RECONSIDERATION DECISION
Before: Lindsay Lake, Adjudicator
Tribunal File Number: 19-013677/AABS
Case Name: Aisha Ali v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Kimberley Tye, Counsel
OVERVIEW
1The applicant, Aisha Ali, filed a request for reconsideration of the July 14, 2021 decision1 of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).
2In the decision, I found, among other things, that:
(i) The applicant was entitled to payment up to $788.90 of a December 24, 2018 OCF-18 for psychological treatment as a result of the failure of Aviva Insurance Company of Canada, the respondent, to comply with its obligations under s. 38(8) of the Schedule and also that the applicant was not entitled to the unapproved portions of this treatment plan;
(ii) The applicant was not entitled to the unapproved portions of a February 7, 2019 OCF-18 for a driving re-integration assessment;
(iii) I had no jurisdiction to determine the applicant’s entitlement to a March 5, 2019 OCF-18 for a biopsychosocial assessment, to a June 19, 2019 OCF-18 for a home exercise program and exercise equipment or a September 20, 2019 OCF-18 for a multidisciplinary chronic pain program; and
(iv) The applicant was not entitled to an award under Regulation 664.
3The applicant requested a reconsideration of the decision on the basis that I made several errors of law and/or fact such that I would likely have reached a different result than those set out in paragraph [2] had the errors not been made.
4The respondent opposed the reconsideration request. The respondent submitted that the applicant’s request was largely an attempt to reargue its position on the issues that I had already determined. The respondent also submitted that the applicant failed to establish that I made any error in law or in fact such that a reconsideration of the decision should be granted.
RESULT
5I find that I erred in determining that the applicant was only entitled to payment up to $788.90 of the December 24, 2018 OCF-18. As a result, paragraphs 5 and 53 of the decision are incorrect, and are amended as follows:
(i) The applicant is not entitled to the unapproved portions of the December 24, 2018 treatment plan that pertain to individual psychotherapy and completion of the OCF-18;
(ii) The applicant is entitled to $32.42 each plus interest in accordance with s. 51 of the Schedule for communication with others and treatment planning upon submission of an invoice for services rendered; and
(iii) The applicant is entitled to $97.24 plus interest in accordance with s. 51 of the Schedule for a progress report upon submission of an invoice for services rendered.
6The remainder of the applicant’s request for reconsideration is dismissed.
ANALYSIS
7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules). The ground that applies in this matter is set out under Rule 18.2(b), as the applicant submitted 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.
8The applicant submitted that I erred by:
(i) Misinterpreting s. 38 and s. 46.2 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)2 as well Ontario Regulation 90/14 and Ontario Regulation 194/11 under the Insurance Act;3
(ii) Finding that I had no jurisdiction to determine the applicant’s entitlement to the March 5, 2019, June 19, 2019, and September 20, 2019 treatment plans;
(iii) Finding that the applicant was only entitled to payment of up to $788.90 of the December 24, 2018 OCF-18 for psychological treatment; and
(iv) Finding that the applicant was not entitled to an award under Regulation 664.
Section 38 of the Schedule
9The applicant submitted that I did not fairly take into consideration the respondent’s non-compliance with s. 38(8) of the Schedule in the decision regarding the respondent’s denial letters dated May 21, 2019, July 5, 2019, and November 6, 2019. These denial letters related to the March 5, 2019, June 19, 2019, and September 20, 2019 treatment plans respectively.
10I find that the applicant’s submission does not point to any errors, but instead simply disagrees with my finding. At paragraphs [43] to [47] of the decision, I addressed the applicant’s position regarding the respondent’s non-compliance with s. 38(8) in its denials set out in paragraph [9] above in. As such, I find that the applicant is seeking a re-weighing of the evidence rather than a reconsideration due to any error and this is not a ground for reconsideration under the Rules.
Section 46.2 of the Schedule and Ontario Regulations 90/14 and 194/11
11I find that the applicant’s reconsideration submissions regarding s. 46.2 of the Schedule and Ontario Regulations 90/14 and 194/11 are new arguments that were not made at first instance and, therefore, are not properly before me and will not be considered as part of this reconsideration.
12The only submission made regarding s. 46.2 by the applicant at first instance was, “The Applicant does not anticipate an arbitrator would suspend her benefits because of a provider’s noncompliance with section 46.2.”4 The applicant made no submissions, as she did in her reconsideration request, that the respondent incorrectly applied s. 46.2 of the Schedule in denying the March 5, 2019, June 19, 2019, and September 20, 2019 treatment plans despite the respondent clearly citing and relying upon s. 46.2 in its initial hearing submissions.5
13Similarly, the applicant’s submissions regarding Ontario Regulations 90/14 and 194/11 are new arguments that were not made at first instance. The applicant made no submissions in reply on this issue despite the respondent clearly relying upon the Regulations in its written hearing submissions. The applicant stated that this information was discovered only after the hearing6 but provided no information to support this submission.
14It is well settled that the Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter. As a result, I find that the applicant’s submissions that the respondent misapplied s. 46.2 of the Schedule and her submissions regarding Ontario Regulations 90/14 and 194/11 are not properly before me and will not be considered as part of this reconsideration.
