedule, interest or an award.

6The 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.

7The applicant is seeking reconsideration pursuant to Rule 18.2(a) and (b). He is seeking an order varying the decision to find an IRB payable under s. 36(6) in the amount of $400.00 per week from December 23, 2019 to present, interest and an award.

8The respondent submits that the request for reconsideration should be dismissed.

RESULT

9The applicant’s request for reconsideration is dismissed.

PROCEDURAL ISSUE

10On April 9, 2026, the respondent requested a right of sur-reply and provided a four-line email submission related to paragraph 6 of the applicant’s reply submissions. I have not considered the sur-reply because I find that, while it is limited in scope, the applicant did not have an opportunity to respond and may be prejudiced by its admission.

ANALYSIS

11The 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) – Material Breach of Procedural Fairness

12I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a).

13At the outset of his reconsideration submissions, the applicant points to the reconsideration decision in which the Tribunal found that there was a material breach of procedural fairness as the hearing panel did not determine entitlement to an IRB under s. 36(6) of the Schedule. The applicant submits that the reconsideration decision held that, had the panel considered the s. 36 argument, “the outcome would have been different” and that the reconsideration decision confirmed that s. 36(6) is unambiguous in that “[i]f an insurer does not comply with the procedural steps required under s. 36(4) and s. 36(5), the insured person is entitled to payment of the specified benefit”.

14The applicant submits that the Tribunal breached procedural fairness when it “transformed” the rehearing of the focused question of entitlement, under s. 36(6), into a “factual contest over document-by-document production compliance spanning five years”. He submits that the Tribunal used the applicant’s alleged non-compliance with a s. 33 request as the primary basis for dismissal, within the context of a limited rehearing, where the applicant was only given five pages for submissions and two pages for reply. In the applicant’s view, the decision expanded the inquiry beyond the scope of the order in the reconsideration decision, without adequate notice or opportunity to respond. The applicant submits that this was a material breach of procedural fairness.

15The respondent submits that there was no breach of procedural fairness. It submits that the reconsideration decision ordered a rehearing of a specific issue, which necessarily involved evidence, and allowed for the use of previously filed evidence. It submits that the rehearing was ordered on the question of entitlement under s. 36 because it was not addressed in the initial decision and it would be impossible for the Tribunal to address it without evidence. The parties had the same number of pages for submissions and the applicant made no complaint about the length of submissions during the rehearing process. On reply, the applicant noted that his concern is not about page length, but about expansion of the inquiry.

16I see no material breach of procedural fairness in the decision. The reconsideration decision ordered a rehearing by a different adjudicator by way of written submissions. It set out a timetable for written submissions, with a five page limit for submissions, and three pages for reply. It indicated that no new evidence may be relied on; only evidence exchanged between the parties in accordance with the deadlines set out in the February 4, 2025 case conference report and order could be relied on by the parties.

17The reconsideration decision ordered that the issues in dispute in the rehearing were as follows:

i. Is the applicant entitled to an IRB in the amount of $400.00 per week from May 5, 2016, to date, pursuant to s. 36(6) of the Schedule?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

18While the reconsideration decision determined that the outcome of the decision would likely have been different if the initial hearing panel had considered entitlement under s. 36 of the Schedule, it made no determination of entitlement. It ordered a rehearing of the issue. The question of entitlement under s. 36 was the ambit of the rehearing adjudicator, who considered whether the applicant was entitled to an IRB pursuant to s. 36(6), interest and an award. The reasons for finding that the applicant is not entitled to an IRB are set out in paragraphs 18-28 of the decision. These reasons take into account the submissions and evidence submitted by the parties in compliance with the reconsideration decision.

19The rehearing adjudicator did not expand the scope of the hearing. The question of the sufficiency of the respondent’s notice engaged the relationship between s. 36(4) and s. 33 of the Schedule. Thus, in assessing whether the respondent’s December 2019 notice was compliant with s. 36(4), the rehearing adjudicator necessarily considered whether the request for information was “reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit” as required by s. 33(1). The rehearing adjudicator determined that it was. Having found that the December 2019 notice was compliant, this meant that the “shall pay” provisions of s. 36 were not engaged.

