RECONSIDERATION DECISION
Before: Monica Ciriello
Licence Appeal Tribunal File Number: 22-008976/AABS
Case Name: Sarah Presley v. The Personal Insurance Co.
Written Submissions by:
For the Applicant: Mr. Gavin Cosgrove, Counsel
For the Respondent: Yann Grand-Clement, Counsel
OVERVIEW
1On August 21, 2024, the applicant requested a reconsideration of the Tribunal’s decision dated January 19, 2024 (“decision”).
2In the decision, I found that the applicant was not entitled to any of the following:
a. catastrophic assessment in the balance amount of $3,612.00;
b. case management assessment in the amount of $1,834.19;
c. psychological assessment in the amount of $2,200.00;
d. dietetic assessment in the amount of $2,228.25;
e. attendant care assessment in the amount of $918.37;
f. interest; or
g. an award.
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 is seeking a request for reconsideration under Rules 18.2(b) and 18.2(c). The applicant claims that the Tribunal erred with respect to the following issues in dispute:
a. The Tribunal’s determination that the applicant is not entitled to catastrophic assessment in the balance amount of $3,612.00; and
b. The Tribunal’s determination that the applicant is not entitled to an award as no benefits have been unreasonably withheld or delayed.
5The applicant seeks a reconsideration and order approving:
a. The HST for the catastrophic assessment in the amount of $1,352.00; and
b. A special award for unreasonably withholding or delaying benefits.
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) an error of law or fact
8I find that the Tribunal did err in its decision.
9In order for the applicant to establish grounds for reconsideration, she must establish that there was an error of fact or law in the decision, and that the Tribunal would likely have reached a different result had the error not been made.
10The applicant takes the position that the Tribunal erred in denying the remaining balance of the catastrophic assessment. The treatment plan for the catastrophic assessment was $14,012.00, the respondent partially approved the plan in the amount of $10,400.00 leaving a balance of $3,612.00. The applicant submitted that despite the partial amount approved, the respondent owed applicable taxes in the amount of $1,352.00.
11In paragraphs 7,8, 9, and 10 of the decision, I found that the applicant did not make persuasive submissions as to why the remaining balance of $3,612.00 was reasonable and necessary. Despite acknowledging that the OCF-18 dated August 6, 2020, was partially approved in the amount of $10,400.00 plus applicable taxes, the decision did not address the outstanding applicable taxes in the amount of $1,352.00. As a result, the applicant should have been entitled to HST as submitted.
12The evidence in the respondent’s reconsideration submissions provides an explanation of benefits dated September 25, 2024 which reveals that the HST was approved and paid to the applicant in the amount of $1,352.00. As a result, I find that this issue has been resolved.
13For the reasons outlined, despite the error in the Tribunal’s decision the applicant has been paid the outstanding amount.
14Accordingly, I find there is no reason for reconsideration of the decision under Rule 18.2(b).
Rule 18.2(c) evidence not before the Tribunal
15I find that the Tribunal did not err in its decision.
16For reconsideration to be granted under Rule 18.2(c), the following three-part test must be met:
a. There is evidence that was not before the Tribunal when rendering its decision;
b. The evidence could not have been obtained previously by the party now seeking to introduce it; and
c. The evidence would likely affect the result.
17The applicant submits that she was found to be not entitled to an award under section 10 of Regulation 664, in large part as a result of evidence that was not before the Tribunal when rendering its decision that could not have been obtained previously by the applicant and would likely have affected the result.
18The applicant submits that the respondent’s January 11, 2024 approval of the treatment plans for a psychological assessment in the amount of $2,200.00 dated February 27, 2023, dietic assessment in the amount of $2,228.25 dated March 22, 2023 and the attendant care assessment in the amount of $918.37 dated April 6, 2023, was evidence that was not before the Tribunal when rendering its decision. The applicant submits that the approvals could not have been obtained previously by the applicant and they were provided after the applicant served her evidence on December 19, 2023.The applicant submits that the approvals would likely have affected the result of the hearing and supported the claim for a special award for being unreasonably withheld or delayed.
19In reviewing the submissions, I find that the applicant has not met the first part of the test in Rule 18.2(c). I am not satisfied by the evidence that the three treatment plans approved by the respondent were not before me when I rendered the decision. The approvals were submitted by the respondent on January 10, 2024. Furthermore, the approvals were referenced by the applicant in her reply submissions on January 12, 2024, and were contemplated when the Tribunal arrived at its decision in paragraph 28 to deny an award.
20The applicant has also not established that the evidence would likely affect the result of the decision on the award claim. While the approval of the treatment plans supports the applicant’s position that the treatment plans are reasonable and necessary, the timing of the approval is not indicative of an award.
21For these reasons, I find that the applicant has not established grounds to grant a reconsideration under Rule 18.2(c).
ORDER
22The applicant’s request for reconsideration is dismissed.
Monica Ciriello
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: December 23, 2024