RECONSIDERATION DECISION
Before:
Michael Beauchesne
Licence Appeal Tribunal File Number:
22-000123/AABS
Case Name:
Nimo Ayanlle v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Thulasi Kandiah, Counsel
OVERVIEW
1On March 7, 2024, the applicant requested reconsideration of the Tribunal’s decision dated February 15, 2024 (“decision”).
2The outcome of the decision was that the applicant remained in the Minor Injury Guideline (the “MIG”), but that she was entitled to costs incurred, plus interest, on the disputed treatment plan (the “OCF-18”) for physiotherapy services for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending on June 15, 2021. The decision also determined the applicant is entitled to costs incurred, plus interest, on the disputed OCF-18 for a chronic pain assessment for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending the day of the decision. The applicant’s claims for an award under section 10 of Regulation 664, as well as costs per Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), were dismissed.
3The grounds for a request for reconsideration are found in Rule 18.2. 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.
4In this case, the applicant is arguing criteria (b) as outlined in Rule 18.2.
5The applicant requests the Tribunal’s order be varied to extend the entitlement period to the day of the decision for the disputed physiotherapy OCF-18. The applicant also requests the Tribunal find her injuries are not subject to the MIG, and that the respondent be liable to pay an award under section 10 of Regulation 664.
PROCEDURAL ISSUE
The applicant improperly makes new arguments in her reconsideration reply
6I decline to consider the arguments made at paragraphs 4, 5, and 6 of the applicant’s reconsideration reply.
7The applicant submits the Tribunal did not acknowledge that the 2012 osteopenia results are in relation to the lumbar spine and femoral neck. The applicant also says the Tribunal did not consider all the applicant’s pre-existing medical conditions were asymptomatic pre-accident and symptomatic post-accident. The applicant goes on to provide award particulars and adds that the Tribunal inaccurately determined the end date of her treatment at Platinum.
8The respondent’s reconsideration submissions did not address these aspects of the applicant’s reconsideration reply. However, in a letter dated April 25, 2024, the respondent objects to the applicant’s reconsideration reply, and specifically those aspects that pertain to her pre-existing injuries and conditions, treatment, and the award claim. The respondent argues that the applicant’s reply improperly includes these fresh arguments, and that allowing them to be made would amount to a “hearing by ambush” to the prejudice of the respondent because it was not afforded an opportunity for sur-reply.
9I agree with the respondent. In my view, the applicant’s arguments—which pertain to paragraphs 19, 22, 25, 26, and 27 of the decision—were raised for the first time in her reply submissions. As well, I find the applicant did not address her award claim in her reconsideration submissions. I find this late introduction of new arguments is a breach of procedural fairness. The respondent did not have an opportunity for sur-reply and raising new arguments as part of reply submissions is improper. I therefore decline to consider paragraphs 4, 5, and 6 of the applicant’s reconsideration reply.
RESULT
10Paragraphs 7 and 63 of the decision will be corrected to read “June 22, 2021,” instead of “June 15, 2021.” The applicant’s request for reconsideration is otherwise dismissed.
ANALYSIS
11The 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 entitlement period for the physiotherapy OCF-18
12With respect to the entitlement period argument, I find the applicant has not shown an error of law or fact that would have likely led to a different result had the error not been made.
13The applicant submits the decision incorrectly cited the end of the entitlement period as June 15, 2021, at paragraphs 7 and 63 of the decision, despite identifying June 22, 2021, as the correct end-date at paragraph 40 of the decision. The applicant argues that both end-dates produce absurd consequences because they would require her to incur 28 sessions of physiotherapy and 15 sessions of massage therapy within an eight-day period. The applicant reasons that since she was found to be entitled to costs incurred on the disputed chronic pain OCF-18 up to the date of the decision, that she should similarly be entitled to costs incurred on the disputed physiotherapy OCF-18 up to the date of the decision.
14The respondent agrees that the Tribunal erred in identifying June 15, 2021, as the end date of the entitlement period for the physiotherapy OCF-18. The respondent disagrees the applicant is entitled to incur the physiotherapy services proposed in the OCF-18 up to the date of the decision and asserts that the entitlement period for costs and interest ends on June 22, 2021.
Error of law
15I find the applicant has not established grounds for reconsideration owing to an error of law.
