Alison Barrie v. Intact Insurance Company, 2022 CanLII 98060

Licence Appeal Tribunal

Citation: Barrie v. Intact Insurance Company, 2022 ONLAT 20-004866/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 20-004866/AABS

Case Name: Alison Barrie v. Intact Insurance Company

Written Submissions by:

For the Applicant: David Shellnutt, Counsel

For the Respondent: Daniel Himelfarb, Counsel

BACKGROUND

1The applicant, Alison Barrie, filed a request for reconsideration of the May 24, 2022 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal). In the decision, I dismissed the application and found, among other things, that the applicant was not entitled to:

(i) The unapproved portions of a February 15, 2020 treatment plan which included provider travel time to treat the applicant in her home;

(ii) The unapproved portions of a December 12, 2020 treatment plan which represented, among other things, a difference in hourly rates payable for psychological services provided by a registered psychotherapist (qualifying) as opposed to a psychologist; and

(iii) An award under Regulation 664.

2The applicant relied upon Rules 18.2(a), (b), and (d) 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) to support her position that a reconsideration is warranted in this matter on the basis that I:

(i) Heard false and misleading evidence from the respondent;

(ii) Erred by finding that treatment provider travel time is not payable under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule);²

(iii) Erred by finding that psychological services were not payable at the hourly rate of $149.61; and

(iv) Erred by finding that the respondent’s actions of placing the applicant in the Minor Injury Guideline (MIG)³ and/or the respondent’s actions around the initial psychological assessment were not deserving of an award under Regulation 664.

3The respondent’s position is that the applicant’s request for reconsideration should be denied.

RESULT

4The applicant's request for reconsideration is dismissed.

PROCEDURAL ISSUE: Applicant’s Request to have the Reconsideration Determined by a different Vice-Chair

5As part of her submissions, the applicant requested that her request for reconsideration be determined by a different Vice-Chair.⁴

6Rule 18.1 of the Rules provides that an adjudicator may hear reconsideration requests from their decisions. Indeed, having members reconsider their own decisions is a familiar feature in the administrative law landscape.⁵ The Divisional Court has also held that such practice promotes efficiency and allows for timely resolutions since the hearing adjudicator knows the file and, therefore, is best placed to assess the issues raised in a reconsideration request.⁶

7As the Divisional Court has spoken on this very issue and the applicant provided no other reasons to support her request, the applicant’s request that this reconsideration be heard by a different Vice-Chair is denied.

ANALYSIS

8The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Rules. The grounds that the applicant submitted apply in this matter are Rules 18.2(a), (b), and (d), as the applicant submitted that:

(i) I acted outside of my jurisdiction and/or violated the rules of procedural fairness;

(ii) I made errors of law and/or fact such that I would likely have reached a different result had the errors not been made; and/or

(iii) There is evidence that was not before me when I rendered my decision, that could not have been obtained previously by the applicant who is now seeking to introduce it and such evidence would likely have affected the result of the decision.

9For the reasons that follow, I find that I did not act outside of my jurisdiction and/or violated the rules of procedural fairness; made an error of law and/or fact such that I would likely had reached a different result had the error not been made; and that there is no evidence that was not before me when I rendered my decision that could not have been obtained previously by the applicant who now sought to introduce such evidence which would likely have affected the result of the decision.

False and Misleading Evidence

10The applicant submitted that a reconsideration is warranted in this matter based upon Rules 18.2(a) and (d) because I failed to:

(i) Address the multiple false statements in the respondent’s written submissions and throughout the course of the proceedings;

(ii) Consider and appropriately weight conflicting testimony from the respondent’s adjusters which ran contrary to the adjusters’ decision-making obligations under the Schedule; and

(iii) Properly address the respondent’s behaviour in violating Tribunal production Orders and producing incomplete adjuster log notes and records.

11Firstly, the applicant is not seeking to introduce new evidence that she was previously unable to obtain such that it would likely have affected the decision. Rather, the applicant is raising my response in the decision to the respondent’s breaches of Tribunal production orders. While this issue was briefly raised at first instance in the applicant’s written hearing submissions⁷ and reply submissions,⁸ it was only in support of her claim for costs and this issue was addressed at paragraph 54 of the decision. In any event, Rule 18.2(d) is not engaged regarding the adjuster log notes based on the submissions before me.

12Secondly, Rule 18.2(a) requires that the Tribunal acted outside of its jurisdiction and/or violated the rules of procedural fairness in order for a reconsideration to be granted. The applicant does not allege any jurisdictional issues. Rather, it appears that she is claiming a breach of procedural fairness as a result of my failure to address the alleged false and/or misleading statements in the respondent’s submissions and contrary evidence from the respondent’s adjusters. Procedural fairness, however, has been defined as encompassing the following:

(i) Ensuring that parties understand the case they must meet; and

(ii) Ensuring that the parties have an opportunity to be heard to allow them to respond accordingly.⁹

13The issues in dispute were clearly identified in the November 19, 2020 Case Conference Report and Order and the applicant’s request to add additional issues on the first day of the scheduled hearing was granted. The decision considered all of the issues in dispute following receipt of oral testimony and written submissions from the parties. Therefore, I find that the applicant had a full opportunity to present her case and respond to the respondent’s position on the issues in dispute.

