RECONSIDERATION DECISION
Before: Laura Goulet, Adjudicator
Licence Appeal Tribunal File Number: 23-000168/AABS
Case Name: Raymond Westlake v. The Dominion of Canada General Insurance Company
Written Submissions by:
For the Applicant: Daniel D’Urzo, Counsel
For the Respondent: Christopher Schnarr, Counsel
OVERVIEW
1On March 7, 2025, the applicant requested reconsideration of the Tribunal’s decision dated February 14, 2025 (“decision”).
2Following a written hearing, I issued the decision. In the decision, I found that the applicant was not entitled to attendant care benefits (“ACBs”) or two of the three treatment plans in dispute. I found that he was entitled to the remaining treatment plan, two invoices, interest, and 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 on Rule 18.2(b). The respondent submits that the applicant’s request for reconsideration should be dismissed.
5The applicant is seeking that the decision be varied or cancelled.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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.
The Tribunal did not make an error of law or fact in relation to ACBs
8I find the applicant has not established grounds for reconsideration as it relates to ACBs.
9The applicant submits that the Tribunal erred in law and/or fact in finding that he is not entitled to ACBs, interest, and a special award. Specifically, the applicant submits that I erred by mischaracterizing and/or incorrectly stating the nature of his compliance with s. 3(7)(e) of the Schedule. The applicant submits that I erred in not referencing any decisions or the Schedule in my reasons at paragraph 29 of the decision, when I found that it is well established that sufficient particulars must be provided in the attendant care invoices, such as what services were provided and when. The applicant argues that some reference to Tribunal case law is required by an adjudicator to provide adequate reasons, because there are no provisions in the Schedule specifying the required level of detail in an invoice for attendant care expenses. The applicant further submits that I erred in not explaining why cash payments are not acceptable. The applicant also submits that I erred in not setting out and following the appropriate test for determining whether the ACBs were incurred.
10The respondent submits that the applicant did not show how or why the Tribunal’s interpretation of the Schedule regarding the level of detail required to prove that ACBs were incurred constitutes an error of law or fact. The respondent argues that the Tribunal’s failure to cite authority for well established propositions about the specificity of supporting documents required to fulfill the evidentiary burden under s. 3(7)(e) does not amount to an error of fact or law, absent any allegation that these standards were invented, misstated and/or misapplied, which the applicant does not claim. The respondent submits that my finding in the decision that “sufficient particulars must be provided, such as what services were provided and when” has been reiterated by the Tribunal many times: see Duali v. The Dominion of Canada General Insurance, 2025 CanLII 13547 (ON LAT), Hu v. Safety Insurance Company, 2023 CanLII 91411 (ON LAT), Derenzis v. Gore Mutual Insurance Company, 2025 CanLII 16016 (ON LAT), and R.A. v. Aviva Insurance Company, 2020 CanLII 57416 (ON LAT).
11In the decision, I find that I did not mischaracterize or incorrectly state the nature of the applicant’s compliance with s. 3(7)(e) of the Schedule. I find that I set out the appropriate test for determining whether ACBs were incurred at paragraphs 13 and 17 of the decision, and I applied the test and gave clear reasons at paragraphs 26 to 30 with respect to why I found the applicant’s invoices were inadequate. Further, I find that, as demonstrated by the respondent’s citation of caselaw above, I did not err in indicating that it is “well established that sufficient particulars must be provided” with respect to attendant care services, and that a specific reference to Tribunal decisions was not required in the decision as the principle of law I referred to is well established.
12With respect to the applicant’s contention that I erred in not referencing the Schedule in my reasons with respect to the degree of specificity required in the invoices, I find that this did not form part of my reasons, because, as set out at paragraph 29 of the decision, I relied on a well established principle in the case law, which interprets the requirements of s. 3(7)(e) of the Schedule.
13With respect to the applicant’s submission that I erred in not explaining why cash payments are not acceptable, I find that I did not make such a finding. Rather, at paragraph 30 of the decision, in finding that the applicant had not provided sufficient evidence to prove that the ACBs had been incurred, I pointed out that, despite repeated requests from the respondent, the applicant did not provide proof to corroborate that cash was paid to or received from the service provider.
14The applicant also argues that the Schedule is consumer protection legislation that should be liberally interpreted for the benefit of the applicant, and in this case would mean not to place onerous requirements on the applicant without adequate reasons. The applicant submits that to do so when over $50,000.00 of ACBs are in dispute would run counter to the Schedule’s consumer protection objective. The applicant further submits that the onus on him is particularly disproportionate when considered in the context of the substantial history of unreasonable conduct by the respondent over the course of the claim, as evidenced by the award ordered in the decision. Although I agree that the Schedule is consumer protection legislation, I find that, regardless of the respondent’s conduct, or the amount of funds that are in dispute, the onus remains on the applicant to prove his entitlement to ACBs.
15For these reasons, I find that the applicant did not show that the Tribunal made an error of law or fact in relation to ACBs such that it would likely have reached a different result had the error not been made.
