Eliza Wereszczynska v. Aviva Insurance Canada, 2024 CanLII 10521

Citation: Wereszczynska v. Aviva Insurance Canada, 2024 ONLAT 20-012090/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan

Licence Appeal Tribunal File Number: 20-012090/AABS

Case Name: Eliza Wereszczynska v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Kathleen Mertes, Counsel

OVERVIEW

1On December 8, 2023, the respondent requested reconsideration of the Tribunal’s decision dated November 9, 2023 (“decision”).

2In the decision, the Tribunal found the applicant was not entitled to several treatment plans in dispute. The Tribunal determined the applicant was entitled to a treatment plan dated September 1, 2020 for a psychological assessment and related interest. It also determined the respondent was liable to pay an award under section 10 of Regulation 664 with respect to the September 1, 2020 treatment plan.

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.

4The respondent is seeking a reconsideration pursuant to Rule 18.2(a) and (b). The respondent requests an order vacating the Tribunal’s finding that the September 1, 2020 treatment plan was reasonable and necessary and confirming the issue was resolved prior to the hearing; an order dismissing the section 10 award and interest; and any other order the Tribunal deems just.

5The applicant argues the request for reconsideration should be dismissed.

RESULT

6The respondent’s request for reconsideration is granted, in part.

PROCEDURAL ISSUES

7In its reply submissions, the respondent requests that the Tribunal dismiss paragraphs 13, 14, 15, 17 of the applicant’s reconsideration submissions. It argues these submissions are an attempt to enter new evidence and make new arguments. It also seeks to exclude paragraphs 26-31 of the applicant’s submissions on the grounds they are an attempt to re-argue her case.

8I deny the respondent’s request to strike paragraphs of the applicant’s responding submissions for the following reasons.

9The respondent has not brought a motion to strike the responding submissions as required by Rule 15. Instead, it has included the request in its reply submissions to the reconsideration. As a result, I find the request is not properly before me as provided for in the Rules.

10Furthermore, I do not find that paragraphs 13, 14, 15 and 17 of the applicant’s responding submissions are an attempt to enter new evidence or advance new arguments. They are a response to the respondent’s reconsideration argument that the Tribunal acted outside its jurisdiction in considering the September 1, 2020 treatment plan.

11I do not agree with the respondent’s characterization of paragraphs 26-31 of the applicant’s responding submissions. The respondent’s request for reconsideration relates, in part, to the special award granted by the Tribunal. The applicant’s responding submissions set out her position that there were grounds for granting an award, and that there was no error of law in this regard.

12The respondent’s request to strike paragraphs of the applicant’s responding submissions is denied.

ANALYSIS

13The 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.

September 1, 2020 Treatment Plan

14I find that the respondent has not established grounds for reconsideration with respect to the September 1, 2020 treatment plan under Rule 18.2(a) or (b).

15I will first consider the respondent’s arguments under Rule 18.2(a). The respondent argues that the Tribunal acted outside its jurisdiction when it determined that the September 1, 2020 treatment plan was reasonable and necessary, because the issue was no longer in dispute. The respondent submits that the Tribunal discounted its submissions that the treatment plan was resolved at the case conference by way of an agreement between the parties. It submits that the applicant did not dispute the respondent’s submission on this point on reply. It also submits there was no evidence before the Tribunal that the parties had not resolved the issue.

16The applicant argues that the respondent has not met its onus for establishing grounds for reconsideration. She argues that the respondent has not provided evidence to support its position that the parties came to an agreement about the two treatment plans submitted for a psychological assessment. The applicant denies the respondent’s contention that the September 1, 2020 treatment plan was resolved and submits that it was an issue in dispute that the Tribunal had jurisdiction to adjudicate. The applicant argues that the respondent had the opportunity to correct alleged errors about the issues in dispute before the hearing took place but did not do so.

17I find that the Tribunal did not act outside its jurisdiction in considering the treatment plan dated September 1, 2020. The September 1, 2020 treatment plan was listed as an issue in dispute in the Case Conference Report and Order dated March 30, 2021 (“CCRO”). The Tribunal subsequently issued two Motion Orders, one granting an adjournment request, and the second converting the hearing format from a videoconference to a written hearing. In its Motion Order dated October 27, 2022, the Tribunal noted that the applicant had withdrawn the issue of non-earner benefits. No mention was made of withdrawing or settling the September 1, 2020 treatment plan in the Motion Order. There is no filing with the Tribunal that indicates the applicant withdrew the issue.

