RECONSIDERATION DECISION
Before: Maureen Helt, Vice-Chair
File: 17-001772/AABS
Case Name: J.V. v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Ryan Naimark, Counsel
For the Respondent: Monica Pathak, Counsel
OVERVIEW
1This is a request for reconsideration of the decision in J. V. v. Aviva Insurance Company (17-001772/AABS) in which the Adjudicator determined the applicant was entitled to payment of a treatment and assessment plan for physiotherapy services in the amount of $2,106.
2In its request for reconsideration, the respondent submits that the Adjudicator made a significant error in in law or fact such that he would have likely reached a different decision had the error not been made.
3Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Schedule 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.
RESULT
4For the reasons that follow, I dismiss the respondent’s request for reconsideration.
BACKGROUND
5The applicant was involved in two separate car accidents, the first on August 1, 2014 and the second, August 22, 2014. A dispute arose before the Financial Services Commission of Ontario (FSCO) about the entitlement to income replacement benefits and three treatment and assessment plans resulting from the injuries sustained in both accidents. The application filed with FSCO was dated October 21, 2015.
6During the FSCO dispute process the applicant filed an application with the Licence Appeal Tribunal (LAT) with respect to another treatment and assessment plan that was not part of the FSCO appeal. The application was filed with the LAT in April 2017 and a response was filed by the insurer dated April 20, 2017.
7A settlement was reached between the parties with respect to the matters before FSCO in May 2017. A Settlement Disclosure Notice and Partial Release (Release) were executed by the applicant resolving the issues in dispute in the FSCO matter.
8A case conference was held at the LAT on June 12, 2017 regarding the treatment plan referred to in the LAT application. The adjudicator was asked, by the respondent, to determine if the Settlement Disclosure Notice and Release from the FSCO matter raised a complete bar to the treatment plan in dispute in the LAT application. The issue was not resolved so it proceeded to a hearing. This issue was addressed by the Adjudicator in his decision on the application.
DECISION UNDER RECONSIDERATION
9The issue before the Adjudicator at the hearing was set out as follows:
Is the applicant entitled to receive payment in the amount of $2,106 for physiotherapy services recommend by Body Workx Health Group in an OCF-18 dated April 16, 2015 and denied by the respondent on June 12, 2015?
10After determining that the treatment plan was reasonable and necessary the Adjudicator considered the arguments put forward by the respondent as to why the treatment plan should not be paid.
11The respondent argued that the treatment plan was not payable on the ground that the applicant signed the Release and by doing so the applicant terminated her right to claim this benefit.
12In reaching his decision on this point the Adjudicator clearly considered the language of the Release which states, in part:
The above payment is a partial settlement, on a full and final basis, of all past claims which are the subject matter of FSCO File No. A15-007487-SUMA as a result of motor vehicle accidents that occurred on or about August 1, 2014 and August 22, 2014, …”
13He then stated that the Release, by its terms, “is confined to ‘all past claims which are the subject matter of FSCO file No: A15-007487-SUMA.’”
14It was after making this finding that he states that there was no information provided that would clarify whether the treatment plan that was the subject of the LAT application was, or was not, a past claim falling within the subject matter of FSCO file No A15-007487-SUMA. Accordingly, he found that the treatment plan in the LAT application was payable as he had already determined it was reasonable and necessary.
15The respondent requests a reconsideration of the Adjudicator’s decision pursuant to rule 18.2(b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (LAT Rules).
ANALYSIS
16Rule 18.2(b) allows the Tribunal to review a decision for “significant errors”. It does not mean that on a reconsideration the Tribunal should reweigh all the evidence. Rather, the errors of fact or law much be significant such “that the Tribunal would likely have reached a different decision.”1
17The respondent sets out the alleged error as follows:
i. The Adjudicator erred in his interpretation of the Release as barring any claim for outstanding costs, including the treatment plan before the LAT.
18The respondent submits that the Tribunal erred in finding that no information was provided which would clarify whether the subject OCF-18 is barred by the Release.
19One such error, in the respondent’s submission, was the Adjudicator’s failure to properly interpret the language of the Release as covering “all outstanding costs and expenses arising out of treatment plans and/or assessments or denied costs arising out of treatment plans and/or assessments ...”.
20I agree with the respondent that this language is used; however, it must be considered in the context of the paragraph in which it is found. In this regard, the first part of that paragraph reads: “The above payment is a partial settlement, on a full and final basis, of all past claims which are the subject matter of FSCO File No. A-16-007487-SUMA as a result of motor vehicle accidents that occurred on or about August 1, 2014 and August 22, 2014 …” (emphasis in original).
21The language could not be clearer. The reference to all outstanding claims flows from the first part of the sentence which references all claims that are the subject matter of the FSCO file. Further, the document is called a Partial Release. While the respondent submits that IRBs and medical benefits into the future remain open and that is what is meant by the Partial Release, I do not take this to mean all outstanding incurred benefits have been settled. The language is clear that what is being settled are the past claims which are the subject matter of the FSCO file.
22The Partial Release also states:
“…the settlement is in accordance with Ont. Reg. 664 (section 9.1 and 9.2) attached and that the terms of this partial settlement are fully understood, and the amounts stated in this Release are the sole consideration for this Release and such amounts are accepted voluntarily as partial settlement of all possible claims and rights for statutory accident benefits payable pursuant to SABs vis-à-vis FSCO File No.: A15-007487-SUMA…”
23The release further states that “the above-mentioned sum is the entire and only consideration for this release and the said amount includes all claims, interest, costs and H.S.T. as it relates to the issues in dispute in FSCO File No: A15-007487-SUMA.”
24If the parties contemplated on settling past treatment plans outside the ones in the FSCO matter then, the applicant submits it would have listed them in the settlement documents, as it listed all the issues in dispute in the FSCO matter in the settlement documents. The settlement amount clearly reflects the amounts being claimed in the FSCO matter.
25Further, the application before the Tribunal had already been filed and responded to at the time the FSCO settlement was reached. Had the claim before the Tribunal been intended to form part of the settlement it could have been easily referenced by the parties.
26The respondent also argues that there was no meeting of the minds between the parties at the time of the settlement and as such sections 9.1(8) and 9.1(9) of Regulation 554 must be triggered until the validity of the settlement is determined.
27I find that this argument has no merit. As set out above, I find that there was a clear intention in the Partial Release for the settlement to be limited to the issues in dispute in the FSCO file.
28The onus is on the party seeking a reconsideration to establish that there was a significant error of law or fact such that the Tribunal would have reached a different decision had the error not been made.
29I find that the respondent has not established either an error of fact or law. Rather, the reconsideration appears to be an attempt to reargue the very same arguments that were made before the Adjudicator. A reconsideration is not an appeal or an opportunity to reargue one’s case.
CONCLUSION
30I find that there are no significant errors of law in the Adjudicator’s decision based on the reasons set out above and as such, I dismiss the respondent’s request for reconsideration.
Maureen Helt
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 19, 2019
Footnotes
- Taylor v Aviva Canada Inc., 2018 ONSC 4472 at para 70