RECONSIDERATION DECISION
Before: Jeremy A. Roberts, Vice-Chair
Licence Appeal Tribunal File Number: 21-001492/AABS
Case Name: Louis Murray v. Aviva General Insurance
Written Submissions by:
For the Applicant: Matthew Consky, Counsel
For the Respondent: Suzanne A. Clarke, Counsel
OVERVIEW
1On October 6, 2023, the respondent requested reconsideration of the Tribunal’s decision dated September 19, 2023 (“decision”).
2In that decision, I found that the applicant was entitled to attendant care benefits (ACBs) of $3,332.13 per month, $1,049.24 for an occupational therapy (OT) in-home assessment, $2,541.21 for OT services, and interest on those benefits.
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:
i. The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
ii. 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
iii. There is evidence that was not before the Tribunal when rendering its decision, which could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The respondent argues that the Tribunal made an error of fact in its calculations on entitlement to ACBs and OT services, and on the date range applicable for ACBs. The respondent also argues that pursuant to section 19(1) of the Schedule, the entitlement to ACB should be subject to proof of incurred expenses. The applicant submitted that he takes no position on the matter.
5The respondent requests that:
i. The Tribunal clarify the time frame for entitlement to ACBs;
ii. The Tribunal clarify the precise quantum of ACBs;
iii. The Tribunal clarify that any entitlement to ACBs is subject to proof of incurred expenses;
iv. The Tribunal amend paragraph 35 of its decision to clarify the amount in dispute as $1,927.57 as opposed to $2,027.57; and
v. The Tribunal amend paragraph 40 of its decision to clarify the entitlement quantum as $1,895.25.
RESULT
6The respondent’s request for reconsideration is granted. Pursuant to Rule 18.4, I am varying the decision as follows:
7Paragraphs 46 (i) and (ii) are varied to find that:
i. The applicant is entitled to $2,329.99 in ACBs from March 10, 2021 to March 13, 2022, subject to section 19(1)(a) of the Schedule.
ii. The applicant is entitled to $1,895.25 for OT services.
8Pursuant to Rule 17, I am correcting a typographical error at Paragraph 12 to read: “I find the applicant is entitled to $602.14 per month for ACBs from March 10, 2021 to March 13, 2022. […]”.
PROCEDURAL ISSUES
ANALYSIS
9The 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 Tribunal made a typographical error in stating the end date of ACBs as March 13, 2021 in Paragraph 12
10I find that I made a typographical error in paragraph 12 in stating the end date of ACB entitlement as March 12, 2021. As I referenced in paragraph 4 and in my decisions at paragraphs 23 and 46, the end date for ACB entitlement should be March 13, 2022 (the date the applicant deceased).
11The respondent argued that I made an error in fact in stating the end date of ACBs as March 13, 2021 in paragraph 12 of my decision, arguing that it contradicted the date I provided in paragraphs 4, 23, and 46. It suggested that the date I provided in my final decision (paragraph 46) of March 13, 2022 was likely the correct date.
12The applicant took no position on this matter.
13I find that I did make a typographical error in paragraph 12 which contradicted my later decision. However, given that this does not change the outcome of the decision, I do not find that this is a valid ground for reconsideration.
14That said, pursuant to Rule 17 of the Rules, I do find that I have the authority to correct a typographical error at any time. Because of this, Paragraph 12 should read “I find the applicant is entitled to $602.14 per month for ACBs from March 10, 2021 to March 13, 2022. […]”. This does not change my ultimate decision, as I correctly stated the date of entitlement in my decision in paragraph 46 (i).
The Tribunal made an error in fact in not clarifying the full quantum of ACB entitlement and clarifying that this is subject to proof of incurred costs
15I find that I made an error in fact in not stating the full amount of ACB entitlement as $2,329.99 from March 10, 2021 to March 13, 2022 and in not specifying that this entitlement was subject to section 19(1)(a) of the Schedule.
16The respondent argued that my decision in paragraph 23 to not calculate the “amount already approved” left the parties confused as the quantum of entitlement. This is because the respondent had approved treatment only from June 1, 2021 while the applicant was seeking entitlement from March 10, 2021. It argued that I did not address this issue. Additionally, the respondent argued that it was important to specify that any payments for ACBs were conditional on those ACB costs being incurred under section 19(1)(a) of the Schedule.
17The applicant took no position on this matter.
18I find that I made an error in not fully clarifying the entitlement quantum for ACBs. The quantum of entitlement for ACBs should be $2,329.99 per month from March 10, 2021 to March 13, 2022. Here are the reasons:
i. In paragraph 23 of my decision, I found that the applicant was entitled to $602.14 per month for ACB from March 10, 2021 to March 13, 2022 in addition to the amounts already approved. The amounts already approved were not specified in my decision.
ii. In paragraph 17 of the respondent’s initial submission, it states that the applicant is “entitled to ACBs in the amount of $1,727.85 per month commencing June 1, 2021, subject to evidence of incurred expenses.” This means that the amount already approved referenced in paragraph 23 of my decision should have been $1,727.85 per month.
iii. However, given that I agreed with the applicant’s arguments for a claim of entitlement from March 10, 2021 (the date of the applicant’s Form-1 submission), the entitlement to $1,727.85 per month commences on March 10, 2021, not June 1, 2021.
iv. As such, I find that the applicant is entitled to $2,329.99 ($602.14 + $1,726.85) per month for ACBs from March 10, 2021 to March 13, 2022, subject to evidence of incurred expenses.
19Moreover, I also find that I made an error in not fully clarifying that entitlement to ACBs is subject to section 19(1)(a) of the Schedule, which requires that ACBs be incurred.
20Paragraph 46(i) should read “The applicant is entitled to $2,329.99 in ACBs per month from March 10, 2021 to March 13, 2022, subject section 19(1)(a) of the Schedule.”
The Tribunal made an error of fact in misstating the entitlement amount for the OT services
21I find that I made an error in misstating the entitlement amount for OT services as $1,995.25 when the correct amount should have been $1,895.25.
22The respondent argued that I made an error in paragraphs 3(iii) and 35 in stating that the previously approved amount was $1,396.75 when the correct amount was actually $1,496.75. This mistake, it argues, led to an incorrect conclusion at paragraph 40, which should have found the applicant entitled to $1,895.25.
23The applicant took no position on this matter.
24I find that I made an error in misstating the previously approved amount, which then led to an incorrect quantum of entitlement. Per my calculation in paragraph 35, the correct amount in dispute should have been $1,927.57 ($3,424.31 less $1,496.75 approved). This would then lead to a revised figure in paragraph 40, which should have been $1,895.25 ($1,927.57 less $32.32).
25Paragraph 46 (iii) should read “The applicant is entitled to $1,895.25 for OT services.”
CONCLUSION & ORDER
26For the reasons above, I grant the respondent’s request for reconsideration.
27Pursuant to Rule 17, I correct paragraph 12 of my decision to read: “I find the applicant is entitled to $602.14 per month for ACBs from March 10, 2021 to March 13, 2022. […]”.
28I vary the decision of September 19, 2023 in paragraphs 46 (i) and (ii) and find that:
i. The applicant is entitled to $2,329.99 in ACBs from March 10, 2021 to March 13, 2022, subject to section 19(1)(a) of the Schedule; and
ii. The applicant is entitled to $1,895.25 for OT services.
29The remainder of the Decision shall remain in full force and effect.
Jeremy A. Roberts
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 18, 2024