RECONSIDERATION DECISION
Before:
Rebecca Hines, Member
Licence Appeal Tribunal File Number:
20-009986/AABS
Case Name:
G.H.M. v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Deanna S. Gilbert, Counsel
For the Respondent:
James Brown, Counsel
OVERVIEW
1This reconsideration request follows a Tribunal decision dated April 22, 2022, in which I determined that some treatment plans (“OCF-18s”) recommending private school tuition expenses for the applicant’s brother to attend St. John Kilmarnock School were reasonable and necessary. I also determined that the respondent was not liable to pay for same as the applicant did not comply with s.38(2) of the Schedule and incurred the OCF-18s prior to submitting them to the respondent.
2The applicant has requested a partial reconsideration of my decision regarding my finding that the respondent is not liable to pay for the OCF-18s due to the applicant’s non-compliance with s.38(2) of the Schedule. The applicant argues that I made a significant error of fact and/or law such that I would have reached a different result had the error not been made. The applicant also requested clarification regarding my decision as I did not address the OCF-18 in the amount of $23,967.00 for the 2021/2022 school year, which was added as an issue in dispute.
3The respondent argues that my decision is correct. Further, that the applicant’s reconsideration request is an attempt to relitigate issues which already failed at the hearing. However, the respondent does agree that clarification is required regarding the OCF-18 in the amount of $23,967.00 for the 2021/2022 school year.
RESULT
4After reviewing the applicant’s submissions, I order as follows:
(i) The applicant’s partial reconsideration request is dismissed.
(ii) My decision dated April 22, 2022 is varied as follows:
a) The applicant is entitled to payment of the OCF-18 recommended by Dr. Ahmad in the amount of $4,730.00 plus interest for private school tuition for the applicant’s brother for the 2021/2022 school year.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“Rules”).
6Rule 18.2 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.
7The applicant relies on Rule 18.2 (b) and argues that I made an error of law or fact that would impact the outcome of my decision.
8The applicant also relies on Rule 17 (b) and requests that I clarify my decision as it contains some ambiguity regarding the OCF-18 for private school expenses for the applicant’s brother for the 2021/2022 school year. The respondent agrees that the Tribunal’s order pertaining to this issue was not clear.
9The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
10The applicant requests that I vary my decision and make a finding that the respondent is liable to pay for all of the OCF-18s for the private school tuition for the applicant’s brother in the following amounts and school years: $30,340.00 for 2018/2019; $21,600.00 for the 2019/2020; $22,072.00 for 2020/2021 and $23,967.00 for 2021/2022.
ANALYSIS
Did I make a significant error of law or fact such that I would likely have reached a different decision?
11I do not find that I erred in law which would result in an alternative decision for the following reasons.
12I agree with the respondent that the applicant’s request for partial reconsideration of my decision is an attempt to relitigate her position that already failed at the hearing. On this reconsideration request the applicant put forth new legal arguments which were not made at the hearing. In particular, she argues that I did not consider s.34 of the Schedule in my analysis that she was not entitled to payment of the OCF-18s because she incurred them prior to submitting same to the respondent. The applicant argues that I did not consider whether she had a reasonable explanation pursuant to s. 34 of the Schedule for incurring the OCF-18s prior to submitting them to the respondent. I am not addressing this argument further as it was not raised at the hearing, nor was any evidence of a reasonable explanation submitted for my consideration. The applicant has failed to convince me that I erred in law in my decision by not considering legal arguments that were never made or evidence that was never submitted.
13The applicant also argues that I erred by not deeming the OCF-18s incurred pursuant to s.3(8) of the Schedule. I agree with the respondent that the applicant’s argument in relation to my failure to apply s.3(8) of the Schedule has no merit. In paragraphs [27] to [35] of my decision I determined that the respondent was not liable to pay an award because I did not find that it unreasonably withheld or delayed payments of the OCF-18s in dispute. Section 3(8) of the Schedule only applies where the Tribunal determines that an insurer has unreasonably withheld or delayed payment of a benefit. The applicant has failed to persuade me that I erred in law in rendering my decision in this matter.
14As highlighted by the respondent in its response to the applicant’s request for reconsideration the threshold for reconsideration is a high one. The reconsideration process is not meant to provide the unsuccessful party with the opportunity to present evidence or legal arguments for the first time that were not made at the hearing. The applicant has failed to convince me that I erred in law in rendering my decision.
Request for clarification regarding the OCF-18 in the amount of $23,967.00 for 2021/2022 private school tuition
15In my decision, by inadvertence I did not address the OCF-18 in the amount of $23,967.00 for private school tuition for the applicant’s brother for the 2021/2022 school year which was added as an issue in dispute. Since I failed to address it, I will provide clarification on my finding in relation to this issue.
16The applicant submits that the OCF-18 in the amount of $23,967.00 prepared by Dr. Ahmad recommending private school tuition for the applicant’s brother for the 2021/2022 school year was submitted to the respondent on May 18, 2021. The applicant relies on paragraph 7(d) of the Agreed Statement of Facts which states that the expenses were incurred on October 14, 2021. In addition, the respondent agreed to this as it is outlined in the Agreed Statement of Facts. Therefore, the OCF-18 is payable as it was incurred long after it was submitted to the respondent.
17The respondent argues that the applicant is again raising new arguments that were never made at the hearing. It submits that the purpose of the Agreed Statement of Facts was to clarify the amounts being claimed for each school year. Further, it maintains that at the hearing it submitted the invoice for the 2021/2022 school year which is dated October 14, 2021. The invoice supports that the bulk of the invoice was paid by the applicant on May 14, 2021, which was prior to her submitting the OCF-18 to the respondent on May 18, 2021. It also contends that it made these arguments and submitted the invoice at the hearing, which is true. It contends that the only portion of the invoice that is payable is the amount that had not been incurred prior to the submission of the OCF-18 which was $4,730.00 ($3,150.00 for the food program and $1,580.00 for busing.) Furthermore, the applicant did not make any submissions or file evidence at the hearing challenging these facts. I agree with the respondent.
18Although the Agreed Statement of Facts does indicate that the OCF-18 was incurred on October 14, 2021, the invoice for the 2021/2022 school year does not support same. While the invoice is dated October 14, 2021, it supports the respondent’s position that the applicant incurred the bulk of the OCF-18 prior to submitting it the respondent. Therefore, s. 38(2) applies and I find the applicant is only entitled to payment of $4,730.00 which is the amount incurred after the OCF-18 was submitted. I agree with the respondent that the applicant did not make any submissions at the hearing refuting the respondent’s position on this OCF-18. I also agree with the respondent that the applicant is raising this new argument for the first time on this reconsideration request, which as already highlighted above is not appropriate for a reconsideration request. Therefore, my decision is varied as follows:
a) The applicant is entitled to payment of the OCF-18 recommended by Dr. Ahmad in the amount of $4,730.00 plus interest for private school tuition for the applicant’s brother for the 2021/2022 school year.
CONCLUSION
19The applicant’s request for partial reconsideration of my decision is dismissed.
20My decision dated April 22, 2022 is varied to as per paragraph [18] a) above.
Rebecca Hines
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: August 18, 2022