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RECONSIDERATION DECISION

Citation: J.A. vs. Aviva Insurance Company, 2020 ONLAT 18-002124/AABS

Before: Jesse A. Boyce, Adjudicator

Date: May 25, 2020

File: 18-002124/AABS

Case Name: J.A. vs. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Samia M. Alam, Counsel

For the Respondent: Jessica L. J. Rogers, Counsel

OVERVIEW

1This request for reconsideration was filed by the respondent, Aviva. It arises out of a written decision in which I found that the applicant, J.A., was entitled to partial payment in the amount of $10,500, plus HST, for the cost of catastrophic assessments and an accompanying report.

2Aviva submits that I erred in law in finding that J.A. was entitled to funding for the cost of the assessments because the assessments were not undertaken for the purpose of preparing an Application for Catastrophic Determination, or OCF-19. Aviva requests that my decision be varied to find that the catastrophic assessments that I found partially reasonable and necessary are instead not recoverable because they constitute rebuttal reports and/or were requested for a purpose other than preparing an application for catastrophic determination (“CAT”) under s. 45 of the Schedule.

RESULT

3Aviva’s request for reconsideration is dismissed.

ANALYSIS

4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted under Rule 18.4 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 an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

c) The Tribunal heard false 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.

5Here, the basis for Aviva’s request for reconsideration falls under Rule 18.2(b), as Aviva submits that I made four significant errors of law such that I would likely have reached a different result had the errors not been made. Specifically, the errors alleged by Aviva are as follows: first, that it was error in para. 21 to find that the assessments J.A. sought were not true rebuttal reports; second, that it was error in para. 26 to find that assessments prepared after an application for catastrophic impairment were still prepared “for the purpose” of a catastrophic application under s. 45; third, that my conclusions at paras. 27 and 29 that the timing of J.A.’s catastrophic application is not relevant was an error; and fourth, that throughout the decision it was an error to use procedural fairness and “the right to be assessed” as justification to order the catastrophic assessments as payable.

6In response, J.A. submits that Aviva’s request for reconsideration should be dismissed as no errors of law have been raised and the request is an attempt to relitigate the issues that were already dealt with by the Tribunal. I agree.

7The reconsideration process at the Tribunal is a vital one. It allows the Tribunal—and in this case, the first instance hearing adjudicator—to revisit and potentially remedy serious breaches of procedural fairness or significant errors of law that materially affect the outcome of a decision. Adjudicators presented with significant errors have a responsibility to revisit their decisions and assess the requested relief. However, as Associate Chair Batty detailed in (J.R.) v. Coachman Ins. Co.,¹ a party seeking this remedy has a high onus to meet. Reconsideration is only warranted in cases where the Tribunal made significant errors preventing a just outcome, where false evidence has been admitted or where genuinely new or discoverable evidence comes to light after the initial decision. Reconsideration is not an invitation to make the same arguments in the hope of securing a different outcome.

8On review of Aviva’s submissions, I find this is precisely the case here. As the first instance hearing adjudicator, I very recently grappled with Aviva’s position—restated here on reconsideration—that rebuttal reports are not payable under the Schedule and that J.A.’s catastrophic assessments should not be funded as a result. I agreed with Aviva’s position on rebuttal reports generally, but determined that, on the unique facts of this case, J.A.’s catastrophic assessments would not result in true rebuttal reports. Thus, I ordered them partially payable.

9While I am alive to the four allegations of error that form the basis of Aviva’s request, after reviewing my decision I find no errors of law that would materially affect the outcome, as alleged. Further, I find the arguments offered by Aviva on reconsideration are largely similar to its submissions from the first instance hearing and, in some cases, are presented verbatim. While this is not the purpose of reconsideration, I will briefly address each of the arguments in turn.

