RECONSIDERATION DECISION
Before: Jonathan Batty, Associate Chair
File: 17-001866/AABS
Case Name: R.W.J. vs. Aviva Insurance
Written Submissions By:
For the Applicant: Tracy M. Romanowski
For the Respondent: N.A.
Overview
R.W.J. was involved in a motor vehicle accident on September 23, 2014 and sought benefits from Aviva Insurance (“Aviva”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). A dispute arose between the parties concerning the payment for certain medical benefits, which led to R.W.J filing an appeal with the Licence Appeal Tribunal (the “Tribunal”).
Before the appeal was heard in writing by the Tribunal, the issues were narrowed to the following two issues in relation to the coverage of expenses for medical marijuana:
a. Was the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
b. Was the applicant entitled to interest on any overdue payment of benefits?
In a decision released August 29, 2017, the Tribunal denied the appeal. The Tribunal found the respondent’s delay in paying this expense was not unreasonable and, on that basis, refused to award R.W.J. the interest and the s.10 award he sought.
R.W.J. then applied for reconsideration on December 29, 2017.
Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this reconsideration request.
Having reviewed R.W.J.’s submissions, it was unnecessary for me to request submissions from the respondent as R.W.J.’s submissions did not on their face raise sufficient question that the decision warranted reconsideration.
The Facts
- The central and undisputed facts in this matter are as follows:
R.W.J., in addition to being in a motor vehicle accident in September 2014, was involved in a prior motor vehicle accident in 2012, for which he previously filed a claim with the respondent.
When R.W.J. first submitted his claim for medical marijuana, it was not clear to the respondent to which accident this related. Thus, in February 2017, when the respondent replied to R.W.J.’s request, it agreed to pay for his medical marijuana expenses in connection with the 2014 accident so long as R.W.J. first submitted a Treatment and Assessment Plan (OCF-18) that referenced the claim number in connection with the particular accident date.
On March 27, 2017, R.W.J. submitted an Expense Claim Form (OCF-6) to the respondent and referenced the September 2014 accident date.
After the respondent received R.W.J.’s OCF-6, on April 3, 2017 the respondent once again asked R.W.J. to provide an OCF-18 in order to verify the prescription of medical marijuana.
On April 5, 2017 R.W.J. once again refused on the basis that an OCF-18 was not required for medicinal marijuana prescribed by a licensed physician.
On April 13, 2017 the respondent conceded that an OCF-18 was not required and requested a statement from R.W.J.’s prescribing doctor that the medical marijuana was reasonable and necessary as a result of the 2014 accident.
On June 16, 2017 R.W.J. provided such a statement to the respondent and it paid for R.W.J.’s medical marijuana on June 21, 2017.
The Issues at the Hearing
The Tribunal agreed with R.W.J. that when an individual submits a claim for medical marijuana as an expense, given the substance needs to be prescribed by a medical practitioner, the appropriate form is an OCF-6. Making the payment of this expense contingent on providing an OCF-18 was incorrect as the form explicitly states it is not to be used to claim expenses for prescription medication.
While the form of the request was incorrect, the Tribunal held that the nature of the request was reasonable and therefore did not warrant an award under Regulation 664.
Specifically, the Tribunal found it was reasonable for the respondent to request a statement from the prescribing doctor to confirm that medical marijuana was prescribed as a result of the 2014 accident. The Tribunal noted this was reasonable to establish a link between this prescription and the injury sustained in the accident – as opposed to being a prescription for something unrelated.
The Tribunal also calculated R.W.J.’s eligibility for interest under s. 38(15) of the Schedule. R.W.J. properly submitted his claim on March 27, 2017 and it took until April 13, 2017 – a period of eighteen days – for the respondent to request the appropriate conformation. It took R.W.J. from April 13, 2017 to June 16, 2017 – a period of sixty five days -- to supply that appropriate confirmation; time which should not be attributed against the respondent. Once that confirmation was supplied to the respondent, it took six days for R.W.J. to be paid on June 21, 2018. Thus, the Tribunal reasoned that the respondent took twenty four days to pay R.W.J. and thus interest had not started to accrue on R.W.J.’s medical marijuana claim as the respondent made payment within the thirty day window required by s. 38(15) of the Schedule.
R.W.J. challenges the Tribunal’s decision.
Decision and Reasons
Rule 18: the Reconsideration Rule
- Under Rule 18 of the Rules of Practice and Procedure, one or more of the following four grounds needs to be established:
the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,
there is new evidence that could not have reasonably been obtained earlier and would have affected the result.
The rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. If faced by such circumstances, the reconsideration process serves a curative role. In respect of final decisions or orders, it affords an opportunity for the Tribunal to correct a final decision made in error.
A party seeking a reconsideration has a high onus to meet to engage this remedy. Minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. It is only warranted in cases where an adjudicator has either made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
No grounds to reconsider the denial of the s.10 award
R.W.J. has not identified any errors within the Tribunal’s analysis of his entitlement to a s.10 award. Instead, he has simply repeated his case by reproducing the same submissions he relied on at the hearing that the Tribunal considered and rejected.
The Tribunal considered and denied R.W.J.’s claim for a s.10 award because it found the respondent had not unreasonably withheld or denied payments. I have found no errors with the Tribunal’s conclusion or underlying analysis. Therefore, I have no basis to overturn its decision and award R.W.J. a s.10 award.
