RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-013227/AABS
Case Name: Anita Ka Yee Zeng v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Rakesh Sharma, Counsel
For the Respondent: Diana Oliveira, Counsel
OVERVIEW
1On October 1, 2025, the applicant requested reconsideration of the Tribunal’s decision released September 15, 2025 (“decision”).
2Stemming from an accident on February 17, 2022 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a written hearing. In the decision, the adjudicator found the applicant remained within the Minor Injury Guideline (“MIG”). This finding allowed her to conclude that she did not need to conduct a reasonable and necessary assessment of the treatment plans for a psychological assessment and psychological services. The adjudicator also dismissed the argument that the two plans were payable under s. 38(11) of the Schedule, as well as the applicant’s claims for an award and interest.
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.
4Though she only checked off the latter criterion on her request form, the applicant relies on Rule 18.2(a) and Rule 18.2(b) in her supporting submissions. The applicant is asking for an order finding she is entitled to the disputed benefits, along with an award and interest.
5The respondent asks the Tribunal to dismiss the request. It is also seeking costs, pursuant to Rule 19.1.
RESULT
6The applicant’s request for reconsideration is dismissed.
7The respondent’s costs request is denied.
ANALYSIS
8The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. 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.
Issues in Dispute
9First, the applicant claims the sole question she had to dispute during the hearing was whether the respondent’s denials were compliant with the Schedule. Based on this understanding, the applicant argues the case conference adjudicator incorrectly defined the issues for the hearing. Further, since the application of the MIG cannot be disputed in isolation (as a treatment plan needs to also be in dispute before the Tribunal), the applicant contends “there was no need to frame the issue of MIG as a stand-alone issue”. Taken together, the applicant argues that “the erroneous framing of issues has led to the flawed decision”.
10I do not accept this argument. First, there is no indication that she challenged the framing of the issues prior to this reconsideration request. In fact, at the end of her initial submissions, she effectively endorsed the articulation of the MIG issue from the case conference by asking for an order finding that her “injuries are predominantly not minor injury [sic]”. A party is expected to put their best foot forward during the hearing, as the reconsideration process is not an appropriate venue to present new arguments. If the applicant had concerns with how the issues were articulated by the case conference adjudicator, it was imperative that she made these concerns known at an earlier stage.
11The applicant also claims that the framing of the issues caused the hearing adjudicator to erroneously find the Schedule requires her to demonstrate her removal from the MIG with anything other than a completed OCF-18. According to the applicant, s. 38(3) establishes that “the statutory requirement on the applicant to establish that injuries fall outside of MIG is to submit a completed OCF 18”.
12I do not agree. Aside from the fact that this argument was already addressed by the hearing adjudicator at paragraph 25 of the decision, the applicant has not provided any legal authorities to support this position. This interpretation also runs counter to the plain language of s. 38(3), a provision that lays out the obligations for insured persons when they are submitting treatment plans. There is no indication that meeting these requirements will merit removal from the MIG.
13Additionally, the applicant claims that the wording of s. 38(8) supports her interpretation, because the insurer is not required to provide reasons to the insured person when it agrees to pay for items recommended on a treatment plan. I am not clear how this distinction between items the insurer agrees to pay for and those it does not supports the applicant’s interpretation of s. 38(3).
Section 54
14The applicant submits that, in accordance with s. 54 of the Schedule, the respondent was not allowed to introduce any evidence or reasons to support its position at the hearing unless they were a part of the original denials. Similarly, the applicant claims this section “prevents the hearing adjudicator from entering into the domain of claims adjusting”. As such, the applicant argues the Tribunal only had to determine whether the denials were compliant with the Schedule.
15Section 54 states: “If an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.”
16I do not accept the applicant’s interpretation of s. 54. This provision does not place any limit on an insurer’s ability to obtain new evidence, nor is there any indication that the insurer is wedded to the reasons they provided with their denials. This proposed interpretation also runs counter to the larger statutory scheme of the Schedule, as insurers may request information under s. 33(1) to help “in determining the applicant’s entitlement to a benefit”.
