RECONSIDERATION DECISION
Before:
Ulana Pahuta
Licence Appeal Tribunal File Number:
22-004524/AABS
Case Name:
Sidorela Ulaj v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Lisa Armstrong, Counsel
OVERVIEW
1On August 21, 2024, the applicant requested reconsideration of the Tribunal’s decision dated July 31, 2024 (“decision”).
2In this decision, I found that the applicant was not entitled to income replacement benefits (“IRBs”), that her claim remained within the scope of the Minor Injury Guideline (“MIG”) and that she was not entitled to the treatment plans in dispute.
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 applicant seeks reconsideration pursuant to Rule 18.2(b). She submits that the Tribunal made errors of law “such that the Tribunal would likely have reached a different result had the error not been made.” The applicant seeks an order from the Tribunal that she is entitled to the denied benefits and that the respondent be prohibited from continuing to take the position that the MIG applies to her claim.
5The respondent submits that there was no error of law in the Tribunal’s decision. It further argues that the applicant’s arguments in her reconsideration are an attempt to re-litigate the Tribunal’s findings based on the same evidence put forth at the hearing.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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.
Rule 18.2(b): Error of Law
8I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
9The applicant submits that in denying her entitlement to accident benefits, the Tribunal’s decision is incongruent with the Ontario Court of Appeal decision Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882. Specifically, that the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), is remedial and constitutes consumer protection legislation. The applicant argues that the Tribunal’s analysis of s. 36(4) and s. 38 of the Schedule, and the evidentiary soundness of the OCF-3, is not supported by the principles set out in Tomec and its binding rules of statutory interpretation.
Section 36(4) analysis
10The applicant submits that in my decision, I erred in law in finding that the respondent’s November 24, 2020, denial was compliant with s. 36(4) of the Schedule. She argues that s. 36(4) stipulates that in addition to requesting a s. 44 examination, a medical and any other reason must also be provided as to why the respondent does not believe that the applicant is entitled to the specified benefit. The applicant submits that in my decision, I did not consider whether the respondent had provided an explanation as to why it “does not believe” in the applicant’s entitlement.
11The applicant submits that no such explanation had been provided in the respondent’s notice and that my failure to address this component constitutes a serious error in law which, had it not been made, “would likely have reached a different result”. She argues that the respondent did not state that it did not believe that the applicant was not entitled to IRBs, but at most implied that the respondent was “unsure” as to entitlement.
12I find that the applicant has not established a basis for reconsideration. I agree with the applicant that in paragraph 13 of my decision, I did not expressly address the requirement in s. 36(4)(b) of the Schedule that the notice must explain “why the insurer does not believe the applicant is entitled to the specified benefit”. However, even if this omission was an error in law, I do not find that this error would have led to a different result had the purported error not been made.
13In paragraphs 13 and 16 I note that the respondent had in the same November 24, 2020, notice, made a s. 33 request for a number of listed documents. I further note in my decision that the applicant had not provided any evidence as to whether these documents were provided. In her reconsideration submissions the applicant only addresses the requirement of s. 36(4)(b) of the Schedule, when arguing that the respondent’s notice was non-compliant with s. 36(4). However, s. 36(4)(c) also permits an insurer to send a s. 33 request to the claimant. In my decision, I clearly reference the respondent’s s. 33 requests and the applicant’s lack of evidence as to whether they were fulfilled, when addressing the issue of s. 36(4) compliance. As such, I find no error in my finding that the respondent’s denial notice was compliant with s. 36(4) of the Schedule.
Evidentiary soundness of OCF-3
14The applicant submits that I erred in law in finding at paragraph 16 that an OCF-3 alone is not sufficient medical evidence to establish entitlement to a specified benefit. The applicant submits that this finding is impossible to reconcile with the consumer protection purpose of the Schedule and the legislative intent principles clarified in Tomec.
15I agree with the respondent that the applicant’s submissions on this issue are a recitation of her submissions at first instance. In paragraphs 14, 16 and 17, I address the applicant’s argument on the issue of the OCF-3 and provide my finding that I disagree with her position that an OCF-3 alone is “certified medical evidence” which creates a rebuttable presumption of entitlement to a specified benefit.
16The applicant may disagree with my finding; however, the reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision. As such, I do not find that the applicant has established an error in law in my analysis of the OCF-3.
Section 38(8) analysis and the MIG
17The applicant submits that I erred in law in finding that the respondent’s denial notices were compliant with s. 38(8) of the Schedule and that procedural non-compliance with s. 38(8) does not create a permanent removal of an applicant from the MIG.
18I find that the applicant has not established an error of law.
19In paragraphs 20 and 21 of the decision, I state that s. 38 non-compliance is a separate issue from MIG determination. I note that the applicant did not provide any substantive submissions or medical evidence of accident-related impairments. As such, I found that the applicant did not meet her burden to prove accident-related impairments warranting removal from the MIG. In paragraphs 25 to 31, I then separately considered the applicant’ s. 38 non-compliance arguments for the specific treatment plans in dispute.
20I agree with the respondent that while s. 38 non-compliance means an insurer is prohibited from using the MIG as a position for its denial in respect of a specific treatment plan, this does not result in a permanent removal from the MIG for all further treatment plans. I find no error in law in my analysis.
21Finally, the applicant submits that I erred in law in my finding that the respondent’s denial notices were compliant with s. 38(8) of the Schedule.
22I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
23I agree with the respondent’s submissions that the applicant is raising the same s. 38 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 notices in question. The reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision.
Costs
24In its submissions, the respondent requests costs in the amount of $1,000. It submits that the applicant is attempting to re-litigate the initial decision, and that counsel for the applicant has submitted similar or identical submissions on multiple occasions. The respondent argues that the repeated attempts to re-litigate the same issue is vexatious.
25I do not find that the respondent has established a basis for costs. Choosing to seek reconsideration is a procedural right afforded to any party under the LAT Rules, and does not amount to unreasonable, frivolous, vexatious, or bad faith conduct. Therefore, costs will not be awarded.
CONCLUSION & ORDER
26The applicant has not established grounds for reconsideration under Rule 18.2(b).
27The applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 13, 2024