20I acknowledge that the rehearing adjudicator went on to consider the applicant’s submission that he had substantially complied with the respondent’s information request, and also considered whether the respondent’s June 2020 notice was compliant. Having found the December 2019 notice to be compliant, it may be that the rehearing adjudicator did not need to consider whether the applicant was compliant with the s. 33 request or whether the June 17, 2020 notice was compliant with s. 36(4). However, I find that in considering these arguments, the rehearing adjudicator did not breach procedural fairness. Given that the arguments about s. 33 and the validity of the June 2020 notice were addressed by the applicant, as noted in the decision, in my view, it was procedurally fair to address them.

21In sum, the adjudicator considered the issues identified for rehearing in the reconsideration decision and answered the question of entitlement to an IRB under s. 36(6) of the Schedule, interest and an award. I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a).

Rule 18.2(b) – Error in assessing December 20, 2019 letter

22I find that the applicant has not established grounds for reconsideration with respect to the assessment of the December 20, 2019 letter.

23The applicant submits that the Tribunal erred, at paragraph 21, when it found that the respondent’s December 20, 2019 letter complied with s. 36(4) because it requested information reasonably required to determine IRB entitlement. He submits that the Tribunal applied the wrong legal test and the finding is outcome-determinative. He submits that s. 36(4) is expressly tied to the requirements of s. 33 and the rehearing adjudicator was required to determine if the letter met those requirements, rather than if the requested documents were reasonably required “in a general sense”. He argues that the legal question is whether the letter’s content, timing and character satisfy the requirements of s. 33. By reducing the inquiry to general reasonableness, the wrong test was applied.

24Further, the applicant submits that even on the adjudicator’s own findings, the result is untenable because the applicant substantially complied with the respondent’s information request, and the respondent never adjudicated the claim on the materials it received. He submits that the consumer protection purpose of the Schedule does not permit an insurer to make a document request, receive substantial compliance, and then not adjudicate the claim or follow up. The applicant cites 16-000693 v. Aviva Insurance, 2017 CanLII 19192 (ON LAT) (16-000693) for the argument that s. 33 non-compliance results in a suspension rather than a termination of benefits and cannot be “weaponized as a permanent bar”.

25The applicant also submits that in Hussein v. Intact, 2025 ONSC 842 (“Hussein”), the Divisional Court held that the burden of engaging with claims falls on the insurer, not the insured. To the applicant, the decision reduces s. 36(6) to a “dead letter” which is precisely the outcome the reconsideration decision was designed to prevent. He submits that had the correct legal framework been applied in this case, s. 36(6) would have been triggered from December 23, 2019 and the result of the decision would change.

26The respondent submits the applicant is trying to relitigate his case. The Tribunal considered all the relevant evidence and correctly found the respondent properly responded with a request under s. 36(4)(c). The Tribunal also correctly found the applicant did not comply with that request. It submits that the applicant is making entirely new arguments in relation to s. 36(4)(c) and does not identify an error of fact or law. On the facts, the respondent submits the applicant argues “substantial compliance”, without any supporting evidence. It submits that it has never received the applicant’s employment file as requested, either in response to its s. 36 request, or as ordered by the Tribunal in advance of the hearing. It only received updated family records in March 2025 in the context of a Tribunal order, which in its submission, does not represent compliance with its December 20, 2019 request letter.

27The respondent further submits that the contention that s. 33 cannot be “weaponized as a permanent bar” has no relevance, because the respondent made four simple requests for documents and the applicant did not comply with two of them. It also submits that the applicant’s reliance on Hussein is misplaced as this is not a case of late submission of an OCF-1 involving s. 32 of the Schedule. This case involves a request under s. 33, and an insurer has no control over whether an insured person complies with such a request.

28First, I find that the reconsideration decision does not impact the decision in the manner suggested by the applicant. The applicant appears to argue that the rehearing adjudicator made findings that are contradicted by, or inconsistent with, those made in the reconsideration decision. In my view, this position is not consistent with the nature of the findings in the reconsideration decision. The reconsideration decision was considering whether the applicant had established grounds for reconsideration. It found that the applicant had, in part. It ordered a rehearing of the question of entitlement to an IRB pursuant to s. 36, because this question was not addressed in the initial decision. Paragraphs 33 to 36 of the reconsideration decision read as follows:

33It is well-accepted that tribunals are not expected to mention every minor comment made during a hearing, as their obligation to protect a party’s right to be heard is met by addressing the key arguments. However, when these references to the IRB application process are read alongside the respondent’s concession that there was some discussion of “the s. 36 argument”, I am satisfied that the applicant’s position on s. 36 was more than a throwaway remark. Rather, it appears to have been one of the grounds the applicant put forward to support his entitlement to the IRB.

