RECONSIDERATION DECISION
Before:
Ludmilla Jarda
Licence Appeal Tribunal File Number:
23-009232/AABS
Case Name:
Franca Anderson v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Adam Kuciej, Counsel
For the Respondent:
No one appearing
OVERVIEW
1On December 19, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) decision dated November 29, 2024 (“decision”).
2In its decision, the Tribunal found that the applicant is catastrophically impaired under Criterion 8, she is time-barred from claiming entitlement to a non-earner benefit, she is entitled to attendant care benefits (“ACB”) for various periods, she is entitled to various treatment plans, but not all of the treatment plans claimed, she is entitled to interest, and the respondent is liable to pay an award for some of the benefits in dispute. The Tribunal granted the application in part.
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 violated the rules 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 applicant is seeking reconsideration pursuant to Rule 18.2(b). The applicant submits that the Tribunal made an error of fact in the attendant care findings at paragraph 120 of the decision, specifically as it relates to basic supervisory care and medication assistance such that the Tribunal would likely have reached a different result had the error not been made.
5The applicant seeks to vary the decision to award the applicant attendant care in the amounts specified below, in addition to those already awarded in the decision:
Four 15-minute check-ins daily (every 4 to 5 hours), totaling 420 minutes per week, and 60 minutes of cueing and prompting or direct assistance daily to assist with routine and tasks completion of activities of daily living; and
180 minutes per week (25 minutes per day) for medication assistance.
6The respondent did not dispute any of the applicant’s reconsideration submissions, and it did not deliver any submissions in response to the applicant’s request for reconsideration.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The 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.
Rule 18.2(b): Error of Fact
9I find that the applicant has not established that the Tribunal made an error of fact in its determination that there was insufficient evidence to support a finding that the applicant required basic supervisory care and medication assistance.
10The applicant submits that the Tribunal made an error of fact by not allotting time for basic supervisory care, specifically as it relates to cueing and check-ins. The applicant argues that there is sufficient evidence that she requires cues and check-ins, and she directs the Tribunal to various parts of an occupational therapy activities of daily living (in-home) assessment report dated March 21, 2024 completed by Bani Ahuja, occupational therapist, the evidence of Dr. Ahmed Jwely and Dr. Shahzad Shahmalak, both psychiatrists, and Paesano v. Coseco Insurance Company, 2023 CanLII 96371 (ON LAT). The applicant also explains for the first time on reconsideration that the discrepancy between the occupational therapy functional assessment report dated July 12, 2022 completed by Kari Owens, occupational therapist, and her Form 1 dated July 4, 2022 is an arithmetical difference to avoid double counting time allotted for cues and check-ins and the period for assistance with navigating stairs. The applicant does not dispute the Tribunal’s finding that she does not require assistance for navigating stairs.
11The applicant further submits that the Tribunal made an error of fact in finding that there is insufficient evidence that she requires 180 minutes per week for medication assistance. She argues that there is sufficient evidence that she requires assistance with medication due to her physical, cognitive, and psychological impairments. The applicant directs the Tribunal to various parts of her oral testimony, the oral testimony of Ms. Owens, and Ms. Ahuja’s report.
12I do not agree with the applicant’s submissions, and I find no error of fact in the Tribunal’s decision.
13I find that the arguments made by the applicant on reconsideration were not argued at first instance. The applicant had the opportunity to fully argue her case at first instance, and she is attempting to relitigate her claim for attendant care benefits as it relates to basic supervisory care and medication assistance on reconsideration.
14As indicated at paragraph 138 of the decision, the Tribunal considered the evidence of Ms. Owens and found that there was insufficient evidence to support the need for 3,990 minutes per week for basic supervisory care. The Tribunal noted a discrepancy between the time allotted for basic supervisory care in Ms. Owen’s report and her Form 1 and stated that no explanation had been provided for the discrepancy. While the applicant attempts to reargue the need for basic supervisory care, it remains that the applicant has not tendered sufficient evidence for the Tribunal to make a finding that she requires cueing, and check-ins because she lacks the ability to be self-sufficient in an emergency.
15As indicated at paragraph 139 of the decision, the Tribunal considered the evidence of Ms. Owens and Ms. Ahuja and found that there was insufficient evidence to support the need for 180 minutes per week for assistance with medication. The Tribunal ultimately preferred Ms. Ahuja’s evidence that the applicant did not require assistance with medication.
16The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the applicant’s submissions and evidence does not support that the Tribunal made an error of fact. In the decision, the Tribunal considered the parties’ submissions and evidence, highlighted the evidence that it considered more relevant to the issues in dispute, assigned weight accordingly, and concluded that there was insufficient evidence to support a finding, on a balance of probabilities, that the applicant required attendant care assistance with basic supervisory care and medication.
17Accordingly, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(b).
CONCLUSION & ORDER
18The applicant has not established grounds for reconsideration under Rule 18.2(b).
19The applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 27, 2025