[E. B.] v TD Home and Auto Insurance Company, 2019 CanLII 94041

RECONSIDERATION DECISION

Before: Avvy Go

Date: August 22, 2019

File: 18-001627/AABS

Case Name: [E. B.] v TD Home and Auto Insurance Company

Written Submissions By:

For the Applicant: Dr. Jordan Palmer, counsel Amelia Theiss, counsel

For the Respondent: Andrea L. Bandow, counsel

OVERVIEW

1. This request for reconsideration arises from a decision released on April 24, 2019¹ where the Tribunal found that the applicant was statute-barred from appealing the respondent’s denial of his claim for Income Replacement Benefits (IRBs), and was not entitled to payment of a medical benefit for physiotherapy services in the amount of $2,117.10, as recommended in a Treatment Plan by Roberta Koch dated February 11, 2016, denied by the respondent February 29, 2016.

Facts

2. The applicant was injured in a motor vehicle accident on November 23, 2013 when his vehicle lost control and struck a highway median.

3. The applicant made a claim for IRBs and sought payment for physiotherapy services in the Treatment Plan recommended by Dr. Koch pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent denied these claims. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).

4. With respect to the IRBs, the applicant was first notified of the denial of his entitlement in a letter dated February 10, 2014. The applicant did not complete the appeal to the Tribunal until February 27, 2018, more than two years beyond the limitation period. The Tribunal found the applicant’s IRB claim was statute-barred.

5. With respect to the Treatment Plan for physiotherapy services, the Tribunal found the applicant was not entitled to the benefits claimed and, thus, no interest was payable.

6. Pursuant to Rule 18.1 of the Tribunal’s Common Rules of Practice and Procedure ² the applicant sought reconsideration of the following findings made by the Tribunal:

a) The finding that the applicant has not met the onus of showing that he was entitled to the Medical and Rehabilitation Benefit in dispute; and

b) The finding that the applicant had sustained primarily a Minor Injury under Reg. 34/10.

7. The applicant finalized his request for reconsideration on May 24, 2019. As part of his reconsideration request, the applicant asked for an extension of time for reconsideration pursuant to s.7 of the Licence Appeal Tribunal Act.

8. The applicant further submitted that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision; and the Tribunal exceeded its jurisdiction to decide an issue in dispute. Specifically, the applicant alleges that:

• The Tribunal erred by “misapprehending the legal burden of proof, the onus on the applicant, and the legal sufficiency of the applicant’s evidence to establishment to the benefit claimed and that his injuries fell within the Minor Injury Guideline (MIG).

• The Tribunal exceeded its jurisdiction by deciding the issue of MIG, as “the applicability of a ‘Minor Injury’ designation as a final determination is not possible, especially not in this case where the adjudicator acknowledged impairments which had not yet been investigated.”

9. The applicant did not specify in the reconsideration request the remedy that he is seeking.

10. In response, the respondent asked the Tribunal to dismiss the applicant’s reconsideration, firstly by dismissing the applicant’s request for an extension of time to file reconsideration, and secondly, on the ground that the request for reconsideration does not meet any of the criteria set out under Rule 18.2 of the Tribunal Rules.

11. Pursuant 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

12. The applicant’s request for an extension of time to file the reconsideration is denied and his Request for Reconsideration is dismissed.

ANALYSIS

13. The grounds for a Request for Reconsideration to be allowed 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 or more 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.

14. As the applicant has submitted his reconsideration beyond the 21 day period, I will first deal with the applicant’s request for an extension of time to file reconsideration.

Preliminary Issue: Whether the applicant’s request for an extension of time for filing the reconsideration request should be granted

15. Rule 18.1 of the Tribunal’s Common Rules and Procedure requires an applicant to submit a request for reconsideration within 21 days of the decision.

16. As noted above, the initial decision was released by the Tribunal on April 24, 2019. Two days later, the Tribunal issued an amended decision which both the applicant and the respondent agree has made no substantive changes to the initial decision. The applicant submitted that the 21 days should start counting from the date of the Amended decision while the respondent submitted it should be counted from the date of the initial decision. For the purpose of my analysis, I will use the date of the Amended decision as a starting point, i.e. April 26, 2019, which gave the applicant until May 17, 2019, as the final day to finalize his reconsideration request. As such, the applicant was 7 days late.

Factors to be Considered for an Extension of Time

17. Pursuant to s. 7 of the Licence Appeal Tribunal Act, the Tribunal has the discretion to extend the time for filing an appeal if the Tribunal is satisfied that there are reasonable grounds for applying the extension.

