RECONSIDERATION DECISION
Before: Stephanie Kepman
Licence Appeal Tribunal File Number: 20-011042/AABS
Case Name: Kacey Joaquim v. Intact Insurance Company
Written Submissions by:
For the Applicant: Claire Wilkinson, Counsel
For the Respondent: Marni Miller, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a preliminary decision in which the Licence Appeal Tribunal ('Tribunal') found that the applicant was barred from commencing a proceeding for certain medical benefits because she failed to comply with section 44 of the Schedule by not attending an insurer's examination.
3The decision also addressed the substantive issues in dispute.
PROCEDURAL ISSUE
4The respondent raised the procedural issue regarding the applicant's submissions and his failure to comply with Rule 18.1 of the Tribunal's Common Rules of Practice and Procedure1 ("Rules"). Rule 18.1 states that any final decision of the Tribunal can be reconsidered if a request is made by a party within 21 days of the date of the decision.
5The Tribunal released the decision on December 21, 2021. On January 10, 2022, the applicant served the Tribunal and the respondent with her Request for Reconsideration Form and Submissions. The Request for Reconsideration Form indicated that the basis of the request was that the Tribunal made an error of law or fact and consisted of 38 pages of submissions. This Form was received within the 21-day period prescribed by Rule 18.1
6On January 12, 2022, the Tribunal received an email from the applicant's counsel's law clerk indicating that the applicant sought an extension to amend her Request and would be adding additional grounds for the reconsideration request. The email also explained the late filing due to the holidays. This email was not sent to the respondent.
7On January 20, 2022, the applicant served and filed an Amended Request for Reconsideration Form and submissions. In contrast to the Form of January 10, 2022, the amended Form stated the reconsideration was filed on the basis of error of law or fact and that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The amended submissions had been expanded to 59 pages. This was received outside of the 21-day period.
8The respondent submitted that the applicant tried to circumvent the Tribunal's Rules by allegedly amending their materials and adding a second basis for the reconsideration; as the applicant's submissions did not comply with the Rules, the respondent submitted the applicant's reconsideration request should be dismissed.
9I agree that the applicant's counsel should have complied with the Tribunal's Rules regarding reconsiderations and ensured the submissions were timely. I also have concerns with the applicant's choices with respect to submitting her request for reconsideration, specifically January 12, 2022. First, the applicant failed to copy the respondent when emailing the Tribunal for the extension. Second, the applicant presumed that she was granted the extension by the Tribunal; there is no order or direction from the Tribunal confirming such grant. Parties should resist the temptation to believe that requesting extensions do not require affording the respondent an opportunity to respond nor, more importantly, the Tribunal's agreement. I expect the applicant and her lawyer to know better.
10That said, when considering the chilling effect of halting a party's ability to participate in the justice system due to holiday closures, I am not inclined to restrict a party's ability to seek reconsideration of a decision.
11Furthermore, as the respondent did not raise any specific prejudice it has or would experience by allowing the applicant's amended submissions to be considered, I am unable to see what harm this will cause to the parties.
12Therefore, under the authority of the Tribunal's Rule 3.1 regarding liberal interpretation and application of the Rules, I am allowing the Applicant's Amended Request for Reconsideration and Amended Reconsideration Submissions into consideration.
RESULT
13The Applicant's request for reconsideration is dismissed.
ANALYSIS
14The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2. The applicant relies on Rules 18.2(a) and 18.2(b), submitting that I violated the rules of procedural fairness and natural justice, and that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made.
Errors of law
Application of section 55(2) of the Schedule
15The applicant alleged that I erred by finding the applicant failed to comply with section 44 of the Schedule and submitted that section 55(2) allows an applicant to apply to the Tribunal, despite a failure to attend a section 44 assessment.
16Section 55(2) of the Schedule states that the Tribunal may permit an insured person to apply despite section 55(1), which creates the obligation to attend a section 44 assessment. The applicant submitted in her original submissions a request to proceed to the substantive hearing, despite her failure to comply with section 44.
