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: Jeffrey Shapiro, Vice-Chair
Date: August 15, 2019
File: 18-006097/AABS
Case Name: M.N. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Kathryn McRae Hill, Licensed Paralegal
For the Respondent: Kimberly J. Tye, Counsel
OVERVIEW
1M.N. seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) February 4, 2019 Order issued by Vice Chair Maureen Helt. The issue before the Tribunal was whether M.N. was entitled to reinstate his previously withdrawn application, in effect reopening a closed file. The Tribunal found M.N. was not entitled to reinstate his application.
2More specifically, M.N. only sought to reinstate the application for one of the four Treatment and Assessment Plans in the original application. Thus, M.N.’s request to reinstate the application would only be to decide his entitlement under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”) to the treatment plan for $2,444.15 from Injury Management & Medical Assessments, dated October 3, 2016 (“the plan”).
3As the Tribunal denied his motion, M.N. now seeks an order either varying or cancelling the Tribunal’s order and reinstating his application with respect to the plan. He submits that the Tribunal has (a) violated the rules of natural justice or procedural fairness, and/or (b) made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
4Pursuant 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. For the reasons below, I dismiss this request for reconsideration as I agree with the Tribunal’s conclusion but clarify the Tribunal’s analysis.
RESULT
5M.N.’s request for reconsideration is dismissed.
BACKGROUND
6M.N. was injured in a motor vehicle accident on October 7, 2015 and sought benefits under the Schedule. When Aviva denied certain of his requested benefits, he filed an application with the Tribunal appealing the denials. The parties then resolved all the issues in dispute including the plan now at issue, and M.N. advised the Tribunal in writing to withdraw the application, thus ending the proceeding.
7Subsequently, a dispute arose solely regarding the settled plan, leading M.N. to seek the application’s reinstatement solely for that plan. The Tribunal heard the motion and denied it. The denial of that motion is the basis of this reconsideration.
The Psychological Plan and Billing Rate
8The underlying dispute about the plan concerns the billing rate to be paid for psychotherapists. The parties agree that Aviva agreed to approve and fund the plan for the full amount of the plan. The plan, however, provided for services to be rendered by Leanne Wagner, a psychologist or registered psychology associate, with Injury Management & Medical Assessments, at the rate of $149.61 per hour.
9The $149.61 rate is a proscribed rate for regulated psychologists and “psychological associates”1 set in the Professional Services Guideline(the “Guideline”). The Guideline is issued by the Financial Services Commission of Ontario (“FSCO”), under the authority of the Insurance Act, and it sets the rate for various types of providers rendering services in the context of matters under the Schedule. It does not specify a rate for psychotherapists.
10The current dispute crystalized when the service provider, Injury Management, forwarded an October 16, 2017 invoice to Aviva for services not by Leanne Wagner, but rather by Allyson Gilbert, a psychotherapist, but still at the psychologist rate of $149.61 per hour.
11Aviva does not object to Ms. Gilbert performing the services under the plan, and agrees to pay for them, but because she is neither a psychologist or psychological associate, it offered to pay at the rate of $58.19 per hour. The Guideline establishes $58.19 as the rate for certain listed unregulated providers, including psychometrists. While Aviva offered the $58.19 rate, it appears its ultimate position is that it is not required to pay the $149.61 rate to a non-psychologist.2
12M.N. argued to the Tribunal that Ms. Gilbert is entitled to the higher rate, and more importantly, given the dispute, the Tribunal should reinstate the application and adjudicate the proper rate.
13The Tribunal noted Aviva argued that the approved plan was for psychologist services at the psychologist rate. In fact, the plan does not contemplate psychotherapists services and Aviva did not agree to the psychotherapists services M.N. now seeks at the psychologist rate. However, the Tribunal mentioned section 25(3) of the Schedule and concluded that M.N. failed to establish that the insurer could be “required” to pay the psychologist rate.
14M.N. now requests under Rule 18 of the Tribunal’s Rules of Practice and Procedure that I cancel the Tribunal’s decision and re-open the application so a hearing can be held to determine the appropriate rate for psychotherapists, claiming the Tribunal (a) violated the rules of natural justice or procedural fairness, and/or (b) made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
DECISION AND REASONS
15The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. The relevant Rule 18.2 criteria in this case are:
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; …
16M.N. argues that the Tribunal violated natural justice and procedural fairness by not allowing the application to be re-opened and the rate issue to be heard in full hearing and made a significant error of law or fact by misapplying the evidence and the Schedule.
17In 16-002782 v Aviva Ca. Ins., 2018 CanLII 39370 (ON LAT), Associate Chair J. Batty explained that the rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. Thus, the reconsideration process serves a curative role. For final decisions, it permits the Tribunal to correct a final decision made in error.