18. When deciding whether to grant an extension of time to file the appeal, as confirmed by several decisions of this Tribunal³, the Tribunal is guided by the following four factors as set out in Manuel v. Registrar⁴:The overriding consideration is whether “justice of the case” requires that the extension be granted.⁵

• The existence of a bona fide intention to appeal

• The length of the delay;

• Prejudice to the other party; and

• The merits of the appeal

19. I will deal with each of these factors below.

a. The existence of a bona fide Intention to appeal

20. The applicant submitted that he did not file the reconsideration request because on May 1, 2019, the applicant received approval from the respondent of a treatment plan by Dr. Koch at an amount outside of the MIG. Counsel for the applicant then determined that the respondent was conceding that the applicant had suffered a greater than minor injury and an appeal would not be in the applicant’s interest. Counsel indicated that “instructions were received on this understanding”. On May 9, 2019, the respondent sent a denial stating that the treatment plan had been approved “in error”. The applicant submitted that he made numerous requests for clarification and received no response from the adjuster., On May 17, 2019 counsel for the applicant sent a letter to the adjuster. The applicant submitted that as a result of the difficulty in obtaining a clear position from the respondent, it was “impossible to obtain instructions and to complete the documents required for a reconsideration request within the 21 days”.

21. The respondent submitted that the applicant has not demonstrated he had a bona fide intention to appeal within the appeal period, and that the applicant himself had admitted that the requisite intent to appeal was not formed. The respondent disputed the applicant’s claim that the former’s conduct interfered with the applicant’s ability to from the intent to appeal, as the respondent was “clear and unequivocal” in its correspondence on May 9, 2019 (well before the timeline expired for requesting reconsideration) that the treatment plan approval that led to the applicant’s confusion was done in error. As such, the respondent submitted there was no reasonable basis for the applicant or his counsel to form the belief after May 9, 2019 that he had been removed from the MIG, and yet the applicant delayed in seeking reconsideration, and did not write to the adjustor seeking clarification until May 17, 2019, two days past the deadline, calculating from the date of the initial decision.

22. The respondent also submitted that the applicant has made divergent submissions regarding his intent to appeal. In reply, the applicant submitted that “instructions were obtained not to appeal” based on the subsequent respondent’s approval of a treatment plan outside the MIG. Once the respondent confirmed that the change to a denial was being upheld, new instructions were necessary. In any event, the applicant submitted that an intent to appeal is only one “non-determinative” factor to be considered.

23. I find the applicant did not form the requisite intent to appeal within the 21 day appeal period. First of all, the applicant never confirmed that he had formed an intent to appeal before he received the letter dated May 1, 2019 from the respondent indicating it had approved a treatment plan by Dr. Koch. Thus, it would suggest that the approval of that treatment plan had no bearing on the reconsideration request. However, even if the applicant were indeed considering an appeal and was dissuaded to do so due to the respondent’s apparent approval of another treatment plan, by May 9 the respondent’s position was clarified. While the applicant submitted he was seeking further clarification from the respondent after May 9, there was nothing to prevent the applicant from writing to the Tribunal before the 21 day deadline and ask for more time to prepare the reconsideration request as a result of the above.

24. Even if I accept counsel’s submission that it would not be in the applicant’s interest to appeal the previous decision given the respondent’s approval of a new treatment plan, that positive decision was quickly rescinded by the respondent when they advised the applicant that the treatment plan was approved in error on May 9, 2019. While I appreciate that the respondent’s error on that matter may have caused some confusion to the applicant, it does not explain the delay in filing the reconsideration request as soon as the denial was issued. Nor does it explain why the applicant had to wait for further confirmation of the said denial before he filed the reconsideration request.

25. In any event, if the applicant was waiting for the confirmation from the respondent of the May 9, 2019 denial to decide whether he should appeal, then the only conclusion I could draw from that is that the applicant did not form an intent to appeal until after that confirmation has arrived. In short, the applicant only formed the intent to appeal after the 21 days period has passed.

26. The applicant submitted that the intent to appeal is a “non-determinative” factor to be considered. While none of the factors in Manuel is determinative on its own, the appellant not having a bona fide intent to appeal before the deadline is an important factor that I must consider and this factor weighs against the granting of the extension.

b. The length of the Delay

27. The length of the delay in this case is not substantial, as the applicant is either 7 days or 9 days late, depending on whether I count from the date of the initial decision, or the date of the Amended decision. This factor thus weighs in favour of the granting of extension.

c. Prejudice to the Other Party

28. The applicant submitted that there is no prejudice to the respondent, only prejudice to the applicant, if the extension is not granted. The respondent submitted it is prejudiced by the delay in that the respondent is deprived of the certainty and finality it is owed in the appeal process, as indicated by the Tribunal’s inclusion of the limitation period set out in Rule 18.1.

29. I find that while there may be some prejudice to the respondent, it is minimal in part due to the relatively short delay of the filing of the reconsideration request. If the delay is much lengthier, then the respondent’s claim that it is robbed of the certainty and finality would have been much stronger.

d. Merits of the Appeal

30. The fourth factor I need to consider is the merits of the appeal. As noted above, the applicant raised two grounds in his request for reconsideration which I will address below.

