RECONSIDERATION DECISION
Before:
Michael Beauchesne, Adjudicator
Licence Appeal Tribunal File Number:
22-013392/AABS
Case Name:
Azhar Ali v. Aviva General Insurance
Written Submissions by:
For the Applicant:
Haider Bahadur, Counsel
For the Respondent:
Michael Chadwick, Counsel
OVERVIEW
1On January 25, 2025, the respondent requested reconsideration of the Tribunal’s decision dated December 30, 2024 (“decision”).
2The decision was released following a written hearing. The issues before the Tribunal included the applicability of the Minor Injury Guideline (“MIG”), a treatment plan (“OCF-18”) for chiropractic services, a non-earner benefit (“NEB”), interest and an award. The decision determined that the applicant remained in the MIG and was not entitled to the OCF-18 or interest. The decision similarly dismissed the applicant’s award claim.
3The Tribunal did, however, order the NEB claim payable with interest, starting on January 27, 2022. The Tribunal found that section 36(6) of the Schedule applied because the respondent failed to provide the medical and any other reasons for the Insurer’s Examination (“IE”) as required by section 44(5) of the Schedule. For context, the applicant’s arguments focused exclusively on technical and procedural aspects that centered on the sufficiency of the respondent’s notices per sections 36(4), 38(8), and 44(5) of the Schedule.
4The grounds for a reconsideration request are found in the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”) at LAT Rule 18.2. 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.
5In this case, the respondent is arguing that criteria (b), as outlined in LAT Rule 18.2, applies.
6The respondent requests that the Tribunal’s decision be cancelled, and a finding made that the applicant is not entitled to an NEB. The applicant seeks an order to dismiss the respondent’s request for reconsideration.
RESULT
7The respondent’s request for reconsideration is granted in part. While I decline to cancel the Tribunal’s decision, I vary the decision to find that the applicant is not entitled to an NEB or interest.
ANALYSIS
8The test for reconsideration under LAT 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 LAT Rule 18.2.
LAT Rule 18.2(b): The respondent has established that the Tribunal made an error of law pertaining to the NEB, such that it would likely have reached a different result had the error not been made.
9I find the respondent has established an error of law in the Tribunal’s decision about the NEB that would likely have led to a different outcome had the error not been made.
Positions of the parties.
10The respondent submits that the Tribunal’s interpretation of the Schedule produced an absurd result. Specifically, the respondent says the Tribunal erred in law by requiring payment of the NEB due to non-compliance with section 44(5) of the Schedule without the applicant having been substantively entitled to NEB. The respondent also argues that, based on the reasons provided in the Tribunal’s decision, it would not have had to pay the NEB if it did not require the applicant to undergo the IE.
11The respondent also says the Tribunal erred in law because it gave no consideration to section 33(6) of the Schedule, which would disentitle the applicant to benefits during the period he failed to comply with its request for medical documentation. The respondent adds that the Tribunal did not consider the fact that non-compliance with section 33 may result in an insurer not being able to provide any medical reasons as a result of a lack of medical documentation.
12The respondent goes on to say that the Tribunal also erred in law by giving no consideration to section 37(2)(f) of the Schedule, which provides that an NEB may be denied for reasons other than a medical reason, including a failure to provide documents per section 33 of the Schedule. The respondent relies on Varriano v. Allstate Insurance Company of Canada, 2023 OCNA 78 to support its position that the requirement for “medical and other reasons” set out in section 44 of the Schedule should be interpreted in its joint and several sense, such that a medical reason is not strictly required where a non-medical reason exists for denial.
13The applicant argues that reconsideration is not warranted in this case because the respondent is attempting to re-litigate its arguments from the written hearing. The applicant reiterates his argument—made in his hearing submissions—that the OCF-3 he produced was enough to show he met the NEB test at section 12(1) of the Schedule, and he therefore reasons that he was entitled to the NEB regardless of whether the Tribunal erred because the result would have been the same.
Did the Tribunal err in law by applying section 36(6) of the Schedule without considering the applicant’s non-compliance with the section 33 request for documents?
14I find the respondent has shown that the Tribunal did not consider the section 33 request in applying section 36(6) of the Schedule, which constitutes an error of law that, had it not been made, would likely have produced a different result.
15I observe that, at paragraph 33 of the decision, the Tribunal acknowledges the respondent’s position that the applicant did not respond to a section 33 request made in February 2022, as well as multiple subsequent requests made up to July 2022. In my view, these references establish that the Tribunal was alive to the respondent’s concerns about its requests for information and the applicability of the applicant’s non-compliance as alleged by the respondent. Then, at paragraph 36 of the decision, the Tribunal finds the respondent’s February 2022 section 33 request was not reasonable because the applicant’s ability to provide informed consent was frustrated by the absence of the disclosure period for much of the requested information. As such, the Tribunal reasoned that the applicant was not required to comply with the section 33 request, and the Tribunal weighed this accordingly.
