RECONSIDERATION DECISION
Before:
Lindsay Lake, Vice-Chair
Licence Appeal Tribunal File Number:
22-004627/AABS
Case Name:
Timothy Smith v. Allstate Insurance
Written Submissions by:
For the Applicant:
Dino Ranchan Pius, Counsel
For the Respondent:
Jennifer Griffiths, Counsel
OVERVIEW
1On June 24, 2024, the respondent requested a reconsideration of the Tribunal’s decision dated June 4, 2024 (“decision”).
2In the decision, the Tribunal found, amongst other things, that the respondent failed to respond to the applicant’s claim for $3,733.86 for physiotherapy services proposed by Newmarket Health & Wellness Centre Inc. in a treatment plan (OCF-18) dated August 10, 2021 within the 10-day period provided for in s. 38(8) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (Schedule). The Tribunal held that the respondent was prohibited from maintaining its position that the applicant was subject to the MIG for this treatment plan only pursuant to s. 38(11)1. of the Schedule. However, the Tribunal also noted at paragraph 22 of the decision that no evidence was submitted that the OCF-18 was incurred during the period in which the respondent’s denial was outstanding and, therefore, there were no amounts owing to the applicant for this OCF-18.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (Rules). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or
c) 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.
4In this matter, the respondent is seeking a reconsideration pursuant to Rule 18.2(b) on the basis that the Tribunal made an error of fact regarding the submission date of the August 10, 2021 OCF-18 and, that had the error not been made, the Tribunal would likely have reached a different result. The respondent requests that Tribunal grant its request for reconsideration and vary the decision to reflect the following:
a) That the August 10, 2021 OCF-18 was submitted on August 19, 2021; and
b) As a result, the respondent complied with s. 38(8) of the Schedule by responding to the August 10, 2021 treatment plan on August 31, 2021, which was within 10 business days of its submission.
5The applicant requests that this request for reconsideration be dismissed.
RESULT
6The respondent’s request for reconsideration is dismissed.
PROCEDURAL ISSUE
The respondent’s late reply reconsideration submissions
7The respondent’s request to file its reply reconsideration submissions 1-day late is granted.
8The Tribunal’s June 27, 2024 Reconsideration Order provided the deadline of July 31, 2024 for the respondent to serve and file its reply reconsideration submissions. The respondent’s reply reconsideration submissions were served and filed on August 1, 2024. As part of the respondent’s reply submissions, it requested leave to submit its reply submissions one day late. The reason provided for the late submission was that respondent’s counsel was out of the country on vacation and that the reply submission deadline did not come to her attention until August 1, 2024 due to a diary error.
9On August 1, 2024, the applicant emailed the Tribunal advising that the applicant opposed the respondent’s late filed reply submissions because they “defy the rules of natural justice and procedural fairness.” The applicant took the position that the respondent’s late filed reply submissions should not be considered as part of this reconsideration request given the breach of the deadline established by the June 27, 2024 Reconsideration Order.
10The respondent’s request to file its reply reconsideration submissions 1-day late is granted. The respondent only sought a very short extension of time to serve and file its reply reconsideration submissions. Additionally, while the applicant alleges there would be a “unfair advantage against the applicant” if the Tribunal accepted and considered the late reply submissions, the applicant did not identify what that unfair advantage would arise especially given the fact that the applicant had already served and filed his responding reconsideration submissions.
11In balancing any prejudice to the parties, I find that there would be little, if any, prejudice to the applicant in granting the respondent’s request. On the other hand, there would be prejudice to the respondent in not granting this request as the respondent would not be provided a full opportunity to participate in the reconsideration process as it would not have its reply submissions considered. Given the prejudice to the respondent arising out of its representative’s inadvertence unless its request is granted, I am permitting the respondent to file its reply reconsideration submissions 1-day late and I will consider the respondent’s reply submissions as part of this reconsideration request.
ANALYSIS
12The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
The respondent’s position regarding the submission date of the August 10, 2021 treatment plan is a new argument not made at first instance
13I find that the respondent’s position regarding the submission date of the August 10, 2021 treatment plan is a new argument that was not made at first instance and, as a result, it is not a proper basis for a reconsideration request.
