RECONSIDERATION DECISION
Before: Laura Goulet, Adjudicator
Licence Appeal Tribunal File Number: 22-011916/AABS
Case Name: Alexei Blinov v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Olga Poznyakova, Paralegal
For the Respondent: Anthea Chan, Counsel
OVERVIEW
1On February 5, 2025, the applicant requested reconsideration of the Tribunal’s decision dated January 17, 2025 (“decision”).
2Following the written hearing, I issued the decision. In the decision, I found that the applicant was entitled to a treatment plan, dated May 18, 2022, for chiropractic and massage therapy services, if incurred, as well as interest on any overdue payment of benefits. I also found that the applicant had not demonstrated that his accident-related impairments warrant removal from the Minor Injury Guideline; that he was not entitled to a non-earner benefit (“NEB”); and that he was not entitled to the three other treatment plans. Further, I found that the respondent was not liable to pay an award.
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 applicant is seeking a reconsideration pursuant to Rule 18.2(a) and Rule 18.2(b). The respondent argues that there is no basis to grant reconsideration.
5The applicant submits that the decision should be varied.
RESULT
6The applicant’s request for reconsideration is granted, in part.
7The decision is varied, such that paragraph 63 now reads as detailed below.
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.
Procedural issues submissions
9For the following reasons, I find that I did not address the applicant’s procedural submissions from his reply related to the treatment plan dated October 2, 2021. However, I find that the Tribunal did not commit a material breach of procedural fairness as it relates to his claim for an NEB because the outcome of my decision remains unchanged.
10On reconsideration, the applicant refers to his reply submissions from the initial hearing, where he directed the Tribunal to the following evidence:
a. That the OCF-3 that was referred to by the respondent in its submissions relates to the applicant’s father, not to the applicant;
b. The respondent’s letter, dated October 13, 2021, acknowledging receipt of an OCF-1 and requesting an OCF-3, was addressed to the applicant’s mother, not the applicant; and
c. The respondent’s letter, dated October 13, 2021, denying the plan dated October 2, 2021, was addressed to the applicant; yet, the insured is listed as the applicant’s father; the claimant is listed as the applicant’s mother; and the salutation is addressed to the applicant’s mother.
11The applicant submits that the appropriate remedy pertaining to these documents is to exclude them along with the submissions that relate to them because to rely on them would be inaccurate and misleading.
12I acknowledge that I failed to address the applicant’s arguments regarding these documents in my decision.
No material breach of procedural fairness in the finding with respect to the NEB
13For the following reasons, I find that the Tribunal did not commit a material breach of procedural fairness in its finding with respect to the NEB.
The applicant was not compliant with s. 33
14In the written hearing, I found that the respondent made a valid request under s. 33(1) of the Schedule for an OCF-10 and that the applicant was non-compliant with s. 33 of the Schedule and therefore not entitled to an NEB.
15The applicant submits that the Tribunal violated the principles of procedural fairness and natural justice by concluding, at paragraphs 35 to 37 of the decision, that the applicant was non-compliant with s. 33. In the written hearing, the applicant argued that he is entitled to an NEB in the amount of $185.00 per week from October 22, 2021 to September 22, 2023, pursuant to s. 36(6) of the Schedule, because the respondent did not provide a notice compliant with s. 36(4).
16The applicant further submits that the respondent did not provide any evidence supporting the claim that a denial of the NEB was issued based on non-compliance with s. 33 and that the Tribunal’s acceptance of this position constitutes a violation of natural justice. The applicant argues that he has the right to be clearly informed of the reasons for the denial of a NEB, and that no explanation was provided to him.
17The applicant also submits that the Tribunal did not address the applicant’s submission that the adjuster’s log notes indicated that the applicant is eligible to claim an NEB. However, I find the fact that one is eligible to claim an NEB does not make them entitled to it because the forms indicate that they may be entitled to one or more benefit, requiring an election.
18Lastly, the applicant submits that s. 33 of the Schedule does not apply to the OCF-10, but that s. 35 does. The applicant argues that s. 35 does not specify any consequences for failing to provide the OCF-10 and it does not allow for non-payment of the benefit. In the decision at paragraphs 35 and 36, I found that the respondent’s request for an OCF-10 was a proper s. 33 request. The applicant does not direct me to any authority indicating that a request for an OCF-10 election under s. 35(1) is not captured by s. 33(1)1 and s. 36(6) as these sections are all contained in Part VIII of the Schedule which governs the “Procedures for Claiming Benefits.”