16However, later in that same paragraph, the Tribunal ultimately finds the respondent subsequently cured its deficient section 33 request on April 29, 2022. I find the Tribunal erred by failing to apply this finding in its section 36(6) analysis. Had it done so, the Tribunal would have concluded, in accordance with section 33(6) of the Schedule, that the respondent is not liable to pay an NEB for any period the applicant fails to comply with the section 33 request. Given that the period of the applicant’s NEB claim starts in July 2022 (i.e., after the respondent had cured its deficient section 33 notice), I find the Tribunal likely would have reached a different result had this error not been made.
17As relief, I am providing a fulsome analysis and a determination of the applicant’s compliance with the respondent’s section 33 request based on the written submissions and evidence filed for the original written hearing.
The applicant has not shown he complied with the respondent’s request for information under section 33 of the Schedule.
18I find the applicant has not complied with the respondent’s request for information per section 33 of the Schedule. Consequently, per section 33(6) of the Schedule, the respondent is not liable to pay an NEB during the period of the applicant’s non-compliance.
19The applicant submits, at paragraph 24 of his written submissions, that the respondent’s decision to request section 44 Insurer’s Examinations (“IE”) nullifies the section 33 requests it made per section 36(4)(c) of the Schedule. The applicant supports his interpretation by referencing the two available outcomes to a section 33 request provided at section 36(5) of the Schedule: (1) pay or deny the benefit; or (2) provide a notice that it requires an IE.
20The respondent submits that requesting and obtaining an IE does not nullify a section 33 information request. The respondent argues that the applicant did not comply with any of its section 33 requests, and that it may seek an IE to determine the applicant’s entitlement to an NEB despite the applicant’s non-compliance with providing the information it requested. The respondent emphasizes that it has a duty of good faith to the applicant, and that if the section 33 request for medical documents is ignored, then obtaining an IE is a way for the respondent to determine benefit entitlement. The respondent adds that the applicant has not provided any explanation as to why the medical documents he produced after the case conference could not have been obtained in a timely way to comply with the section 33 requests.
21I am persuaded that the applicant has not met his onus to show he complied with the respondent’s section 33 request onwards from April 29, 2022. His written submissions did not lead arguments or evidence to demonstrate compliance. I further find the provisions at section 36(5) are only triggered once the applicant complies with a section 33 request, and therefore bear little on this matter because the applicant has not demonstrated compliance. Similarly, I am not persuaded that the respondent nullified its section 33 request by issuing an IE notice. In my view, the respondent’s position that it can avail itself of a section 44 IE as well as a section 33 request is more reasonable given the duty of good faith it owes to the applicant.
22Section 12(3)(c) provides that an insurer is not liable to pay NEB for more than 104 weeks after the accident. The parties agree the accident occurred on July 30, 2021. This means the applicant’s eligibility window to be paid an NEB extends up to July 30, 2023. Given that the applicant is disputing his NEB claim onwards from July 19, 2022, and has not shown compliance with the respondent’s section 33 request from this point up to at least August 2023 when the case conference convened, I find he is not entitled to an NEB.
23I find it unnecessary to address the remaining arguments put forward in the respondent’s reconsideration submissions because NEB entitlement is the basis of the respondent’s reconsideration request and I have determined the applicant is not entitled to an NEB.
Application of LAT Rule 18.4.
24I vary the Tribunal’s decision to find the applicant is not entitled to an NEB.
25Rule 18.4 establishes that, 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.
26Having reviewed the submissions of the parties and reconsidered the Tribunal’s decision, I am satisfied that the respondent has established grounds for reconsideration. I also conclude that the respondent has shown I should exercise my discretion under LAT Rule 18.4 to vary the Tribunal’s decision that the applicant’s NEB claim is payable with interest, starting on January 27, 2022. I find the most reasonable way to proceed is to vary this part of the decision and reverse my finding that the applicant is entitled to an NEB with interest.
27For the above reasons, I vary the Tribunal decision dated December 30, 2024. The applicant is not entitled to an NEB, nor interest.
CONCLUSION & ORDER
28The respondent’s request for reconsideration is granted in part. While I decline to cancel the decision, I vary the decision to find that the applicant is not entitled to an NEB or interest.
Michael Beauchesne
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 10, 2025