RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
File: 19-012928/AABS
Case Name: J.P. v. Aviva General Insurance Company
For the applicant: Roger R. Foisy, Counsel Harpreet S. Sidhu, Counsel Daniel Berman, Paralegal Rusald Laloshi, Paralegal
For the respondent: Suzanne Clarke, Counsel
OVERVIEW
1This applicant’s request for reconsideration arises from a decision dated March 7, 2022, in which the Tribunal found that the Applicant was catastrophically impaired and entitled to attendant care benefits and two of the four treatment plans in dispute.
2The Tribunal determined that the Applicant was entitled to attendant care benefits “at the rate of $644.63 per month from the date the first Form 1 was submitted, subject to the benefits being properly incurred in accordance with section 3(7)(e) of the Schedule”.
3The Applicant submits that the Tribunal made an error of fact when limiting attendant care benefits to $644.63 to present and ongoing, because there is an updated Form 1 recommending assistance at the rate of $1,919.06 dated March 2, 2021.1
4The applicant has requested that the Tribunal reconsider its decision and award attendant care benefits at the rate of $1,919.06 from February 10, 2021, to present and ongoing.
5Rule 18.2 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 (“Rules”) states that 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.
6The applicant relies on Rule 18(b) as grounds for the request for reconsideration, suggesting that it was an oversight on the part of the Tribunal in failing to mention the other Form 1.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The Tribunal did not make an error in failing to award the benefits at the higher rate. That claim was not properly before the Tribunal, and it was therefore not open to the Tribunal to make such an award.
9The claim for attendant care benefits, as set out in the amended Case Conference Order was as follows:
e. Is the applicant entitled to attendant care benefits of $644.63 per month from February 19, 2015 and ongoing?
10At no time after the case conference did the Appellant request to add a further issue or amend the claim for attendant care benefits reflecting an increased quantum. It was open to the Appellant to bring a motion to add to or amend the claim but they did not do so. In fact, the Appellant filed a Notice of Motion on September 27, 2021 requesting various productions, but never requested to add or amend the claim for attendant care at the increased rate.
11At the outset of the hearing, the Tribunal confirmed the issues in dispute with the parties, and no mention was made of attendant care being sought at the higher rate.
12The document brief provided by the Applicant includes the heading “Issues in Dispute” and contains the Form 1 at $644.63. The Form 1 at the increased rate is not included in that section, but rather under tab 7 titled “Other AB Documents, Reports, & Records”, suggesting that the Appellant was aware that the higher Form 1 was not part of the issues in dispute.
13It would be wholly inappropriate for the Tribunal to have awarded benefits that were not properly in dispute. If the Appellant wishes to dispute the rate of attendant care further, she may file a further application.
CONCLUSION
14For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Kate Grieves Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: August 15, 2022