No procedural errors warranting reconsideration
R.W.J. claims that the Tribunal’s decision to proceed with a written hearing led to inaccurate determinations and ultimately the wrong decision. I disagree. First, it is not apparent that the Tribunal made any inaccurate determinations. Second, the Tribunal is authorized to control its procedure by both the Statutory Powers Procedure Act1 and the Tribunal’s Rules of Practice and Procedure (the “Rules”). This dispute did not require expert or complex evidence to be weighed. The Tribunal simply needed to determine the accurate chain of events. Such issues are well-suited to a written hearing and I have no reason to find otherwise.
R.W.J. also claims the Tribunal further erred by failing to request clarification or additional information which could have prevented it from making inaccurate determinations. To support this point, R.W.J. relies on the reconsideration decision in Aviva Canada Inc. v. R.R.2 That decision does not support R.W.J.’s position. The circumstances of Aviva Canada Inc. v. R.R. are distinguishable. In that case, Aviva had accidentally failed to include a key document in its hearing materials despite previously including it in its case conference materials and noting it as a key document. In this case, there was no missing document requiring the Tribunal to seek it out. It is the parties’ responsibility to lead and fully explain the evidence in support of their cases. I see no error in how the Tribunal proceeded.
Finally, R.W.J. queries whether the Tribunal sought outside counsel, or was improperly influenced, in reaching its decision because a staff member for the Tribunal may have earlier advised the decision was with “legal” when counsel queried the Tribunal about the status of the decision.
No outside counsel was consulted, and more importantly, no counsel, outside or in-house, influenced the Tribunal’s independent decision. What appears to have been referenced is the Tribunal’s in-house legal review of decisions. Once a decision is drafted, an in-house legal review is a standard part of the Tribunal’s decision release process. It is intended to support legal accuracy in drafting and any feedback is non-binding on the adjudicator hearing a matter.
I find none of R.W.J.’s stated procedural concerns rise to the threshold warranting reconsideration.
No factual errors warranting reconsideration
R.W.J. alleges the Tribunal made six errors of fact in determining his entitlement to interest related to his medical marijuana claim.
First, R.W.J. claims the Tribunal’s decision is challenging to follow because the Tribunal has not identified the tab numbers for the documents it cited in its reasons. R.W.J. has not identified a particular error and I do not see one. The Tribunal is not required to include specific references to each document it has considered during the course of its decision. More importantly, I disagree with the basis for R.W.J.’s contention. The Tribunal included sufficient information, the date and type of each document, for the reader to be able to identify which documents it was referring to.
Second, R.W.J. alleges the Tribunal misinterpreted part of an email, dated February 9, 2017 and incorrectly believed that the respondent had approved medical marijuana for a year. I disagree. In its email, the respondent stated “Aviva will fund one year of marijuana for $5,085 based on ongoing shoulder issue.” The Tribunal referred to this statement in paragraph 6 of its decision which reads as follows: “On February 9, 2017, the respondent advised the applicant via email that it was willing to pay for medical marijuana for the applicant for one year, under the claim related to the 2014 accident.” I disagree with R.W.J.; there is no misinterpretation.
Third, R.W.J. claims the Tribunal erred by finding the respondent requested him to clarify to which accident, 2012 or 2014, his medical marijuana claim was related. R.W.J. suggests there was no basis for requesting clarification. Again, I disagree. In its email dated February 9, 2017 the respondent indicated R.W.J. had multiple coverage plans and inquired under which plan R.W.J.’s claim for medical marijuana would be covered. While the Tribunal erred that R.W.J. had initially submitted his claim for medical marijuana under the claim number related to his 2012 accident, the evidence shows he had had more than one accident within a short period and that the respondent was uncertain as to which plan under which R.W.J. wished to claim benefits for medical marijuana. This error does not undermine the Tribunal’s conclusion that the respondent’s request for a statement from the prescribing doctor was reasonable. I see no reason to interfere with the Tribunal’s conclusion.
Fourth, R.W.J. claims the Tribunal made an error of fact and law by failing to note the respondent had not requested a doctor’s statement pursuant to s. 33 of the Schedule. R.W.J. also raised this issue before the Tribunal. However, he has not provided any further explanation, legal argument, or authority in support of this position in either his hearing or in his reconsideration submissions.
Section 33 of the Schedule allows an insurer to obtain relevant information when assessing an insured person’s entitlement to benefits. It does not require the insurer to adhere to a particular form or even explicitly refer to s.33 when requesting information. I see no issue with the respondent not having explicitly referred to s.33 when requesting clarification from R.W.J.
Sixth, R.W.J. takes issue with paragraph 29 of the Tribunal’s decision in which the Tribunal noted R.W.J. had not made submissions regarding when interest would start to accrue on his medical marijuana claim. R.W.J. claims the Tribunal’s statement indicates that it was unaware that s. 38(15) of the Schedule requires claims and invoices to be paid within 30 days from the date of submission. In fact, the Tribunal was aware of the time limit under s. 38(15) and refers to it in paragraph 31 of its decision. In paragraph 29, the Tribunal was referring to R.W.J. not having addressed when interest would start accruing in light of his failure to provide a statement confirming that medical marijuana was prescribed as a result of the 2014 accident. I see no error.
Based on the above, I find no error warranting reconsideration of the Tribunal’s decision that R.W.J. was not entitled to interest.
Conclusion
- For the reasons noted above, this request for reconsideration is denied.
Jonathan Batty Associate Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: October 17, 2018
Footnotes
- R.S.O. 1990, c. S.22.
- Aviva Canada Inc. v. R.R., 2017 CanLII 81569 (ON LAT), 2017 CarswellOnt 19218 [16-004445/AABS].