34Further, while the respondent argues that there is no means to access payment of the IRB without first showing entitlement under s. 5(1), I do not agree. Section 36(6) states:

If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.

35There is no ambiguity in this provision. If an insurer does not comply with the procedural steps required under s. 36(4) and s. 36(5), the insured person is entitled to payment of the specified benefit. I further note that the cases cited by the respondent address prior versions of the Schedule. As such, they are of limited assistance in assessing the specific and clear statutory language at hand.

36Finally, though the respondent claims it has provided the applicant with a compliant denial, this kind of determination is exactly what the applicant was seeking in the initial hearing. Without an explicit finding on this point in the decision, I find the applicant has established an error. I can then conclude that, if the panel had corrected this error and explicitly considered this IRB argument, the outcome of the decision would likely have been different.

29As noted above, the reconsideration decision made no finding on whether the applicant had entitlement under s. 36. Nor did it make findings that would impact the rehearing adjudicator’s analysis with respect to the respondent’s compliance with s. 36. Rather, it ordered a rehearing of the issue.

30I also find that the applicant has not established grounds for reconsideration with respect to the analysis of s. 36(4) and its interplay with s. 33. There is no indication in the reconsideration submissions that these arguments were made previously. While the applicant submitted a reply to the respondent’s reconsideration submissions, he does not suggest that these arguments were made previously.

31Even if these arguments were made previously, I find they do not establish grounds for reconsideration. In the decision, at paragraphs 21 and 22, the Tribunal considered whether the December 20, 2019 letter was compliant with s. 36(4)(c) and found that it was. In so doing, it addressed the argument that the letter needed to explicitly cite s. 33. In finding that it did not, the rehearing adjudicator determined that the case law cited by the respondent was persuasive, and noted that the applicant did not argue or cite any case law in support of an argument that s. 33 must be expressly referenced:

21I find that the respondent’s December 20, 2019 letter was compliant with s.36(4)(c) of the Schedule. In this correspondence, the respondent requested additional information, including the applicant’s employment file, CPPD file, and up to date clinical notes and records from the family doctor. I agree with the respondent that this information would have been reasonably required to assist the respondent in determining the applicant’s entitlement to IRBs, particularly given that the OCF-3 had been submitted three years post-accident.

22The respondent has cited Tribunal caselaw to argue that s. 33(1) does not need to be explicitly cited in the correspondence to make it a s. 36(4) compliant request. Rather, the s. 33 request need only be reasonably required to assist the insurer in making a determination. I find the caselaw cited by the respondent to be persuasive, and note that the applicant did not argue or cite any caselaw in support of an argument that s. 33 must be expressly referenced in the documentation requesting additional information.

32The applicant appears to argue that the Tribunal did not consider the specific language of s. 33 and found that the information requested by the respondent was reasonable in a “general sense”, but on review of the decision, this is not the case.

33First, while the adjudicator did not reproduce the provisions of s. 33, she did refer to s. 33(1) in the decision, which is the relevant provision. Section 33(1) requires that an applicant shall provide the insurer with “any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit”. This statutory language is reflected in the decision’s consideration, at paragraph 21, of whether the respondent’s request for information “was reasonably required to assist the respondent in determining the applicant’s entitlement to IRBs”.

34Second, in the decision, the adjudicator found the caselaw cited by the respondent supports a finding that s. 33(1) does not need to be specifically cited in the letter to make it a compliant s. 36(4) request. This was within her discretion, particularly in the absence of argument from the applicant on this point.

35Third, the rehearing adjudicator determined that the information requested in the December 20, 2019 letter was reasonably required to assist the insurer in determining the applicant’s entitlement to IRB, particularly as the OCF-3 was submitted three years post-accident. In doing so, the adjudicator referenced specific information requested by the respondent: the applicant’s employment file, CPPD file and up to date clinical notes and records from the family doctor.