The Tribunal did not make an error of law or fact in relation to the treatment plan for social rehab counselling
16I find the applicant has not established grounds for reconsideration as it relates to the treatment plan for social rehab counselling (“RSW”).
17The applicant submits that the Tribunal erred in law and/or fact in finding that this treatment plan was not reasonable and necessary as follows:
a. By not reviewing the clinical notes and records (“CNRs”) of Genesis Community Rehabilitation (“Genesis”) that includes progress notes and dependence on RSW support;
b. By rejecting the treating psychologist, Dr. Phillip Miller’s opinion;
c. By rejecting the recommendation for the treatment plan by the treating occupational therapist, Claudia Maurice; and
d. Considering that the Tribunal placed no weight on the insurer’s examination report of Dr. Sarah Talebizadeh.
18The applicant refers to paragraph 43 of the decision which indicates that “I am not provided with any information with respect to the applicant’s progress, if any, from the prior treatment.” The applicant submits that, had I considered the CNRs of Genesis and placed weight on the recommendations of the applicant’s treatment team, I would have reached a different result.
19I find the applicant did not meet his onus to prove that I erred in not considering the CNRs of Genesis. Although the applicant submits that his written submissions included the CNRs of Genesis in Tab 41 that contained previously approved treatment plans, he did not make any submissions about the CNRs of Genesis in the written hearing, other than to say that he received services from Genesis. As set out in the Case Conference Report and Order dated September 1, 2023, submissions will make specific reference to the evidence and law by tab and page number, and the hearing adjudicator may choose not to review evidence not so referenced. Although the applicant referred to a tab in submitting that the applicant received RSW from Genesis, he did not direct me to any evidence contained in the CNRs that would indicate that his condition improved because of the services. As I set out in the decision at paragraph 44, “I have not been directed to sufficient medical evidence that the RSW had the effect of improving the applicant’s condition.”
20The applicant then submits that Dr. Miller indicated in his report dated April 21, 2023, that “there has been considerable backsliding emotionally since he saw the applicant on August 18, 2022,” and that the applicant was significantly worse since funding for his RSW had been denied. The applicant refers to paragraph 66 of the decision, where I found that since Dr. Miller had been treating the applicant prior to the submission of the treatment plan for psychological treatment, he is in the best position to determine how long each treatment session should be. The applicant submits that I failed to apply the same reasoning in my analysis for the treatment plan for RSW, and that Dr. Miller recommended that the applicant receive ongoing RSW support.
21I considered Dr. Miller’s opinion at paragraphs 36 and 37 of the decision, and then at paragraph 44. I noted that Dr. Miller’s indication in April 2023 that the applicant was psychologically dependent on the outings with his workers as a buffer to depression and for his overall mental health contradicts the information in his November 2022 report that the applicant rarely left the house even in the company of his RSWs. I did not indicate that I rejected Dr. Miller’s opinion. Rather, at paragraph 37, I indicated that I am not persuaded by Dr. Miller’s April 2023 opinion that the applicant regressed because his November 2022 report demonstrates similar levels of psychological symptoms.
22Turning to the argument that I did not use the same reasoning in my analysis for the treatment plan for RSW as I did for the psychological services plan, I note that the plan for psychological services was partially approved, with the only issues being the number of sessions and the length of each session. At paragraph 66 of the decision, I found that Dr. Miller is in the best position to determine how long each treatment session should be. For the RSW plan, the issue is whether the applicant has demonstrated that he is entitled to RSW services. For the reasons set out in paragraphs 43 and 44, I found that he did not, and the applicant has not shown how I erred in reaching this conclusion.
23With respect to the applicant’s argument that I erred in rejecting the recommendation for the treatment plan by the treating occupational therapist, Claudia Maurice, I find that I gave clear reasons for not finding that the plan was reasonable and necessary, as proposed by Ms. Maurice, at paragraphs 43 to 45 of the decision, and the applicant has not shown how I erred in making my finding.
24At paragraph 38 of the decision, I indicated that I placed no weight on Dr. Talebizadeh’s finding that the plan is not reasonable and necessary because she did not provide reasons. The applicant submits that, since I placed no weight on the report, the respondent has tendered no evidence to deny the treatment plan. With respect to this argument, I find that the onus is on the applicant to demonstrate the treatment plan is reasonable and necessary, and not on the respondent to provide evidence to justify denying the plan.
25For these reasons, I find that the applicant has not shown that the Tribunal made an error of law or fact in relation to the treatment plan for RSW such that it would likely have reached a different result had the error not been made.
Rule 18.4
26Rule 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.
27As I have found the applicant has not shown that the Tribunal made an error of law or fact in relation to the ACBs or the RSW treatment plan, the applicant has not established grounds for reconsideration. Accordingly, the applicant’s request for reconsideration is dismissed.
CONCLUSION & ORDER
28The applicant’s request for reconsideration is dismissed.
Laura Goulet
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 22, 2025