RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 18-009726/AABS
Case Name: JC v. Western Assurance Company
Written Submissions by:
For the Applicant: Harry Steinmetz, Counsel
For the Respondent: Jonathan Tatner, Counsel
OVERVIEW
1The applicant, JC, asks for reconsideration of the Tribunal’s1 decision released on July 19, 2019, in which the applicant was precluded from proceeding to a hearing on the issue of income replacement benefits (IRB) for failing to attend insurer’s examinations (IE) pursuant to s. 44 and s. 55 of the Schedule.2
2The applicant makes the request pursuant to Rule 18.2 (b) and (d) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (February 7, 2019) (the “the Tribunal’s Rules”). The applicant submits that the Tribunal erred in fact and/or law, and that there is new evidence that could not be produced at the hearing that could affect the result of the decision.
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.
ISSUES IN DISPUTE
4The applicant alleges the Tribunal’s decision meets the reconsideration criteria in the following ways:
(i) It erred in law as the applicant was compliant with the s. 44 IEs;
(ii) It erred in fact by not differentiating whether the applicant was precluded from proceeding to a hearing on just pre-104 IRBs or post-104 IRBs or both; and
(iii) New information: the respondent has conducted post-104 IRB IEs and the applicant was compliant with the requests.
5The respondent objects to the reconsideration request on the basis that, as of February 7, 2019, all requests for reconsideration must be on a final decision. The respondent also requests costs.
RESULT
6The reconsideration is dismissed.
BACKGROUND
7The applicant was injured in an automobile accident on March 9, 2016. The respondent paid the applicant’s IRBs from March 16, 2016 to October 18, 2016.
8However, based on IEs conducted by an orthopaedic surgeon and a physiotherapist, the respondent ceased paying IRBs, stating that the applicant no longer met the test for entitlement.
9After receiving the denial letter, the applicant sent the respondent medical documentation to support her continued entitlement for IRBs.
10Upon review of the medical documentation, the respondent concluded that it required additional IEs to determine whether the applicant was entitled to the benefit. It arranged for a paper review of the previous IEs and a new psychological and neurology IE. The applicant refused to attend the new IEs because she felt that the respondent had enough information to decide entitlement.
11Ultimately, the applicant applied to the Tribunal for dispute resolution on various benefits, including IRBs. The respondent objected to the issue of IRBs proceeding to a hearing on the basis that the applicant refused to attend the two new IEs.
12The Tribunal decided in favour of the respondent, indicating that the applicant was precluded from proceeding to a hearing on the merits of her IRB claim because she failed to attend the IEs. In the Tribunal’s view, the request was reasonable in the circumstances and the applicant ought to have attended.
ANALYSIS
Final Decision
13As of February 7, 2019, the Tribunal amended its Rules to restrict requests for reconsideration only on a decision that finally disposes of an appeal.
14The respondent argues the applicant’s request for reconsideration should be dismissed on the basis that this decision does not finally dispose of the appeal.
15In this case, the applicant filed an application for dispute resolution of medical benefits and IRBs. It was only the issue of IRBs that was precluded from proceeding to a hearing. As the decision did not allow the IRB from proceeding to a hearing on the merits, it finally disposed of the appeal on that issue. In this respect, I note that the term “appeal” is defined in the Tribunal’s Rules to include “a claim”.3 The Tribunal’s decision brought the applicant’s claim for IRBs to an end. Thus, I find that the decision finally disposes of the appeal or the claim, and that the reconsideration request should be considered.
Erred in Law – Compliant with the IE Requests
16The applicant claims that the Tribunal’s decision erred in law because she was compliant with the respondent’s IE requests. The applicant gives no specifics. There is no further explanation on how the decision erred or how the applicant was compliant with the IE requests, contrary to what the Tribunal had decided.
17The respondent states that the decision was clear and that there is no error. It argues that, absent supporting case law or examples of how any error was committed, the decision ought not to be reconsidered.
