Bharatbhai Patel v. Allstate Insurance Company of Canada, 2025 CanLII 122686

Citation: Patel v. Allstate Insurance Company of Canada, 2025 ONLAT 23-015119/AABS-R

RECONSIDERATION DECISION

Before: Melanie Malach, Adjudicator

Licence Appeal Tribunal File Number: 23-015119/AABS

Case Name: Bharatbhai Patel v. Allstate Insurance Company of Canada

Written Submissions by:

For the Applicant: Aryeh Samuel, Counsel

For the Respondent: Alexei Batten, Counsel

OVERVIEW

1On September 3, 2025, the applicant requested reconsideration of the Tribunal’s decision dated August 13, 2025 (“decision”).

2Stemming from an accident on December 17, 2021, the applicant sought benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2020 (the “Schedule”). Following a written hearing, I found that the applicant was entitled to an award of 25% of the amount of the treatment plans that were denied by the respondent in the amount of $1,534.69. With respect to the attendant care benefits, I found that no award was payable.

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 criteria cited by the applicant in support of his reconsideration request is Rule 18.2(b).

5The applicant’s request for reconsideration relates to the quantification of the award. The applicant requests that I vary my decision and order that an award of 25% on a total of $39,000.00 of attendant care benefits be granted.

6The respondent opposes the applicant’s request for reconsideration.

RESULT

7The applicant’s request for reconsideration is dismissed.

ANALYSIS

8I find that the applicant has not established an error of fact or law, pursuant to Rule 18.2(b).

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.

10Under s. 10 of Reg. 664, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

11In my decision, I found that the applicant had proven that the respondent unreasonably withheld or delayed the payment of the treatment plans in dispute by failing to remove the applicant from the Minor Injury Guideline (“MIG”) for 13 months. I therefore ordered that the applicant was entitled to an award of 25% of the amount of the disputed treatment plans. With respect to the applicant’s claim for an award based on the attendant care benefits, I found that no award was payable, as there was no evidence that the respondent unreasonably or delayed payment of this benefit.

12The applicant argues that I erred in failing to include the attendant care benefits in the base amount for the award. The applicant submits I erred by finding that the Form 1 was submitted on January 19, 2024, after the applicant had been removed from the MIG, and that this timeline allowed me to conclude there was no evidence that the respondent unreasonably withheld or delayed payment of the attendant care benefits. The applicant submits I ignored the fact that there was no Form 1 in place prior to this date because the respondent had represented to him that he could not claim attendant care benefits because he was in the MIG.

13The applicant submits that he did not start requiring attendant care benefits because of his fractured leg only in January 2024, as his need for attendant care services began following the accident. He therefore argues that the absence of a Form 1 prior to January 2024 was a direct result of the respondent’s wrongful insistence on his MIG status, as well as its failure to disclose entitlement, and its ongoing denial of his statutory rights.

14The applicant relies on the seven award factors set out in Persofsky v. Liberty Mutual Insurance Company, 2000 ONFSCDRS 113. The applicant puts particular focus on the factors of: blameworthiness, vulnerability, harm, deterrence and the advantage wrongfully gained.

15The respondent submits that the applicant is not advancing, and has never advanced, a claim for entitlement to attendant care benefits retroactive to the period of submission of the Form 1. In addition, entitlement to attendant care benefits is not listed as an issue in dispute on the Tribunal application, and it was never added as an issue in dispute at the case conference. The respondent argues that, where the Tribunal is not being asked to determine if an applicant is entitled to a benefit in the first place, then it cannot possibly conclude whether said benefit was unreasonably delayed or withheld.

16Concerning the applicant’s position that he was entitled to attendant care benefits because he is subject to the MIG, the respondent submits that this argument was not made at first instance, and it constitutes an attempt to re-litigate issues on a different basis. The respondent further submits that, as there was no application for attendant care benefits until January 19, 2024, there was no unreasonable delay or withholding of payment of this benefit.

17I find that the issues set out in the Case Conference Report and Order included various treatment plans for services. My decision to make an award due to the delay in payment of these treatment plans was based on the submissions and evidence of the parties. I find that the issue of entitlement to attendant care benefits was not listed as an issue in dispute. I find that the applicant’s only submission with respect to entitlement to an award based on non-payment of attendant care benefits was at paragraph 26 and 27, where he stated,

26. The insurer’s explanation and benefits dated May 3, 2024 states that it had accepted that the applicant was entitled to attendant care benefits up to $3,000 per month.

27. If the insurer had taken the applicant out of the MIG, at least by November 2022 that represents a benefit of $39,000.00 ($3,000.00 x 13 months)

18The Divisional Court in McDonald v. Aviva Insurance Company, 2024 ONSC 6030, confirmed that an award is a stand-alone issue that is not dependent on the Tribunal deciding the issue of entitlement. However, while I accept that an award can still be determined even though the issue of attendant care benefits was not in dispute, I find that the applicant was still required to provide evidence to support that the respondent unreasonably withheld or delayed the payment of this specific benefit upon which he claims an award. I do not find that the applicant provided sufficient evidence to support that the respondent unreasonably withheld or delayed the payment of the attendant care benefits.

19I find that, while the applicant claims that he would have been entitled to 13 months of attendant care benefits, had he not been held in the MIG, there is no evidence that the applicant is claiming entitlement to retroactive attendant care benefits for the period of time he was in the MIG. Therefore, if there is no claim for benefits for the period prior to submission of the Form 1, which was subsequently approved, there is no evidence that the respondent unreasonably withheld or delayed the payment of attendant care benefits.

20I further agree with the respondent that the applicant’s submissions are an attempt to re-litigate his position and the weight assigned to the evidence at the hearing. I find that the applicant provided limited submissions at first instance about his entitlement to an award based on non-payment of attendant care benefits. He is now using the reconsideration process to make new submissions about this award claim that should have been raised at first instance. Parties are expected to present their best case at first instance.

21For the reasons outlined above, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would have likely reached a different result had the error not been made. As a result, the applicant’s request for reconsideration under Rule 18.2(b) is dismissed.

CONCLUSIONS AND ORDER

22For the reasons outlined above, the applicant’s request for reconsideration is dismissed.

Melanie Malach

Adjudicator