Danicus Jacob v. Intact Insurance Company, 2024 CanLII 13079

Citation: Jacob v. Intact Insurance Company, 2024 ONLAT 21-006450/AABS - R

RECONSIDERATION DECISION

Before: Lisa Yong, Adjudicator

Licence Appeal Tribunal File Number: 21-006450/AABS

Case Name: Danicus Jacob v. Intact Insurance Company

Written Submissions by:

For the Applicant: Ryan Jeffries, Paralegal Jessica Friend, Paralegal

For the Respondent: Callum Micucci, Counsel

OVERVIEW

1On November 13, 2023, the applicant requested reconsideration of the Tribunal’s decision dated October 23, 2023 (“decision”), in which I found that the applicant was found to be within the Minor Injury Guideline (“MIG”) and was not entitled to the disputed treatment plans, interest or award.

2The 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.

3The applicant relies on Rule 18.2(b) and requests reconsideration of the decision on the basis that I made errors of law or fact such that I would have likely reached a different result had the errors not been made.

4The applicant is seeking an Order to vary my decision and make a finding that the applicant is entitled to the treatment plans in dispute.

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

RESULT

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

7I vary the Tribunal’s decision with respect to the plans for an attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment. I find the applicant is entitled to payment of these plans pursuant to s. 38(11), once the applicant has incurred the cost of the plans following this decision, together with interest in accordance with s. 51 of the Schedule.

ANALYSIS

8The 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.

9The applicant requests reconsideration of the Tribunal’s decision relating to the following treatment plans/OCF-18 (“plan”):

a) attendant care/in-home assessment in the amount of $2,576.40 submitted February 24, 2020 (Issue ii of my decision);

b) functional ability evaluation assessment in the amount of $2,576.40 submitted on March 2, 2020 (Issue iv of my decision);

c) psychological assessment in the amount of $2,576.40 submitted on February 20, 2020 (Issue v of my decision); and

d) orthopedic assessment in the amount of $2,576.40 submitted April 24, 2020 (Issue vi of my decision).

The Tribunal made no error of law or fact with respect to the plan for an orthopedic assessment

10The applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to the plan for orthopedic assessment.

11On reconsideration, the applicant submits that I made errors of law or fact in finding that the respondent’s denial letter for the subject plan was compliant with s. 38(8) of the Schedule.

12I agree with the respondent’s submissions that I did not make any findings relating to the denial letter for the subject plan. At paragraph 53 of my decision, I stated that the applicant did not advance any submissions and therefore, I found the applicant failed to meet his burden and is not entitled to payment of the plan for an orthopedic assessment.

13As such, I do not find an error of law or fact in my determination.

Error of law with respect to the plans for attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment

14For the following reasons, I find the applicant has established grounds for reconsideration under Rule 18.2(b) with respect to the plans for attendant/in-home care assessment, functional ability evaluation assessment and psychological assessment.

15The applicant submits that I made errors of law by:

a. Failing to properly apply the test as set out in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT) (“T.F.”) in my analysis of s. 38(8) and consider the consequences of s. 38(11) of the Schedule; and

b. Improperly considering the respondent’s insurer’s examination (“IE”) reports, as they have been inappropriately obtained on the basis of deficient Notice of Examinations (“NOE”).

16The applicant submits that had I not made these errors of law, I would have reached a different result.

17I will address each of the applicant’s submissions in turn.

i. Failing to properly apply the test from T.F. and consider the consequences of s. 38(11)

18The applicant has established grounds for reconsideration pursuant to Rule 18.2(b). I agree with the applicant that I made an error of law in not properly applying the test in T. F., and I would likely have reached a different result had the error not been made.

19While I am not bound to follow the Tribunal’s past decisions on similar issues, I considered T.F. in my initial decision and found it to be persuasive. The test set out in T.F. at paragraph 19, is as follows:

[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

20In paragraph 41 of my decision, I referred to paragraph 21 of the T.F. which provides that “[the medical reasons] should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment.”

21The applicant submits that I made an error of law by applying only part of the test, not the complete test, as set out in T.F. and that I did not consider whether the respondent’s denial letters dated March 3, March 10 and March 19, 2020 (“March letters”), “…at the very least, include specific details about the insured’s condition…”. Consequently, due to this error of law, I did not consider the consequences of s. 38(11) of the Schedule.

22The respondent submits that there was no error of law in my analysis, or, in the alternative, if I find that the March letters are deficient pursuant to s. 38(8), then its subsequent letters dated June 18, 2021, September 17, 2021, and August 5, 2020 (“subsequent letters”), cured the deficiencies.

23In paragraphs 47 and 51 of my decision, I found that the March letters in relation to the respective plans, complied with s. 38(8) of the Schedule and satisfied the requirements of the T.F. test.

24Upon review, I agree with the applicant that I erred in my application of the T.F. test. This is because I did not consider whether the March letters contained specific details about the insured’s condition or identify information about the insured’s condition that the insurer does not have but requires. I find that the reasons provided by the respondent in the March letters were inadequate and did not enable an unsophisticated person to understand and make an informed decision in response.

25I now turn to the second part of the test in Rule 18.2(b).

26The applicant submits that had I not made an error of law, I would have had to apply s. 38(11) and consider its consequences. Under s. 38(11), the respondent is precluded from taking the position that the applicant is in the MIG, and therefore the plans would be payable.

27As noted above, the respondent submits that I did not make an error of law in my decision and that its subsequent letters cured the defects. It further relies on the Divisional Court case of Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”) to argue that the applicant did not incur the plans within the period of non-compliance and therefore the plans are not payable pursuant to s. 38(11)2.

28I find that I would likely have reached a different result had the error not been made for the following reasons.

29I agree with the applicant that due to the error of law, I did not consider the consequences of s. 38(11) of the Schedule.

30Pursuant to s. 38(11)1, the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies. Section 38(11)2 provides that the insurer shall pay for all goods, services, assessments and examination in the treatment plan that relate to the period starting on the 11th business day after the day the respondent received the plan and ending on the day the respondent gives a notice in accordance with s. 38(8).

31With respect to the plans for attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment, while I agree with the respondent’s submissions and reliance on Catic that the plans are only payable if the applicant incurred the cost within the non-compliance period, and the applicant did not present evidence that he incurred the cost of the plan, I find that the respondent did not issue compliant notices that rectified the defects to “close the window” of the non-compliance period before this case was heard by the Tribunal. Since I find the subsequent letters to be insufficient to cure the defects, following Catic, the respondent can no longer cure the defects. The consequences of s. 38(11)2 are triggered.

32I find the applicant established grounds for reconsideration pursuant to Rule 18.2(b).

33I will now turn to the outcome under Rule 18.4. Given the reasons above, I vary the decision on this issue and find that the respondent is liable to pay for the plans for an attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment, once the applicant has incurred the cost of the plans following this decision, including interest in accordance with s. 51 of the Schedule.

34Having found that the applicant has established grounds for reconsideration, it is not necessary for me to consider the applicant’s submissions on whether the respondent’s IE reports were obtained by deficient NOEs.

CONCLUSION & ORDER

35For the reasons noted above, the applicant’s request for reconsideration is granted, in part.

36I am granting the applicant’s request with respect to the plans for attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment.

37I am not granting the applicant’s request for the plan for orthopedic assessment.

38I vary the Tribunal’s decision with respect to the plans for an attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment. I find the applicant is entitled to payment of these plans pursuant to s. 38(11), once the applicant has incurred the cost of the plans following this decision, together with interest in accordance with s. 51 of the Schedule.

Lisa Yong Adjudicator Tribunals Ontario – Licence Appeal Tribunal