RECONSIDERATION DECISION
Before: Kimberly Parish, Adjudicator
File: 18-007991/AABS
Case Name: J.V. v. Intact Insurance Company
Written Submissions by:
For the Respondent: Darrell March, Counsel
For the Applicant: Rachel Levitsky, Counsel
OVERVIEW
1The request for reconsideration was filed by the respondent, Intact Insurance Company (“Intact”). It arises out of a decision issued by the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on June 24, 2019, in which I was the hearing adjudicator. I found the applicant (“J.V.”) was entitled to the balance of a treatment plan for cognitive behaviour therapy in the amount of $648.18. This was based on my finding that the registered psychotherapist providing the treatment was to be paid the same hourly rate of $149.61 as a psychologist, or psychological associate.
2It is Intact’ s submission that the Tribunal acted outside of its jurisdiction and made errors in fact in fact or law when it ordered Intact to pay a psychotherapist at the same rate as a psychologist.
3Intact seeks an order that the Tribunal set aside my decision of June 24, 2019 decision and dismiss the applicant’s claim.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act1, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The respondent’s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) 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
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7Intact submitted that Rules 18 (a) and (b) apply.
8I find the Tribunal did not err under Rules 18 (a) and (b). I am not satisfied that Intact has met its onus in establishing the Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness, or that the Tribunal made significant errors of fact or law such that the Tribunal would have reached a different decision. I have provided my reasons below.
Ruel 18 (a) - Did the Tribunal act outside of its jurisdiction or violate the rules of natural justice or procedural fairness?
9I find the respondent’s request for reconsideration under Rule 18 (a) must fail. In its reconsideration submissions, the respondent provided lengthy and detailed submissions supporting their favoured position that a psychotherapist is not entitled to be paid the same rate as a psychologist, or a psychological associate. However, the respondent did not provide fulsome reasons to support their reconsideration request under Rule 18 (a). In paragraph 2 of the respondent’s written submissions it noted: “…the Adjudicator found that she had the authority to order Intact to pay psychotherapist at the same rate as a psychologist. In doing so, she made a number of errors…” The respondent noted in the final page of its reply submissions: “The Adjudicator must rule consistent with the Guidelines and law.”
10In paragraph 12 of its decision, the Tribunal noted: “…the plain language meaning of the Guideline2 establishes that registered psychotherapists are not listed within the Guideline, and as a result are not covered by the Guideline. Therefore, the amounts payable are to be determined by the parties, or if the parties cannot agree, and adjudicator.” [emphasis mine.] Therefore, I find the Tribunal did not act outside its jurisdiction or violate the rules of natural justice or procedural fairness in making its finding that a registered psychotherapist be paid the same hourly rate as a psychologist, or a psychological associate. The respondent has not met their onus of establishing grounds for a reconsideration under Rule 18 (a).
Rule 18 (b) – Did the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision?
11Contrary to the respondent’s submission, the Tribunal did not err when it found that the psychotherapist who prepared the treatment plan for cognitive behaviour therapy was entitled to the same rate as a psychologist. The respondent submitted the Guideline does not specify fees based on the service provided by a healthcare practitioner, rather the fees are based on the service provider’s license type.
12Both the respondent and the applicant relied on the Tribunal’s Reconsideration Decision 17006851 v. RBC Insurance Company.3 Vice Chair (“V.C”) Kershaw upheld the Tribunal’s original decision that a social worker who was also a registered psychotherapist (both not listed within the Guideline) should be paid $58.19 per hour, the same hourly rate as a psychometrist (listed as an unregulated provider in the Guideline). The Tribunal’s finding was based on a social worker performing work in the capacity of a psychometrist while being supervised by a psychologist who signed off on the assessment report. The Tribunal concluded the social worker was not entitled to the hourly rate of $149.61 for a psychologist, or a psychological associate. The applicant relies on the conclusion of V.C. Kershaw which noted it was appropriate to utilize the Guideline as a Guide and agreed that the rate the social worker was to be paid was at the rate of a psychometrist as the services provided most closely aligned with that of a psychometrist. The respondent emphasized the reconsideration supports its case as the Tribunal found that the social worker/registered psychotherapist was entitled to an hourly rate of $58.19, the rate listed within the Guideline for an unregulated service provider.
