RECONSIDERATION DECISION
Before:
Christopher Yan, Adjudicator
Licence Appeal Tribunal File Number:
22-011637/AABS
Case Name:
Rehana Mukhtar v. Pembridge Insurance
Written Submissions by:
For the Applicant:
Kateryna Vlada, Paralegal
For the Respondent:
Greg Specht, Counsel
OVERVIEW
1On December 27, 2024, the respondent requested reconsideration of the Tribunal’s decision dated December 6, 2024 (“decision”). Following a written hearing, I issued the decision where I found, in part, that the applicant was entitled to payment of a chronic pain assessment (“chronic pain report”). The respondent now seeks reconsideration of that finding under Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).
2The grounds for a request for reconsideration are found in Rule 18.2 of the 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.
3In its reconsideration request, the respondent relies on the criteria from Rule 18.2(b). Specifically, the respondent argues that I misapplied the accepted legal test for determining whether collateral benefits are available for a benefit by:
i. applying a heightened standard of proof on the respondent on the first part of the test; and
ii. reversing the burden of proof from the applicant to the respondent on the second part of the test.
4The respondent further argues that I made an error of fact by finding that there was no evidence that a comprehensive and “detailed chronic pain report” was available through OHIP, specifically by failing to adequately consider a pre-accident OHIP-funded consultation with Dr. Mula (the “Mula report”).
5The respondent is seeking an order that I vary or cancel my determination as it relates to the issue of the chronic pain assessment and find that the chronic pain assessment is not required to be paid for by the respondent, pursuant to s. 47(2) of the Schedule.
RESULT
6The respondent’s request for reconsideration is denied.
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.
8I find that the respondent has not established grounds for reconsideration under Rule 18.2(b). I am not satisfied that the decision was based on an error of law or an error of fact such that I would likely have reached a different result had the alleged error not been made.
9Section 47(2) of the Schedule states:
Payment of a medical, rehabilitation or attendant care benefit … is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
10Under this provision, if the insurer shows that another plan (such as OHIP) provides the expense, it may not be required to pay that portion.
Alleged Error of Law: Application of a Heightened Standard
11The respondent highlights that in the decision I concluded it had not provided “compelling evidence” of OHIP coverage. According to the respondent, my use of the phrase “compelling evidence” suggests a higher threshold than the “some evidence” test set out in G.T. v. Unifund, 2017 CanLII 81567 (“G.T.”). It argues that once an insurer advances some indication or submission of alternative coverage, the burden shifts to the applicant to prove that the coverage is not, in fact, reasonably available.
12The respondent relies on G.T., which provides a two-step approach under s. 47(2):
i. First, the insurer must present some evidence or submission that, on balance, establishes that the benefit in question is reasonably available from the collateral insurer.
ii. Once the insurer has satisfied that threshold, the applicant must demonstrate why it is not reasonably available, whether because of inaccessibility, lack of equivalent scope, long wait times, or other limitations.
13The respondent submits that referring to “compelling evidence” in my original decision effectively imposed a heavier burden on the insurer than the “some evidence” standard and caused the decision to overlook the shifting of the onus to the applicant.
14The applicant disputes that a heightened standard was applied. They submit that “compelling evidence” is simply a way of describing the sufficiency of proof needed to show that OHIP would cover the exact assessment in question, including the multi‐disciplinary components and psychological counseling. The applicant argues that the Tribunal’s wording does not necessarily equate to an error in law and that G.T. itself contemplates that the insurer present sufficient detail to demonstrate coverage. The applicant submits that, even if the Tribunal used the phrase “compelling,” the insurer had not furnished adequate particulars that OHIP would provide the requested assessment in a comparable and timely manner.
15While G.T. provides a persuasive framework, it is not strictly binding on this Tribunal. I accept that an insurer’s defence is not necessarily limited to the four corners of its Explanation of Benefits (EOB), and that new information or arguments may arise during the course of a proceeding. However, the manner and timing in which an insurer raises a particular defence, such as the s. 47(2) defence here, can still be a relevant contextual factor. The applicant noted in their reply submissions in the written hearing that when the respondent denied the subject OCF-18, it failed to provide any information regarding the availability of such a service under OHIP in their EOB as the basis for its denial. While the s. 47(2) issue was ultimately argued by the respondent at the hearing, the initial omission from the EOB can be a consideration when assessing the overall circumstances and the clarity with which the respondent subsequently sought to meet its evidentiary burden on that point. It may, for instance, impact an applicant’s ability to proactively gather responsive evidence, though that is not the determinative issue here.
16I find that the respondent has not established an error of law under Rule 18.2(b). My use of the phrase “compelling evidence” was intended to reflect the quality and specificity of evidence required to demonstrate that the particular chronic pain assessment sought by the applicant post-accident was “reasonably available” through OHIP. It was not intended to impose a standard higher than requiring evidence such reasonable availability on balance. Regardless of the terminology, the core issue was whether the respondent had adduced sufficient evidence to meet its initial burden of showing that the specific, post-accident assessment, on balance, was reasonably available. As discussed further below, I found, and continue to find, that it did not. Therefore, even if my choice of words was imprecise, it did not constitute an error of law that would likely have led to a different result, as the fundamental assessment of the evidence regarding “reasonably available” remains unchanged.
17Because the respondent did not clear that first hurdle identified in G.T., the evidentiary burden never shifted to the applicant. No reversal of onus therefore occurred, and the applicant cannot be faulted for not producing further OHIP-availability evidence.
