RECONSIDERATION DECISION
Before: Mary Henein Thorn
Licence Appeal Tribunal File Number: 23-010269/AABS
Case Name: Ersilia Sorrentino v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Jane Conte, Counsel
For the Respondent: Bruce Chambers, Counsel
OVERVIEW
1On December 29, 2024, the applicant requested reconsideration of the Tribunal’s decision dated December 9, 2024 (“decision”).
2Both the applicant and the respondent conducted an in-home living assessment to assess modifications to the applicant’s current home. The respondent conducted a section 44 in-home living assessment on the applicant’s existing home to address the subsequently withdrawn in-home living assessment conducted by Mr. Groe in a and a report dated November 12, 2021. It concluded that the applicant’s existing home could be modified to accommodate her needs. Based on that finding, the respondent did not find it necessary to conduct any further assessments.
3The applicant submits that those modifications would not be allowable to be made by the owner/landlord or property manager and the modifications are not sufficient enough for her safety. As such a plan was submitted for modifications to the applicant’s daughter’s home.
4Following a videoconference hearing, I issued the decision. In the decision, I found that the applicant is not entitled to:
a. a treatment plan, dated April 28, 2023, in the amount of $365,257.00 for home modifications to her daughter’s home;
b. a treatment plan dated September 13, in the amount of $4,165.51 ($6,651.51 less $2,486.00 approved) for a Home Modification Assessment.
c. an award under s. 10 of Reg. 664; and
d. interest in accordance with section 51 of the Schedule.
5The 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.
6The applicant is requesting reconsideration, pursuant to Rule 18.2(a) and Rule 18.2(b), with respect to home modifications to her daughter’s home and the proposed in-home modification assessment. She is seeking to vary the decision to award the applicant entitlement to the cost of the home modifications and approval of the in-home modification assessment. The respondent argues the applicant’s request for reconsideration should be dismissed.
7The respondent submits that the Tribunal made no error, and that, if any error was made, which is denied, the error is not one for which the Tribunal can provide a remedy on reconsideration. The respondent also submits that the appellant has not established any of the criteria for reconsideration and requests that the reconsideration request be dismissed.
RESULT
8The applicant’s request for reconsideration is dismissed.
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.
Did I act outside of my jurisdiction or commit a material breach of procedural fairness?
10I find that I did not act outside of my jurisdiction or violate the rules of procedural fairness. The applicant has not established grounds for the reconsideration of these issues under Rule 18.2(a).
11The applicant submits that I committed a material breach of procedural fairness for the following reasons:
a. Denied the applicant’s Personal Support Worker (“PSW”) the ability to testify at the hearing; and
b. I failed to consider that the respondent did not provide a section 44 report addressing the disputed OCF-18 dated April 28, 2023, and I improperly placed the entire evidentiary burden on the applicant.
12The applicant has not established grounds for reconsideration of these issues under Rule 18.2(a).
I did not violate the rules of procedural fairness by not allowing the applicant’s PSW to testify at the hearing.
13The applicant submits that I violated the rules of procedural fairness and denied the applicant the ability to fully present her case when I denied the applicant’s witness, Valentyna Atkopian, PSW, the ability to testify at the hearing. According to the applicant, as this PSW has spent five to six hours a day with her, she was qualified to speak to the applicant’s ability in a professional manner with direct observations that only a PSW could provide.
14As part of her submission, she points me to Plante v Economical Insurance Company, 2024 ONSC 7171 (“Plante”) and the “Baker factors” in paras 21 – 27 as summarized by Justice L’Heureux Dube as well as S.P. v. Belair Direct Insurance Company, 2024 ONLAT 23-002685/AABS.
15She further submits that, under Rule 3.1 of the Common Rules of Practice & Procedure and section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), I had the discretion to exercise flexibility and allow her PSW to testify. It is her submission that there was no prejudice to the respondent to allow her to testify.
16The applicant requested to add Ms. Atkopian as a witness at the start of the hearing. She submitted that, next to her daughter, Ms. Atkopian would be best suited to provide evidence of the applicant’s functionality, as she was her PSW and spent a great deal of time with her.
17The respondent objected to Ms. Atkopian being called as a witness at the start of the hearing, as it was advised only the day before the hearing that the applicant intended to call her as a witness. She was not identified as a witness in the Case Conference Report and Order, dated February 23, 2024, and she was not identified as a witness 21 days prior to the hearing, which is in breach of Rule 9.4.3. Therefore, according to the respondent, it cannot be a breach of material fairness if the applicant did not comply with the Rules.
18The respondent further submits Ms. Atkopian evidence is not relevant to the issues in dispute. The Alternative Living Assessment, dated March 12, 2022, was conducted by Mr. John Groe, who was assisted by an occupational therapist, Emilia Radovini, to give evidence regarding the applicant’s needs and level of function. Ms. Atkopian did not contribute to that assessment, nor was her evidence relied upon by Mr. Groe. Further, the respondent argued that, since the applicant stated that her daughter was best suited to testify, given that her daughter did testify, further testimony by Ms. Atkopian would have been redundant.
19I find the applicant has not demonstrated that it was a material breach of procedural fairness to deny Ms. Atkopian the ability to testify at the hearing.
20I took into consideration the fact that the applicant did not comply with the Tribunal Rules, Ms. Atkopian was not identified as a witness in the Case Conference Report and Order, nor did she appear in the final witness list submitted on August 29, 2024. Applicant’s counsel also submitted that “next to the daughter” the PSW was best suited to provide evidence.
