RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 22-012076/AABS
Case Name: Tuvia Ziv v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Selina Ferenac, Counsel
OVERVIEW
1On January 2, 2025, the respondent requested reconsideration of the Tribunal’s decision released December 12, 2024 (“decision”).
2Stemming from an automobile accident on January 9, 2022, the applicant sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Following a written hearing, the adjudicator found the applicant had demonstrated removal from the Minor Injury Guideline, as well as entitlement to the two treatment plans and OCF-6 in dispute. Of note, the adjudicator further concluded the applicant was entitled to an award.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal R
4ules, 2023 (the “LAT 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.
5The respondent relies on Rule 18.2(a) and Rule 18.2(b). It is seeking an order finding it is “not liable to pay the Applicant a special award.”
6The applicant opposes the respondent’s request for reconsideration.
RESULT
7The respondent’s request for reconsideration is granted, in part.
8The decision is varied, such that paragraph 60(v) now reads as detailed below.
ANALYSIS
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.
Award Based on Chiropractic Services and Prescription Eyeglasses
10I find the respondent has established a material breach of procedural fairness, pursuant to Rule 18.2(a), as it relates to the award on the chiropractic services treatment plan and the OCF-6 for prescription eyeglasses. There is no need to assess this part of the respondent’s request based on Rule 18.2(b).
11Section 10 of Automobile Insurance, R.R.O. 1990, Reg. 664 grants the Tribunal the authority to issue an award in the following circumstances: “If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal… may 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…”
12As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), reasons in a decision ensure the fairness and legitimacy of the administrative decision-making process (at paragraph 79, citations removed):
Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power…
13Further, as the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (“Baker”), and then affirmed in Vavilov, reasons allow decisions to be questioned (at paragraph 39): “Reasons… are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.
14At paragraph 60 of the decision, the adjudicator issued her order. At subparagraph (v), the adjudicator granted the applicant’s award request as follows: “The respondent is liable to pay an award of 15% of the total amount of benefits payable in accordance with s. 10 of the Regulation 664.”
15The respondent argues the adjudicator committed both a material breach of procedural fairness and an error of law when she did not provide reasons to explain why she ordered the respondent to pay the applicant an award based on “the total amount of benefits payable”. The respondent submits that, while there was an explanation for why its handling of the dental services treatment plan merited an award, there was no explanation provided for why the award should extend to the other benefits in dispute, i.e., the treatment plan for chiropractic services and the OCF-6 for prescription eyeglasses.
16In reviewing the reasons provided by the adjudicator prior to her final order, it is clear that the focus of her award analysis was on the respondent’s handling of the dental services treatment plan (at paragraph 52, emphasis added):
I agree with the applicant, that the respondent unreasonably withheld or delayed payments for medical benefits for the treatment and incurred expenses. The respondent submitted that the applicant provided a copy of the incurred expenses for the dental treatment, on June 15, 2023. The respondent thereafter approved the total incurred amount of $4,130.60, by way of explanation of benefits (“EOB”), dated March 1, 2024. The applicant submitted, in his reply submissions, that neither he nor the treatment provider of the dental services, have received the EOB. It is unclear why the respondent paid the dental services on March 1, 2024, approximately eight months after the expenses were provided, but based on the evidence before me, it is clear that the applicant had provided medical documentation with respect to the dental services well in advance of this hearing. As such, and without any explanation to the contrary, I find the respondent’s delay in payment wholly unreasonable.
17There is a further reference to the dental services treatment plan in the adjudicator’s discussion about a procedural breach raised by the respondent about the award request (at paragraph 53, emphasis added):
While I acknowledge that the applicant did not provide particulars of the special award claim in accordance with the [Case Conference Report and Order (“CCRO”)], I do not agree with the respondent that it is contrary to procedural fairness, or that the claim should therefore be dismissed. Not only did the respondent have sufficient time to respond to the applicant’s claim for a special award in its own submissions, but the basis for the special award is on the partial approval of dental services, which the respondent approved after the applicant’s initial submissions. In my view, even if the applicant were to provide particulars of a special award claim in accordance with the CCRO, it is unlikely that the basis for the finding of the special award would be included, given that the applicant was only made award of the partial approval for dental services after the submissions of the respondent.
18The remaining paragraphs in this section of the decision go onto address the adjudicator’s reasons for finding 15% is an appropriate amount for the award.
19In my view, these quotations demonstrate that the respondent’s handling of the dental services treatment plan formed the basis of the adjudicator’s reasons for granting an award. Without providing an explanation for how the respondent unreasonably withheld or delayed payment of the chiropractic services treatment plan and the OCF-6, I conclude the adjudicator did not provide sufficient reasons for this aspect of her order. In short, by not explaining the findings that formed the basis of the primary consideration for granting an award under Reg. 664, the decision lacks the requisite transparency and justification required by the Supreme Court in Vavilov and Baker.
20The applicant challenges this position by claiming that the adjudicator did not commit any material breach of procedural fairness, nor was there an error. In addition to challenging the case law presented by the respondent, the basis of the applicant’s position appears to be his contention that all the benefits were addressed in the adjudicator’s reasons (emphasis added):
Specifically, [the Adjudicator] held that the Respondent unreasonably withheld or delayed payments of incurred benefits and expenses for at least “eight months after the expenses were provided”, and that without any explanation to the contrary, “the respondent’s delay in payment [was] wholly unreasonable.” The Adjudicator further concluded that the Respondent was in possession of the relevant medical documents well in advance of the original hearing date.