36In sum, rather than considering whether the information was reasonably required in a “general sense”, the adjudicator considered whether the specific information requested by the respondent on December 20, 2019 was reasonably required to assist the insurer with determining the applicant’s entitlement to IRB. This determination was made in the context of the requirements of the Schedule, and in light of the specific facts of this case which involved an application three years post-accident.

37I also find that the adjudicator considered the applicant’s arguments with respect to substantial compliance, finding that he had not led evidence to establish all the requested documents were provided. As noted above, this analysis was not necessary because the December 2019 notice was found to be valid, but it did not change the outcome of the decision that the applicant is not entitled to an IRB pursuant to s. 36.

38For this reconsideration, the applicant continues to argue substantial compliance, but for the reasons set out above, this is not determinative of his entitlement under s. 36(6). For the sake of completeness, I acknowledge that the applicant submits that he provided the respondent with his record of employment, but note that this is not what was requested by the respondent, or what the rehearing adjudicator found to be reasonably required for the adjudication of his claim for an IRB. In addition, while the applicant argues that the respondent should have followed up, at paragraph 24, the decision indicates that the respondent sent a subsequent letter on June 17, 2020, as noted above.

39I have also considered the applicant’s argument about the consumer protection nature of the Schedule. While I have carefully considered these arguments, I find they do not establish grounds for reconsideration in this case. Here, the respondent was determined to have made a request for information in a compliant s. 36(4) notice and therefore the IRB is not payable pursuant to s. 36(6). This is what is provided for in the Schedule.

40I have reviewed the decision in 16-000693 and find that it did not involve a claim pursuant to s. 36. Rather, it considered the issue of whether the applicant was statute-barred from proceeding to a hearing on entitlement to IRB because they did not attend an examination under oath or provide requested records related to IRB entitlement. The decision found that s. 33 of the Schedule indicates that an insurer may stop the payment of a benefit for the period of time the insured person is in non-compliance. It also found that there is no reference to the insured person being prohibited from applying to the Tribunal for the IRB due to failure to provide information or attend an examination under oath. This was not at issue in the decision now under review. Therefore, I find that 16-000693 does not assist the applicant in establishing grounds for reconsideration.

41Further, I agree that non-compliance with s. 33 is not a permanent bar, but there is no indication in the decision that it is. At paragraphs 25 to 27, the Tribunal found:

25I further find that the subsequent June 17, 2020 letter was also compliant with s.36(4) of the Schedule. This correspondence referenced the May 19, 2016 EOB. The June 17, 2020 letter also stated that the applicant was statute-barred from proceeding with IRBs due to the two year limitation period. While I agree with the applicant that the issue of the two year limitation period has been resolved by the prior Tribunal, Divisional Court and Court of Appeal decisions, this was not the only reason cited in the June 17, 2020 correspondence.

26Rather, the letter also said that the applicant was not entitled to IRBs, with reference to the reasons in the May 19, 2016 letter. This letter stated that the applicant was not entitled to IRBs because he did not suffer from a substantial inability to perform the essential tasks of his employment, that his OCF-1 application had indicated that he did not suffer a disability under this benefit, and that the initial OCF-3 submitted by the applicant indicated that he continued to work. I find that this denial letter was compliant with s. 36(4)(b) of the Schedule.

27Given that I have found that the respondent’s December 20, 2019 and June 17, 2020 letters were compliant with s. 36(4) of the Schedule, I find that the applicant has not established that IRBs are payable pursuant to s. 36(6) for the period in dispute.

42Thus, in the decision, the Tribunal determined that the applicant did not establish entitlement pursuant to s. 36 by considering the relevant legal framework. The adjudicator determined that the December 2019 notice was compliant with s. 36(4), which means the provisions of s. 36(6) are not engaged. Although not necessary to answer the question of entitlement under s. 36(6), the rehearing adjudicator also considered the June 17, 2020 letter and found the letter cited reasons that made it compliant with s. 36(4).

43Finally, in my view, this case is distinguishable from Hussein because it is not a case of a late-filed OCF-1. Even accounting for the broader principle in Hussein that the burden of engaging with claims falls on the insurer rather than the insured, I find that consideration of this principle does not reveal an error in the decision. The rehearing adjudicator found that the respondent issued a valid notice in December 2019 and the applicant was not entitled to IRBs pursuant to s. 36(6). While the applicant submits that there was a requirement for the respondent to follow up on the first notice, I note that the respondent did issue a subsequent notice on June 17, 2020, which the rehearing adjudicator also found was compliant with s. 36(4).

