RECONSIDERATION DECISION

Citation: N.C. v Aviva General Insurance Company, 2021 ONLAT 19-004666/AABS

Before:

Theresa McGee, Vice-Chair

Date:

January 6, 2021

File:

19-004666/AABS

Case Name:

N.C. v Aviva General Insurance Company

Written Submissions by:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Sarah Fasih, Counsel

OVERVIEW

1The applicant’s request for reconsideration arises from a decision dated October 13, 2020 in which the Licence Appeal Tribunal (“Tribunal”) dismissed her application because she had failed to establish, on a balance of probabilities, entitlement to the benefits she claimed.

2The Tribunal’s determination that the disputed medical benefits were not reasonable and necessary as a result of the accident was based on a finding that the applicant had reached maximum medical improvement from her accident-related injuries. The Tribunal also denied the applicant’s request for interest and a special award.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair has delegated to me the authority to reconsider the decision.

RESULT

4The applicant’s request for reconsideration is dismissed.

PROCEDURAL ISSUES

5The Tribunal received the applicant’s request for reconsideration on November 3, 2020. The applicant’s request lacked accompanying submissions and was therefore non-complaint with Rule 18.1(a) of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”).

6On November 3, 2020, the Tribunal sent a letter to the parties advising of the requirement for submissions from the applicant and extending the filing deadline to November 13, 2020 for the applicant and December 4, 2020 for the respondent.

7The applicant did not file submissions in support of her request for reconsideration until December 2, 2020, nearly a month after her request for reconsideration and almost three weeks after the extended filing deadline.

8By way of email correspondence dated December 2, 2020, the respondent advised the applicant and the Tribunal of its motion for a dismissal of the reconsideration request on the grounds that the applicant failed to provide submissions within the prescribed time.

9The applicant has offered no explanation for the delay in filing her submissions.

10However, the respondent has not argued that it has suffered any prejudice from the applicant’s late filing.

11I have considered the applicant’s request for reconsideration and I have determined that it is without merit. For the reasons set out below, I am dismissing the reconsideration request because the applicant has failed to establish any of the criteria for reconsideration under Rule 18.2. Therefore, I need not consider the respondent’s request for dismissal due to procedural non-compliance.

12In reviewing the decision for the purpose of the reconsideration request, I located a clerical error at paragraph 18, where the words “do not” were missing from a sentence. I have corrected the error and will release an amended version of the original decision along with this reconsideration decision.

ANALYSIS

13The grounds for a request for reconsideration are found in Rule 18.2 of the Rules. A request for reconsideration will not be granted unless one of the following criteria are met:

i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

ii. 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;

iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

iv. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

14The applicant requests reconsideration on all four of these grounds.

15Specifically, the applicant submits that:

i. the Tribunal erred in law by creating and applying an incorrect test to the issues in dispute;

ii. the Tribunal mischaracterized the facts by finding that the applicant’s recovery from her accident-related injuries had plateaued;

iii. the Tribunal failed to look at the complete facts in reaching its conclusion that the applicant had reached maximum medical improvement;

iv. the Tribunal erred because its finding that the applicant had a poor response to treatment does not mean that the applicant had no response to treatment;

v. the Tribunal erred in fact because if there is any chance of improvement then the applicant has not reached maximum medical improvement;

vi. the Tribunal’s assessment, at paragraph 23 of the decision, of Dr. Robertus’s opinion makes no sense at all;

vii. the Tribunal exhibited bias and mischaracterized the facts in finding that the insurer acted in good faith by partially approving a plan for psychotherapy sessions since on a balance of probabilities it is unlikely that the treatment goals identified in the plan are reasonably achievable;

viii. the Tribunal erred in fact by finding that the claimed MRI was unreasonable because it would ostensibly be covered by OHIP – while coverage is available through OHIP, it would also be available through the respondent and would be conducted faster;

ix. the Tribunal erred in stating that it was legally and factually constrained by the Schedule and the evidence before it because it failed to provide which part of the Schedule it is constrained by;

x. the facts the Tribunal relied on are not correct because the applicant has not reached maximum medical improvement; and

xi. the Tribunal erred in fact by agreeing with the position of the respondent and by not taking into account any findings in the reports provided by the applicant.

16Below, I categorize the errors the applicant submits the Tribunal made as errors of law, errors of fact, and reasonable apprehension of bias, and address each in turn.

The Tribunal did not err in law

17To the applicant’s submission that the Tribunal created and applied an incorrect legal test to the issues in dispute, I find no error. The Tribunal correctly identified the relevant test for entitlement to medical and rehabilitation benefits outside of the Minor Injury Guideline (“MIG”) limit: whether those benefits represent expenses that are reasonable and necessary as a result of the accident. The test is identified and applied six times in the decision.

18The applicant submits that the Tribunal erred because it found that her response to treatment was poor, and that this is not the same as saying she had no response to treatment. On this point, the applicant makes the closely related submission, characterized as an error of fact, that if there is any chance of improvement, then maximum medical improvement has not been reached.

19I find no error in the Tribunal’s determination that the applicant has reached maximum medical improvement from her accident-related injuries. The Tribunal observed at paragraph 18 that the applicant had failed to establish “that further facility-based treatment will yield any substantial improvement in her condition.” While it may be possible to associate minor gains with extended facility-based treatment, the test for entitlement to medical benefits under section 15 of the Schedule requires that the treatment be not only necessary as a result of the accident, but reasonable. The Tribunal held at paragraph 29 of the decision, “It is not reasonable to hold Aviva liable for any and all expenses aimed at addressing N.C.’s pre-existing medical conditions when she has reached maximum medical improvement from her accident-related injuries and exacerbations.”

