[RO] v. Dominion of Canada Insurance Company, 2021 CanLII 28695

[RO] v. Dominion of Canada Insurance Company

Citation: [RO] v. Dominion of Canada Insurance Company, 2021 ONLAT 18-009887/AABS - R

RECONSIDERATION DECISION

Before: Lori Marzinotto, Vice Chair

Date: 03/04/2021

Tribunal File Number: 18-009887/AABS

Case Name: [RO] vs. Dominion of Canada Insurance Company

Written Submissions by:

For the Applicant: Allan S. Blott, Counsel

For the Respondent: David Raposo, Counsel

OVERVIEW

1The respondent filed a request for reconsideration in this matter. The request arises out of a decision dated February 5, 2020 (the “Decision”) in which the Tribunal¹ found that assessments to determine catastrophic impairments under s. 25 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) are excluded from the $50,000.00 limit of medical / rehabilitation benefits under s. 18 of the Schedule.

2In doing so, the respondent submits that the Tribunal erred in law or fact and requests that the Decision be set aside².

RESULT

3The respondent’s request for reconsideration is dismissed.

BACKGROUND AND ANALYSIS

4The grounds for a request for reconsideration are contained in LAT Rule 18.2³. The respondent submits that LAT Rule 18.2 (b) applies to this case:

(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.

5The respondent submits that the Tribunal erred in law by: i) failing to provide any interpretation of the phrase “in connection with any benefit or payment to or for an insured person under this regulation”⁴, ii) confusing a catastrophic impairment (“CAT”) designation with a CAT assessment and iii) erred by concluding that the latter is not a benefit;⁵

6For the reasons that follow, I am not persuaded that I made any error of law such that the Tribunal would have reached a different decision had the error not been made. Accordingly, I dismiss the respondent’s request for reconsideration and find that there were no errors made by the Tribunal.

i) Failing to Provide Interpretation of Phrase “in connection with any benefit or payment to or for an insured person under this regulation”

7The respondent submits that the Tribunal erred in its interpretation of s.18(5) of the Schedule. The respondent focuses on the phrase “in connection with any benefit or payment to or for an insured person” and takes the position that the Tribunal erred in not interpreting this wording to include CAT assessments.

8In the Decision and again in this reconsideration, the Tribunal rejects this interpretation. At paragraphs 11 to 15 of the Decision, the Tribunal interpreted s.18(5) in its entirety and did not parse out wording or phrases as the respondent would like the Tribunal to do.

9Section18(5) states as follows:

(5) For the purposes of subsections (1) and (3), medical and rehabilitation benefits payable in respect of an insured person include all fees and expenses for conducting assessments and examination and preparing reports in connection with any benefit or payment to or for an insured person under this Regulation,…(emphasis added)

10One cannot analyze one phrase of a subsection of legislation in a vacuum. In order to interpret the legislation, one must look at the entirety of the subsection to discern the context and intent in order to fully understand or interpret the subsection.

11I find that to extricate one phrase from a section without considering the whole of the section leads to the error the respondent is asserting is the correct interpretation.

12In any event, the argument that “payment to or for an insured person” was made in the respondent’s preliminary issue submissions and addressed in the Decision. Reconsiderations are not a venue to provide a party with a second opportunity to have its case heard.

ii) confusing a catastrophic impairment (“CAT”) designation with a CAT assessment; and, iii) erred by concluding that the latter is not a benefit

13The Tribunal did not confuse a CAT designation with a CAT assessment. A CAT designation is not a medical benefit, which the respondent concedes.

14The respondent submits that the Tribunal erred in finding that CAT assessments are not benefits. The Decision squarely deals with why CAT assessments are not benefits.

15Even if the CAT assessments conclude that the insured is catastrophically injured, it does not follow that a medical and rehabilitation benefit is payable. As stated in the Decision, there is no benefit sought in conducting the assessment. The words “payment to or for an insured person” do not change the context of the section.

16The respondent submits that the Tribunal did not undertake an analysis of s.25 CAT assessments; however, this is specifically addressed in paragraph 14 of the Decision.

17Section 25(1)5 directly deals with assessments and examinations necessary for “preparing an application” under s.45 for a CAT determination “including any assessment or examination necessary for that purpose”. Surely, an assessment necessary for preparing an application to determine whether the insured has sustained a CAT impairment, is not a benefit. CAT assessments are not a benefit or payment to or for an insured person as the respondent suggests. The benefit or payment to or for an insured person in s.18(5) is in relation to a medical and rehabilitation benefit which, the Tribunal found, does not include CAT assessments.

18I find no error in how or why the Tribunal made its ultimate conclusion that CAT assessments are excluded from the $50,000.00 medical / rehabilitation limit under s. 18 of the Schedule and are not benefits. Therefore, I have no reason to interfere with the Decision.

19The respondent has not met the reconsideration criteria in Rule 18.2 (b) and has failed to establish that the Tribunal made an error of law such that the Tribunal would likely have reached a different result had the error not been made.

CONCLUSION

20For the reasons noted above, I dismiss the respondent’s request for reconsideration.

Lori Marzinotto, Vice-Chair Tribunals Ontario - Safety, Licensing Appeals and Standards

Footnotes

1. 1Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2. 2The facts were not in dispute and therefore the respondent alleges the Tribunal erred in law.
3. 3The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (“LAT Rules”).
4. 4Request for Reconsideration of the Respondent at p.2.
5. 5Request for Reconsideration of the Respondent at p.3 and p.5