Tribunals Ontario

Safety, Licensing Appeals and Standards Division 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 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: Brian Norris, Adjudicator

Date: September 16, 2019

File: 17-008847/AABS

Case Name: L. Y. and Aviva Insurance Company

Written Submissions by:

For the Applicant: None

For the Respondent: Louise Kanary, Counsel

OVERVIEW

1This request for reconsideration was filed by the respondent. It arises out of a decision which the Tribunal found the applicant was entitled to the costs of examination for a psychological assessment.

2The respondent makes the request pursuant to Rule 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (April 2016) (the "LAT Rules"). The respondent submits the Tribunal made a significant error of law or fact such that the Tribunal would have likely reached a different decision. The respondent submits the Tribunal referred to evidence not before it, mischaracterized the dispute as one regarding hourly rates of service providers, placing the onus on the respondent, and failing to adhere to case law.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

4The respondent's request for reconsideration is denied.

EVIDENCE

5The respondent claims the Tribunal referred to evidence not before it. The respondent submits the Tribunal's references to an amount billed or invoiced, during the analysis of the fee for a psychological assessment is erroneous because no bills or invoices were provided to the Tribunal.

6I agree with the respondent that no invoices or bills were provided as evidence and I understand it has led to some confusion. However, the language in the decision was in effort to avoid being repetitive. Using the language, "the amounts proposed" instead of the amount billed or invoiced would have been more accurate. I do not consider this an error of fact, nor does not alter my original decision.

HOURLY RATES and ONUS

7The respondent argues a mischaracterization of the dispute and submits the dispute was about the time it takes to complete testing, review files, and prepare a report rather than a dispute over hourly rates. For the following reasons, I find no error of fact and law.

8Hourly rates were used to compare the two competing opinions. The respondent found the psychological assessment was necessary but claimed the applicant's psychologist could complete the psychological assessment and report in a smaller amount of time than what was proposed in the OCF-18. The respondent submitted a psychologist's opinion in an IE assessment report which referred to the time it takes to complete the assessment and report, stating it should take 7.5 hours. The applicant's evidence did not provide a specific amount of time allocated to complete the assessment and report. To compare apples to apples, that is to compare the time proposed by each party, I divided the amount proposed by the hourly rate of a psychologist to determine the amount of time the assessment proposed. This is explained in paragraph 17 of the decision.

9Although paragraph 19 mentions there is no evidence the applicant's assessor exceeded the maximum hourly rates, it also addresses how the respondent only provided a psychologist's opinion that the applicant's assessor ought to have completed the assessment and report in a smaller amount of time than what was proposed. The IE assessor's conclusion was without reason and I found it unconvincing and found it did not outweigh the information in the OCF-18. I do not see this as placing the onus on the respondent but rather analyzing a difference of opinion by weighing the evidence before me and finding in favour of the applicant. Paragraph 19 also outlines how the evidence brought by the respondent, namely the opinion in the IE report, did not outweigh the opinion of the professional who proposed the assessment. This is because the professional conducting the assessment is in the best position to determine the time required to complete an assessment and report.

10The onus is on the applicant to prove the proposed assessment is reasonable and necessary. In this case, the respondent felt the treatment plan was reasonable and necessary but for the cost associated with it. As noted in paragraph 20 of the decision, I found the cost was reasonable as it did not exceed the maximum fee outlined in the Professional Services Guideline. In addition, as noted in paragraph 19, the evidence makes no suggestion the assessor proposed or invoiced fees for more than what the Professional Services Guideline permits.

FAILING TO ADHERE TO CASELAW

11The respondent submits the Tribunal failed to adhere to case law by not following the reasoning in R.P. v. Wawanesa Mutual Insurance Company, 2018 CanLII 93461 (ON LAT) ("R.P. v. Wawanesa"). The respondent submits the Tribunal failed to appreciate that the invoicing of professional services should be reflective of accurate timekeeping and not a default to the maximum allowed.

12I find this decision unpersuasive for two reasons. First, the arguments presented for the hearing were with respect to a proposed treatment plan, not regarding an inaccurate invoice. As the respondent noted, the assessor's invoices have never been before me. Second, unlike R.P. v. Wawanesa, I did not find the IE assessor's opinion to be valid with respect to the time required to conduct a section 25 assessment and produce a corresponding report. This is because the IE assessor's opinion was provided without reasons to support it.

CONCLUSION

13For the reasons noted above, I dismiss the respondent's request for reconsideration.