17However, in my original decision, I failed to specifically address this request, as it was only 1 paragraph within the applicant's 35 paragraphs of the original submissions and though I considered it, it was not specifically addressed; I will address this now.
18In the original submissions, the applicant requested that the Tribunal allow the applicant to proceed with the application despite not attending the required section 44 assessment.
19The respondent submitted that I did not make an error of law or fact and is rearguing the facts addressed in my initial decision.
20After reviewing the evidence and submissions of the parties, I agree that I did not specifically address the applicant's submissions regarding section 55(2). However, I cannot conclude there has been an error of fact that otherwise would have resulted in a different conclusion, as contemplated in Rule 18.2(b) since this issue would not have changed the outcome of the decision. I was not persuaded that the applicant provided sufficient reasons to forgo attending the respondent's Insurers' Examinations ("IE"s) and therefore, would not have permitted the applicant to proceed on this basis. Permitting an application despite noncompliance within the meaning of section 55(1) is within the Tribunal's discretion based on the evidence and submissions before it, and I declined to permit the applicant to continue her dispute regarding the claim for medical cannabis. Therefore, the reconsideration shall not advance on this basis.
Consideration and application of Ward and availability of section 44 assessment for prescription medication
21The applicant also submitted that I erred in considering and applying the relevant caselaw and legislation when determining if an IE is available to the respondent when considering the reasonableness and necessity of prescription mediation.
22The applicant submitted that I did not interpret the decision of Ward v. State Farm Mutual Automobile Insurance Co.2 correctly with respect to addressing the issue section 38(2)(c)(i) and (ii) of an insurer's right to an IE for prescriptions above the amount of $250.00. The applicant argued that section 38(2)(c) uses the word "or" between paragraphs i and ii "and any medication prescribed by a regulated health professional" is exempt from the requirements of a treatment plan, and therefore, the respondent is not entitled to request an IE for the prescription medication.
23The applicant also submitted that I erred when considering the law and application with respect to IEs for prescription expenses. The applicant submitted that I considered sections 38(2)(c)(i) and 44 of the Schedule as "stand-alone" sections without considering a "modern approach" in interpreting the Schedule as seen in Ward3 and Rizzo & Rizzo Shoes Ltd. (Re)4.
24The applicant also submitted that I made an error in my original decision when finding that the respondent's Notices of Examinations ("NOE"s") were valid based on section 44(5)(a) of the Schedule and, in any event, were irrelevant as the assessments were not permitted under the Schedule.
25The applicant submitted that based on the above, the respondent is not entitled to IEs and therefore, I made a significant error of law.
26The respondent disagreed that I made an error of law in interpreting Ward and sections 38(2)(c)(i) and (ii) and 44 of the Schedule. The respondent submitted that the applicant has misunderstood the requirements of section 38(2)(c) of the Schedule, as section 38(2)(c) clearly states that though the applicant may be entitled to payments for prescription medications, the said expense still must be reasonable and necessary, and therefore, the respondent is entitled to conduct an IE on this basis.
27The respondent also submitted that this position is supported by sections 15 and 16 of the Schedule. The respondent also submitted that section 38(10) of the Schedule addresses the basis for a respondent to request an IE and ensures sections 38(2)(c) and 44 are not read on a "stand-alone" basis.
28The respondent agreed that prescription medication prescribed by regulated health professionals does not require a treatment plan pursuant to section 38(2)(c)(i) of the Schedule, but that does not mean that all prescription medications cannot be subjected to an IE based on section 44(3); this section specifically states that an insurer can determine entitlement to a benefit through an IE except in relation to the Minor Injury Guideline ("MIG") or funeral/death benefits.
29The respondent noted that this issue was addressed in the section titled "Section 44 Assessments are not available for prescription medication" of the original decision, in paragraph iii.
30After considering the submissions and evidence of the parties, I find that I made no error of law or fact in my analysis of interpreting Ward, nor sections 38(2)(c)(i) and 44 of the Schedule.