No Jurisdiction
15The applicant also submitted that I erred in finding that I had no jurisdiction to determine her entitlement to the March 5, 2019, June 19, 2019, and September 20, 2019 OCF-18s as I did not give any “credence” to the signed copies of these disputed treatment plans that were submitted by the applicant in both her initial and reply hearing submissions.
16Contrary to the applicant’s submissions, I considered the signed OCF-18s and acknowledged that they were before me as evidence in the hearing in paragraph [46] of the decision. In this same paragraph, I also stated that the applicant provided no information as to when, or even if, the signed versions of the March 5, 2019, June 19, 2019, and September 20, 2019 treatment plans were submitted to the respondent.
17The applicant is again seeking a reweighing of the evidence rather than pointing to any error in the decision and, as stated above, this is not a ground for reconsideration under the Rules.
The December 24, 2018 OCF-18
18I agree with the applicant that the decision was not clear regarding the December 24, 2018 OCF-18. I also agree with the applicant that I erred by finding that the applicant was entitled to payment up $788.90 for the proposed psychological treatment set out in the December 24, 2018 OCF-18 that related to the period of the respondent’s non-compliance with s. 38(8) because the respondent partially approved the treatment plan up to $1,247.48 on January 30, 2019.
19In the decision, the amount of $788.90 was arrived at by dividing the total amount of the treatment plan ($3,641.09) by 12 weeks (the estimated duration of the treatment plan), then further dividing this amount by five business days per week (to arrive at a daily amount) and then multiplied by 13 business days (the period of the respondent’s non-compliance). Breaking the total amount of $788.90 further into the individual components of the treatment plan is as follows:
Description of Proposed Goods or Services
Total Amount Proposed on the OCF-18
Total Amount entitled to as a result of the respondent’s non-compliance with s. 38(8)
Total Amount Approved by the Respondent on January 30, 2019
Individual Psychotherapy
$2,693.04
$583.49
$1,047.42
Communication with others
$149.61
$32.42
$0.00
$149.61
$32.42
$0.00
Progress Report
$448.83
$97.24
$0.00
Completion of the OCF-18
$200.00
$43.33
$200.00
Total
$3,641.09
$788.90
$1,247.48
20Because the respondent approved amounts for psychotherapy and for completion of the OCF-18 that are greater than the amounts that the applicant is entitled to as a result of the respondent’s non-compliance with s. 38(8) and also because the applicant failed to prove that the unapproved portions of the treatment plan were reasonable and necessary for the reasons set out in paragraphs [29] to [33] of the decision, the applicant is not entitled to any amounts for these goods and services in addition to the amount partially approved by the respondent.
21The applicant is, however, entitled to $32.42 each for communication with others and treatment planning as well as $97.24 for a progress report upon submission of an invoice for services rendered as these amounts relate to the period of the respondent’s non-compliance with s. 38(8) and are greater amounts than what the respondent approved.
22Therefore, paragraphs 5 and 53 of the decision are incorrect and should read that the applicant is:
(i) Not entitled to the unapproved portions of the December 24, 2018 treatment plan that pertain to individual psychotherapy and completion of the OCF-18;
(ii) Is entitled to $32.42 each plus interest in accordance with s. 51 of the Schedule for communication with others and treatment planning upon submission of an invoice for services rendered; and
(iii) Is entitled to $97.24 plus interest in accordance with s. 51 of the Schedule for a progress report upon submission of an invoice for services rendered.
An award under Regulation 664
23I again find that the applicant’s submissions regarding my finding that she was not entitled to an award under Regulation 664 does not point to any errors. Instead, the applicant seeks to marshal the same arguments she did at the hearing or raise new arguments that were not before me at first instance. Re-weighing the evidence or accepting new submissions is not the task on a request for reconsideration.
CONCLUSION
24For the reasons noted above, I erred in finding that the applicant was entitled to payment up $788.90 of the December 24, 2018 OCF-18 that related to the period of the respondent’s non-compliance with s. 38(8) because the respondent partially approved the treatment plan up to $1,247.48 on January 30, 2019. As a result, paragraphs 5 and 53 of the decision are incorrect, and are amended as follows:
(i) The applicant is not entitled to the unapproved portions of the December 24, 2018 treatment plan that pertain to individual psychotherapy and completion of the OCF-18;
(ii) The applicant is entitled to $32.42 each plus interest in accordance with s. 51 of the Schedule for communication with others and treatment planning upon submission of an invoice for services rendered; and
(iii) The applicant is entitled to $97.24 plus interest in accordance with s. 51 of the Schedule for a progress report upon submission of an invoice for services rendered.
25The remainder of the applicant’s request for reconsideration is dismissed.
Lindsay Lake
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 28, 2022
Footnotes
- Ali v. Aviva Insurance Company of Canada, 2021 CanLII 73542 (ON LAT).
- O. Reg. 34/10.
- R.S.O. 1990, c. I.8.
- Written Submissions of the Applicant (Hearing Submissions), para. 14.
- Written Submissions of the Respondent (Hearing Submissions), paras. 79-82.
- Applicant’s Reply Submissions for Reconsideration, page 3.