21I also took into consideration the fact that Ms. Atkopian did not assist in the preparation of the Alternative Living Assessment dated March 12, 2022, rather Mr. Groe relied on the opinion of Occupational Therapist Emelia Radovini who testified at the hearing.
22Given the list of factors above, a review of the experts who were scheduled to testify and counsel’s submission the applicant’s daughter was better suited to speak about the applicant’s functionability, I declined to allow Ms. Atkopian to testify.
23I proceeded to hear testimony from the applicant’s daughter and reviewed the Alternative Living Assessment, which was conducted by Mr. Groe, with a contribution from Ms. Radovini, both expert witnesses who spoke to the applicant’s ability to function and any modifications required.
a) I relied on section 25.0.1 of the SPPA and Rule 3.1 of the Licence Appeal Tribunal Rules to ensure efficiency, proportionality, and a timely resolution of the merits of the proceedings. I see no violation of procedural fairness in my decision to deny the PSW’s testimony. As a result, the applicant’s request for reconsideration because I acted outside of my jurisdiction and/or committed a material breach of procedural fairness.
I did not violate the rules of procedural fairness by not considering the respondent did not submit a section 44 assessment report for the daughter’s house.
24The applicant submits I committed a material breach of procedural fairness because I did not take into consideration the fact that the respondent did not provide any competing evidence to the report of Mr. Groe. By not considering that fact, the applicant claims I incorrectly placed the entire evidentiary burden on her.
25It is the respondent’s submission that there was no obligation on its part to conduct a section 44 assessment to modify the applicant’s daughter’s home. The OCF-18 was not a plan costed out to modify the applicant’s existing home as contemplated by section 16(3)(i) of the of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (Effective September 1, 2010) ( “SABS”) which states:
“…home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home.”
26A section 44 in-home living assessment was conducted by the respondent on the applicant’s existing home to address the subsequently withdrawn in-home living assessment conducted by Mr. Groe and a report dated November 12, 2021. It concluded that, at a cost of $22,825.52, the applicant’s existing home could be modified to accommodate her needs. Since the finding was that the applicant could safely stay in her home with these modifications, the respondent did not see a need to assess the feasibility of modifications to her daughter’s home.
27Lastly, the respondent asserts that it is the applicant’s onus to prove the proposed modifications are reasonable and necessary.
28The applicant has not established that I committed a material breach of procedural fairness. The onus is on the applicant to prove the modifications to the daughter’s home as proposed in the OCF-18 are reasonable and necessary and within the meaning of the SABS. The respondent did submit a responding report to an OCF-18 which was later withdrawn in response to an in-home living assessment to the applicant’s existing home. That assessment concluded the applicant can remain safely in her own home with the proposed modifications. I am not persuaded the respondent was obligated to provide another in-home living assessment based on the daughter’s home, or that I committed a material breach of procedural fairness to the applicant.
Did I make an error of law?
29I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made. The applicant has not established grounds for the reconsideration of these issues under Rule 18.2(b).
30The applicant submits that I erred by not finding that the applicant’s daughter’s home was the applicant’s “existing home” for the purposes of s. 16(3)(i).
31As part of her submissions, the applicant points to J.S. v. Guarantee Company of North America, 2012 ONFSCDRS 14 (“J.S.”) and Economical Mutual Insurance Company v. Northbridge Commercial Insurance Company, 2016 ONSC 458, which she submits supports a broad and liberal interpretation of the term “existing home” to include any home with a reasonable connection to the insured.
32She further submits I failed to consider the following factors, and, by not considering these factors, I misapplied the law:
i. The applicant’s condo management prohibited the necessary accessibility modifications;
ii. Both the applicant’s and the respondent’s witnesses acknowledged that modifications were prohibited;
iii. The applicant had established a settled intention to reside in her daughter’s home, which was fully supported by medical and accessibility experts; and
iv. The SABS, as consumer protection legislation, must be interpreted in a way that prioritizes practical solutions for injured claimants, rather than rigidly adhering to an unduly restrictive interpretation of the term “existing home.”
33The respondent disagrees. It submits that I gave consideration to the modification of the applicant’s daughter’s home, as per paragraph 18 of my decision.
34I disagree with the applicant; I was prepared to apply a broad and liberal interpretation of the term “existing home” as demonstrated in (paragraphs 10, 11, 12 and 13) in my decision however, the analysis stopped when I could not determine which modifications were allowed and which were not in her current residence at paragraph 19 of my decision.
35Although the applicant submits that Mr. Groe consulted directly with the building’s management and confirmed the proposed modifications were not permitted to the unit, I am not persuaded the “building management” he spoke to was for certain the person/people in authority to make that determination based on his testimony. Further, the applicant did not provide me with a comprehensive breakdown from management as to which modifications may have been approved or disapproved. Therefore, I could not conclude one way or another if her residence could be modified safely to accommodate her current needs, and, if not, then turn to analyze her daughter’s residence. Paragraph 19 in my decision states that the applicant has not met her burden by “… providing me with a list of approved or disapproved modifications to her current unit by someone in authority, namely the owner/landlord or property management company.” Without the clear authority from the owner/authorized agent from the building, along with an itemized list of what could and could not be modified, I was not able to make a determination.
36As such, I am satisfied that I did not err in law or fact, such that I would have reached a different outcome.
CONCLUSION & ORDER
37For all of the above-noted reasons, the applicant’s reconsideration request is dismissed.
Mary Henein Thorn
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 2, 2025