20The applicant disagrees with the Tribunal’s finding that the respondent is not liable to pay for an MRI that would be covered by OHIP because the MRI would also be available through the respondent and could be accessed faster. This is a new argument improperly raised on reconsideration. That aside, I find no error of law or fact in the impugned finding. Under the system of priority payment for health care services in Ontario, an automobile insurer is not liable to pay for services reasonably available through an OHIP-funded source: see s. 47(2) of the Schedule and s. 268 of the [Insurance Act]¹ as considered by this Tribunal in G.T. v. Unifund Assurance Company.² The respondent put this issue in play by raising it in its submissions and the applicant presented no submissions or evidence to counter the respondent’s position.

21To the extent that the applicant asserts the Tribunal failed to identify the provisions of the Schedule that constrain its decision-making, I find no error. The Tribunal correctly identified and applied the test in the Schedule for entitlement to the disputed benefits, including at paragraph 27 of the decision, highlighted by the applicant, where the Tribunal notes the legal and factual constraints placed on it by the regulation and the evidentiary record. Here, again, the Tribunal sets its legal finding on the reasonableness and necessity of further intervention for the applicant’s accident-related injuries against medical or clinical perspectives on treatment approaches for a severely treatment-resistant patient. Under the Schedule, an insurer’s liability for medical benefits is not limitless: only those expenses which are reasonable and necessary as a result of the accident are payable. The Tribunal’s findings were reasonable and rooted in an application of the correct legal test.

The Tribunal did not err in fact

22The applicant submits the Tribunal erred in finding that the applicant’s recovery had plateaued. I find no factual error in this finding. The Tribunal’s conclusion on this point is well-supported by the evidence, set out in detail at paragraph 15 of the decision.

23The applicant submits that the Tribunal’s assessment of Dr. Robertus’s evidence at paragraph 23 of the decision makes no sense at all. I find no error in that assessment. The Tribunal found that Dr. Robertus’s opinion that the applicant “may also benefit” from assistive devices was not sufficient to establish that assistive devices were reasonable and necessary as a result of the accident. The Tribunal’s reasoning was straightforward. Disagreeing with the weight attributed to evidence is not a ground for reconsideration.

24The applicant submits that the Tribunal failed to look at the complete facts in concluding that she had reached maximum medical improvement from her accident-related injuries, and that the facts relied on by the Tribunal are incorrect because there was no maximum medical improvement.

25The applicant has not specifically directed me to any evidence in the record which the Tribunal failed to consider or that, if properly considered, would have led the Tribunal to a different outcome. The factual basis for the Tribunal’s conclusions is clearly laid out in the decision. There is no requirement in the rules of procedural fairness for a decision-maker to exhaustively list every item in evidence when rendering its reasons for decision. As the grounds for reconsideration in Rule 18 make clear, reconsideration is not a venue for the re-weighing of evidence. A party’s disagreement with the outcome of a decision is not a ground for granting reconsideration.

26The applicant submits that the Tribunal erred by agreeing with every finding of the respondent, and by not considering the applicant’s evidence. The applicant fails to identify an error. The decision refers to expert medical opinions tendered by both parties. As mentioned above, disagreeing with the weight the Tribunal attributed to the evidence is not a basis for reconsideration.

No reasonable apprehension of bias

27The applicant submits that the Tribunal exhibited bias by finding, at paragraph 25 of its decision, that the respondent had approved part of a treatment plan for psychotherapy services in good faith.

28The Supreme Court of Canada set out the test for a reasonable apprehension of bias in Committee for Justice and Liberty et al. v. National Energy Board et al.,³ at p. 394:

the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

29The Tribunal’s finding that the approval was made in good faith is supported by the evidence. The respondent approved the psychotherapy sessions based on the opinion of its Insurer’s Examiner, Dr. Jonathan Siegel, Psychologist. The psychological assessment report, dated September 4, 2019, noted at page 23 that Dr. Siegel’s recommendation of counselling sessions was premised on the applicant’s report of receiving “some benefit” from counselling in the past. However, Dr. Siegel observed that the treatment plan itself lacked information and did not specifically establish how continued psychotherapy would add value to the applicant’s recovery. To that end, the respondent approved psychotherapy services that could not positively be determined to be reasonable and necessary, based on the opinion of its assessor that treatment of this nature had provided “some benefit” in the past. The Tribunal’s characterization of the respondent’s adjusting of this claim as being in good faith is based fairly on the evidence and there is nothing in its characterization of the facts to reasonably indicate bias as defined by the court in National Energy Board.

30The applicant’s request for reconsideration is essentially a request for a re-hearing of the evidence and is based on her dissatisfaction with the outcome of the October 13, 2020 decision. The Tribunal’s Rules do not permit it to reverse or set aside a decision on these grounds.

CONCLUSION

31The applicant’s request for reconsideration is dismissed.

Footnotes

1. 1R.S.O. 1990, Chapter I.8.
2. 22017 CanLII 81567 (ON LAT).in good faith
3. 31976 CanLII 2 (SCC), [1978] 1 SCR 369 (“National Energy Board”).