14The respondent’s position is that the Tribunal erred by finding that the respondent did not respond to the August 10, 2021 treatment plan within the 10 business days provided for under s. 38(8) of the Schedule. The respondent submitted that its counsel, through inadvertence, misdescribed the OCF-18 as having been submitted to the respondent on August 10, 2021 in its hearing brief and that it did not correct this misstatement in its written hearing submissions. The respondent’s position is that the Health Claims for Auto Insurance (HCAI) tracking information, which was included on the treatment plan that was filed as part of the hearing record at tab 11 of the written submissions of the respondent, clearly shows that the disputed OCF-18 was submitted to the respondent on August 19, 2024, and was denied by the respondent on August 31, 2021, which is within 10 business days.
15The applicant’s position on the reconsideration request is as follows:
a. The applicant submitted the August 10, 2021 treatment plan to the respondent on August 10, 2021, and denies the respondent’s position that the treatment plan was filed on August 19, 2021;
b. The applicant did not receive the denial from the respondent until September 2, 2021 at 5:19 p.m. via facsimile (deemed served on September 3, 2021). As a result, the Tribunal did not err in finding that the respondent failed to deny the August 10, 2021 treatment plan in accordance with the 10-day requirement under s. 38(8) of the Schedule; and
c. The applicant further submitted that the respondent never disputed the submission date of the August 10, 2021 OCF-18 prior to its request for reconsideration despite having multiple opportunities to do so including in its response, at the case conference, after receiving the Case Conference Report and Order, and even in its written hearing submissions when the applicant raised the issue of the respondent’s non-compliance with s. 38(8) of the Schedule. The applicant’s position is that the respondent should not be permitted to raise the HCAI tracking information contained in its initial written hearing evidence that it now seeks to rely upon as the basis for this reconsideration because the respondent is seeking to re-litigate the issue that was unsuccessful at the hearing at first instance.
16I agree with the applicant that he raised the respondent’s alleged non-compliance with s. 38(8) of the Schedule regarding the August 10, 2021 treatment plan in his initial hearing submissions. In his initial hearing submissions, the applicant took the position that the treatment plan was submitted to the respondent on August 10, 2021 and denied on September 2, 2021 which contravened s. 38(8).
17In its responding hearing submissions, the respondent solely focused on the requirement to provide medical reasons for the denial. I agree with the applicant that the respondent did not dispute the submission date of the August 10, 2021 treatment plan in its written hearing submissions.
18I find that the basis for the respondent’s request for reconsideration (i.e., that the August 10, 2021 OCF-18 was submitted to the respondent on August 19, 2021 instead of August 10, 2021 as alleged by the applicant) is a new argument that could have been made in the respondent’s initial written hearing submissions. Indeed, in its reconsideration submissions, the respondent referred to the copy of the August 10, 2021 treatment plan that was filed as part of its initial hearing brief. A reconsideration is not an opportunity for parties to correct the shortcomings of their submissions and evidence once highlighted by the Tribunal. Further, parties are required put their best foot forward when first called upon to do so.
19For these reasons, the respondent’s request for a reconsideration is dismissed as a reconsideration request is not an avenue to advance new arguments or make new requests that a party could, but did not, make before the Tribunal during the hearing of the matter.
Even if an error were established, the Tribunal would not likely have reached a different result
20If I am incorrect in finding that the respondent is advancing a new argument and accepted that the Tribunal made an error of fact in the decision, I would find that such an error of fact would not have caused the Tribunal to reach a different result had it not been made. As such, the respondent’s request for reconsideration would be dismissed on this basis.
21If I were to consider the respondent’s position on reconsideration, I would agree that the Tribunal erred in fact in finding that the August 10, 2021 treatment plan was submitted on August 10, 2021. The evidentiary record supports a finding that the treatment plan was submitted to the respondent on August 19, 2021 given the submission date/time stamp of “2021/08/19 0:136 AM” on the document. Further, the applicant did not file any evidence to support his position that the treatment plan was filed on August 10, 2021. However, even if I were to find that the Tribunal erred on this basis, this error would not have affected the outcome.
22The ultimate result in the decision regarding the August 10, 2021 treatment plan was that there were no amounts owing to the applicant under this treatment plan because the Tribunal was not provided with evidence that this OCF-18 was incurred during the period of non-compliance. The respondent acknowledges that the Tribunal found at first instance that there were no amounts payable under this treatment plan at paragraph 7 of its reconsideration submissions. In my view, since the non-compliance finding had no impact on the decision regarding this treatment plan such that a different result would not have likely been reached, I would dismiss the respondent’s request for reconsideration on this basis because the respondent’s request would not meet the test set out in Rule 18.2(b).
CONCLUSION & ORDER
23The respondent’s request for reconsideration is dismissed.
Lindsay Lake
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 21, 2024