18While M.N. asserts several arguments, the main point is that the matter should be re-instated so that M.N. could adduce evidence of the correct billing rate. Aviva argues that the real issue isn’t what the rate should be, but only whether Aviva can be forced to pay the full psychologist rate for a non-psychologist. I agree with Aviva in respect of this plan in this context, which is that this plan was submitted seeking psychologist services and was approved on that basis.
Analysis
The issue before the Tribunal
19The issue before the Tribunal in M.N.’s motion to reinstate was not what the correct rate for a psychotherapist should be; rather the determinative issue in the motion was whether there is any issue to be adjudicated based on the psychological plan that was the subject of the original application, or possibly, any dispute with the settlement. There is no such dispute.
20Rather, when M.N. first appealed Aviva’s denial of the plan to the Tribunal, the issue was not what the correct rate for psychotherapists should be. The plan was for services by a psychologist at the psychologists’ rate. Aviva subsequently agreed to pay the plan as submitted. Aviva has not wavered from the agreement. Thus, the Tribunal correctly denied reinstating the application regarding the plan, because there is no dispute to be adjudicated regarding the plan as initially submitted to the Tribunal or as settled.
21Thus, M.N.’s stated position during the motion and on reconsideration mischaracterises the relief it actually seeks. The substance of M.N.’s motion is not to adjudicate the plan, but rather to amend the plan to include a type of service that was never in it and then secure a ruling on that plan. However, the amended plan and billing rate issue was never before the Tribunal or submitted to Aviva for processing as required by the Schedule. It is not ripe for adjudication. Again, the plan as submitted with the application has been fully settled. Thus, I see no error in the Tribunal’s ruling.
22M.N. also contends that the Tribunal erred in interpreting the invoice as proof that services had been performed by the psychotherapist. Aviva argues that the Tribunal is correct that some services were performed. I find that a discrepancy between whether or not the invoice was for services actually provided or simply a clarification of services to be provided is not “a significant error of law or fact such that the Tribunal would likely have reached a different decision.” Either way, the dispute is unchanged.
Clarifying the Tribunal’s Analysis
23While I find no error in the Tribunal’s refusal to reinstate the application, the Tribunal’s following statements need clarification for several reasons. The Tribunal wrote:
“[22] Section 25(3) of the Schedule states that an insurer is not required to pay for assessments expenses that exceed the maximum rate established under the Guidelines.
23The applicant failed to provide me with any argument with respect to why the insurer should be required to pay the same rate for a psychologist and for a psychotherapy when the Guideline provides for different rates.” (emphasis added.)
24First, the “the Guideline provides for different rates” is only correct in the sense that the Guideline provides a psychologist rate while it does not provide any psychotherapist rate, but not that the Guideline lists rates for both. In fact, the Guideline is binding for psychologist’s rates, but the Guideline does not apply to psychotherapists. As FSCO’s bulletin #A-03/18 explains, “FSCO is also reminding insurers and service providers that regulated and unregulated providers not identified in the Professional Services Guideline (PSG) are not covered by the PSG.”
25Second, the Tribunal’s statement that it cannot require the insurer to pay the psychologist rate for psychotherapy services is essentially correct but only with respect to this plan before it on the Motion, as there may be situations where the Tribunal could determine the proper psychotherapist rate and require an insurer to pay it. In other words, the determinative factor in this case was that this plan only proposed psychologists’ services and was approved only on that basis. Because psychotherapist services were never contemplated and in dispute under this plan, the Tribunal lacks authority to address the proper rate in this case.
26Thus, the Tribunal’s words should not be understood as implying that the Tribunal inherently lacks the jurisdiction to ever decide psychotherapist rates in any case. For instance, if M.N. submitted a plan to Aviva for the services it actually proposes at the rate it proposes – in this case, psychotherapist services at the $149.61 rate – and Aviva had the opportunity, in accordance with the Schedule, to properly review the plan and approve or deny it as it sees proper, the remaining dispute could then be appealed to the Tribunal. On such an appeal, the Tribunal would have the authority to determine if the plan was reasonable and necessary, which would include determining the if the proposed rate for the proposed type of provider was reasonable, be it at the psychologist or other rate it finds reasonable. Arguably, such determination might include a review of the Guideline, hearing evidence, or other factors raised by the parties. M.N., however, seeks to proceed to such an evidentiary hearing, without a denied plan that places the rate in issue.
27Third, regarding the Tribunal’s paragraph 22, this plan is not for an assessment under section 25(3) of the Schedule, nor do the Guidelines actually establish or apply to psychotherapists rates. Still, these statements, though perhaps ambiguous, do not affect the Tribunal’s correct result in this matter.
CONCLUSION
28For the reasons above, I dismiss Aviva’s Request for Reconsideration.
Released: August 15, 2019
Jeffrey Shapiro Vice Chair