13The respondent also relied on the Tribunal decision, S.J. and Aviva Insurance Canada4 in which the adjudicator found in favour of the respondent that the hourly fee to be paid for psychotherapy was based upon the rate noted within the Guideline for an unregulated provider, and not $200.00/hour requested by the applicant which was above the fee noted in the Guideline fee for a psychologist, or psychological associate. The adjudicator also noted in the decision it was unclear why the charge for psychotherapy was $200.00/hour.
14I find both cases are distinguishable from the case before me. In 17006851, the reconsideration concluded that the Tribunal analysed the services provided and made its order considering the service provided. In the case before me, I found that the cognitive behaviour therapy provided by the psychotherapist aligned with a service also provided by a psychologist, or a psychological associate. Further, the Tribunal’s decision to award the hourly rate of $149.61 was based further upon the psychotherapist’s credentials, specialized cognitive behaviour therapy training, and experience. In S.J., it was not known by the adjudicator why the charge for psychotherapy was being requested at $200.00/hour and that the applicant had not met their onus that the balance of the treatment plan was reasonable and necessary. In the case before me, the Tribunal did find the applicant met her onus that the balance of the treatment plan was reasonable and necessary and the reasons for its findings were provided.
15The respondent also relied on two jurisprudence cases from the Financial Services Commission of Ontario (“FSCO”) in support of its position that the Guideline specifes rates according to the licence type of the provider and not the service provided. One case cited was Abel (Estate) v. State Farm Mutual Automobile Insurance Co.5 The arbitrator in that case found an applicant was not entitled to the unapproved amount of a treatment plan for cranial sacral therapy submitted by a massage therapist. Unapproved amounts included: administrative costs, overhead, related costs, fees, and expenses/surcharges which were not covered by the Guideline. The arbitrator concluded the respondent had paid for services at an approved rate to a provider listed within the Guideline and concurred that the applicant was not entitled to a rate higher than approved by the Guideline. The arbitrator also referenced that the Guideline stipulated that amounts payable by an Insurer not covered within the Guideline are to be determined by the parties involved. In the case before me, the facts are distinguishable, and I agree with the applicant’s submission that the Guideline does not provide any indication about how much a psychotherapist should be paid and therefore there is no clear wording to follow as a result. The case before me addresses cognitive behaviour therapy performed by a registered psychotherapist. As a result of a registered psychotherapist not being covered within the Guideline and the parties disagreeing on the applicable hourly rate, the Tribunal exercised its discretion and determined the rate which the psychotherapist shall be paid.
16The respondent also relies on the FSCO decision Youssef-Shebo v. Aviva Canada Inc.6 which addressed psychological services provided by a psychotherapist who was not registered with the College of Psychotherapists. The arbitrator found that the hourly rate of $58.19 noted in the Guideline for unregistered providers applied. The case before me differs as the psychotherapist was not an unregulated provider, she was a registered psychotherapist with two colleges. Therefore, the respondent’s case provides no persuasive value.
17The respondent submitted the Tribunal erred in law when it concluded a psychotherapist is entitled to be paid the same rate a psychologist, or a psychological associate. It is the respondent’s submission that the Tribunal did not make a finding that the Guideline did not apply and chose that a psychotherapist should; be paid the amount noted within the Guideline for a psychologist. The respondent further submitted the Tribunal performed no analysis for the appropriate rate for a psychologist based on “market conditions and overhead costs.” However, the respondent has not made any argument relating to market condition and overhead costs which supports their decision to pay the psychotherapist $99.75 per hour for the treatment plan in dispute. In the Tribunal’s decision to award the psychotherapist the same hourly rate as a psychologist, or a psychological associate, the Tribunal considered the following factors:
i. The psychotherapists extensive specialized training and experience in administering cognitive behaviour therapy;
ii. The psychotherapist’s fee for uninsured patients was $150.00 per hour;
iii. The letter from the Ontario Association of Consultants, Counsellors, Psychometrists, and Psychotherapists (“CRPO”) to FSCO, dated August 22, 2018 that requested psychotherapists received the same hourly rate of $149.61 as psychologists/psychological associates as they perform the same controlled act of psychotherapy.
