RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 18-000787/AABS
Case Name: [SE] v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: David Carranza, Paralegal
For the Respondent: Petros Yannakis, Counsel
OVERVIEW
1This request for reconsideration was filed by Aviva General Insurance Company (“respondent”). It arises out of a March 11, 2020 decision (“Decision”) in which the Tribunal found [SE] (“applicant”) is entitled to $877.93 plus interest for the cost of psychological assessment recommended by Dr. Pilowsky in a treatment plan submitted on January 26, 2016 (“disputed treatment plan”).
Respondent’s Reconsideration Request Made Under Outdated Rule
2The respondent submits that the Tribunal made “significant” errors of law and fact such that the Tribunal would have likely reached a different decision had the error not been made under Rule 18 of the “Common Rules”. This wording comes from a previous version of Rule 18 (b) which has now been replaced by Rule 18.2 (b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017, as amended February 7, 2019 (“Rules”). Rule 18.5 provides that Rule 18, as amended, applies to any reconsideration of a decision issued after February 7, 2019. The Decision was released March 11, 2020. Therefore, this reconsideration is governed by Rule 18 of the Rules, as amended and the respondent should have made its reconsideration request under Rule 18.2 (b) of the Rules, as amended.
3Although neither party made submissions on this error, I am of the view that the failure of the respondent to request reconsideration under the current Rule 18.2(b), as amended, should not be fatal to its reconsideration request. In order to avoid putting the respondent to the expense and delay of re-filing the reconsideration request under the amended Rule 18.2(b) and putting the applicant to the expense and delay of re-filing it’s response, pursuant to Rule 3.1(a) and (b) of the current Rules I am allowing the respondent’s reconsideration request to proceed. I find that allowing the respondent’s reconsideration request to proceed is necessary to facilitate a fair, open and accessible process and to allow effective participation by both parties and to ensure an efficient, proportional and timely resolution of the reconsideration proceeding. I will consider the respondent’s grounds for reconsideration under Rule 18.2(b) to be made under Rule 18.2(b), of the current Rules, as amended.
4The respondent seeks a variation of the Decision to provide that the applicant is not entitled to $877.93 plus interest for the cost of disputed treatment plan.
RESULT
5The respondent’s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration to be allowed are contained in Rule 18, as amended. The respondent makes this request under Rule 18.2 (b), as amended, which is “the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.”
7In summary, the respondent submits that the Tribunal made errors of law and fact in deciding that: a) there is no requirement under the Schedule to justify the cost of examinations by the hourly rates of the service providers; b) even if the costs are required to be broken down, the affidavit of the psychologist was enough to find the fees payable; c) the hourly rate of $149.61 was appropriate given that Ms. Hollerer assisted in the assessment; and d) since the insurer paid $3,600.00 for its own psychological assessment, the amount sought by the applicant was reasonable. The applicant disagrees and filed submissions in response.
8Having reviewed the Decision, I find no errors of law or fact in the Decision, including any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
9The reasonableness and necessity of the disputed treatment plan was not in issue before the Tribunal. The only issue was the reasonableness and necessity of part of the cost, specifically $877.93. The parties disagreed on the amount that should be charged by Dr. Pilowsky and the Tribunal determined it.1
10I find no errors of fact or law in the Decision regarding the reasonableness and necessity of the $877.93.
11The respondent’s argument that the cost of the psychological examination under the Schedule requires justification based on the hourly rates of the service providers involved was made at the hearing. The Tribunal considered the respondent’s submissions about hourly rate, chose to adopt the approach used by the Tribunal previously that the Schedule does not state an hourly amount must be included for purposes of s. 25 in determining if the fee is reasonable2, and considered the evidence and found as a fact in paragraph 13 that Dr. Pilowsky had provided the information regarding the hours spent at the request of the respondent. Then the Tribunal provided adequate and appropriate reasons for rejecting the respondent’s hourly rate argument in paragraphs 11, 12, 13 and 14 of the Decision. These findings of fact were open to the adjudicator on the evidentiary record before the adjudicator at the hearing and based on them, the Tribunal correctly concluded that the $877.93 was a reasonable and necessary cost.