14Further, there is no breach of procedural fairness in failing to address the applicant’s submissions regarding the alleged false and/or misleading evidence from the respondent and its witnesses. Indeed, I am not required to address or reference every piece of evidence or case law that is put before me as my decision is based on the evidence that I find to be persuasive. Here, the portion of the respondent’s written submissions cited as false and/or misleading by the applicant and contrary testimony by the adjuster were not required to determine the issues of provider travel time entitlement and that I did not have jurisdiction to grant an award under Regulation 664 as both of these issues were largely based on the interpretation of the Schedule. I also did not need to address the respondent’s written submissions cited as false and/or misleading by the applicant in determining the appropriate hourly rate payable for psychological services because none of the alleged false and/or misleading statements concerned this issue.

15Therefore, while I agree with the applicant that I did not address the alleged false and/or misleading statements in the respondent’s written submissions, I find that this did not lead to any breaches of procedural fairness such that a reconsideration is warranted under Rule 18.2(a).

Provider Travel Time

16The applicant relied upon Rule 18.2(b) and submitted that a reconsideration of the decision is warranted because I erred in finding that treatment provider travel time is not payable under the Schedule. To support her position, the applicant submitted that there is no mention of provider travel time in the Schedule and, further, that the Schedule is silent on this issue.¹⁰ Moreover, the applicant submitted that provider travel time may be considered as a reasonable and necessary part of a treatment plan and cited other Tribunal decisions where the reasonableness and necessity of provider travel time was considered.¹¹

17With respect, I am not bound by the other Tribunal decisions cited by the applicant, and I disagree with the applicant that the Schedule is silent on provider travel time. As referred to in the decision at paragraph [21], s. 15(2)(c) of the Schedule provides that transportation expenses other than “authorized transportation expenses” are not payable. As provider travel time is not an authorized travel expense, which the applicant conceded, I did not err in finding that provider travel time to treatment is not a payable benefit under the Schedule.

Hourly Rate – Psychological Services

18The applicant also submitted that I erred by finding that the applicant failed to prove that the difference between the hourly rate proposed by the respondent of $99.75 and the hourly rate of $149.61 for services provided to the applicant by Sara Gharibi, registered psychotherapist (qualifying), was reasonable and necessary and, therefore, the applicant was not entitled to the difference. The applicant submitted that I erred because I failed to take into consideration the joint work of Gharibi and Dr. Fahimeh Aghamohseni, psychologist, and that 50% of the treatment being provided by Gharibi was cognitive behavioural therapy.

19I find that these submissions do not point to any errors, but instead reiterate the applicant’s submissions made at first instance¹² and propose a re-weighing of the evidence that was fully available, and which I considered, at the time of the hearing. Re-weighing the evidence is not the task on a request for reconsideration and these submissions point to no errors. As a result, I find that the applicant’s request for reconsideration fails on this basis.

An Award Under Regulation 664

20The applicant also submitted that I erred in finding that the respondent’s action of placing the applicant in the MIG and/or its actions regarding the initial psychological assessment were not deserving of an award under Regulation 664.

21Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

22After determining in the decision that I had no jurisdiction to order an award in this matter,¹³ I stated in the alternative that, “removal from the MIG is not a ‘benefit’ and, therefore, no award can be made in this regard.”¹⁴ Indeed, the applicant agreed with this statement as in her reconsideration submissions she confirmed that removal from the MIG is not a benefit. As a result, I find that no error was made in my alternate determination that the applicant was not entitled to an award regarding the respondent’s actions and her removal from the MIG.

23Again, even though I determined that I did not have jurisdiction to grant an award in this matter, I also set out alternative reasons for declining to make an award based on the events surrounding the respondent’s approval of the May 1, 2020 treatment plan for a psychological assessment at paragraphs [44] to [47] of the decision. Aside from a general statement that an error was made, the applicant provided no further particulars. As a result, I also find that no error was made in the decision regarding my alternative denial of the applicant’s request for an award regarding the May 1, 2020 treatment plan.

Sufficiency of Reasons

24In her reconsideration submissions, the applicant stated that I failed to give adequate reasons in the decision by failing to address “a campaign of misinformation waged by counsel for the respondent.”¹⁵ The applicant’s submissions that I failed to address what she alleges to be false and misleading evidence were dealt with at paragraphs [10] to [15] above and do not need to be repeated here. In any event, failing to wade into the challenging interactions between counsel in this matter when it is not needed to determine the issues in dispute does not amount to a failure to give sufficient reasons.

CONCLUSION

25For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Lindsay Lake Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Barrie v. Intact Insurance Company, 2022 CanLII 45260 (ON LAT) (the “decision”).
2. 2O. Reg. 34/10.
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
4. 4Applicant’s Reconsideration Request submissions, paras. 33-34.
5. 5For example, this process is followed by the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, the Information and Privacy Commissioner of Ontario, the Ontario Labour Relations Board, the Workplace Safety Insurance Board, the Workplace Safety and Insurance Appeals Tribunal, the Financial Services Tribunal, and the Health Services Appeal Board: See Warren at para. 12.
6. 6Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 (Div. Ct.) at paras. 12-13.
7. 7Written Submissions of the Applicant at para. 115.
8. 8Written Reply Submissions of the Applicant, para. 51.
9. 9See the reconsideration decision of IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
10. 10Supra note 4 at paras. 15-17.
11. 11Joseph v. ACE INA Insurance, 2022 CanLII 6806 (ON LAT) at paras. 27-30 and Gorgis v. TD Insurance Meloche Monnex, 2020 CanLII 115305 (ON LAT) at paras. 9-10.
12. 12Supra note 7 at paras. 87-93.
13. 13Supra note 4 at para. 39.
14. 14Ibid. at para. 48.
15. 15Supra note 4 at para. 33.