[The Applicant] v. Wawanesa Mutual Insurance Company, 2019 CanLII 101644

Tribunals Ontario Safety, Licensing Appeals and Standards Division

77 Wellesley Street West, Box 250

Toronto ON M7A 1N3

Tel: 1-844-242-0608

Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes

77 rue Wellesley Ouest, Boîte no 250

Toronto ON M7A 1N3

Tél. : 1-844-242-0608

Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Rebecca Hines, Adjudicator

Date: September 17, 2019

File: 18-003314/AABS

Case Name: [The Applicant] v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Gary Mazin/Vasiola Bibolli, Counsel

For the Respondent: Catherine A. Korte, Counsel

OVERVIEW

1On September 14, 2011, the applicant was injured in a car accident. A dispute arose with respect to the quantum of the applicant’s entitlement to an attendant care benefit as well as two treatment plans for medical benefits. He filed an application for dispute resolution to the Licence Appeal Tribunal. The parties were unable to resolve the matter at a case conference, so the matter proceeded to an in-person hearing in Toronto in December 2018, Toronto. This matter was before me.

2The Tribunal released its decision on May 16, 2019 and determined that the applicant was entitled to $3,047.27 in monthly attendant care. A determination was also made on his entitlement to the medical benefits in dispute.

3The applicant has requested a reconsideration of the Tribunal’s decision on the narrow issue of the quantum awarded on the attendant care. The applicant argues that the Tribunal acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness.

4The respondent objects to the request for reconsideration stating that the Tribunal’s decision is correct. It takes the position that the Tribunal did not act outside of its jurisdiction or breach the rules of natural justice or procedural fairness. Further, the applicant failed in his onus to justify his reconsideration request.

5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

6The applicant’s request for reconsideration is dismissed.

GROUNDS FOR RECONSIDERATION

7The grounds for a Request for Reconsideration are contained in section 18 of The Licence Appeal Tribunal Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).

8The applicant argues that the Tribunal violated section 18.2 (a) in that it acted outside its jurisdiction or violated the rules of natural justice or procedural fairness. The applicant contends that the Tribunal did not make its determination on the attendant care benefit in accordance with the amount listed on either parties’ Form 1 ($6,000.00 v. $3,243.95). Instead, the Tribunal found the applicant to be entitled to $3,047.27 per month. The applicant maintains that neither party made any arguments for this amount regarding past or future attendant care. Therefore, the Tribunal breached the rules of natural justice and procedural fairness in providing relief that was neither sought nor presented at the hearing.

REMEDY:

9The applicant seeks the following remedy:

(i) That paragraphs 5 and 82 of its decision be revised by replacing $3,047.29 with $3,243.95; or

(ii) That the Tribunal order that a new hearing be held.

ANALYSIS

Did the Tribunal’s decision violate Rules 18.2 (a) on determining the applicant’s entitlement to an attendant care benefit?

10For the reasons that follow, I do not find that the Tribunal breached Rule 18.2(a).

11First, the applicant’s allegation that the Tribunal acted outside its jurisdiction in making its determination is unfounded. I do not find that the Tribunal acted outside its jurisdiction as sections 280 (1) and (2) of the Insurance Act provides that an insured person may apply to the Tribunal to resolve disputes over entitlement to statutory accident benefits or the amount of the benefit. I agree with the respondent that this gives the Tribunal the jurisdiction to decide the quantum of attendant care.

12Second, I do not find the Tribunal’s decision was made in the absence on submissions and evidence from the parties. The applicant contends that neither party made arguments on the quantum I awarded for past or future attendant care. I find that the Tribunal’s decision provides a careful and detailed analysis for its findings. The Tribunal compared both parties Form 1’s to establish which amount is reasonable and necessary based on the facts and all of the evidence. For the most part the Tribunal accepted the amounts recommended by the applicant’s assessor over that of the respondents with the exception of two issues. The central issue before the Tribunal was whether the applicant required 24-7 supervision as a result of his accident related impairments. Ultimately the Tribunal concluded that he did not require 24-7 supervision as recommended under level 3 care on the applicant’s form 1. In addition, in paragraph 39 of its decision the Tribunal determined that the applicant did not require one hour per day for comfort and safety in the bedroom environment recommended under level 2 on the respondent’s Form 1. The Tribunal found the applicant did not require this service based on the evidence as well as the fact that the services were not incurred under the Schedule. The applicant is not satisfied with the result because the quantum that the Tribunal found payable ended up being less than the respondent’s Form 1. In my view, this is not proper grounds for reconsideration and I do not find any breach of natural justice or procedural fairness on this basis.

13Finally, it is well established that the test to be successful on a reconsideration request is a high one and the onus is on the requester to prove that a reconsideration remedy is warranted. The applicant’s request does not provide any valid basis for reconsideration. While the request alleges there has been a breach of natural justice and procedural fairness, the applicant’s submissions on this issue were less than a page in length, and did not highlight any examples, facts, evidence or grounds in support of the reconsideration request. A party is not entitled to reconsideration simply because it alleges that an order is in error; it must provide grounds supporting that assertion. I find that that this has not been done in this case.

CONCLUSION

14For the reasons noted above, the applicant’s Request for Reconsideration is dismissed.