44For the reasons set out above, I find that the applicant has not established grounds for reconsideration with respect to the assessment of the December 2019 letter under Rule 18.2(b).

Rule 18.2(b) – Error in assessing June 17, 2020 letter

45I find that the applicant has not established grounds for reconsideration with respect to the assessment of the June 17, 2020 letter.

46The applicant also submits that the Tribunal erred in finding that the June 17, 2020 letter complied with s. 36(4)(c) because it referenced the May 19, 2016 denial. He submits that the notice was not compliant with the standard set out in Smith v. Co-operators General Insurance Co., 2002 SCC 30. He submits that the OCF-3 submitted in December 2019 was a new application submitted after the applicant stopped working in 2017, underwent hip replacement surgery and suffered a stroke. Therefore, the denial’s factual premise that the applicant continued to work and did not have a substantial inability was not accurate. An insured person should not have to piece together four years of correspondence to piece together why their claim was denied.

47The applicant cites Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 and Tribunal case law in support of his position that the June 17, 2020 letter was not compliant with s. 36(4).

48The respondent submits that the applicant did not refer to the June 17, 2020 letter in his rehearing submissions, and when the letter was raised by the respondent in its own rehearing submissions, the applicant still did not address it in his reply. It also submits that the argument made by the applicant is meritless, as the respondent did not have any of the information he cites when it issued its denial on June 17, 2020. It submits that the Tribunal has found that the hip replacement surgery and stroke were not a result of the accident, so it is “shocking” that the applicant is arguing that these events would require new medical reasons in denying IRB.

49The respondent further submits that the May 19, 2016 letter stated that the applicant does not qualify for an IRB because he does not suffer a disability from work and also referred to information in the initial OCF-3 that the applicant had continued to work. The June 17, 2020 letter also stated that it had been more than two years from the denial, such that the IRB claim was time-barred. With respect to the statutory bar, it submits that a reason does not need to be correct at law to be valid for notice. The respondent argues the June 2020 letter informed the applicant of the reasons for denial, and he commenced a dispute shortly thereafter. It submits that this is the exact purpose of notice provisions as stated in Varriano and that the commencement of a dispute signals an understanding of why the benefit was denied.

50I find that the applicant did reference the June 17, 2020 letter in his submissions for the rehearing, and that this is noted at paragraph 15 of the decision. However, as noted above, the rehearing adjudicator found the December 2019 notice to be valid, and therefore, the requirements of s. 36(4)(c) had been met. Even if correct, the argument that the subsequent June 2020 notice is not valid is not grounds for reconsideration. This is because, as the December 2019 notice was compliant with s. 36(4)(c), a determination that the subsequent June 2020 notice was not valid would not trigger the “shall pay” provisions of s. 36(6). Therefore, it would not likely change the outcome of the decision.

51For these reasons, I find that the applicant has not established grounds for reconsideration with respect to the assessment of the June 2020 letter under Rule 18.2(b).

Rule 18.2(b) – Misallocation of the evidentiary burden

52I find that the applicant has not established grounds for reconsideration with respect to the allocation of the evidentiary burden.

53The applicant argues that the rehearing adjudicator erred in finding that the applicant had not complied with the December 20, 2019 request and on that basis held s. 36(6) was not applicable during the period that the requested documents are outstanding. He submits that this reverses the statutory burden because s. 36 imposes obligations on the respondent, not the applicant.

54He submits that in Thompson v. Aviva, 2022 CanLII 109489 (ON LAT) (“Thompson”), the Tribunal held that s. 36(6) is triggered by the insurer’s failure to take one of the three prescribed steps within the statutory timeline—not by the applicant’s compliance with a document request. As noted above, he argues that in Hussein, the Divisional Court held that the Schedule imposes a positive obligation on the insurer to engage with claims, and that it is “not the responsibility of the insured” to bear the procedural burden. He submits that the decision effectively requires the applicant to prove perfect compliance with every item in a document request in order to trigger s. 36(6), and that the Schedule contains no such requirement.