18I agree. Without any specifics to demonstrate how the decision erred, the decision should stand. Bald allegations of error are inadequate, and it should not be the Tribunal’s duty to hunt down mistakes alleged to exist.
Error of Fact – Not Distinguishing Between Pre and Post 104 IRB
19The applicant argues that the Tribunal’s decision erred in fact by not distinguishing whether the applicant was precluded to proceed to a hearing on pre-104 IRBs, post-104 IRBs, or both. The applicant asserts that the IE requests were made only in relation to pre-104 IRBs and, therefore, the decision to preclude all IRBs from proceeding to a hearing was an error.
20The respondent argues the applicant’s submissions are immaterial because if she wanted a distinction made, her preliminary issue submissions should have been argued in such manner.
21Based on the decision, the requests for IEs were made within the first year of the accident, therefore at that time, the only aspect of the IRB test that the respondent could have reasonably assessed was the pre-104 entitlement for the IRB. Therefore, on that basis, the adjudicator’s decision could have only precluded the pre-104 IRB from proceeding to a hearing. I don’t find that an error has been made.
New Information – Post-104 IRB IE’s Were Complied With
22The applicant argues that there is new information that could not have been obtained before the hearing that she believes would have changed the result of the decision. Subsequent to the hearing, the respondent asked the applicant to attend a series of s. 44 IEs in order to determine post-104 IRB entitlement. Those IEs were complied with and the respondent made a determination on the issue. The applicant argues that had the Tribunal been aware of this information it would have changed the result.
23The respondent argues that the information regarding the post-104 IRB IE was in the possession of the applicant prior to when the hearing submissions were due and, therefore, this should not be considered new information. In any event, even if it is, the respondent asserts that it would not have affected the result.
24Rule 18.2(d) states that reconsideration could be granted on the basis that new information has become available that was not before the Tribunal when rendering its decision and would have likely affected the result. It is only on that basis that reconsideration could be warranted.
25In this particular case, I don’t find that the fact that the applicant attended post-104 IRB IEs and then the benefit was subsequently denied to be new information that would have affected the result of the decision. At the time the applicant applied to the Tribunal it was only on the issue of pre-104 IRB entitlement and whether the applicant was precluded from proceeding to a hearing on that issue. Therefore, the decision of post-104 entitlement had no bearing on whether the applicant ought to have attended the IEs on pre-104 IRB entitlement.
COSTS
26The respondent requests costs stating that the Tribunal’s rules are quite clear that the preliminary hearing decision is not final and, on the basis, they were never sent a Notice of Withdrawal pertaining to the other issues in dispute before this Tribunal. They also request costs because the reconsideration appeal on its face should be dismissed and that the applicant is trying to mislead the Tribunal by stating that there is new information. The respondent requests costs from anywhere of $1000.00-$5000.00 as a punitive measure to cease this abuse of process.
27In order to be awarded costs, the conduct of the opposing party must amount to behaviour that is frivolous, vexatious, unreasonable or in bad faith and during the course of the proceedings. I fail to see how the conduct of the applicant amounts to such a high bar. I deny the request for costs. The issue was final on the determination of IRBs and therefore the applicant could request a reconsideration on the decision. The applicant argued new submissions in line with the criteria necessary for reconsideration. Although the reconsideration was not granted, does not mean that costs should be awarded.
CONCLUSION
28The reconsideration is denied. There is no obligation on the Tribunal’s decision to distinguish between the two tests, that being said, based on the facts of the case, it should have been clear to the parties that since the IE’s were only requested on the pre-104 IRB entitlement, the applicant was only precluded from proceeding on that issue. A denial of the post-104 IRB entitlement was not made until after the preliminary hearing and therefore nothing prevents the applicant from filing an application to the Tribunal on that issue.
Released: February 6, 2020
___________________________
Chloe Lester
Vice-Chair