Alcinda Douglas v. Wawanesa Mutual Insurance Company, 2025 CanLII 58812

Citation: Douglas v. Wawanesa Mutual Insurance Company, 2025 ONLAT 22-011982/AABS-R

RECONSIDERATION DECISION

Before: Tanjoyt Deol

Licence Appeal Tribunal File Number: 22-011982/AABS

Case Name: Alcinda Douglas v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Jacob Aitcheson, Counsel

For the Respondent: Catherine Korte, Counsel

OVERVIEW

1On February 10, 2025, the applicant requested reconsideration of the Tribunal’s decision dated January 20, 2025 (“decision”).

2Following a written hearing, I issued the decision. In the decision, I found that the applicant was partially entitled to the treatment plan (“OCF-18”) for home modifications and devices. Specifically, I found the proposed relocation of the fridge was reasonable and necessary. However, I found that the remaining rehabilitation benefits outlined in the OCF-18 were not reasonable and necessary.

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 reconsideration pursuant to Rule 18.2(b). She argues that I made errors of fact and law in my determination with respect to the location of the garage, the installation of new flooring, electrical rewiring and drywall replacement, and the addition of a therapy room, furnace, and water heater. She takes the position that if I had not made these errors, I would likely have reached a different result. Specifically, the applicant requests that the decision be varied to approve the construction of the garage as she proposed, installation of new flooring, the installation of electrical rewiring and drywall replacement and a construction of the therapy room.

5Alternatively, the applicant seeks a re-hearing of the issues in dispute.

6The respondent argues that I did not make any error of fact or law in my determination that would have impacted the result. It further argues that the applicant’s request should be dismissed, because it is an attempt to re-litigate the issues.

RESULT

7The applicant’s request for reconsideration is dismissed.

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.

The applicant has not demonstrated that I made errors of fact or law that I would likely have reached a different result had the errors not been made

(a) Location of the Garage

9I find that the applicant has not established that I made an error of law in determining that I did not have jurisdiction under section 280 of the Insurance Act, R.S.O. 1990, c. I.8 (“Insurance Act”), to determine whether building the garage at the front of the house would encroach onto municipal property.

10At the initial written hearing, as noted at paragraph 52 of the decision, the parties agreed that a garage needed to be constructed, and the issue arose over the location of the garage. The applicant’s expert, Mr. Steve Thomas, estimator, recommended that the garage be built at the rear of the property. Meanwhile, the respondent’s expert, Mr. David Borthwick (construction engineering technologist) recommended that the garage be built at the front of the home. Notably, at paragraph 54 of the decision, I determined the following:

I find that the applicant has not demonstrated that it is reasonable and necessary for the garage to be built at the rear of her home as result of accident-related impairments. I acknowledge the parties’ extensive submissions with respect to whether the building of the garage at the front of the home will encroach the municipal property. However, I have no jurisdiction under s. 280 of the Insurance Act, RSO 1990, c I.8, to determine this issue. Instead, as mandated under s. 280, I have to determine whether the proposed building of the garage at the rear of the property is reasonable and necessary based on the applicant’s accident-related impairments. The applicant made no specific submissions on why the garage has to be built in the rear of the home due to her accident-related impairments. While Mr. Thomas indicated that the garage should be built towards the rear of the property, his report was silent on the basis of doing so. Thus, I find that the applicant has not demonstrated that the placement of the garage at the rear of the property is reasonable and necessary.

11The applicant argues that I made a significant error of law when I held that I did not have jurisdiction under section 280 of the Insurance Act to consider and weigh the fact that building the garage in front of the applicant’s property (as proposed by the respondent) would encroach upon municipal property. She argues that she provided a copy of the Property Index Map and an aerial view of her property in her hearing submissions which show that the area on which the respondent proposed to construct the garage is not owned by the applicant. As a result, the applicant argues that, if I had exercised my jurisdiction, I would have ruled in favor of the applicant because the respondent proposed the impossible.

12The respondent argues that I correctly determined that I do not have jurisdiction under section 280 of the Insurance Act to consider whether building the garage at the front of the property would encroach onto municipal property. Further, the respondent argues that, even if I had jurisdiction, I made no errors because the report prepared by Mr. Thomas was silent on why the garage had to be built at the back of the property, as I noted at paragraph 54 of my decision.