Section 38(10)
17The applicant submits that s. 38(10) of the Schedule precludes insurers from issuing s. 44 notices after the 10-day timeline set out in s. 38(8) has expired. As such, the respondent’s insurer’s examination (“IE”) from 2024 could not credibly comment on her treatment plans from 2022. The applicant further highlights the consumer protection mandate of the Schedule to challenge this timeline.
18I do not accept this argument. The adjudicator addressed the applicant’s argument about the alleged impact of s. 38(10) on the respondent’s ability to schedule IEs at paragraphs 9 and 10 of the decision:
I am not persuaded by the applicant’s argument that s.38(10) of the Schedule requires the respondent to provide an NOE within ten days of a treatment plan being submitted. S.38(10) provides:
If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44.
As the applicant acknowledges in her reply submissions, the use of the word “may” is permissive, and allows the insurer to notify the applicant that it requires them to attend an examination. Further, the applicant has not directed me to any legislative authority or case law to support her argument that the respondent is precluded from issuing s.44 notices after the ten-day period specified in s.38(8).
19The applicant has not established any errors with this analysis, and I see no issue with the adjudicator’s reliance on the permissive wording in s. 38(10) to conclude that this provision does not place any limits on when an IE may be set.
20Further, while the applicant may take issue with the weight assigned to the respondent’s IE report (due to the amount of time between this report and the submission of her treatment plans), this argument is, in essence, an attempt to have the Tribunal re-weigh evidence considered at first instance. Unless the requesting party can show a specific error in the Tribunal’s handling of the evidence, they will not satisfy the standard under Rule 18.2.
Reliance on the IE Report
21In a similar vein, the applicant takes issue with the following comment at paragraph 11 of the decision:
While I agree with the applicant that the April 2, 2024 Notice of Examination (“NOE”) was not in compliance with s.44(5) because it did not identify the applicant’s injuries or the goods and services sought in the treatment plans in dispute, the applicant has not directed me to any evidence that she found the notices to be unclear or confusing, and the applicant eventually attended the May 16, 2024 s.44 examination without objection.
22At paragraph 12, the adjudicator relied on how the applicant attended the IE “without protest” to decline “to strike Dr. [Sharleen] MacDowall’s s. 44 report.”
23According to the applicant, there is no requirement for an insured person to tell their insurer that it is breaching the Schedule. She also draws the Tribunal’s attention to the insurer’s obligation under s. 32(2) to provide information to insured persons applying for benefits. Taken together, the applicant claims her lack of express opposition to the NOE should not have factored into the adjudicator’s analysis. She also objects to the adjudicator’s preference of the IE report over her own assessment report from Bruce Cook, psychological associate.
24Overall, I agree with the applicant that the adjudicator erred by considering the lack of “evidence that she found the notices to be unclear or confusing” in the assessment of the s. 44 breach. There is no provision in the Schedule that requires an insured person to inform their insurer that it is not complying with the regulation. Once the NOE was found to be deficient, the breach was established.
25However, to trigger Rule 18.2(b), a requesting party must also demonstrate that “the Tribunal would likely have reached a different result had the error not been made”. The applicant has not done so in this case.
26Even though the IE report was admitted, the adjudicator’s conclusion about the MIG was primarily based on the applicant’s own evidence. For instance, while the adjudicator notes at paragraph 22 that she assigned “more weight to the s.44 report of Dr. MacDowall”, this comment came after several paragraphs where she provided detailed reasons for why she was assigning “little weight” to the report from Mr. Cook (at paragraphs 19 – 21):
I agree with the respondent. Mr. Cook’s qualifications and experience are particularly relevant in the present case, because he is referred to by both parties as “Dr. Cook,” and a “psychologist,” while Mr. Cook refers to himself as a “psychological associate” and “psychotherapist.” Further I find the summary paragraph of Mr. Cook’s qualifications to be insufficiently detailed to consider him an expert for the purposes of this hearing.
Additionally, as the respondent notes, Mr. Cook does not indicate whether the clinical interview was conducted in person or virtually, or identify which, if any of the applicant’s medical records were reviewed. He noted that the assessment was not an “independent medical examination”, rather an “assessment for treatment” to identify the applicant’s current psychological state and whether certain treatment options would be appropriate. Finally, the applicant’s reports of her physical injuries, pain, and functional limitations are not corroborated by any medical or other evidence available for this hearing.
For these reasons, I assign Mr. Cook’s report little weight.