16While I accept that paragraph 39 of the decision indicated the respondent’s notice did not comply with section 38(8) of the Schedule, in paragraph 40 the Tribunal applied section 38(11)—as required by the Schedule—and determined the entitlement period ended on June 22, 2021. This is the day the insurer is deemed per section 64(18) of the Schedule to have provided notice that complies with section 38(8), which too is noted at paragraph 40. I find the applicant does not address sections 38(11) or 64(18) of the Schedule in her reconsideration submissions, but instead relies on paragraph 63 of the decision, and specifically the order of entitlement to any incurred costs of the chronic pain OCF-18 up to the date of the decision. In my view, the chronic pain OCF-18 entitlement, which is at paragraph 51 of the decision, is distinguishable because the respondent failed to produce a compliant notice up to the date of the decision. Therefore, the entitlement period for this OCF-18 extended to the date of the decision. I find this is a different circumstance from the physiotherapy OCF-18—where the respondent produced a compliant notice on June 22, 2021—and thereby conclude the Tribunal did not make a legal error by establishing a different (i.e., shorter) entitlement period for the physiotherapy OCF-18.
17I put little weight on the authorities advanced by the applicant in her submissions and reply to support her position. While I accept the decision does not specifically address Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), I find it is well settled that the Tribunal is not required to respond to every argument or line of possible analysis.
18Speaking to Suarez specifically, I find it bears little relevance to the OCF-18 for physiotherapy as argued in the applicant’s submission. This is because Suarez, as submitted by the applicant, pertains to a case where the deficient notice was not subsequently rectified by the insurer. That is not the case here, as the respondent was found to have fulfilled its notice requirements under section 38(8) of the Schedule on June 22, 2021, per paragraph 40 of the decision. In any event, I find the applicant is seeking to re-argue her case on this point, and dissatisfaction with the weight the Tribunal accords to evidence is not a basis for reconsideration.
19Similarly, I did not place any weight on Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC) (“Rizzo”) as advanced in the applicant’s reconsideration submissions, albeit for a different reason than Suarez; other than referencing Rizzo in her submissions, the applicant does not point to any aspect of Rizzo to show how it supports her reconsideration request. While I recognize Rizzo is about statutory interpretation, the applicant presents no arguments for me to consider on how Rizzo should apply here.
Error of fact
20I accept the decision inaccurately references “June 15, 2021” at paragraphs 7 and 63 of the decision. I find this is a typographical error, and that the correct date that should have been used in these paragraphs is “June 22, 2021” as noted at paragraph 40 of the decision. However, in my view this error does not meet the second part of the test in Rule 18.2(b), as it would not have likely led to a different result had the error not been made. This is because the error had little bearing on whether the respondent’s notice was compliant with the Schedule.
21In any event, Rule 17 permits the Tribunal, at any time, to correct a typographical error and I take that opportunity now. I correct paragraphs 7 and 63 of the decision to be consistent with paragraph 40 of the decision. That is to say, paragraphs 7 and 63 will both be corrected to read “June 22, 2021,” instead of “June 15, 2021.”
The applicability of the MIG
22With respect to the MIG argument, I find the applicant has not shown an error of law or fact that would have likely led to a different result had the error not been made.
23The applicant submits the Tribunal did not consider the totality of the medical evidence put forth, and that the Tribunal failed to request additional information or clarification when it became apparent this was necessary for a full and satisfactory understanding of the issues in the proceeding per Rule 9.1 of the Common Rules of Practice and Procedure for the Licence Appeal Tribunal, Animal Care Review Board, and the Fire Safety Commission (October 2016) (the “Common Rules”). The applicant also argues that the Tribunal discredited the opinions of Dr. Tajedin Getahun and Dr. El Saidi despite there being no section 44 reports in evidence to refute their expert opinions.
24The respondent counters that the onus is on the applicant to prove her case, and that it is not the Tribunal’s role to identify deficiencies and then direct a party to correct those deficiencies. The respondent also says it relied on section 44 reports of Dr. Jugnundan, Dr. Auguste, and Dr. Zielinsky in its hearing submissions, and that the applicant’s arguments amount to a disagreement on weight afforded evidence, which does not rise to an error of law or fact and is not grounds for reconsideration.
Totality of the evidence
25I find the applicant’s arguments do not establish grounds for reconsideration. While the applicant claims the decision did not consider the totality of the medical evidence put forth, the applicant’s reconsideration submissions do not specify what evidence the Tribunal did not consider. I find the Tribunal considered the totality of medical evidence in rendering its decision, and referenced the applicant’s medical record, including clinical notes and records of the applicant’s treating physicians and assessors, at paragraphs 13, 16, 18-22, 25-26, 30, and 32-33 of the decision. In my view, the applicant is essentially arguing that the Tribunal erred in law by failing to properly consider and weigh her evidence. As part of its fact-finding function, the Tribunal weighs evidence as it considers appropriate. Dissatisfaction with the weight the Tribunal accords to evidence is not a basis for reconsideration. The Tribunal is not required to reference every item of evidence contained in the record. I find no error in law that pertains to the way the Tribunal weighed and assessed the evidence.
26Similarly, I find the applicant’s reconsideration submissions did not direct me to where in the decision the Tribunal needed further clarification and failed to do so. In my view, Rule 9.1 (i.e., the Licence Appeal Tribunal Rules) is the correct version of the Rules to apply here because Rule 18.6 establishes that requests for reconsideration of a decision issued on or after August 21, 2023, are subject to the Licence Appeal Tribunal Rules and not the Common Rules as submitted by the applicant. I find Rule 9.1. does not require the Tribunal to request additional information or clarification from a party, and I agree with the respondent that it is not incumbent on the Tribunal to remedy an incomplete or unclear submission made by a party.
Dr. El-Saidi
27The Tribunal addressed Dr. El-Saidi’s evidence in paragraphs 32 and 33 of the decision. Although the applicant argues on reconsideration that the respondent did not provide a refuting expert opinion on the MIG claim, I note that the analysis in these two paragraphs also speaks specifically to Dr. Zielinsky’s section 44 report findings. I agree with the respondent’s position that the applicant is arguing the weight afforded to evidence, which does not constitute grounds for reconsideration under Rule 18.2. In my view, paragraphs 32 and 33 of the decision provide a well-reasoned analysis that considers and weighs the expert reports of both parties. As such, I conclude there is no error of fact or law here.
Dr. Getahun
28The Tribunal addressed Dr. Getahun’s opinion (i.e., his diagnosis of chronic pain syndrome) in paragraphs 20 and 21 of the decision. While I agree the decision does not rely on an expert opinion or report that refutes Dr. Getahun’s diagnosis, I find this is not an error of law or fact. The onus is on the applicant to prove her case and the Tribunal found, at paragraph 20 of the decision, that the applicant’s own evidence fell short of proving she suffered from chronic pain syndrome because Dr. Getahun did not provide a basis for his diagnosis. At paragraph 21, the Tribunal performed an analysis that explains it did not accept Dr. Getahun’s diagnosis because he failed to substantiate his opinion that the applicant met the American Medical Association’s Guidelines for chronic pain syndrome. I find that, similar to the applicant’s position on Dr. El-Saidi’s evidence, the applicant is arguing the weight afforded to evidence, which does not constitute grounds for reconsideration. As such, I conclude there is no error of fact or law here.
Award
29I find the applicant has not shown an error of law or fact that would have led to a different result had the error not been made in respect of her award claim.
30The applicant requested an order that the respondent is liable to pay an award because it unreasonably withheld and delayed payment to the applicant. However, as mentioned, I find that neither the applicant nor the respondent addressed the applicant’s award request in their reconsideration submissions. I therefore conclude the applicant has not shown an error of fact or law in the part of the decision (paragraphs 53-59) that address the applicant’s award claim.
CONCLUSION & ORDER
31The entitlement period specified at paragraph 7 will be corrected to read:
“The applicant remains in the MIG. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for physiotherapy services for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending on June 22, 2021. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for a chronic pain assessment for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending the day of this decision. The respondent is not liable to pay an award.”
32The entitlement period as specified at paragraph 63 of the decision will be corrected to read:
“The applicant remains in the MIG. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for physiotherapy services for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending on June 22, 2021. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for a chronic pain assessment for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending the day of this decision. The respondent is not liable to pay an award. The applicant is not entitled to costs.”
33The applicant’s request for reconsideration is otherwise denied.
Michael Beauchesne
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 19, 2024```