18For the reasons noted above, I do not find the Tribunal erred in in law regarding its finding that the psychotherapist was entitled to the same hourly rate as a psychologist, or a psychotherapist.
19The respondent further submitted there was a further error made by the Tribunal that a psychotherapist providing cognitive behaviour therapy cannot provide the same services as a psychologist, as a psychotherapist is not qualified to provide a diagnosis. This is the respondent’s submission and it is not what had been noted within the Tribunal’s decision. In paragraphs 7 & 8 of its decision, the Tribunal noted its reasons for awarding the hourly rate of $149.61 to the psychotherapist for providing cognitive behaviour therapy. The Tribunal recognized and distinguished the differences in some of the credentials held by the psychotherapist vs. a psychologist, or a psychological associate. However, the Tribunal concluded as cognitive behaviour therapy was within the scope of expertise of the psychotherapist who prepared the treatment plan, and that it was the same service which is also provided by a psychologist, and a psychological associate, this should not disentitle the psychotherapist to be paid the same rate for that service.
20The respondent submitted other health care practitioners can provide cognitive behaviour therapy, including nurses, social workers, and occupational therapists. It is the respondent’s submission that if the reasoning in the Tribunal’s decision is followed, these healthcare practitioners should be paid the same rate as psychologists. The respondent argues this would be inconsistent with the Guideline which provides different rates for psychologists, nurses, and occupational therapists. I am not persuaded by the respondent’s argument as a psychotherapist in not listed within the Guideline. Therefore, there is no error with the Tribunal’s finding to award an hourly rate of $149.61 and I rely on the analysis provided above.
21It is the respondent’s submission that in its decision, the Tribunal failed to adhere to the Guideline. The respondent has submitted at the time the Guideline was “promulgated”, psychotherapists were not a regulated profession and “as a result, it is reasonable to conclude that the legislature would expect they would be paid at the same rate as any unregulated counsellor.” However, the respondent has already unsuccessfully argued the same point before the Tribunal. Reconsideration is not an opportunity to reargue positions which failed at the hearing.
22It was raised by the respondent that the Tribunal erred in its finding that Intact’s decision to voluntary pay the service provider in excess of the unregulated rate was an admission that the psychotherapist is entitled to be paid at the same rate as a psychologist. This analysis was misconstrued by the respondent and was not noted as such within the Tribunal’s decision. The Tribunal did not accept the hourly rate of $99.75 which the respondent’s approval of the treatment plan was based upon. The Tribunal specifically noted in paragraph 11 of its decision that the respondent’s approval of the treatment plan at an hourly rate of $99.75 which is a higher than the hourly rate of $58.19 for counsellors confirms the respondent accepts that the cognitive therapy provided by this psychotherapist warranted payment of a higher hourly rate than what the Guideline noted for a counsellor. Therefore, I do not find the Tribunal has erred in this regard.
23I find the Tribunal did not make any errors in fact or law. It applied its discretion to award an hourly rate which was based on the law, facts and evidence. Although the respondent may not agree with the Tribunal’s reasoning or finding, this is not a ground upon which I can grant a request for reconsideration. I find that the Tribunal provided sufficient reasons and explanation for weighing the evidence the way that it did. It is not through the reconsideration process that evidence that has already been properly considered be re-weighed by the Tribunal.
24The respondent’s request for reconsideration is dismissed.
