Reconsideration Decision
Before: Derek Grant
Tribunal File Number: 19-005572/AABS
Case Name: Vesna Catic v. Aviva General Insurance
Written Submissions by:
For the Applicant: Aurora Mancuso, Counsel
For the Respondent: Joy Kohli, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter.
2It arises out of a decision in which the Tribunal found that the Applicant was not entitled to the cost of a psychological assessment, interest or an award.
3The Applicant is seeking an order:
a. Varying the Tribunal’s decision
4The Applicant makes the request for reconsideration pursuant to Rule 18 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 (the “Common Rules”).
RESULT
5The Applicant’s request for reconsideration is granted in part.
6I grant the Applicant’s request for reconsideration and set aside the Tribunal order as it relates to the following:
a. The treatment plan for a psychological assessment is payable. Interest is payable pursuant to s. 51.
7Based on the evidence before me, I find the Applicant is not entitled to an award under s. 10 of O. Reg 664.
BACKGROUND
8The Applicant has alleged that I erred by failing to consider the evidence and case law before me when I determined that the treatment plan for a psychological assessment was not reasonable and necessary. Paragraph five regarding the psychological assessment error in the applicant’s reconsideration submissions lists approximately 22 alleged errors and paragraph 19, regarding the Special Award error, notes 15 alleged errors.
9In addition, the Applicant submits the following:
a. I failed to consider that her injuries were deemed to fall outside the Minor Injury Guideline (the “MIG”) as of November 12, 2019;
b. I misinterpreted the law under s. 38(11) of the Schedule;
c. I failed to consider the evidence in support of a special award; and
d. I erred in the application of the law that applies to a special award.
10The reconsideration decision will address the key allegations rather than each of the alleged errors noted above.
DISCUSSION
New case law
11In her reconsideration submissions, the Applicant relied on various treatment providers’ opinions and case law. The discussion focuses on the case law. L.P. v. RBC General Insurance Company which was released on September 5, 2019 and 17-000665 v. MVACF, which was released on October 18, 2017.
12It is well settled that reconsideration submissions are not the opportunity for an applicant to restate or attempt to bolster their arguments. The limited scope of reconsideration is intended to specifically address the grounds set out in Rule 18. Reconsideration is not an opportunity for a party to restate its argument. Any new evidence, caselaw or arguments, unless it could not previously be obtained, is not allowed to be relied on for reconsideration.
13The Respondent submits that the Applicant relies on these two cases that were not previously included in her initial or reply submissions. Accordingly, I agree with the Respondent that any new evidence, caselaw and arguments in the Applicant’s reconsideration submissions be struck from the record.
14Consequently, only the evidence, caselaw and arguments that were raised in the submissions at first instance will be considered for the purpose of reconsideration.
ANALYSIS
Did the Tribunal err in finding that the treatment plan was not payable?
15The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Common Rules. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of 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 likely affected the result; or
d. 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.
16The Applicant submits that the Tribunal:
a. Made an error of law and/or fact such that the Tribunal would likely have reached a different result had the error not been made.
17The crux of the Applicant’s argument on reconsideration is that I failed to properly consider that the disputed treatment plan submitted on November 15, 2016 was denied approximately three months late.
18At paragraph 13 of my decision, I held that the Respondent conceded that its denial, dated February 20, 2017, was provided to the Applicant past the 10-day period allowed under s. 38(8) of the Schedule. In addition, I agreed that the Applicant is entitled to