31As noted by the respondent, the applicant has already made arguments with respect to interpreting Ward and sections 38(2)(c)(i) and 44 of the Schedule in her original submission; though I understand that she may not agree with my interpretation, she has not made submissions that are proper in a request for reconsideration.
32Since I already considered these issues in my initial decision and addressed them, I find that the applicant is attempting to "re-argue" his position and may not advance a reconsideration on this basis.
Procedural fairness issue
Failure to provide adequate reasons for the decision
33The applicant also submitted I made an error of law5 by failing to provide adequate reasons for my decision.
34The applicant submitted that an initial decision must address the major points in issue, provide the reasoning process the decision make use so that a reader can understand that the decision-maker considered and engage with the major points, as seen in VIA Rail Canada Inc. v. National Transportation Agency6.
35The applicant submitted that it is not enough for the decision maker to simply summarize the evidence and the parties and then make a finding, but rather, the reasons must be sufficient to allow for a meaningful review based on R. v. Sheppard7, and confirmed in Wawanesa Mutual Insurance Company v. Renwick8.
36The applicant submitted that I failed to provide enough detail in my reasoning process, as required, and therefore, it was unclear if I meaningfully engaged with the following issues and failed to:
I. Accurately summarize the applicant's evidence and position regarding the ability to subject the applicant to an IE based on the circumstances.
II. Detail my consideration of the law about the implied exclusion principle argued in the applicant's Reply, and;
III. Adequately consider the application of Ward in determining when an IE is available to a respondent.
37Based on the above, the applicant submitted that my decision did not provide: "the basis for meaningful appellate review, thereby denying the Applicant of her right to natural justice and procedural fairness, all of which amounts to a significant error in law."
38The respondent disagreed with the applicant's position and submitted I did not make a significant error of law and instead, was again, trying to reargue her position.
39The respondent submitted that I provided sufficient reasons for my decision and argued:
I. That the applicant's arguments and evidence were clearly noted in pages two to eight of the decision, which detailed the applicant's evidence and position.
II. That under the heading "Section 44 Assessments are not available for prescription medication in paragraphs i. and iii," I specifically address the issue of Ward and section 38(2)(c) of the Schedule.
III. That I accurately summarized the applicant's evidence and position regarding the ability to subject the applicant to an IE based on the circumstances.
40After considering the submissions of the parties, I find that I did not make a significant error of law. I disagreed with the applicant's position that I did not provide meaningful reasons in this decision. As noted by the respondent, pages four to eight specifically detail the applicant's position and evidence in relation to the IE process.
41With respect to the implied exclusion principle, though not explicitly referenced in my decision, I did note that I did consider this argument. However, as I found this argument unpersuasive, this argument was addressed as a whole in the decision in pages four to five of the decision, which does not specifically address the "modern approach" to interpreting the Schedule but does explain why I found the applicant's arguments and interpretation of the Schedule to be unpersuasive.
42Moreover, I cannot conclude there has been an error of law that otherwise would have resulted in a different conclusion, as contemplated in Rule 18.2(b) since this issue would not have changed the outcome of the decision, as I did not find the applicant's submissions with respect to the implied exclusion principle to be persuasive as addressed above in the section considering Ward.
43Therefore, I find that the applicant cannot proceed with her request for reconsideration.
CONCLUSION
44For the reasons noted above, I deny the applicant's request for reconsideration.
Stephanie Kepman
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 10, 2022
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
- Ward v. State Farm Mutual Automobile Insurance Co., [2016] O. F. S. C. D. No. 54 at paras. 33 and 34.
- Ibid at para. 40-42.
- Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para. 43-46 and 47 -48.
- R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.
- VIA Rail Canada Inc. v. National Transportation Agency, 2000 CanLII 16275 (FCA), [2001] 2 FC 25 at paras. 40 and 41.
- R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.
- Wawanesa Mutual Insurance Company v. Renwick, 2020 CarswellOnt 5073, 2020 ONSC 2226, 150 O.R. (3d) 65 at paras. 33 and 34.
