RECONSIDERATION DECISION
Before: Gareth Neilson
Licence Appeal Tribunal File Number: 22-011011/AABS
Case Name: Edward Wackowski v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Jonathan Farine, Counsel
For the Respondent: Yann Grand-Clement, Counsel
OVERVIEW
1On 03/17/2025, the applicant/respondent requested reconsideration of the Tribunal’s decision dated 02/21/2025 (“decision”).
2The applicant was denied Non-Earner Benefits and physical therapy treatment, award and interest on the grounds that the applicant failed to meet the test for NEB and also did not prove that the treatment plan in dispute was reasonable and necessary.
3Licence Appeal Tribunal Rules: The 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 argues that I made an error in law or fact and did not properly consider all of the evidence in front of the Tribunal.
5The applicant seeks an Order from the Tribunal that the Applicant is entitled to a non-earner benefit in the amount of $185.00 per week from December 11, 2021 to November 12, 2023; to $1,574.48 for chiropractic and acupuncture treatments; to an award under s. 10 of Reg. 664 representing 40% of the benefits awarded; and to interest on all payments of benefits.
RESULT
6The applicant’s appeal is dismissed. No error in law or fact was made and therefore, the original decision stands.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The applicant has not be able to prove that I made a error in law or fact. The applicant’s arguments are rooted on the grounds that I did not properly weight their evidence. In fact all evidence was reviewed thoroughly, and has been again, and the arguments made by the applicant would not have changed my decision.
8No error in law or fact was made in the original decision. The applicant has pointed to certain reports that they believe would have changed my decision. That is not correct. I have reviewed all documents presented to the Tribunal and have determined that the respondents evidence deserved more weight. The applicant seems to argue that if I assigned more weight to their evidence, to that my decision would have been different. That is not correct and not grounds for a reconsideration request.
9In my decision regarding NEB benefits I noted the test found in Heath and that the applicant has not been able to prove that they have a complete inability to carry on a normal life. The evidence provided to the Tribunal proves this to be true. While I agree with the applicant that I put weight to the surveillance evidence provided, that showed the applicant completing activities that showed they did not complete inability to carry on a normal life, I am allowed to assign weight to evidence I find compelling and again that is not a reason for reconsideration.
10The test for the treatment plan in dispute was clearly laid out in my decision. The applicant failed to prove that based on a balance of probabilities that this treatment plan was reasonable and necessary. I reviewed all of the documents thoroughly and assigned more weight to the respondent’s evidence as it was more in-depth and compelling. That is not an error in law or fact, I was not compelled to agree that the applicant should be awarded the treatment plan in dispute.
11The applicant has not proven that I have made an error in law or fact and therefore, the application for reconsideration is dismissed in its entirety.
CONCLUSION & ORDER
12Upon considering the appeal of the applicant I have found no error in law or fact and therefore this request is dismissed.
Gareth Neilson
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 10, 2025