RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-003573/AABS
Case Name: James Liabotis v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Aylina Dhanji, Counsel
For the Respondent: Elizabeth Scott, Counsel
OVERVIEW
1On July 24, 2025, the respondent requested reconsideration of the Tribunal’s decision released July 3, 2025 (“decision”).
2Stemming from an accident on January 8, 2021, and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties participated in a written hearing. In the decision, the adjudicator found the applicant was entitled to a treatment plan for chiropractic services, interest, and an award. The adjudicator further concluded that he was not entitled to a treatment plan for a psychological assessment or a non-earner benefit.
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 respondent relies on Rule 18.2(a) and Rule 18.2(b) to support its request. It is seeking an order finding the applicant is not entitled to either the treatment plan for chiropractic services or an award.
5The applicant asks the Tribunal to dismiss the request. He is also seeking “costs for the reconsideration”.
RESULT
6The respondent’s request for reconsideration is granted, in part.
7Pursuant to Rule 18.4, the award section of the decision is cancelled.
8The applicant’s award claim has been reheard as a part of this reconsideration decision. The applicant has not established that he is entitled to an award.
9The applicant’s costs request is denied.
10Pursuant to Rule 17, the decision is amended at paragraph 4 to read as follows: “The applicant is entitled to $2,004.96 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted May 24, 2022.”
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.
12Though the respondent marked off both Rule 18.2(a) and Rule 18.2(b) on its Request for Reconsideration form, the main thrust of the respondent’s submissions involve alleged errors made by the adjudicator. As such, I have focused my analysis on the test under Rule 18.2(b).
Rule 18.2(b) – Errors of Law or Fact
13I find the respondent has established a ground for reconsideration under Rule 18.2(b).
Parties’ Positions
14The respondent highlights several alleged errors in the decision. First, the respondent claims the adjudicator incorrectly stated at paragraph 39 that its physiatry expert, Dr. Alborz Oshidari, found the applicant’s injuries fell within the Minor Injury Guideline (“MIG”). Relatedly, the respondent highlights the comment at paragraph 43 of the decision where the adjudicator found “the insurer knew that the findings of this s. 44 assessment would be a denial”. Second, the respondent submits that the adjudicator incorrectly found it used the applicant’s “opinion” about his injuries as the basis for denying the chiropractic services treatment plan. Finally, relying on these alleged errors and its argument that the adjudicator did not provide any analysis to justify this part of the decision, the respondent claims there is no basis for the award.
15In response, the applicant claims the adjudicator made no errors of law or fact in the decision, nor has the respondent demonstrated same. Specifically, by highlighting his vulnerability as an elderly man, the applicant claims that the adjudicator “appropriately and accurately” considered the medical evidence. Further, the applicant submits that the adjudicator “clearly outlined the justification for an Award”.
Chiropractic Services Treatment Plan
16To start, I find the respondent has not demonstrated any error in the adjudicator’s assessment of the chiropractic services treatment plan that engages the standard under Rule 18.2(b).
17The adjudicator’s reasons for finding the applicant is entitled to this plan are found, in part, at paragraphs 29 and 30:
The CNR of orthopaedic surgeon Dr. Scott dated May 26, 2021 states that the applicant has been going to physiotherapy and doing massage, and that these treatments have been helping with his motion and is improving. The respondent noted in the discharge report from Albany Physiotherapy Clinic dated February 5, 2021 that the applicant’s shoulders improved overall and that he can manage his activities of daily living. The CNR from Don Valley Health, where he is receiving therapy at home, state that the applicant has also proven to be an enthusiastic participant and that while his improvement has been slow, it is very consistent.
Based on the medical evidence above, the applicant has demonstrated that he responds well to modalities like what the OCF-18 is recommending, and that the applicant would benefit from the chiropractic treatment recommended. It is also demonstrated that the applicant, who is not confined by the [MIG], continues to require therapy of this nature. The cost of these services is also reasonable, and therefore I find the applicant is entitled to the treatment plan in the total of $2,004.96 for the chiropractic services and the preparation of the OCF-18 as stated above in paragraph 28.
18These reasons do not engage with Dr. Oshidari’s evidence, nor do they address the respondent’s denial of the plan. Rather, the focus is on medical evidence that was not mentioned by the respondent in its reconsideration submissions. By not highlighting any alleged errors with this specific part of the decision, I find the respondent has not established that reconsideration is merited for this plan.
Award Request
19Turning to the award request, I find the respondent has shown there is an error that would likely have impacted the result.
20After determining at paragraph 37 that the applicant provided “significant evidence that his injuries have been treatable through physical modalities”, the adjudicator turned to assess the reasonableness of the respondent’s denial of the chiropractic services treatment plan. This assessment takes place from paragraphs 38 – 44 of the decision, and it forms the basis of the adjudicator’s award analysis.
21I agree that the respondent has identified an error in this analysis, namely, the adjudicator’s unsupported conclusion that the respondent “knew” Dr. Oshidari’s s. 44 assessment “would be a denial”. I also note that the adjudicator appears to draw a negative inference about the respondent’s choice to pursue this assessment. These findings form a key aspect of the adjudicator’s justification for issuing an award at paragraphs 43 and 44 (emphasis added):
The respondent acknowledges the benefits of therapy for this hearing but denies them for the purposes of ongoing treatment. I find that the insurer knew that the findings of this s. 44 assessment would be a denial, and that the assessor would argue that the injuries were minor, and yet the applicant is not held within the MIG. The insurer knew that the barriers to recovery for the applicant would be pre-existing conditions and his age, and that the prognosis would be fair. The assessment had to have these conclusions as long as the cause of the injury was in question.
