Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Melanie Malach, Adjudicator
Licence Appeal Tribunal File Number: 23-001231/AABS
Case Name: Qahtan AL-Rahami v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Denise Junkin, Counsel
For the Respondent: Ibrahim Farag, Counsel
OVERVIEW
1On January 10, 2025, the respondent requested reconsideration of the Tribunal’s decision dated December 20, 2024 (“decision”).
2Stemming from an accident on February 1, 2021, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2020 (including amendments effective June 1, 2016) (the “Schedule”). Following a written hearing, I found that the applicant had established that he should be removed from the Minor Injury Guideline (“MIG”), as he has a documented, pre-existing condition that prevents him from achieving maximal medical recovery under the MIG. I further found that the applicant was entitled to chiropractic services and medical devices, proposed by Spinal Solutions in the treatment plans, dated February 24, 2021 and August 30, 2021, as well as to a functional ability assessment, proposed by 2430307 Ontario Ltd., in the treatment plan dated May 30, 2022. I did not find that that the applicant was entitled to an attendant care assessment or a psychological assessment, both proposed by 2430307 Ontario Ltd. in treatment plans dated April 6, 2022. In addition to interest on any overdue payments, I further found that the applicant was entitled to an award pursuant to s. 10 of Reg. 664, in the amount of $1,885.79.
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 sole criterion cited by the respondent in support of its reconsideration request is Rule 18.2(b). The respondent is seeking a reconsideration of the Tribunal’s findings on the issue of MIG, the applicant’s entitlement to the treatment plans in dispute, and the award.
5The respondent is requesting a rehearing on these issues by a different adjudicator.
6The applicant opposes the applicant’s reconsideration request.
RESULT
7The respondent’s request for reconsideration is granted in part.
8The respondent’s request for reconsideration with respect to the MIG and treatment plans is dismissed.
9The respondent’s request for reconsideration with respect to the s. 10 award is granted. I vary my decision and find that the respondent is not required to pay a s. 10 award to the applicant. Paragraph 98(v) of my decision is varied to now read: “The applicant is not entitled to an award pursuant to Reg. 664”.
ANALYSIS
10The 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.
MIG and Treatment Plans – No Rule 18.2(b) Error of Law or Fact
11I find that the respondent has not established grounds for reconsideration based on the MIG and treatment plans, as it has not demonstrated how this part of the decision constitutes an error of law. Rather, I find that the respondent is, in effect, asking the Tribunal to reweigh the evidence that was presented during the initial written hearing.
12The respondent submits that I made several errors of law which impacted my analysis. Specifically, the respondent submits that the I erred by:
a. Applying the incorrect legal test in determining that the applicant suffered from a pre-existing condition that would prevent him from achieving maximal medical recovery under the MIG;
b. Failing to identify any medical evidence that would support removal from the MIG;
c. Shifting the burden of proof to the respondent to demonstrate that the applicant’s pre-existing condition would not impede maximal recovery; and
d. Failing to acknowledge or address the decisions filed by the respondent.
13First, I find that the respondent has not established that I committed an error of law by applying the incorrect legal test. The test I applied was whether the applicant proved that his pre-existing medical conditions will prevent maximal medical recovery within the funding limit imposed by the MIG. This is the same test quoted by the respondent at paragraph 10 of its initial written hearing submissions.
14Second, the respondent’s submission that the applicant was removed from the MIG based solely on the listing of a pre-existing condition in a treatment plan is not supported by the decision. In addition to finding that the treatment plan supported removal from the MIG, I also found, at paragraph 40 of my decision, support for removal of the applicant from the MIG based on the report of Dr. Paul Bruni, chiropractor, dated April 6, 2022. Specifically, this practitioner concluded that the applicant’s medical history would impact his response to treatment.
15Third, at paragraph 39 of my decision, I found that the treatment plan prepared by Dr. Massud Asgary and the additional medical documentation provided supported the applicant’s removal from the MIG. However, I further addressed the respondent’s argument at paragraph 46 of its initial submissions, that the use of the wording “could affect” is the wording attached to the standard form OCF-18 and does not diminish the meaning behind the conclusions of Dr. Asgary. At no point in my decision did I state that any treatment plan identifying a pre-existing condition would, in and of itself, allow for removal from the MIG, as submitted by the respondent.
16I then do not agree that the burden of proof was shifted to the respondent. The evidence of the IE assessors was considered in my decision, and I afforded less weight to these reports based on my finding that they had not analyzed how the applicant’s pre-existing condition would impede maximal recovery. An adjudicator is entitled to consider and assign relative weight to the evidence presented by the parties. The respondent has not pointed me to a section of my decision where I suggest that the respondent ought to have provided evidence of disentitlement or that the onus had shifted to the respondent.
