Omission of Notice from Document Package Innocent Omission - Reconsideration of Decision Allowed - Aviva v RR LAT 16-004445

January 24, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Aviva Canada Inc. v. R.R. LAT 16-004445  2017 CanLII 81569 (ON LAT)

Decision Date: December 1, 2017-12-01
Heard Before:  Linda P. Lamoureux, Executive Chair

RECONSIDERATION – TRIBUNAL BREACHED PROCEDURAL FAIRNESS: applicant seeks repayment of IRBs; notice was included in case conference notes; omission of the ‘notice’ to insured in the document package was innocent omission; Aviva was denied procedural fairness

Aviva Canada Inc. sought repayment of IRBs paid to R.R. on the basis that R.R. wilfully misrepresented facts to Aviva. On May 4, 2017, the LAT issued a decision that Aviva was not entitled to repayment since, in its view, Aviva failed to prove that it complied with the requirement under s. 52(2)(a) of the Schedule to provide notice of repayment to R.R.

Aviva requests reconsideration of the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”). For the reasons that follow, Chair Lamoreaux granted Aviva’s request for reconsideration and order a rehearing.

Background

R.R. was injured in a car accident on December 2, 2014. He claimed IRBs from Aviva based on his statement that he was employed prior to the accident as a cook and kitchen worker. He submitted pay stubs indicating that he earned $1,240 bi-weekly. Based on this information, Aviva paid R.R. IRBs in the amount of $9,673.38 from December 10, 2014 to November 10, 2015. Aviva subsequently reviewed the claim and concluded that R.R. wilfully misrepresented his employment and earnings.

Aviva applied to the Tribunal for dispute resolution on December 14, 2016, claiming entitlement to repayment of IRBs in the amount of $9,673.38 and accountant’s fees of $2,353.93, plus interest. Aviva stated in its application to the Tribunal that it wrote to R.R. on December 15, 2015, notifying him of Aviva’s intention to seek repayment of IRBs in the amount of $9,673.38, and listed the Notice Letter as one of the key documents upon which it would rely in the dispute resolution process.

Although it included the Notice Letter in its case conference materials, Aviva did not include the Notice Letter in its document package entitled “Hearing Submissions of the Applicant”, dated March 31, 2017, which it filed with the Tribunal for the purpose of the hearing. R.R. did not respond to Aviva’s application, and did not file any documents or submissions with the Tribunal before the hearing.

Following a written hearing, the Tribunal determined that Aviva failed to provide evidence that it had given notice to R.R. of the repayment amount, which Aviva was required to do by s. 52(2)(a) of the Schedule. The Schedule uses mandatory language. The applicant must give notice to R.R. in order to seek repayment under section 55. The applicant has not provided any evidence with respect to the repayment request made to R.R.. The applicant only made submissions and submissions are not evidence. There is no evidence before me that notice of the repayment amount was provided to R.R..

Since Aviva has not provided evidence of the notice of repayment amount, Chair Lamoreaux made not finding with respect to R.R.’s wilful misrepresentation. I find that the applicant has not met its statutory obligation under section 52 of the Schedule with respect to providing notice of the repayment amount. Therefore, I find that the applicant is not entitled to a repayment. The Tribunal concluded that because Aviva had not provided evidence of the notice of repayment amount, it was not necessary to make a finding with respect to R.R.’s wilful misrepresentation, and Aviva was not entitled to a repayment of benefits.

ANALYSIS

The request for reconsideration follows the criteria set out in the Rules.

Aviva makes two main submissions. First, it submits that the Tribunal made a significant error of fact by finding that Aviva did not provide evidence of its repayment request or specify how its repayment request was communicated to R.R. Aviva states that the Notice Letter “was included in the Application by an Insurance Company, and was very clearly and specifically described both in the body of the Application and as part of the Documents List in the Application.”

Aviva further submits that the Tribunal denied it procedural fairness by dismissing its appeal in a summary manner without making a determination on the merits of the dispute. Aviva submits that the existence of the Notice Letter was before the Tribunal, and that the Tribunal had the power under Rule 9.1 to request, “further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.”

Aviva was provided with an opportunity to make additional submissions on why the Notice Letter was not included in its hearing submissions. Aviva explained in its additional submissions that if the Notice Letter was not included in its hearing submissions, it was “nothing more than an innocent administrative oversight.” Aviva also submits that there was no dispute as to whether the Notice Letter was provided to R.R., and that R.R. has not disputed the fact that he received notice of the repayment issue.

Did the Tribunal breach procedural fairness?

Upon review of the evidence Chair Lamoreaux was satisfied that the Tribunal breached procedural fairness in the circumstances. By dismissing the appeal on the basis that the Notice Letter was not included in the evidence at the hearing, the Tribunal denied Aviva the opportunity to have its case heard on its merits.

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