*Complimentary Issue Volume. 6 Issue. 16 – April 27, 2022*

Two reconsiderations are on tap this week. In ‘No Onus to Declare Post-Accident Earnings’ the Applicant again confirmed as entitled to IRB in excess of $150K, with no apparent obligation to account for post accident earnings.

In ‘Procedural Fairness Includes Participatory Rights’, the Tribunal varied the original decision, finding it had denied access to procedural fairness, while simultaneously now invoking Tomec in allowing the Applicant to proceed with his ACB claim.

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$150K+ IRB Despite Ongoing Employment

No Onus to Declare Post- Accident Earnings – Waterloo Regional sought reconsideration of a decision in Switzer v Waterloo Regional Municipalities Insurance Pool (19-011403), Switzer was found amongst other things entitled to $1000 per week IRB.

Waterloo once again argued that the Tribunal had erred in using the 2016 fiscal year to calculate quantum for this February 2018 accident. The Tribunal however found that Waterloo was “reiterat(ing) substantially similar arguments made by the respondent in its closing hearing submissions at first instance.” The Tribunal maintained that “Switzer PC” did not have a completed fiscal year until September 30, 2018, well after the accident. The fact of his having worked throughout 2017 had no bearing on the matter regarding IRB quantum.

Waterloo further submitted there to have been an error in ordering IRB payable at $1,000 per week from January 1, 2019, as “there was insufficient evidence of the Applicant’s income/losses during that period.” Waterloo submitted “that all of the relevant documentation showing the applicant’s income from January 1, 2019 and ongoing was entirely within the power and control of the applicant at all material times, but yet none of this evidence was before the Tribunal for the hearing.” The Tribunal however did not agree that “the applicant has somehow failed in his onus by not proving the deductions under s. 7(3) for post-accident income that the respondent is relying upon from January 1, 2019 and onwards.” It was found that Waterloo “has directed me to no applicable authority that permits me to withhold or suspend payment of IRBs because the applicant has not produced this information.”

Further, “Simply put, the applicant proved the quantum of entitlement of IRBs to which he was entitled, and the respondent took no enforceable steps to prove the deductions it was seeking to rely upon”. The “onus remains on the respondent to prove the amount of the repayment.

Similarly, the onus is on the respondent to prove on a balance of probabilities the amount of any deductions of IRBs that it is relying upon by taking steps in accordance with the Schedule to obtain this information. When they fail to do so, I am unclear how such inaction would fall to the feet of the applicant.”

This decision appears at least to stand in contrast with an earlier Tribunal decision, wherein it was concluded that “the Tribunal was unable to calculate the amount payable for the period in question, being unable to calculate post-accident earnings. As a result, the Applicant had not met his burden of providing sufficient evidence to allow for a calculation of IRB payable.” This decision…by the same Vice-Chair…was not considered here in Switzer.

With Waterloo having simultaneously appealed the decision to the Divisional Court, it remains to be seen whether the Court will endorse the need for an Applicant to evidence their post accident earnings when their ongoing employment was confirmed throughout the period in question.

Procedural Fairness Includes Participatory Rights

Procedural Fairness Includes Participatory Rights – In Bagla v TD Insurance (20-004159), Bagla sought reconsideration of a Tribunal decision wherein his claims for ACB were found to be statute barred as the Tribunal filing was more than two years post denial.

In the original decision, Bagla, whose counsel advised they were no longer representing him one day prior to the date submissions were due, did not participate in the hearing. Attempts to contact Bagla in advance of the hearing and prior to the release of the decision were unsuccessful.

Bagla had only become aware of the decision and his former counsel’s lack of submission several months later. Bagla’s new counsel, promptly filed a motion for an extension of time to file reconsideration submissions.

Upon reconsideration, the Tribunal noted there to be a governing section of the Rules dictating how long the Tribunal is obligated to wait to receive a party’s submissions before rendering a decision. Ultimately the Tribunal’s Motion Order found that this was procedurally unfair but did not provide insight into what else the Tribunal was supposed to do in the circumstances. Further it was not a denial of procedural fairness when a party fails to participate or respond to correspondences.

However, the Tribunal now noted that “procedural fairness includes participatory rights…(and) applicant should not suffer because of the mistake of their counsel where the Tribunal can rectify that mistake.” The Tribunal accepted that Bagla only became aware of the Tribunal’s decision three months following the release of same. These facts alone sufficed “to meet the criteria for reconsideration under Rule 18.2(a). It would be contrary to the Tribunal’s mandate and frustrate access to justice if the Tribunal were to deny the applicant’s request on these facts.”

The Tribunal then concluded that Tomec applied and Bagla was allowed to proceed on his claim for ACB. With benefit of the full evidentiary record, “I find that TD Insurance pre-emptively denied the applicant’s claims for ACBs in 2015 and 2016 and, contrary to my finding at first instance, I find that Tomec and the doctrine of discoverability are applicable. At the time of denial, I find that the applicant was either not entitled to the ACBs he now claims, as he was functional and independent with his personal care tasks, or could not have appreciated that his accident-related impairments would get worse over time to the point where he would need them in the future. It is not reasonable to expect insureds who receive a pre-emptive denial to also contest the denial pre-emptively in order to preserve substantive entitlement at some later date”

Finding that “the decision at first instance to statute-bar the applicant’s ACB claims was an error of law that would have changed the outcome had it not been made.” Further, “left to stand, the decision in effect would have cut off the lifeline to an applicant whose claim for post-104-week ACBs was pre-emptively denied”. It was also found that the failure to exercise the discretion to extend limitation by way of s.7 of the LAT Act was also an error of law, Bagla’s case met each discrete criterion

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