Alleged Error of Fact: Failing to Address Mula Report in Original Decision
18The respondent submits the Tribunal overlooked or did not address a pre‐accident, OHIP‐funded consultation with Dr. Mula (the “Mula report”). In the Mula report, the applicant was diagnosed with chronic lower back pain and degenerative disc disease and was provided a “multidisciplinary pain management plan.” The respondent points specifically to how the Mula report:
a. Reviewed the applicant’s pain history and functional limits,
b. Provided clear diagnoses and mention of degenerative disc disease,
c. Recommended multiple treatments (e.g., trigger point injections, nerve blocks, physiotherapy, hot/cold compresses, and medication adjustments), and
d. Suggested further ancillary care, including referrals if necessary.
19In its original submissions in the written hearing, the respondent’s reference to the Mula report was brief:
The Respondent submits that indeed, a chronic pain assessment was reasonably available through OHIP. Prior to the accident, the applicant was under the care of Dr Mula at Rivlin Pain Centre for her chronic pain.
20This was footnoted with a reference to the Mula report, without elaborating on its contents as potential evidence of a comparable, currently available assessment. The respondent significantly expanded on the details and alleged comparability of the Mula report in its reconsideration request, introducing arguments about its comprehensive nature that were not fully articulated at the initial hearing. Indeed, the original decision did not extensively analyze the substance of the Mula report precisely because the respondent’s submissions at the hearing did not hinge on the Mula report’s detailed contents but rather on the mere fact of pre-accident attendance at an OHIP-funded clinic.
21The applicant maintains the Mula report is insufficient because it predates the motor vehicle accident of September 22, 2020 and documents pre-existing conditions, not the new injuries or exacerbations from the accident for which the current chronic pain assessment (proposed February 7, 2022) is sought.
22In its original submissions, the respondent did point to an OHIP-funded chronic pain clinic the applicant attended pre-accident, and the Mula report was part of the record associated with this submission. My original decision addressed the substance of the respondent’s specific argument regarding the availability of an assessment from such a clinic. Paragraph [37] of my decision stated:
37Both parties agree that once an insurer demonstrates the availability of coverage under another insurance plan, the burden shifts to the applicant to prove that such coverage is not reasonably accessible. In this case, I find that the respondent has not met its burden. The insurer has not established that the assessment sought would be reasonably available through OHIP. The respondent points to an OHIP-funded chronic pain clinic that the applicant could have obtained the assessment from. However, the applicant had not attended this pain clinic since months before the accident.
23While paragraph [37] of my original decision did not explicitly name the Mula report, it directly addressed the substance of the respondent’s submission: the availability of an assessment from a clinic the applicant attended pre-accident. The Tribunal is not required to elaborate on every piece of evidence it considered, especially when the primary concern, as indicated in paragraph [37], related to the relevance of pre-accident attendance to post-accident availability.
24My concern was, and remains, primarily with the timing of the Mula report (dated January 3, 2020, over eight months before the September 22, 2020 accident, and over two years before the chronic pain assessment was proposed on February 7, 2022) and its relevance to establishing current reasonable availability for a post-accident assessment, rather than a detailed critique of its substantive content for pre-existing conditions.
25Even if I were to accept, for the sake of argument, that the Mula report contains sufficient elements that overlap with the chronic pain report now being sought (a level of detail largely argued for the first time on reconsideration), its existence eight months pre-accident does not, in itself, constitute sufficient evidence that a comparable and timely assessment for accident-related injuries was “reasonably available” through OHIP more than two years later. I interpreted and continue to interpret “reasonably available” to imply a practical and timely option for the specific post-accident needs of the applicant. The Mula report, being pre-accident and addressing pre-existing conditions, does not, by itself, establish that the applicant could realistically obtain a similar, comprehensive assessment for their new or exacerbated accident-related conditions through OHIP in a timely manner post-accident. The mere historical existence of a pre-accident report, addressing different circumstances and significantly predating the request for the current assessment, did not, in my opinion, satisfy the s. 47(2) threshold concerning the reasonable availability of the specific assessment sought post-accident.
26I have also considered the respondent’s reliance on Walters and Siomos. Both decisions involved evidence of publicly funded services obtained after the accident, so they do not assist where the only evidence here is a report completed months before the accident. Moreover, in Walters, the Tribunal noted that the EOB both invoked the MIG and stated that the proposed MRIs were covered by OHIP as the bases for denial. That is not the situation in the present matter, where the EOB denying the chronic pain assessment did not identify OHIP availability as a basis for the denial.
27Therefore, I do not find that I made an error of fact by failing to specifically name or dissect the Mula report in the original decision. My reasoning, as outlined in paragraph [37] of the original decision, addressed the core of the respondent’s argument regarding the pre-accident clinic. Even if I had explicitly discussed the Mula report’s contents as now detailed by the respondent, my conclusion would not have changed. The significant time elapsed, the pre-accident nature of the report, and the lack of evidence connecting it to the current, post-accident needs mean it does not sufficiently demonstrate that the specific chronic pain assessment requested was “reasonably available” through OHIP. Thus, even if an error in not explicitly mentioning the report by name could be construed, it is not an error “such that the Tribunal would likely have reached a different result had the error not been made,” as required by Rule 18.2(b). The respondent failed to meet its initial burden.
28For the reasons above, I find the respondent has not established an error of law or fact satisfying the criteria under Rule 18.2. Even if there was an error of law, the respondent has not persuaded me that the decision would likely have been different.
CONCLUSION & ORDER
29The respondent’s request for reconsideration is dismissed.
Christopher Yan
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 26, 2025```