I find that the insurer pursued a denial of this treatment plan through the assessment process because they knew that the assessor would come to the conclusions cited above. The applicant was not confined to the MIG, so his injuries are already considered to require treatment over the MIG standards. The assessment addresses the MIG and therefore considers the treatment as minor. The assessor considers causation (a pre-existing injury not caused by the accident) because the applicant only complained about the pain two days following the accident. I give this little weight because the assessor can’t be sure that the applicant didn’t feel pain earlier than two days after the accident.
22Aside from the unclear basis that the adjudicator used to conclude that the respondent “knew” Dr. Oshidari would find the plan was not reasonable and necessary, I find the adjudicator incorrectly takes issue with its choice to have “pursued a denial… through the assessment process”. Section 44(1) of the Schedule permits an insurer to request independent examinations to help determine whether an insured person is entitled to a benefit. An insurer’s reliance on a s. 44 examination will likely not be enough on its own to engage the standard to grant an award, because it is within an insurer’s right to request and rely on these expert opinions.
23I am then satisfied that, if the adjudicator had not followed this erroneous line of reasoning, he would likely have reached a different result. While several other factors went into the adjudicator’s decision to grant an award, this finding played a key role in his determination.
24The applicant’s responding submissions do not challenge my findings, as his submissions about the award are largely confined to a general statement that the adjudicator “clearly outlined the justification” for this part of the decision. I recognize that the adjudicator provided detailed reasons to explain why the applicant was entitled to an award. However, the error remains.
25Taken together, the respondent has demonstrated that the adjudicator committed an error that would likely have resulted in a different result had it not been made. As such, the respondent has met the standard under Rule 18.2(b).
Rule 18.4 – Rehearing the Award Request
26Since the respondent has engaged a criteria under Rule 18.2, I must now determine what the appropriate remedy is under Rule 18.4. Considering the centrality of the adjudicator’s error to his determination that the applicant was entitled to an award, it is not possible to vary this part of the decision to rectify the error. Rather, I will cancel this part of the decision and then rehear the award request based on the parties’ written hearing submissions and evidence. To ensure the efficient resolution of this dispute, I will conduct this rehearing as part of this reconsideration decision.
27Section 10 of O. Reg 664 permits the Tribunal to “award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award” if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments”. The applicant has the onus to demonstrate he is entitled to an award.
28In his written hearing submissions, the applicant supports his award request by submitting that the respondent ignored the medical records from his treating practitioners and assessors, all the while acting in a “highhanded manner”. The applicant highlights his vulnerability and the severity of his accident-related injuries. Finally, the applicant cites several key cases that have helped guide adjudicators in determining whether to grant awards, e.g., 17-006757/AABS v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT).
29I find the applicant has not established that he is entitled to an award. Though he makes several general comments about the respondent’s handling of the claim, none of these submissions demonstrate how payment of the disputed chiropractic services treatment plan was “unreasonably withheld or delayed”. The respondent is entitled to obtain and rely on its own opinions about the applicant’s medical condition. Unless the applicant can establish an unreasonable handling of his medical evidence, the respondent’s choice to prefer the opinion of its assessor over his treating practitioners and assessors will not be unreasonable. The applicant has not shown an unreasonable handling of his medical evidence, so I do not find he has established entitlement to an award on this basis.
30I further note that, while case law may provide some basic guidance for adjudicators considering the application of s. 10 of O. Reg. 664, the highly discretionary nature of award claims means that these requests must be determined based on the facts at hand. As such, I find little assistance from the case law cited by the applicant.
31Finally, the applicant notes in his award submissions that a “weekly benefit has never been paid”. However, since the denial of the non-earner benefit from the original decision remains unchallenged, the applicant has not established entitlement to payment of a weekly benefit.
32Taken together, I find the applicant has not established entitlement to an award.
COSTS REQUEST
33Turning to the applicant’s costs request, I do not find he has met the high threshold necessary for ordering costs.
34Rule 19.1 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. The party requesting costs has the onus to demonstrate such an order is merited.
35I find the applicant has not established that the respondent’s behaviour merits a costs order. Aside from the fact that the respondent was partially successful with its reconsideration request, the applicant has not provided any basis for granting such an order. Rather, he only states in his responding reconsideration submissions that he is “seeking costs for the reconsideration.” This brief statement is insufficient to merit a costs order.
AMENDMENT
36In addition to its grounds for reconsideration, the respondent also identified a discrepancy between several amounts awarded in the decision, namely, the amount listed for the chiropractic services treatment plan at paragraph 4 (i.e., $4,387.20) vs. the amount listed in the Order section (i.e., $2,004.96). The applicant did not address this discrepancy in his responding submissions.
37Though there has not been an amendment request made by the parties, I find it is appropriate to use the authority under Rule 17 to amend the amount listed under paragraph 4. When reviewing the breakdown of the different line items in this treatment plan at paragraph 28 (as well as the summary of his analysis at paragraph 30), it is clear that the adjudicator found the applicant was entitled to $2,004.96 for this plan.
CONCLUSION & ORDER
38The respondent’s request for reconsideration is granted, in part.
39Pursuant to Rule 18.4, the award section of the decision is cancelled.
40The applicant’s award claim has been reheard as a part of this reconsideration decision. The applicant has not established that he is entitled to an award.
41The applicant’s costs request is denied.
42Pursuant to Rule 17, the decision is amended at paragraph 4 to read as follows: “The applicant is entitled to $2,004.96 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted May 24, 2022.”
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 29, 2025