RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Tribunal File Number: 18-010303/AABS
Case Name: [AT] v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Kiro Soliman
For the Respondent: Mohamed R. Hashim
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a Tribunal decision dated June 8, 2020 by Adjudicator Manigat. The Tribunal determined that the applicant was not entitled to payment for a treatment plan in the amount of $14,804.51, interest, costs or an award under s. 10 of O. Reg. 664. The decision did find that Aviva’s first two denial notices in response to the treatment plan were defective and that the applicant was entitled to any amounts incurred during the period of non-compliance until the date the defect was cured.
2In the request, the applicant submits that the Tribunal erred in law and fact in finding that the benefit was not reasonable and necessary pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20201 (the “Schedule”). The applicant seeks payment of the treatment plan in full, an award under s. 10, interest, costs in the amount of $1,000 or, in the alternative, a rehearing on parts or all of the issues in dispute.
3Aviva provided responding submissions, asserting that the request be dismissed. Pursuant to Rule 18 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated responsibility to reconsider this matter.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the applicant relies on criteria 18.2(b), submitting that the Tribunal committed errors of law and fact in reaching its decision such that the Tribunal would likely have reached a different decision had the errors not been made.
6Specifically, the applicant asserts that the Tribunal failed to properly apply s. 38(8) and s. 38(11) of the Schedule; that it made a finding of fact for which there is no evidence; that it made a “finding of an undisputed fact raising a question of law which incorrect or no legal principles were applied”; and, assessed the evidence based on wrong legal principles which subsequently created an error of law.
7On review, I find the adjudicator applied the correct legal test when determining whether Aviva was compliant with the notice requirements provided by s. 38 of the Schedule. In the decision, the adjudicator concluded that the denial notice letter was insufficient for failing to include particulars related to the applicant’s claim, for identifying incorrect information in the notice and because the notice was late. The decision also found that the September 5, 2018 notice sent via fax did not contain the s. 44 reports on which it was based, which also rendered it non-compliant. The adjudicator then concluded that Aviva finally became compliant with s. 38 after providing the s. 44 reports via correspondence dated October 12, 2018.
8Aviva was therefore liable to pay for services incurred during the period of non-compliance, as s. 38(11)2 provides that the insurer shall pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in subsection (8). However, it is well-settled that once the defective notice is cured, there is no ongoing exposure to pay incurred amounts.2
9The adjudicator’s determination that the notice was then cured on October 12, 2018 was well within his purview and was not an error of law or fact. Aviva is correct that there are numerous decisions from this Tribunal confirming this interpretation. The decision then found that the applicant was entitled to payment of any incurred amounts during this period of non-compliance. However, it does not appear that the applicant furnished any evidence at first instance of incurred treatment amounts during the period of non-compliance that would have resulted in payment.
10On reconsideration, I was also not directed to evidence that treatment, partially or in full, was incurred by the applicant during the period of non-compliance—being July 4, 2018 to October 12, 2018—despite the applicant’s submission that “treatment under the above noted plan continues to be incurred to date and shall be payable in full or in the alternative to a date to be determined.” I see no error under s. 38(11). Further, while reconsideration is not an invitation to re-weigh the evidence, but for failing to include the referenced s. 44 reports, I would find that Aviva’s notice dated September 5, 2018 easily satisfied the requirements of s. 38. When the s. 44 reports were eventually provided on October 12, 2018, I agree with the adjudicator that Aviva’s s. 38 obligations were cured. As a result, I see no reason to interfere with the Tribunal’s determination.
11In any event, after finding that Aviva eventually complied with its obligations under s. 38, the adjudicator then correctly proceeded to an analysis of whether the treatment plan was reasonable and necessary, which was the main issue in dispute. The adjudicator determined that the treatment plan was not reasonable and necessary. Contrary to the applicant’s submissions, upon finding that the defective notice was cured, the Tribunal was required to conduct this analysis and assign weight to the evidence he found most persuasive. While the applicant may disagree with the adjudicator’s finding, it was not an error of law or fact. I see no reason to interfere with the Tribunal’s reasoned determination.
12For these reasons, I also see no basis to interfere with the Tribunal’s determination not to grant a s. 10 award or costs. Where the applicant provided no evidence of incurred treatment and where Aviva eventually cured its defective notices, it cannot be said that it unreasonably withheld or delayed the payment of benefits that would attract an award. Similarly, where the applicant was unsuccessful in his application, it follows that there was no basis on which to grant an award. Finally, under the Tribunal’s Common Rules, costs are entirely discretionary, so it is not an error of law to decline to award same and especially so where the Tribunal provided a lengthy rationale to support its decision that Aviva did not act unreasonably, frivolously, vexatiously or in bad faith. There is no error.
ORDER
13For the reasons above, the request for reconsideration is dismissed.
Jesse A. Boyce
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: August 13, 2021
Footnotes
- O. Reg. 34/10, as amended.
- See: Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707.