10First, there’s the alleged error in para. 21 of my original decision where I made the finding that J.A.’s “rebuttal reports” were really J.A.’s first CAT assessments. On review, I do not find this to be an error of law that would result in a different outcome. Indeed, I consider this to be a finding of fact that was based on the number of CAT reports in evidence at the time of the hearing, at para. 22:

[22] I find this important because the first CAT report in this matter did not come from J.A. as it does in typical CAT cases before the Tribunal. Rather, the first CAT report was secured by Aviva in response to nothing other than an OCF-19 unsupported by anything other than an examination and mere assertion of qualification for CAT by J.A.’s family physician. Indeed, not only was Aviva’s CAT report the first assessment and report to be completed, it remains the only CAT report in existence due to Aviva’s objection to the fact that the submission of J.A.’s OCF-18s requesting CAT assessment funding technically constitute a request for a “rebuttal report” simply because it follows Aviva’s report, even though it would be J.A.’s first.

11On these facts, I determined that Aviva’s interpretation of “rebuttal reports” would result in J.A. being unable to present a CAT case on the merits. In the decision— and again here on reconsideration—I do not accept that the 2010 amendments to the Schedule were designed to lead to this result, and find no error of law that would have resulted in a different outcome.

12Second, regarding Aviva’s assertion that it was an error of law in para. 26 to find that assessments prepared after an application for catastrophic impairment were still prepared “for the purpose” of a catastrophic application under s. 45, I find no error of law that would have resulted in a different outcome. This paragraph considered s. 25(1)5, which is contained within Part IV of the Schedule titled “Payment of Other Expenses”. The section indicates that an insurer shall pay reasonable fees for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. In the decision, I made the following finding at para. 26:

Here, I interpret the phrase “for that purpose” to mean an application for CAT impairment under s. 45. To reiterate my earlier finding, there has yet to be an assessment or examination conducted on behalf of J.A. “for the purpose” of applying for a CAT determination under s. 45. There is only an OCF-19, which Aviva itself determined was “insufficient medical documentation” to determine CAT.

13After considering Aviva’s submissions anew, I disagree that this was an error of law that would change my initial decision. On review, I still interpret the phrase “for that purpose” to mean an application for CAT impairment under s. 45 and would still find that J.A.’s request meets this interpretation. Indeed, at the time J.A.’s OCF-19 was submitted to Aviva, there had yet to be an assessment or report of any kind “for the purpose” of determining CAT. To recall the facts outlined in para. 21, the OCF-19 J.A. submitted to Aviva for a CAT determination was “atypical, as it was not based on a slate of assessments, nor was it accompanied by a report detailing the CAT findings by a team of assessors. Instead, the OCF-19 was completed by his family physician, who seemingly just checked the box under Part 4, indicating that J.A. meets the criteria for CAT.” In my view, the procedural irregularity (or error or omission on the part of J.A.’s physician) of submitting the OCF-19 without assessments or a report does not invalidate the underlying, obvious reason for doing so in the first place: that J.A. was seeking a CAT determination under s. 45.

14Third, Aviva submits that my conclusions at paras. 27 and 29 of the initial decision that the timing of J.A.’s CAT application is not relevant was an error of law because the timing of a CAT application, it submits, is highly relevant. For increased clarity, my findings are presented below:

[27] I also considered whether the timing of a CAT application was key to the process. However, on review of s. 45, there is no language that speaks to the order in which documentation must arrive in order to be compliant with a CAT determination request or even that J.A. must furnish his reports before Aviva. For example, there is no language stating that an OCF-18 must be submitted prior to, or in conjunction with, an OCF-19, as Aviva alleges. In a similar vein, there is no language detailing the process that an applicant must undertake in order to be compliant. There is no language barring an applicant from submitting OCF-18s for CAT assessments following s. 44 IEs or identifying those OCF-18s as “rebuttals”. There is no mention of rebuttal reports. Indeed, there is only language speaking to the insurer’s timing obligations: first, to respond to a CAT application within 10 days under s. 45(3), and, second, under s. 45(5), to provide copies of all s. 44 reports along with its CAT determination within 10 days of receipt. That is all. I find it difficult to reconcile Aviva’s position on timing where the only timelines prescribed apply to the insurer and not the insured.