19The respondent submits that, in the decision, the Tribunal clearly provided reasons why the OCF-10 was required based on law and fact, and that it acknowledged that the applicant delivered an OCF-1, OCF-3, and his legal representative advised that he returned to work. The respondent further submits that, in the decision, the Tribunal found that the applicant was non-compliant with s. 33 based on the absence of any evidence showing compliance with the s. 33 request, and that the respondent’s submissions are corroborated by documents filed by both parties.
20I find that, at paragraph 31 of the decision, the Tribunal considered the applicant’s submissions with respect to the fact that there was no denial letter from the respondent. Further, at paragraph 33, the Tribunal considered the applicant’s argument that the respondent has a duty to provide clear, unambiguous information about the applicant’s responsibilities and rights under s. 33.
21In addition, I find that, at paragraphs 35 to 37 of the decision, the Tribunal gave clear reasons why it found that the applicant did not comply with the s. 33 request made by the respondent. The respondent requested an OCF-10 and section 33 productions on October 29, 2021, and the applicant responded with correspondence advising that he returned to work and is claiming a NEB, but he did not complete an OCF-10. The Tribunal found that an OCF-10 was required and gave reasons for this finding. Further, the Tribunal found that the applicant did not submit an OCF-10, and therefore he was non-compliant with the s. 33 request.
22Further, based on the evidence that was submitted at the hearing, I find:
a. The letter from the respondent, dated October 13, 2021, acknowledging receipt of an OCF-1 and requesting an OCF-3, was addressed to the applicant’s mother; the insured is indicated as the applicant’s father; the claimant is listed as the applicant’s mother; and the salutation is addressed to the applicant’s mother. There is no indication in the body of the letter that it relates to the applicant.
b. On October 14, 2021, the applicant submitted to the respondent an OCF-3 dated October 2, 2021. The OCF-3 states that the applicant’s injuries prevent him from performing his essential tasks of employment and prevent him from returning to his normal activities following the accident, potentially addressing the test for both an NEB and an IRB.
c. In its submissions, the respondent referred incorrectly to the OCF-3 of the applicant’s father, also dated October 2, 2021, in submitting that its s. 33 requests, in a letter dated October 29, 2021, were reasonably required.
23In the decision at paragraph 34, the Tribunal considered the respondent’s submissions that the applicant’s entitlement to specified benefits was unclear because the OCF-1 states that his accident-related injuries did not prevent him from working, but his OCF-3 states that his injuries prevent him from performing his essential tasks of employment and prevent him from returning to his normal activities following the accident, or in other words, that the applicant may be entitled to both an IRB and an NEB. At paragraphs 35 and 36, the Tribunal based its finding that the respondent’s s. 33 request was reasonable, in part, on the discrepancy between the OCF-1 and OCF-3, as pointed out by the respondent in the OCF-3 it put into evidence.
24I find that it is more likely than not that even though the respondent referred to the applicant’s father’s OCF-3 in its submissions, it relied on the applicant’s OCF-3 in its denial dated October 20, 2021. The applicant’s OCF-3 was prepared by Samuel Johnson, chiropractor, and it indicates that his injuries prevent him from performing his essential tasks of employment and prevent him from returning to his normal activities following the accident. The respondent’s letter is addressed to the applicant and refers to this information. The fact that the respondent referred to the wrong OCF-3 in its submissions two years and four months later for the hearing does not mean that it referenced it on October 29, 2021.
25For these reasons, I find that the Tribunal did not violate the principles of procedural fairness and natural justice by concluding that the applicant was non-compliant with s. 33 and therefore not entitled to a NEB. Although in my decision I did not consider the fact that the respondent referred to the OCF-3 of the applicant’s father in its submissions, this fact does not change the result. The applicant did submit his OCF-3, which he put into evidence. The respondent made a valid request under s. 33(1) for an OCF-10 and the applicant was non-compliant with section 33 of the Schedule and therefore not entitled to an NEB.
No errors of law or fact in relation to the NEB claim that would likely lead to a different result
26For the following reasons, I find that the Tribunal did not make an error of law or fact in relation to the NEB claim such that it would likely have reached a different result had the error not been made.
27The applicant submits that, due to an erroneous time calculation, the Tribunal erred in finding that the respondent could rely on s.36(4)(c) of the Schedule. The respondent submits that while the Tribunal cited an incorrect receipt date of October 14, 2021 for the OCF-3, the result was unaffected, and the respondent’s reply was not late.
28The applicant reiterates his argument that he is entitled to a NEB because the respondent did not reply to the application within 10 business days. He submits that Mackenzie Medical Rehabilitation Centre Inc. (“Mackenzie”) provided an OCF-3 to the respondent on October 14, 2021, and that on October 29, 2021, the respondent acknowledged the receipt of the OCF-3 and made requests for an OCF-10 and for medical documentation pursuant to s. 33. The applicant argues that the notice under s. 36(4) was due on October 28, 2021.
