RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Licence Appeal Tribunal File Number: 20-008811/AABS
Case Name: Nina Fernandez and Economical Insurance
Written Submissions by:
For the Applicant: Carlos Ortiz, Paralegal
For the Respondent: No submissions
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated March 25, 2022, in which I found the applicant was statute-barred form proceeding with her application under s. 55 of the Schedule due to her failure to attend a properly scheduled s. 44 Insurer’s Examination (“IE”).
2The applicant submits that I made “an error of law or fact by making erroneous interpretations in s. 38, section 33, and failing to apply section 3(8) and the remedial purpose of the Schedule” [sic]. The applicant requests that the decision be varied to allow her to proceed with her application and that the treatment plan in dispute be deemed incurred.
RESULT
3The applicant's request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). As I understand it, the applicant’s request relies on criteria 18.2(b) of the Common Rules: that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The test for reconsideration under Rule 18.2(b) involves a high threshold. Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The reconsideration process is not an invitation for the Tribunal to reweigh evidence, or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence. I find this is precisely the case here.
No error of law or fact
6The applicant points to paragraphs 9 and 14 of my decision to argue that Economical’s request for medical information under s. 33 was made eight months after its denial on December 24, 2019. To this end, she submits that, “[d]espite recovering updated medical information to adjust [her] claim Economical has never commented or adjusted [her] clam in light Dr. Adelstein’s letter. We respectfully submit that section 33 can not be used as a technicality to stale the claim process” [sic]. Later in submissions, the applicant further asserts that benefits are intended to be paid in a non-adversarial and expedited process and alleges that Economical failed to adjust her claim based on new medical information, which is an unreasonable withholding or delay in the payment of benefits pursuant to s. 3(8).
7On review, I find that the applicant has not presented a coherent theory of her case or identified an articulable error of law that would have changed the outcome of my decision. If I understand correctly, the applicant appears to be rearguing aspects of her case that I addressed clearly in paragraph 14:
14Next, there is no merit to the applicant’s argument that Economical’s IE notice was made 13 months after the submission of the OCF-18, meaning the consequences of s. 38(11) are triggered. These are not the facts. Economical provided a timely denial of the OCF-18 on December 24, 2019. After the applicant filed her application with the Tribunal disputing the denial, Economical requested updated medical information. The applicant did not provide the requested medical information until January 1, 2021, which contributed to the artificial delay. Economical then responded within ten business days on January 11, 2021, providing notice of the s. 44 IE in order to determine if the new medical information the applicant provided would alter her entitlement to the benefits claimed and her standing within the MIG. In this vein, Economical scheduled the IE pursuant to s. 44(1), which provides the insurer the right to schedule an IE to determine if an insured is or continues to be entitled to a benefit for which an application is made. The consequences of s. 38(11) are not applicable.
8On review, I find that the applicant again appears to be conflating the requirements of s. 33, s. 38 and s. 44, an issue I addressed at paragraph 11 of my initial decision. I find no error of law or fact, as the timeline and facts are clear. On reconsideration, I echo my original findings: that Economical’s notice letter is about as “clear as an IE notice can get” (paras. 15-16); that Economical’s basis for scheduling an IE was to respond to the updated medical information she provided late (paras. 13, 15, 16); that the applicant has not argued that the IE was scheduled more than is reasonably necessary (para. 16); and critically, that it is unreasonable that the applicant refused to attend the IE (para. 17).
9Finally, there is no merit to the applicant’s argument that the sole treatment plan in dispute should be deemed incurred pursuant to s. 3(8) of the Schedule. The applicant is again pursuing an argument that failed at first instance:
17In conclusion, it remains unclear why the applicant refused to attend the IE. As the applicant failed to attend a properly scheduled s. 44 IE, she is statute-barred from proceeding with her application pursuant to s. 55. As the applicant is statute-barred from proceeding with her sole benefit claim due to her non-attendance, her standing within the MIG cannot proceed as a stand-alone issue. Where there are no benefits in dispute, there is no basis for an award or interest to proceed either. The issue of a deemed incurred expense is moot.
10In order to deem a benefit incurred under s. 3(8), the applicant must demonstrate that the benefit was unreasonably withheld or delayed. Where the applicant failed to provide information in a timely manner, where she failed to attend a properly scheduled IE, where Economical’s request and notices were proper, where the applicant failed to demonstrate that the IE was scheduled more than is reasonably necessary and where the applicant remains within the MIG, it was not an error of law or fact to find that the issue of a deemed incurred expense was moot. Economical properly adjusted her claim and, in any event, there is no evidence that the benefit was unreasonably withheld or delayed.
CONCLUSION
11The applicant’s request for reconsideration is dismissed.
Jesse A. Boyce
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 13, 2022