Error 1: Burden of Proof, Onus and Sufficient Evidence

31. The applicant submitted that while I “acknowledged the Treatment Plan by a Registered Physiotherapist and Doctor of Chiropracty indicating that the applicant had suffered more than a Minor Injury” and “acknowledged the OCF-3 by a different Registered Physiotherapist indicating that the applicant had suffered a ‘dorsal vertebra fracture’ as a result of the accident”, I erred by rejecting the “uncontroverted evidence, speculated on what evidence could support the burden of proof”. Further, the applicant asserted that I “speculated upon the fact that there was not any other medical evidence” apart from the OCF-3 and OCF-18. I remind the applicant that it is his case to meet and what he provided to the Tribunal was insufficient. As noted in paragraph 46 of the initial decision, my finding was based on the limited medical evidence that was provided by the applicant.

32. The applicant also took issue with the fact that no direct evidence was tendered by the respondent to “rebut this evidence”, and the only piece of evidence upon which I based my decision was a report discharging the applicant from the MIG and stating that the applicant did not require further treatment. This report was completed about one year prior to the OCF-18 and multiple years before the OCF-3.

33. In short, the applicant submitted that he had led evidence on this point but the respondent did not, and that I ignored the “sufficiency of the uncontroverted evidence” before me.

34. As the applicant has conceded and I have noted in my decision, the main reason why the respondent rejected the applicant’s Treatment Plan by Dr. Koch was that the respondent found the claim to have exceeded the MIG and that it was not reasonable and necessary. I have also noted in my previous decision that the applicant has the burden of proving his injuries fall outside of the MIG and are not subject to the $3,500 treatment limit in s.18 of the Schedule.

35. I find, and I continue to find, that the treatment plan (OCF-18) by Dr. Koch and the Disability Certificate (OCF-3) provided by physiotherapist are not sufficient evidence to demonstrate the applicant suffered from injuries that will take him outside of the MIG. As the applicant has stated in his submission, the onus is on him to “demonstrate that he would succeed on the balance of probabilities, that is, that it is more likely than not that the applicant’s sought treatment is reasonable and necessary, and that it is more likely than not that the applicant sustained more than a Minor Injury”. This is the very test and onus that I applied in this case. Yet the applicant did not point to any medical evidence that would support the diagnosis included in these forms.

36. I agree with the respondent’s submission in that the applicant is effectively reversing the onus, by suggesting that the onus falls on the respondent to submit evidence to show that he does not fall outside of MIG.

Error 2: The Finality of the Minor Injury Guideline

37. The applicant further submitted that I exceeded my authority in purporting to determine whether he had sustained a Minor Injury. The applicant submitted that “injuries and diagnosis evolve over time: it is not within an Adjudicator’s authority to finally determine the question of a Minor Injury in the negative. The most that can be decided is that the applicant has not met his onus to be removed from the Guideline at this time.”

38. I have some difficulties understanding the applicant’s submission in this regard. The issue of MIG was raised by the respondent as one of the key reasons for rejecting the Treatment Plan recommended by Dr. Koch. The applicant also addressed the issue of MIG in their previous submission to the Tribunal.

39. As I was asked to determine whether the applicant was entitled to receive the benefits as claimed, and because the amount claimed would take the applicant out of the $3,500.00 limit, I had to address the issue of the applicability of the MIG, an issue that was squarely before me.

40. If I understand it correctly, the applicant submitted that while he could be subject to the MIG today, his injuries may change in the future and at which point, the MIG might not apply to him then. It is not necessary for me to opine on whether the applicant could re-open the issue of MIG with respect to other treatment plans he wishes to claim in the future - his argument that I exceeded my jurisdiction to rule on a matter that was squarely before me simply holds no water.

41. In light of the above, I therefore find the applicant’s reconsideration request lacks merit.

e. Justice of the Case

42. Having regard to all the factors for considering the extension request, I have to decide whether justice of the case requires the extension be granted. Even if I were to extend the time for the applicant, I would have dismissed the request ultimately for its lack of merit. As such, I find the justice of the case does not require the extension be granted for the filing of the reconsideration request.

Conclusion

43. For the reasons noted above, I dismiss the applicant’s request to extend time for the filing of request for reconsideration. The applicant’s request for reconsideration is thereby dismissed.

Avvy Go, Adjudicator Licence Appeal Tribunal

Released: August 22, 2019

Footnotes

1. 1The decision of the Tribunal was initially released on April 24, 2019. Two days later, the Tribunal issued an Amended decision that changed the name of the Respondent’s Counsel and redacted the Applicant’s name.
2. 2The Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017)
3. 3AF and North Blenheim Mutual Ins. Co., 2017 CanLII 87546 (ON LAT) and SW and Pafco Insurance, 2019 CanLII 18324 (ON LAT)
4. 42012 ONSC 1492 (Ont. Divisional Court)
5. 5ibid, at para.40