29In the decision at paragraph 30, the Tribunal found that there are 10 business days between October 14,2021, and October 29, 2021, and therefore the respondent’s denial letter was not late. I find that this was an erroneous calculation. There are in fact 11 business days between October 14,2021, and October 29, 2021.
30The respondent submits that on October 14, 2021, Mackenzie faxed the OCF-3 to an incorrect fax number, and not to the respondent. The respondent directs the Tribunal to the OCF-3 which indicates that it was faxed to the respondent on October 25, 2021, at 11:08 a.m., arguing that its response was delivered four business days after receipt of the OCF-3, in compliance with s. 36(4).
31In reply, the applicant submits that the respondent is presenting a new argument on reconsideration that the OCF-3 was sent to the wrong fax number, as it did not dispute receipt of the OCF-3 on October 14, 2021 in the written hearing. I note that the respondent did make submissions in the written hearing that it always responded to the applicant within 10 business days, and it put into evidence the OCF-3 with the fax date of October 25, 2021. As such, I find that the respondent is not presenting a new argument on reconsideration.
32The Tribunal did make an error in finding that the respondent’s denial letter was not late based on a miscalculation that there are 10 business days between October 14,2021, and October 29, 2021. However, based on the evidence provided by the respondent in the written hearing that the OCF-3 was submitted on October 25, 2021, the denial letter was not late, as it was sent to the applicant on October 29, 2021, within four business days, which was not disputed by the applicant in reply.
33For these reasons, I find that, although the Tribunal miscalculated the days, upon a proper review of the evidence from the written hearing, the result is the same. As such, the Tribunal would not likely have reached a different result had the error not been made.
The Tribunal committed a material breach of procedural fairness – treatment plan
34For the following reasons, the decision is varied, and I find that the plan dated October 2, 2021 for physiotherapy, chiropractic, and massage therapy services is payable, if incurred.
35The applicant submits that, at paragraphs 41 and 42 of the decision, I relied on a letter from the respondent, dated October 13, 2021, concluding that only the salutation was incorrect. The applicant argues that I did not explain how I determined that, despite three different individuals being named in the letter, the letter pertained to the applicant, rather than the other two named individuals. The applicant further submits that I did not address the possibility that one of the other individuals could have been the intended recipient of the letter.
36The respondent submits that I gave clear reasons with respect to its denial letter by indicating that I found that the letter itself was addressed to the applicant at the top of the page, and the fact that the salutation in the letter is incorrect does not make the denial invalid.
37At paragraph 42 of the decision, I found that the incorrect salutation does not make the denial letter invalid. I did not consider the other submissions relied on by the applicant, i.e., that the insured named in the letter is the applicant’s father, and that the claimant named is the applicant’s mother. Had I considered this additional evidence, I would have found that this letter is not a proper denial, because on reconsideration I agree that it is not clear that the applicant was the intended recipient, and the letter does not allow an unsophisticated person to understand it, given that it relates to three different people. Although the letter is addressed to the applicant at the top of the page, the rest of the letter refers to the applicant’s mother and father.
38Having considered that the respondent’s denial letter refers to three different people, I find that it does not comply with s. 38(8) because it is not clear who the “insured person” is in the letter.
39For these reasons, I find that, because I did not consider the applicant’s procedural submissions for this treatment plan as set out above from his reply, my finding that the plan was properly denied in compliance with s. 38(8) of the Schedule is incorrect. Accordingly, I find that the plan, dated October 2, 2021 for physiotherapy, chiropractic, and massage therapy services is payable, if incurred, pursuant to Aviva General Insurance Company v. Catic, 2022 ONSC 6000, because the respondent’s denial was not in compliance with s. 38(8) of the Schedule.
Varying the Decision – Rule 18.4
40Rule 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.
41As I have found the applicant has established grounds for reconsideration with respect to the treatment plan dated October 2, 2021 for physiotherapy, chiropractic, and massage therapy services, I find it is appropriate to vary the order section of the decision.
CONCLUSION & ORDER
42The applicant’s request for reconsideration is allowed, in part.
43Pursuant to Rule 18.4, paragraph 63 of the decision is varied as follows:
The plan, dated October 2, 2021, in the amount of $3,795.50 for physiotherapy, chiropractic, and massage therapy services, is payable, plus interest in accordance with s. 51, if incurred. The applicant is not entitled to the remaining treatment plans at issue.
Laura Goulet
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 22, 2025