55The applicant also submits that the factual record was misapprehended in that a record of employment was provided in June 2018, and the decision did not address the distinction between a record of employment and an employment file, without considering that the respondent never followed up, identified what remained outstanding, or took an alternative step under s. 36(4) on the materials it had received.

56The respondent submits that the argument that the Tribunal applied the incorrect burden of proof is meritless. The applicant did not comply with a request under s. 36(4)(c) which is his obligation, it does not shift the burden to the respondent, and the balance of the applicant’s argument is a repetition of his s. 36(4)(c) argument.

57I find that the Tribunal applied the correct burden of proof in the decision. I agree that s. 36 imposes obligations on the respondent. This is set out in paragraph 19 of the decision, which notes that s. 36(4) obligates the insurer to take one of three actions within 10 days of receiving a completed OCF-3. At paragraph 20, the Tribunal set out the consequences under s. 36(6) of not complying with s. 36(4). The Tribunal then considered the December 20, 2019 letter and found that it was compliant. At paragraph 23, the rehearing adjudicator noted that the applicant argued that he had “substantially” complied with the respondent’s requests for additional documentation, but did not lead evidence that all that the requested documents were provided. In my view, the rehearing adjudicator did not reverse the onus or require “perfect compliance”. The adjudicator determined that the insurer made a request for documentation that was reasonably required, and the applicant had not led evidence that he had complied with the request.

58While the applicant cites Thompson in his reconsideration submissions, this case is not binding on other Tribunal adjudicators, and it does not establish an error. In Thompson, the respondent was found to not have complied with the 10-day requirement in s. 36(4). In determining the applicant was entitled to IRB for this period under s. 36(6), the Tribunal noted that the respondent had failed to issue any response to a disability certificate submitted on May 31, 2019 until January 20, 2020. On this basis, the provisions of s. 36(6) were triggered. The decision in Thompson did not consider a s. 33 request, and the reasoning does not establish grounds for reconsideration in this case, where the December 2019 notice was found to be valid. Further, while I acknowledge the consumer protection nature of the Schedule and have considered it in this reconsideration, I find Hussein does not establish grounds for reconsideration, for the reasons set out above.

59For these reasons, I find that the applicant has not established grounds for reconsideration with respect to the evidentiary burden under Rule 18.2(b).

Rule 18.2(b) – Section 10 award

60I find that the applicant has not established grounds for reconsideration with respect to the s. 10 award.

61The applicant argues that the decision gave cursory treatment to the question of an award, that failed to engage with the applicant’s submissions or the governing framework. He cites case law that has confirmed that s. 10 is a stand-alone remedy directed at insurer misconduct. He submits it is an error of law to fail to engage in an analysis of the s. 10 award as the respondent’s handling of the claim warranted independent analysis under the framework set out in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615.

62The respondent submits that there is no basis for a s. 10 award, and no error in the Tribunal’s decision.

63I agree with the applicant that the Divisional Court, in McDonald v. Aviva Insurance Company, 2024 ONSC 6030 (“McDonald”), determined that an award under s. 10 is a stand-alone remedy that does not require contemporaneous adjudication of benefit entitlement under the Schedule. However, this does not mean that the s. 10 award is detached from the underlying benefit that is the basis for the award, and McDonald does not stand for this principle. In the absence of a finding of entitlement for the underlying benefit that grounds an award claim, the argument that it was unreasonably delayed or withheld cannot succeed.

64I have reviewed the applicant’s submissions for the rehearing on this point. The applicant argued for entitlement to a s. 10 award on the basis that the respondent unreasonably withheld and delayed IRB. The IRB was the only benefit referenced in the applicant’s award submissions both for the initial hearing and the rehearing. Specifically, the applicant requested an award of 50% of the total IRB amount payable to present date.

65The Tribunal has found that the applicant does not have entitlement to the IRB. Therefore, no IRB was unreasonably withheld or delayed and the requirements for a s. 10 award have not been met. Accordingly, the Tribunal did not err when it found, at paragraph 29, that the applicant had not established entitlement to the payment of benefits that were unreasonably withheld or delayed, and accordingly, the respondent was not liable to pay an award.

CONCLUSION & ORDER

66The applicant’s request for reconsideration is dismissed.

E. Louise Logan

Vice-Chair