17Further, I find the respondent has not established that I did not consider whether there is sufficient evidence to conclude that the treatment plans will result in the goals being met to a reasonable degree. Each treatment plan was assessed, and an explanation was provided as to why each plan was found to be reasonable and necessary. With respect to the respondent’s submission that I inconsistently placed weight on the report of Sara Lee, I note that Ms. Lee’s report was given less weight as the treatment plan in dispute was not before her and had not been given consideration in her report.
18Finally, the respondent submits that I did not acknowledge or address the decisions cited by the respondent in its submissions. Specifically, I did not address the decisions referenced for both the MIG and the treatment plans. While the Tribunal may find previous decisions by the Tribunal persuasive, it is not bound by these decisions. The Tribunal is not required to include every argument in its reasons, nor is it required to make explicit findings on each constituent element leading up to its conclusion. The respondent has not demonstrated how this lack of case law references meets the standard of Rule 18.2(b)
19In my view, the respondent’s submissions on the MIG and treatment plans do not point to errors in accordance with Rule 18.2(b), but instead either propose a re-weighing of the evidence, or allege that evidence was ignored by the Tribunal. It is well established that re-weighing of evidence is not the proper role of reconsideration. Furthermore, the Tribunal is not required to reference every piece of evidence or case law that is put before it at a hearing.
20For all these reasons, I do not find that the respondent has demonstrated that I erred in law in my decision as it relates to the MIG and treatment plans. As a result, the respondent’s request for a reconsideration under Rule 18.2(b) is dismissed as it relates to the MIG and treatment plans.
Section 10 Award – Rule 18.2(b) Error of Law
21I find that the respondent has established grounds for reconsideration under Rule 18.2(b) with regard to my decision to grant the applicant’s request for a s. 10 award.
22Upon reconsidering a decision of the Tribunal, the Tribunal may pursuant to Rule 18.4:
a. Dismiss the request; or
b. After providing responding parties an opportunity to make submissions,
i. Confirm, vary, or cancel the decision or order; or
ii. Order a rehearing on all of part of the matter.
If the Tribunal orders a rehearing of the matter, the Tribunal may issue procedural and administrative directions and any such further orders as the Tribunal deems necessary.
23The respondent supports this part of its reconsideration request by claiming that, in rendering my decision, I erred in law by granting a s. 10 award. According to the respondent, it was relying upon four expert reports, case law and the medical evidence to support its denial of the benefits. As such, the respondent submits that the Tribunal incorrectly stated that the respondent ignored evidence, and granted an award when, in fact, the respondent provided the applicant’s medical file to its assessors and followed the assessors’ recommendations.
24The applicant submits that the s. 10 award was warranted, and it was within my discretion to order an award. The applicant notes that the fact the respondent did not comply with the CCRO dated September 11, 2023, by failing to produce its adjuster log notes, was a factor relied upon in my decision.
25Upon reflection, and after reading the parties’ initial submissions and reconsideration submissions, I am persuaded by the respondent’s submissions. I find that I have made an error in law, and I would have reached a different result had the error not been made. Specifically, as I have found that Rule 18.2(b) is engaged, I have found it necessary to vary my decision pursuant to Rule 18.4 given the high threshold for a s. 10 award, for the following reasons.
26I find that the respondent was entitled to rely on its expert reports and to follow the recommendations in these reports. I find that, despite giving less weight to these reports in reaching my decision, the respondent’s reliance on these reports does not meet the standard of unreasonable conduct necessary to justify an award. I find the decisions cited by the respondent in its reply reconsideration submissions, in 18-002994 v. Aviva Insurance Canada, 2019 CanLII 76837 (ON LAT) and Williams v. Pembridge Insurance, 2022 CarswellOnt 16190, persuasive, in so far as an insurer is entitled to rely on the opinions of its independent experts, and, in doing so, does not meet the threshold for an award. Put another way, the insurer is not held to a standard of perfection.
27I further find that the respondent’s non-compliance with the CCRO in providing its adjuster log notes is not enough to justify a s. 10 award. I find that the applicant has not provided any submissions on the prejudice it suffered by not receiving the adjuster log notes.
28For these reasons, I find that the I erred in law in the decision. As a result, the respondent’s request for a reconsideration under Rule 18.2(b) of the s. 10 award is granted. I vary my decision and find that the respondent is not required to pay a s. 10 award.
CONCLUSION & ORDER
29For the reasons noted above, the respondent’s request for reconsideration is granted, in part.
30The respondent’s request for reconsideration with respect to the MIG and treatment plans is dismissed.
31The respondent’s request for reconsideration with respect to the s. 10 award is granted. I vary my decision and find that the respondent is not required to pay a s. 10 award to the applicant. Paragraph 98(v) of my decision is varied to now read: “The applicant is not entitled to an award pursuant to Reg. 664.”
Melanie Malach Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: March 6, 2025