[29] All of this is to say that I find that s. 25 cannot be interpreted in a manner that dictates how a benefit should be applied for because it is only contained in a “Payment of Expenses” section dealing with reasonable fees for assessments and not, as Aviva suggests, direction on how an applicant must apply for CAT. Similarly, I find no indication in either section confirming that the submission of an OCF-18 for CAT assessments following s. 44 IEs denying CAT automatically makes it a rebuttal and therefore not a payable expense, so long as it is reasonable and necessary. I find this is especially so where the applicant has not been provided with funding of any kind to secure his own CAT reports.

15On review, I find no error of law that would have resulted in a different outcome. While I am alive to Aviva’s contention that the timing of a CAT application is imperative, I cannot accept this interpretation given the lack of direction or timing obligations pertaining to the insured in either of s. 25 or s. 45 of the Schedule and especially so considering the only timing obligations apply to the insurer, as outlined in para. 27 of the initial decision.

16Fourth, Aviva alleges that throughout the decision it was an error of law to use procedural fairness and “the right to be assessed” as justification to order the catastrophic assessments partially payable. Again, on the unique facts of this case, I disagree. Indeed, as I indicated in para. 24, if it were a situation where J.A. was the first party to conduct assessments and furnish a CAT report and then, following a responding CAT report from Aviva, attempted to secure funding for a rebuttal report under the Schedule, I would share Aviva’s concerns and agree that those “rebuttal reports” would not be payable under the 2010 amendments. But, to reiterate, that was not the case here given Aviva’s narrow interpretation of the CAT application process. Procedural fairness and the right to be assessed were considered in the initial decision not as the sole basis for my finding that J.A.’s reports were partially payable, but rather as a relevant component of my analysis of s. 25 and s. 45 specifically and consumer-protection legislation like the Schedule more generally:

[25] […] The right to be assessed for CAT is a substantive one that is entrenched in the current 2010 Schedule under ss. 3, 45(1) and 25(1)5 and in every iteration before it. There is no ambiguity. It is a right that J.A. has not yet exhausted even though his OCF-18s were classified collectively, and in my opinion, mistakenly, as “CAT Rebuttal Reports” by the medical professional who completed them. In practice, these OCF-18s only constitute “rebuttals” because of Aviva’s insistence that the request be labelled as same. Contrary to Aviva’s contention otherwise, I find procedural fairness is highly relevant here, as it dictates that the concern should be on availability of funding for CAT assessments and reports, whether they are reasonable and necessary and not what those reports are called or the order in which they are requested.

17While I do consider procedural fairness and the right to be assessed to be relevant and agree that they were certainly considerations in my decision, I disagree that these principles formed the only justification for my decision, or in any way were used to modify or override the Schedule’s language, to order the reports partially payable.

18On review, what Aviva characterizes as significant errors of law are, in my view, differences of opinion and interpretation. Accordingly, and for the reasons identified above, I dismiss Aviva’s request pursuant to Rule 18.4(a).

19In submissions, J.A. sought costs for having to produce his reconsideration response, arguing that Aviva’s reconsideration request was frivolous as it raised no new arguments or errors of law. Under Rule 19, the Tribunal may award costs where one party has acted unreasonably, frivolously, vexatiously or in bad faith. While I find no basis to grant reconsideration, I also find no basis to award J.A. costs in this matter under Rule 19.5. There is no evidence of misconduct, breaching of a Tribunal order or interference with the Tribunal’s process on Aviva’s end. In a similar vein, I find the prejudice to J.A. is limited. I decline to award costs.

CONCLUSION

20Aviva’s request for reconsideration is dismissed.

Footnotes

1. 12018 CanLII 39372 (ON LAT Reconsideration), at 30-31.