21As detailed in the quotation above, the reference to “expenses” that is highlighted in the applicant’s reconsideration submissions is a reference to the dental services. Specifically, the full line being quoted by the applicant is as follows: “It is unclear why the respondent paid the dental services on March 1, 2024, approximately eight months after the expenses were provided…”. The adjudicator was not referring to chiropractic services or eyeglasses when discussing these “expenses”. Therefore, I am satisfied that the applicant has not successfully challenged the respondent’s position about this aspect of its reconsideration.
22Taken together, I find the respondent has established a material breach of procedural fairness, pursuant to Rule 18.2(a), as it relates to the award on the chiropractic services treatment plan and the OCF-6 for prescription eyeglasses.
Award Based on the Dental Services Treatment Plan
23I find the respondent has not established grounds for reconsideration of the award as it relates to the dental services treatment plan, pursuant to Rule 18.2(b).
24In addition to its concerns about the sufficiency of reasons, the respondent also challenges the basis of the adjudicator’s decision to order an award based on the dental services treatment plan. I find the respondent has not established grounds for a reconsideration on this basis, pursuant to Rule 18.2(b).
25Following the reasons in 16-001698/AABS v. Northbridge General Insurance, 2018 CanLII 81937 (ON LAT) (“Northbridge”), the respondent claims an adjudicator cannot base an award solely on the fact that an insurer agreed to pay a benefit shortly before a hearing. Therefore, since the Tribunal’s reasons related to the award for dental services focused solely on the proximity of this payment to the written hearing, the respondent claims there was no legitimate basis for the adjudicator to find its payment was unreasonably delayed. Or, as the respondent submitted: “this finding amounts to a significant error of law such that the Tribunal would likely have reached a different decision had it not been made.”
26Beyond the fact that Tribunal decisions are not binding, I find the situation in Northbridge is not analogous to this present case, and, therefore, I find the respondent has not established an error of law in the decision. At paragraph 13 of his reconsideration decision in Northbridge, the Associate Chair found the adjudicator in the initial decision provided “no explanation of how Northbridge acted unreasonably in withholding or delaying payment.” The absence of a comprehensive explanation appears to be the key finding the Associate Chair used to conclude that the basis for the award was the timing of the payment—not the respondent’s unreasonable withholding or delay of said payment.
27In the case at hand, I am satisfied that there is no error of law, because the adjudicator provided an explanation for why she found the dental services payment was unreasonably delayed—an explanation that goes beyond the timing of this payment in relation to the written hearing. As quoted above, the adjudicator concluded: “It is unclear why the respondent paid the dental services on March 1, 2024, approximately eight months after the expenses were provided, but based on the evidence before me, it is clear that the applicant had provided medical documentation with respect to the dental services well in advance of this hearing.”
28Put another way, the adjudicator’s reasons were not based solely on the timing of the payment. Rather, the adjudicator determined the respondent had medical documentation “well in advance of the hearing”. Therefore, without an explanation for why its assessment of this treatment plan changed eight months later, the adjudicator concluded the payment was unreasonably delayed.
29Finally, I note that the analysis required for an assessment of an award claim is necessarily fact-specific: see, for example, M.E. v Aviva Insurance Canada, 2019 CanLII 119735 (ON LAT), at para. 28. It is not the role of a reviewing adjudicator to second-guess the factual findings made at first instance. It is a limited, error-correcting exercise in which the requestor must establish grounds for reconsideration under Rule 18.2(b).
30Taken together, I find the respondent has not established grounds for reconsideration of the award as it relates to the dental services treatment plan, pursuant to Rule 18.2(b).
Varying the Decision – Rule 18.4
31Rule 18.4 states:
Upon reconsidering a decision of the Tribunal, the Tribunal may:
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 or 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.
32As I have found the respondent has established grounds for reconsideration with respect to the award based on the chiropractic services treatment plan and the OCF-6 for prescription eyeglasses, I find it is appropriate to vary the order section of the decision. Specifically, I am varying paragraph 60(v) of the decision to remove any reference to the chiropractic services treatment plan and the prescription eyeglasses OCF-6.
33Using the formula from Ross v. Aviva General Insurance, 2024 CanLII 43457 (ON LAT), I further vary the decision to state that the lump sum owed to the applicant is 15% of the following amount: $4,130.60 owing from the dental services treatment plan, plus the interest owing on this amount from s. 51 of the Schedule, plus the compound interest owing in accordance with s. 10 of the Reg. 664.
CONCLUSION & ORDER
34The respondent’s request for reconsideration is granted, in part.
35Paragraph 60(v) of the decision is varied to read as follows:
The respondent is liable to pay an award, in the amount of 15% of the benefits incurred under the OCF-18 for dental services submitted on April 26, 2022, in accordance with s. 10 of the Regulation 664. This lump sum award amounts to 15% of the following amount: $4,130.60 owing from the dental services treatment plan, plus the interest owing on this amount from s. 51 of the Schedule, plus the compound interest owing in accordance with s. 10 of the Reg. 664.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: March 13, 2025