27The applicant had the onus to demonstrate that she should be removed from the MIG. Considering the weakness that the adjudicator found in her own evidence at first instance, the applicant has not shown “the Tribunal would likely have reached a different result had the error not been made”. Put another way, I am satisfied that, even if Dr. MacDowall’s IE report had been assigned less weight (or even dismissed), the adjudicator would have likely still concluded that the applicant’s evidence was insufficient to merit removal from the MIG.
28The applicant also claims the decision not to strike the IE report goes against the restriction on reconsidering interlocutory orders under Rule 18.1. I am not clear on how this restriction would impact the analysis of a non-compliant NOE and resulting report, but, regardless, the applicant has not shown how excluding Dr. MacDowall’s report would likely have impacted the outcome of the decision.
Section 38(8) and the Psychological Services Treatment Plan
29Finally, the applicant submits the adjudicator erred in her understanding of the denial of the psychological services treatment plan. The respondent denied this plan on October 14, 2022, and yet, according to the applicant, the plan was submitted on September 14, 2022. Therefore, the applicant claims the respondent did not deny the plan within 10 business days of its receipt—a breach of s. 38(8) of the Schedule. As such, she submits she is entitled to payment of this plan, pursuant to s. 38(11).
30I accept that the adjudicator did not expressly address this part of the applicant’s argument in the decision—an oversight that is an error in her understanding of the applicant’s case. However, I do not find the applicant has shown how addressing this argument would likely have impacted the outcome of the decision.
31At paragraph 28 of her initial submissions, the applicant made the following comments about when the psychological services treatment plan was submitted to the respondent (footnote removed, emphasis added):
In compliance with the criteria stated under section 38(3) the Applicant submitted the said OCF 18 in dispute… There appears to be discrepancy in the date of denied OCF-18 stated in the CCRO as the date on the said OCF-18 is September 14, 2022 and the submission date is October 3, 2022.
32This “discrepancy” is a reference to how this treatment plan was described in the CCRO at paragraph 4(2): “Is the applicant entitled to $3,701.88 for psychological services proposed … in a treatment plan/OCF-18 dated October 3, 2022?”
33Yet, after asking for this correction, the applicant later provided a different submission date for this same plan at paragraph 50 of her initial submissions:
In addition, the Applicant pleads that the OCF-18 was submitted on September 14, 2022 and the denial notice is dated October 14, 2022. As required under section 38(8) the response of the respondent is not within 10 days of the receipt of the said OCF-18 therefore, under the provisions of section 38(11).
34If the plan was submitted on September 14, 2022, then I accept that a denial letter sent on October 14, 2022 would be late. However, the applicant has the onus to show that there was a breach of s. 38(8), and I do not find she has established that the plan was submitted on September 14, 2022. Aside from the different submission dates she has provided, the records included with her initial submissions (namely, the treatment plan and denial) do not show there was a breach. Rather, there is no indication of when the plan was submitted in these documents, so I find the applicant has not met her onus under s. 38(8).
35Further, the applicant highlights in her reconsideration submissions that the respondent accepted “under para 32 of response submissions… that the said OCF 18 was in fact submitted on September 21, 2022, even then the response letter dated October 14, 2022 is not within 10 business days”. However, the plan that the respondent was referring to at paragraph 32 of its submissions was not the psychological services plan for $3,701.88, but rather the psychological assessment plan that was denied on October 4, 2022.
36Taken together, even if this part of her initial submissions had been explicitly explored in the decision, I do not find it would likely have impacted the outcome.
37I conclude that the applicant has not established any grounds for reconsideration based on any of the criteria under Rule 18.2.
COSTS REQUEST
38I do not find the respondent has met the high threshold necessary for ordering costs.
39Rule 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.
40I find the respondent has not established that the applicant’s behaviour merits costs, as it has not provided any basis for granting such an order. Rather, the respondent only states in its reconsideration submissions that it is asking “that the Applicant pay costs to the Respondent pursuant to Rule 19.1”. This brief statement is insufficient to merit a costs order.
CONCLUSION & ORDER
41The applicant’s request for reconsideration is dismissed.
42The respondent’s costs request is denied.
Craig Mazerolle
Vice-Chair
Released: November 25, 2025