Applicant’s request for costs
25The applicant has requested costs in the amount of $1,000.00 and submits the respondent’s disrespect for the Tribunal’s process is unreasonable conduct under Rule 19 of the Licence Appeal Tribunal’s Common Rules of Practice and Procedure, October 2, 2017 (“Tribunal Rules”.)
26Costs are a discretionary remedy which the Tribunal can award. The test as laid out in Rule 19 is a high threshold to satisfy. I do not find the applicant is entitled to costs. While I do find the respondent has failed to comply with some of the processes as set out within the Tribunal’s Rules, I do not find the behaviour of the respondent has risen to a level which can be characterized as unreasonable, frivolous, vexatious, or in bad faith.
27The following was submitted by the applicant in support of its costs request:
The July 12, 2019 respondent’s letter which noted a request for reconsideration on two grounds was not accompanied by any evidence or submissions. The respondent requested to file their written submissions by July 31, 2019 as the issue was novel;
The Associate Chair, J. Batty issued a letter dated July 17, 2019 which granted the respondent a one-time extension to file their written submissions, a maximum of 10 pages by July 31, 2019. The respondent’s written submissions excluding evidence and case law/jurisprudence were 21 pages;
The written submissions were served on the applicant by email at 5:10 pm on July 31, 2019 and in accordance with Rule 6.2 (e) of the Tribunal’s Rules, service of this document is deemed to have occurred on August 1, 2019 and;
The respondent stated in its July 12, 2019 letter that it would not be seeking judicial review of the Tribunal’s June 24, 2019 decision. However, the day after the Associate Chair, J. Batty granted the respondent an extension to file its written submissions, and 24 days after the release of the Tribunal’s June 24, 2019 decision, the respondent served the applicant with a Notice of Appeal, seeking judicial review at the Divisional Court. The applicant submitted the respondent did not comply with Rule 18 (b) as a request for reconsideration must include notification if the party is seeking judicial review or pursuing an appeal within 21 days of the decision being released.
28The applicant relies on the Tribunal’s decision 16-000435 v. Wawanesa Mutual Insurance Company7 in which the Tribunal awarded costs against the insurer as there were two orders requesting productions which were in the insurer’s possession. The insurer made no attempts to comply with the orders until a request for costs was made.
29The respondent submitted it did not serve a Judicial Review Application as submitted by the applicant. Rather, the respondent served a Notice of Appeal under s. 11 of the Licence Appeal Tribunal Act.8 The respondent also submitted pursuant to Rule 19.2 of the Tribunal’s Rules, a request for costs can only be made at the case conference or hearing.
30The respondent did not file its written submissions with its request for reconsideration on July 12, 2019 as it ought to have. However, the Associate Chair, J. Batty granted a one-time exception and allowed them to be filed a later date. The respondent clearly disregarded the order of Associate Chair, J. Batty with respect to the 10-page limit for written submissions, but I do not find this rises to the level in which costs can be awarded pursuant to Rule 19. While I accept the respondent served their written submissions on the applicant at 5:10 pm on July 31, 2019 and according to the Tribunal Rules this is deemed to have occurred on August 1, 2019, I do not find this rises to the level to satisfy the criteria to award costs against the respondent.
31The applicant’s request for costs is dismissed.
CONCLUSION
32The respondent’s request for reconsideration is dismissed. The applicant’s request for costs is dismissed.
Kimberly Parish
Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division Released: December 24, 2019
Footnotes
- 2009, S.O. 2009, c. 33, Sched. 5.
- Guideline is referring to the Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014
- 17006851 v. RBC Insurance Company, 2019 CanLII 63334 (ONLAT), at para 12
- S.J. and Aviva Insurance Canada, 2019 CanLII 76996 (ONLAT), at page 6
- Abel (Estate) v. State Farm Mutual Automobile Insurance Co., [2017] O.F.S.C.D No. 3
- Youssef-Shebo v. Aviva Canada Inc., [2018], O.F.S.C.D., No. 8
- 16-000435 v. Wawanesa Mutual Insurance Company, 2017 CanLII 9818 (ONLAT)
- Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G.