18I also find that it is clear from the applicant’s written submissions for the initial hearing that she believed the September 1, 2020 treatment plan to be an issue in dispute. While the respondent submits that the applicant did not file a reply to its responding argument that the issue was not in dispute, she is under no obligation to do so, and the lack of reply does not mean the applicant accepted the respondent’s position. There is also no requirement, as argued by the respondent, for the applicant to provide evidence that the parties had not resolved the issue. The CCRO lists the September 1, 2020 treatment plan as an issue in dispute, and the applicant has not withdrawn it. It was properly before the Tribunal.

19Furthermore, the Tribunal considered the September 1, 2020 treatment plan at paragraphs 30 to 37 of the decision, and specifically noted the respondent’s argument that the treatment plan was duplicative and not an issue in dispute. The Tribunal considered the respondent’s argument, as well as the applicant’s position that the treatment plan was reasonable and necessary, and set out its reasons for finding the applicant was entitled to the treatment plan.

20I find the Tribunal acted within its jurisdiction with respect to the September 1, 2020 treatment plan. I will now turn to the respondent’s arguments under Rule 18.2(b).

21I also find the respondent has not established grounds for reconsideration under Rule 18.2(b) with respect to the September 1, 2020 treatment plan.

22The respondent argues the Tribunal made errors of fact in attributing, to the respondent, submissions regarding the reasonableness and necessity of the treatment plan. Specifically, it submits that the Tribunal erred at paragraphs 32, 34, and 37, when it indicated that the respondent had conceded that the September 1, 2020 treatment plan was reasonable and necessary.

23The applicant submits that the Tribunal did not make errors of fact in the decision.

24I have reviewed the submissions for the written hearing, and I agree with the respondent that the Tribunal erred when it stated that the respondent had conceded that the September 1, 2020 treatment plan for a psychological assessment is reasonable and necessary. I find, however, that the Tribunal would not likely have reached a different result had the error not been made.

25I find that the Tribunal’s determination that the treatment plan was reasonable and necessary was not dependent on the respondent’s position on the issue. The Tribunal found, based on the law and evidence, that the September 1, 2020 treatment plan is reasonable and necessary.

26At paragraphs 31 to 36 of the decision, the Tribunal reviewed the goals of the September 1, 2020 treatment plan, the estimated duration, and the cost. It cited the opinion of Dr. Costa El-Hage that the applicant would benefit from a course of psychological intervention as a result of the accident. Dr. Costa El-Hage’s opinion was in relation to the March 2019 treatment plan for a psychological assessment and the Tribunal noted that the respondent had approved the March 2019 treatment plan. At paragraph 36, the Tribunal accepted the undisputed submission of the applicant that she was no longer able to incur the March 2019 psychological assessment treatment plan originally approved by the respondent because the treatment facility had closed. At paragraph 37, the Tribunal determined that, upon consideration of the medical evidence, the submissions of the parties, and the legal test, the September 1, 2020 treatment plan is reasonable and necessary.

27In sum, while I find that the Tribunal erred when it found that the respondent had conceded that the treatment plan was reasonable and necessary, this error would not likely have changed the outcome because the Tribunal found the treatment plan is reasonable and necessary based on the law and the evidence, including the fact the respondent had already approved a previous, similar treatment plan that the applicant cannot realistically incur.

28For the reasons set out above, I find that the respondent has not established grounds for reconsideration with respect to the September 1, 2020 treatment plan.

Interest on the September 1, 2020 Treatment Plan

29The respondent argues that the Tribunal erred when it ordered interest on the treatment plan as there was no evidence the treatment plan had been incurred, or an invoice submitted and unpaid.

30I find, however, that at paragraph 48 of the decision, the Tribunal stated that the applicant is entitled to interest on the September 1, 2020 treatment plan pursuant to section 51 of the Schedule. Section 51 governs the payment of interest on any overdue amounts, and it is not an error to state that the applicant is entitled to any interest payable under that section.

31The respondent has not established grounds for reconsideration with respect to interest on the September 1, 2020 treatment plan.

Section 10 Award

32The respondent argues the Tribunal made significant errors of law and violated the principles of natural justice when it ordered an award under section 10 of Regulation 664 without providing any reasons for the award and without providing a specific percentage for the award. The respondent also disputes that there were grounds for making an award and submits that the Tribunal erred when it did so.

33The applicant submits that the Tribunal did not make an error of law. The applicant submits that the Tribunal provided reasons for its decision at paragraph 46, when it stated that the respondent is liable to pay an award because it unreasonably withheld and delayed payment to the applicant for the September 1, 2020 treatment plan. The applicant also submits that although there is no mention of any percentage for the award in the decision, she is not opposed to the Tribunal deciding on the specific percentage for the award. She also notes that at paragraph 46, a percentage of 50% was provided.

