RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 18-009572/AABS
Case Name: [BM] v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Mohamed Elbassiouni, Counsel
For the Respondent: Kathleen Mertes, Counsel
OVERVIEW
1This request for reconsideration was filed by [BM] (“applicant”). It arises out of a December 2, 2020 decision (“Decision”) in which the Tribunal found the applicant is entitled to partial payment from Aviva Insurance Company (“respondent”) for two of the OCF-18, disputed treatment plans but not the third treatment plan, specifically:
(a) payment for the $1,726.99 physiotherapy treatment plan dated March 1, 2017* for any payments incurred between the 11th business day following March 16, 2017 and April 11, 2017, plus interest, as the respondent was in non-compliance with s. 38 (8) of the Schedule and pursuant to the remedy in s. 38 (11) of the Schedule;
(b) payment for the $1,703.71 chiropractic treatment plan dated March 1, 2017* for any payments incurred between the 11th business day following March 16, 2017 and April 11, 2017 plus interest, as the respondent was in non-compliance with s. 38 (8) of the Schedule and pursuant to the remedy in s. 38 (11) of the Schedule; and (** together “the March treatment plans”)
(c) the applicant is not entitled to $1,128.10 for the chiropractic treatment plan submitted on April 21, 2017. (“the April treatment plan”).
Applicant’s Reconsideration Request Made Under Outdated Rule
2The applicant 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 This wording comes from a previous version of Rule 18 (b) which has now been replaced by Rule 18.2 (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October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 December 2, 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 applicant to request reconsideration under the current Rule 18.2(b), as amended, should not be fatal to his reconsideration request. In order to avoid putting the applicant to the expense and delay of re-filing the reconsideration request under the amended Rule 18.2(b) and putting the respondent 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 applicant’s reconsideration request to proceed. I find that allowing the applicant’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 applicant’s grounds for reconsideration under Rule 18.2(b) to be made under Rule 18.2(b), of the current Rules, as amended.
4The applicant seeks a variation of the Decision to order that the respondent shall pay for all of all three disputed treatment plans within 30 days of receiving an invoice for them.
RESULT
5The applicant’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 applicant submits that the Tribunal made errors of law and fact because although the Tribunal correctly found that s. 38 (11) of the Schedule limits the entitlement to the treatment plans starting on the 11th business day and ending on the day when proper notice is provided, no notice was ever provided and the Tribunal based on the denial dated April 11, 2017 following the report from the s. 44 assessor. The applicant also submits that the Tribunal substituted the notice required by s. 38 (8) (as per s. 38 (11)) with the notice under ss. “38.13” and “38.14” of the Schedule. In applying the consequences of s. 38 (11) to the March treatment plans, the Tribunal misinterpreted the word “described” by equating it with “incurred”. Further, the Tribunal erred in requiring the applicant, pursuant to s. 15 of the Schedule to incur the goods and services in the March treatment plans for the respondent to be obligated to pay for them.
8The respondent disagrees and in response submits that the request for reconsideration be denied in its entirety.
9The applicant filed reply submissions.
10Having 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.
11I find no errors of law or fact in the Decision regarding the s. 38 notice including what the applicant submits is “substituting” the notice required by s. 38 (8) with the notice under ss. 38(13) and 38(14) of the Schedule. The applicant submits in reconsideration that a proper notice was never provided to the applicant and the Tribunal should have found the period of liability for payment was left open-ended. The Tribunal considered the applicant’s notice arguments at the hearing and determined them as set out in paragraphs 11, 12, 13, 16, 17, 18, 19 and 20. It was open to the Tribunal, on the evidence before it in this particular case, to make a finding that the April 11, 2017 notice letter met the requirement of a valid notice under s. 38. I find no error of fact or law in doing so. Further, the applicant concedes in his reply submissions that this reconsideration does not turn on the difference between s. 38 (8) and (14) notices.1
12I find no errors of fact or law in the Decision regarding the Tribunal’s “statutory interpretation” of the word “described” in s. 38 (11) of the Schedule by equating it with “incurred” as suggested by the applicant. The Tribunal found in paragraph 8 of the Decision that the respondent is not in compliance with s. 38 (8) of the Schedule regarding the March treatment plans. The Tribunal found in paragraph 9 of the Decision that the respondent is in compliance with s. 38 (8) for the April treatment plan. These findings of fact were open to the adjudicator on the evidentiary record before the adjudicator at the hearing and I find no error in them.
13I find no error in the Tribunal’s interpretation of the word “described” in s. 38 (11). Section 38 (11) 2 provides that the insurer shall pay for all goods and services described that “relate to the period” starting on the 11th business day after the treatment plans were submitted and ending on the day a notice is provided under s. 38 (8). It is a misapprehension of s. 38 of the Schedule to suggest that the insurer is automatically liable for the entire treatment plan if found to be in non-compliance with s. 38 (8). It is well established that the consequences of non-compliance with s. 38 (8) as set out in s. 38 (11) 2 are limited to the period of time specified in s. 38 (11) 2. This interpretation is consistent with the M.F.Z. case cited by the applicant.2 Otherwise, the insurer would be denied the opportunity to limit the period of liability for payment by curing the defective notice with the delivery of a proper notice as provided for in s. 38 (11) 2.
14I find no errors of fact or law in the Decision by requiring the applicant to incur the March treatment plans for the respondent to be obligated to pay for them. The applicant submits this was done under s. 15 of the Schedule.3 The Decision does not refer to s. 15 of the Schedule. However, under ss. 15 and 16 of the Schedule, an insurer is only required to pay medical and rehabilitation benefits that have been incurred.
15The applicant also submits in his initial submissions and in reply that the correct statutory interpretation4 of the phrase “described” in s. 38 (11) does not require the applicant to establish that the treatment plans are incurred. The respondent submits that s. 38 (15) requires an insurer to pay for treatment plans which it is required to pay for under this section within 30 days after receiving an invoice for them. I agree. The obligation to pay upon receipt of an invoice is clear under s. 38 (15) and, although not referred to in the Decision, the Tribunal’s finding that the March treatment plans are payable as set out in paragraphs 11 and 12, with interest, for any proven incurred treatments is consistent with this section. I find no error of law or fact.
16The applicant also submits that s. 38 (11) is an exception to the general rule that goods and services must be reasonable and necessary for them to become payable. The Tribunal found all three disputed treatment plans not to be reasonable and necessary in paragraph 43 of the Decision but the March treatment plans payable because of non-compliance with s. 38 (8). I find no error of law or fact in doing so.
17I find that the applicant has not established his 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 applicant requested reconsideration, the onus is on the applicant to establish his grounds and he has not done so. Instead, the applicant’s submissions appear raise many of the same arguments made at the hearing. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION AND ORDER
18For the reasons noted above, I dismiss the respondent’s request for reconsideration of the Tribunal’s Decision dated December 2, 2020.
Avril A. Farlam
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 27, 2021
Footnotes
- Applicant’s Reconsideration Reply submissions dated April 9, 2021, para 12.
- M.F.Z. v. Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)(Reconsideration)((“M.F.Z.”).
- Applicant’s Reconsideration submissions dated December 22 17,sic, 2020, para 15.
- Applicant cites Rizzo and Rizzo Shoes Ltd. (Re), [1998] CanLII 837 (SCC).