RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 19-012347/AABS
Case Name: Asif Hussain v. Aviva General Insurance
Written Submissions by:
For the Applicant: Shahzad Ayub, Counsel
For the Respondent: Kristofer B. Angle, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of a decision dated April 20, 2023 (“decision”), in which I found that the applicant was not entitled to certain treatment plans in dispute. In his reconsideration request, the applicant submits that I made significant errors of law or fact. The respondent disagrees and requests that the reconsideration be dismissed.
RESULT
2The applicant's request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration to be allowed are contained in Rule 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”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the applicant relies on the following ground:
(a) 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.
4Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
5I find that the applicant’s request for reconsideration does not establish grounds for reconsideration under Rule 18.2. I find he is attempting to re-argue his case and I reject his assertion that the Tribunal made a significant error of law or fact.
Rule 18.2(b): Error of law or fact
6The applicant has requested reconsideration in relation to one of the treatment plans in dispute – a treatment plan for chiropractic services. He submits that I erred in law by:
i. Improperly conflating s. 38(8) and s. 44(5) analysis with respect to the respondent’s Notice of Examination (“NOE”) for this treatment plan;
ii. Failing to properly evaluate the “medical and all of the other reasons” contained in the NOE;
iii. Improperly applying a “reasonable and necessary” analysis to a s. 38(8) and s. 38(11) issue; and
iv. Improperly considering the respondent’s insurer’s examination (“IE”) reports, as they have been “inappropriately obtained” on the basis of a deficient NOE.
7The applicant submits that had these errors not occurred, I would have come to a different decision. I will address each issue as numbered above, for clarity.
(i) Improperly conflating s. 38(8) and s. 44(5) analysis
8The applicant submits that when I assessed the respondent’s NOE dated June 27, 2019 I committed a significant error of law by failing to expressly address whether the NOE met the requirements of s. 38(8) of the Schedule. He contends that when considering a NOE, a s. 38(8) analysis must precede, and take priority over, a s. 44(5) analysis. The applicant submits that only if the s. 38(8) requirements are met is it appropriate to proceed with a s. 44(5) analysis. He cites the Tribunal decision M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) as support for his position.
9I disagree and find that I did not commit an error of law in my consideration of the respondent’s NOE.
10In paragraph 24 of my decision, I note that the respondent’s NOE and subsequent denial letter complied with sections 44(5) and 38(8) of the Schedule. In paragraph 25 I find that the medical reasons provided by the respondent in the NOE were not boilerplate and were clear and sufficient enough for the applicant to make an informed decision as to whether to accept or reject the decision. In paragraph 26 of my decision I consider the respondent’s subsequent denial letter and find that it was in compliance with s. 38(8) of the Schedule.
11I find no error in my analysis and disagree with the applicant that M.F.Z. v Aviva Insurance Canada holds that a NOE analysis must entail a s. 38(8) analysis, followed by a s. 44(5) and that a s. 38(8) analysis must be prioritized. I see no such statement in this decision.
12Moreover, even if I had erred in my analysis of the respondent’s initial NOE, this would not have affected the outcome of the decision, as in paragraph 26 I found that the respondent’s subsequent correspondence would have cured any previous deficiency. In his submissions for the hearing, the applicant did not provide any submissions as to how the respondent’s subsequent correspondence did not comply with s. 38(8) of the Schedule or any submissions or evidence as to whether the treatment plan was incurred. Given that any deficiency in the NOE would have been cured by the subsequent correspondence, and the fact that the applicant led no evidence that the treatment plan had been incurred during the period of non-compliance, I find that even if I had committed an error, which I did not, the applicant has failed to show how the purported error would have led to a different outcome.
(ii) Failing to properly evaluate the “medical reasons”
13The applicant submits that I failed to properly evaluate the medical reasons and all other reasons contained in the NOE. In particular, he states that it was a significant error of law to fail to apply the “comprehensiveness condition” to my s. 38(8) analysis.
14I find that the applicant has not established grounds for reconsideration based on this argument.
15I agree with the respondent’s submissions that the applicant is raising the same s. 38 and s. 44 arguments previously raised in the hearing. In the decision I considered the evidence and submissions presented by the parties and addressed the question of the adequacy of the NOE in question. The reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision.
16Moreover, I find that even if the applicant had identified an error of law in my analysis of the NOE, he has not satisfied the second part of the test under Rule 18.2(b). Namely, he has not identified how the error would have led to a different result had the error not been made. As previously noted, given that any deficiency in the NOE would have been cured by the respondent’s subsequent correspondence, the applicant has failed to show how the purported error in assessing the NOE would have led to a different outcome.
(iii) Improperly applying a “reasonable and necessary” analysis to a s. 38(8) and s. 38(11) analysis
17The applicant argues that I erred in law by improperly applying a “reasonable and necessary” standard to a s. 38(8)/ s.38(11)2 analysis. He submits that M.F.Z. v. Aviva Insurance Canada specifically states that a s. 15 analysis is not required when considering s. 38(11)2.
18I find that I did not err in law by importing a reasonable and necessary standard into my s. 38(8)/ s.38(11)2 analysis. In paragraphs 24 to 26 of my decision, I assessed the respondent’s NOE and subsequent denial letter pursuant to s. 38(8) and s. 44(5) of the Schedule. I found that the correspondence was compliant with the Schedule.
19Once the analysis of the sufficiency of the IE request and subsequent denial was complete, I subsequently turned, in paragraphs 27 to 31, to a consideration of the reasonableness and necessity of the treatment plan in dispute. This was an analysis that was separate and distinct from any s. 38(8) or s. 44(5) considerations. I agree with the respondent that once the sufficiency of the denial was established the Tribunal was obliged to then consider the reasonableness and necessity of the treatment plan in dispute.
20I find that the applicant has not established any error of law with respect to this analysis.
(iv) Improperly considering the respondent’s IE reports
21The applicant submits that I erred in law in considering the respondent’s IE reports as part of my analysis of the reasonableness and necessity of the treatment plan in dispute. He argues that as the IE reports were “inappropriately obtained” by way of a deficient NOE, they are void ab initio.
22I agree with the respondent that the applicant is advancing a new argument, which is not a proper ground for reconsideration by the Tribunal.
23The applicant did not raise the argument that the respondent’s IE reports should be excluded, in his submissions for the written hearing. The applicant had the opportunity to advance this argument at the written hearing and failed to do so. The reconsideration process is not an avenue for advancing new arguments that a party could but did not make at the hearing on the merits.
24The applicant concedes that he is raising a new argument at the reconsideration stage. However, he argues that due to the strict page limit restrictions at the hearing stage, he was unable to advance all arguments. Further, the applicant contends that given the remedial and consumer protection mandate of the Schedule, his newly raised argument should be considered.
25I do not find the applicant’s arguments to be persuasive. The onus is on the applicant to make his case at first instance “to put his best foot forward” and had 12 pages to do so. That he now, retrospectively, argues he could not, is not grounds for reconsideration. Moreover, while I acknowledge the remedial and consumer protection mandate of the Schedule, the applicant does not explain why the remedial nature of the Schedule would entail a side-stepping of well-established Tribunal procedure.
26Therefore, I see no error in law in my consideration of the respondent’s IE reports.
CONCLUSION
27For the reasons noted above, I deny the applicant's request for reconsideration. The request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 15, 2023