34I find that the respondent has established grounds for reconsideration with respect to the section 10 award for the following reasons.

35I find that the Tribunal committed a material breach of procedural fairness when it found the respondent liable for a section 10 award, without providing reasons for this determination. It is well established that for conduct to attract a special award it must be “excessive imprudent, stubborn, inflexible, unyielding or immoderate”: Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT). The decision does not address the test for making an award or how the respondent’s conduct meets this test. The Tribunal’s statement at paragraph 46 that the respondent is liable to pay an award “because it unreasonably withheld and delayed payment to the applicant of [sic] the treatment plan recommended by MediAssess Evaluations dated September 1, 2020” is a conclusion without reasons, which is a material breach of procedural fairness.

36I also find that the Tribunal erred when it did not indicate the quantum or percent of the special award. Section 10 of Regulation 664 provides that the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing the insured. The Tribunal stated that an award is payable without stipulating the amount of the award. While the applicant argues that a percentage of 50% was provided at paragraph 46 of the decision, I find that this is a reference to what may be granted under section 10, not a reference to the award granted in this case. I also find that the error is such that the Tribunal would likely have reached a different result had it not been made.

37Accordingly, I find that respondent has established grounds for reconsideration with respect to the Tribunal’s determination that the respondent is liable to pay an award under section 10 of Regulation 664. Having found grounds for reconsideration, I now turn to the remedy under Rule 18.4.

38Pursuant to Rule 18.4, I am varying the decision to find the respondent is not liable to pay an award for the following reasons.

39As noted above, the Tribunal may grant an award if it finds the insurer unreasonably withheld or delayed the payment of benefits. It is well established that the test for making an award is whether the conduct is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. In this case, I find that the respondent’s conduct with respect to the September 1, 2020 treatment plan does not meet this threshold.

40It is agreed between the parties that the respondent approved the March 2019 treatment plan for a psychological assessment. In the decision, the Tribunal accepted the applicant’s undisputed position that the treatment facility closed so the applicant was unable to incur the approve March 2019 treatment plan. As noted above, the applicant submitted a second treatment plan for a psychological assessment dated September 1, 2020, which the respondent denied because it was a duplicate treatment plan. At the initial hearing, the applicant argued it was not a duplicate plan. It was a replacement treatment plan because the initial plan was not incurred.

41I find that in the Explanation of Benefits (“EOB”) dated October 6, 2020, the respondent advised the applicant that it was denying the September 1, 2020 treatment plan because it had already approved a psychological assessment with Dr. Nina Belyakova. In the EOB the respondent noted it had not received the report from Dr. Belyakova and recommended the applicant follow up to confirm it had been completed, and if so, have it sent to the respondent as soon as possible. The respondent also indicated that if the applicant wished to withdraw the treatment plan from Dr. Belyakova in favour of the September 1, 2020 treatment plan, it required confirmation in writing so that it could review for approval.

42I have not been provided with evidence that the applicant confirmed her intent to withdraw the March 2019 treatment plan in writing as requested by the respondent. Instead, the applicant included both treatment plans in her application filed with the Tribunal on October 16, 2020, even though the March 2019 treatment plan had been approved. In her submissions for the initial hearing, the applicant indicated the respondent was “well aware” of the fact the applicant could not incur the March 2019 treatment plan because the facility was closed, but she did not provide evidence in support of this submission.

43When faced with two treatment plans for the same treatment, the respondent advised the applicant that she could withdraw one in favour of the other. This seems a reasonable approach, as the respondent had already approved the first treatment plan. In my view, this is not conduct that can be characterized as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

44For the reasons set out above, I am varying the decision to find that the respondent is not liable to pay an award under section 10 of Regulation 664 in relation to the September 1, 2020 treatment plan.

CONCLUSION & ORDER

45The respondent’s request for reconsideration is granted, in part.

46For the reasons set out above, I find the respondent:

a. has not established grounds for reconsideration with respect to the applicant’s entitlement to the September 1, 2020 treatment plan or related interest; and

b. has established grounds for reconsideration with respect to the respondent’s liability to pay an award under section 10 of Regulation 664.

47I am varying the Tribunal’s decision with respect to the respondent’s liability to pay an award under section 10 of Regulation 664 in relation to the September 1, 2020 treatment plan. The respondent is not liable to pay an award.

E. Louise Logan

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal