RECONSIDERATION DECISION
Before: Ludmilla Jarda
Licence Appeal Tribunal File Number: 22-000648/AABS
Case Name: Maria Freitas v. Aviva General Insurance
Written Submissions by:
For the Applicant: Shahzad Ayub, Counsel
For the Respondent: Maggie Morgan, Counsel; Anthony Naples, Counsel
OVERVIEW
1On April 1, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal (“Tribunal”) decision dated March 11, 2024 (“decision”).
2In its decision, the Tribunal found that the applicant was entitled to non-earner benefits (“NEB”) in the amount of $185.00 per week from August 26, 2019 to November 26, 2019, with interest pursuant to s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The Tribunal also concluded that the applicant was not entitled to attendant care benefits and to the disputed treatment plans.
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 Rules 18.2(b) and (c). The applicant submits that the Tribunal made an error of law in finding that she was not entitled to NEB from November 26, 2019 to May 22, 2021 and that she was not entitled to the disputed treatment plans. The applicant further submits that there is new evidence, specifically two Tribunal decisions, that would likely have affected the result. The applicant seeks an order from the Tribunal indicating that she is entitled to the denied benefits.
5The respondent submits that none of the criteria for reconsideration have been met in the present case. It states that the Tribunal made no error of law or fact, and there is no new evidence. The respondent further submits that the applicant is attempting to relitigate the same position 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 decision, or 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 that the Tribunal made an error of law in its determination that the applicant was not entitled to NEB beyond November 26, 2019 and to the disputed treatment plans.
9The applicant submits that the Tribunal made an error of law in denying the applicant’s entitlement to benefits. She claims that the Tribunal’s interpretation of s. 44(5) of the Schedule is unsupported by the principles set out in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”). She directs the Tribunal to paragraph 41 of the decision and argues that an interpretation of s. 44(5) that is based on a consideration of what is omitted from the Schedule cannot be reconciled with the consumer protection purpose of the Schedule.
10The applicant further argues that pursuant to paragraph 42 of the Tomec decision, the Schedule must be interpreted in its “ordinary sense”. It is not necessary for a concept to be expressly stated in the Schedule for it to apply as it can be read into the Schedule. The applicant submits that had the Tribunal followed the principles set out in Tomec, it would have reached a different conclusion.
11The applicant also submits that there are two Tribunal decisions that were unavailable before the hearing date that provide a firm foundation for the Tribunal to render a decision in favour of the applicant. She states that her legal representative raised more developed and substantially identical arguments in the present case than those raised in Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) and Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (the “Taksali decisions”). Relying on the Taksali decisions, the applicant reiterates that the insurer’s notices were insufficient.
12I do not agree with the applicant’s submissions, and I find no error of law in the Tribunal’s decision.
13I find that the applicant’s argument on reconsideration is a recitation of her submissions at first instance, and that she is attempting to relitigate the Tribunal’s findings regarding her entitlement to NEB.
14As indicated at paragraphs 22 and 23 of the decision, the applicant argued at first instance that the respondent was required to pay NEB pursuant to s. 36(6) of the Schedule. She stated that when the respondent denied her entitlement to NEB and required her to attend an insurer examination, it failed to provide sufficient medical and other reasons as required by ss. 36(6) and 44(5) of the Schedule. The applicant further submitted that given that the notice requiring her to attend insurer examinations assessing her entitlement to NEB were non-compliant with the Schedule, the respondent’s insurer examination reports relating to NEB were improperly procured. The applicant argued that consequently, the respondent’s reports and any further notice or denial relying on these reports were void ab initio. The applicant relied on various decisions, including Tomec.
15At paragraph 41 of the decision, the Tribunal found that the applicant’s argument that the respondent’s reports, and any subsequent denial notice relying on these reports, were void ab initio on the basis that the September 3, 2019 notice did not comply with the Schedule was not persuasive. The Tribunal noted that while the Schedule expressly sets out at s. 36(6) the consequences for the respondent’s failure to comply with s. 36(4), there is nothing in the Schedule that indicates that voidance of reports and subsequent denial notices are consequences of the non-compliance.
16At paragraph 42 of the decision, the Tribunal further noted that while it is well established that an applicant is not required to attend an examination pursuant to s. 44(5) if the notice is non-compliant with the Schedule, the applicant had not directed the Tribunal to any authority to support the proposition that if an applicant attends the examination, despite the non-compliant notice, that any report obtained from the examination is void ab initio.
17Although the applicant now relies on the Taksali decisions, neither of these decisions stand for the proposition that voidance of reports and subsequent denial notices are consequences of non-compliance with ss. 36(4) and 44(5) of the Schedule. Further, I am not bound by these decisions, and they are being cited for the first time on reconsideration.
18The applicant does not provide any submissions explaining why she believes that the Tribunal made an error of law as it relates to her claim for the disputed treatment plans.
19The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the applicant’s submissions and evidence does not support that the Tribunal made an error of law. In its decision, the Tribunal considered the parties submissions and evidence, highlighted the evidence that it considered more relevant to the issues in dispute, assigned weight accordingly, and came to the conclusion that the applicant was not entitled to NEB beyond November 26, 2019 and to the disputed treatment plans.
20Accordingly, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(b).
Rule 18.2(c): New evidence
21I find that the applicant has not demonstrated that there is new evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the applicant, and would likely affect the result. As such, the applicant has not satisfied the criteria of Rule 18.2(c).
22The applicant does not direct the Tribunal to any new evidence; rather, she directs the Tribunal to the Taksali decisions. While she acknowledges that case law is not evidence, she argues that the Tribunal should interpret Rule 18.2(c) in a way to allow the applicant to rely on new case law under this criterion. The applicant states that there were no other cases, with a reasonable degree of due diligence, that could have been obtained before the hearing. The balance of the applicant’s submissions is closely tied to the argument made for reconsideration under Rule 18.2(b).
23I do not find the applicant’s submissions that the Tribunal should interpret Rule 18.2(c) in a way to allow the applicant to rely on new case law to satisfy the criteria under this Rule to be persuasive. Further, the applicant has not directed the Tribunal to any authority to support this proposed interpretation of Rule 18.2(c).
24Accordingly, as the applicant has not tendered any new evidence to satisfy the criteria of Rule 18.2(c), I find that the applicant has not established grounds for reconsideration of the decision under this Rule.
CONCLUSION & ORDER
25The applicant has failed to establish grounds for reconsideration under Rule 18.2(b) or (c).
26The applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 13, 2024