12I find no error of fact or law such that the Tribunal would have likely reached a different decision had the error not been made in the Decision. There is no basis for the respondent’s argument that in deciding that even if the costs are required to be broken down, the affidavit of the psychologist was not enough to find the fees payable. Although the Decision refers to Dr. Pilowsky’s letter dated March 12, 2019 giving a breakdown of hours as an “affidavit”, it is clear from the Decision which piece of evidence the Tribunal was referring to because it is referenced in paragraph 13, footnote 14. Therefore, this minor error in the Decision is not likely to have caused the Tribunal to reach a different decision had the error not been made.
13It is apparent from the letter that it is written some three years after the assessment, does not reference any documentation and refers only to the hours of Dr. Pilowsky. The respondent suggests these are defects in the evidence of hours accepted by the Tribunal. I disagree. It was open to the adjudicator to accept this as the best available evidence of Dr. Pilowsky’s hours and sufficient to establish on a balance of probabilities the reasonableness and necessity of the hours spent by Dr. Pilowsky.
14I find no errors of fact or law in the Tribunal deciding that the hourly rate of $149.61 was appropriate given that Ms. Hollerer assisted in the assessment. Again, the respondent made this argument at the hearing. It was considered and rejected by the Tribunal for the reasons set out in paragraph 13 of the Decision. The Tribunal did not make an error of law or fact in concluding that a reduction of cost was warranted because Dr. Pilowsky was assisted by another health practitioner working directly under Dr. Pilowsky’s supervision.
15The respondent argues that “the adjudicator’s reliance on the cost of the Insurer’s examination was wrong at law” given that the onus was on the applicant at the hearing3. I disagree. I find no such error of law in the Decision.
16The Tribunal considered the respondent’s evidence of cost from its assessor, Dr. Moshiri. To do so is not an error of fact or law. To the contrary, the mandate of the Tribunal is to consider the relevant evidence put forward by both parties. This in no way shifted the onus of proof to the respondent.
17After considering Dr. Moshiri’s report, the Tribunal did not place any “reliance” on the report or it’s cost but, to the contrary, weighed the evidence and in paragraph 12 found Dr. Moshiri’s reduced fees not to be a convincing argument to justify a reduction in the fees charged by Dr. Pilowsky. Further, in paragraph 14 the Tribunal found that Dr. Moshiri’s opinion that the psychological assessment could be done at a reduced amount from what Dr. Pilowsky charged to be without sufficient rationale. Still further, in paragraph 15, the Tribunal found the fact that the respondent paid $3,600.00 to Dr. Moshiri for its own psychological assessment not to be persuasive for the reasons expressed.
18I also find no grounds for reconsideration in the respondent’s public policy arguments. While the respondent may regard the legislation as encouraging insurers to scrutinize third party services, the issue before the Tribunal in this particular hearing was whether the remaining portion of the cost of the disputed treatment plan was reasonable and necessary, not whether the services could be provided at a lower cost. Here, the reasonableness and necessity of the services was not in issue, nor the $1,389.89 of Dr. Pilowsky’s cost already approved by the respondent.
19The Decision is consistent with the $2,000.00 cap in s. 25 of the Schedule given that the psychological assessment cost is $2,000.00, preparation of the OCF-18 treatment plan is $200.00, transportation is $60.00 and tax is $7.80 for a total of $2,267.80 and Dr. Pilowsky’s hourly rate is $149.61.
20I find that the respondent has not established its grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the respondent requested reconsideration, the onus is on the respondent to establish its grounds and it has not done so. Instead, the respondent’s submissions appear to be an attempt to reargue its case in a new way. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION AND ORDER
21For the reasons noted above, I dismiss the respondent’s request for reconsideration of the Tribunal’s Decision dated March 11, 2020.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 7, 2021
Footnotes
- Decision dated March 11, 2020, paras 2 and 7.
- A.R. v. Aviva, 2019 CanLII 14396 (ON LAT) at para 24, cited in the Decision at paragraph 13.
- Respondent’s reconsideration submissions dated March 30, 2020, para 60.