13I find that I made no error of law at paragraph 54 of the decision where I determined that, under section 280 of the Insurance Act, I have no jurisdiction to determine whether building the garage at the front of the house would encroach onto municipal property. Rather, as noted at paragraph 54 of the decision, I was mandated under section 280 of the Insurance Act to determine whether building the garage at the rear of the property (as proposed by the applicant) was reasonable and necessary based on the applicant’s accident-related impairments.

14To start, I acknowledge the applicant’s position that such an interpretation is too high a burden of proof and contrary to the consumer protection principles of the Schedule. I disagree. This is because section 16(1) of the Schedule states that the test to determine whether rehabilitation benefits are payable is that they have to be reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into her family, society, and the labour market. Therefore, I disagree that my ruling places too high of a burden on the applicant, as the test under section 16(1) of the Schedule is focused on the reasonable and necessary nature of the proposed expenses in relation to the applicant’s accident-related impairments.

15I also find that the applicant has not established that I made an error of law in determining that I had no jurisdiction under section 280 of the Insurance Act, because she has not referred me to any section of the Insurance Act, the Schedule or binding case law that establishes that I have jurisdiction to determine the issue of encroachment onto municipal property. Rather, the applicant relies on S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT) (“S.M”), and Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615 (“Stegenga”), cases that do not assist her position.

16In S.M. at paragraph 40, the adjudicator in that decision determined that it was outside of her jurisdiction to evaluate compliance with building standards, but that when she was assessing whether the stair lift installation as proposed was reasonable, she would consider whether the proposed installation was lawful and compliant with construction standards. I am not bound by previous Tribunal decisions and S.M. is distinguishable from the dispute before me because the parties in that case disagreed whether it is reasonable and necessary for the applicant to have an elevator or a stair-lift installed. Meanwhile, in the matter before me, the parties agreed that building a garage was reasonable and necessary, but the location was the issue, which I noted at paragraph 52 of the decision. In other words, in S.M., there was a dispute over which modification was more reasonable and necessary, in contrast, in the matter before me, there was no dispute over the reasonableness and necessity of the garage, but only the location.

17For this reconsideration, the applicant has not addressed how the issue of constructing a stair lift is akin to the issue of whether building the garage onto the front of the property will encroach onto municipal property.

18Next, though I am bound by Stegenga, I find that this authority does not support the applicant’s position. In Stegenga, the Court of Appeal for Ontario dealt with the question of whether a claim for an insurer’s bad faith conduct in dealing with a claim under the Schedule could be pursued in the courts through a civil proceeding or through the LAT. The applicant argues that this authority supports her position that the wording of section 280 of the Insurance Act covers a wide array of disagreements, and that it is the facts giving rise to the dispute that determine which forum has jurisdiction. In my view, Stegenga does not stand for the proposition that a legal characterization of a wrong will never be of assistance in determining whether the LAT has jurisdiction. Rather, the court endorsed the motion judge’s conclusion that it is the facts giving rise to the dispute, rather than the legal characterization of the wrong that determines whether the Tribunal or the courts had jurisdiction, as determined in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), at para. 49. However this was in relation to the particular factual scenario before it (i.e., whether the courts or the LAT have jurisdiction over bad faith claims). In my view, the key finding in Stegenga, drawn from Weber was whether the dispute, viewed with an eye to its essential character, falls within the jurisdiction of the tribunal as set out in s. 280 of the Insurance Act (see paragraph 64).

19Here in the matter before me, when viewed with an eye to its essential character, it does not fall within the jurisdiction of the Tribunal as set out in s. 280. This is because entitlement to the garage was not in dispute as noted at paragraph 52 of the decision. The only dispute before me was whether building the garage at the front of the property would encroach onto municipal property. Moreover, the parties neither at first instance nor reconsideration raised the issues of whether the cost of the garage was in dispute. Rather as noted at paragraph 52 of the decision, the only dispute between the parties was the location of the garage. Therefore, as neither entitlement nor the amount were in dispute, I find when this dispute is viewed with an eye to its essential character, the dispute is not within the jurisdiction of the Tribunal as set out in s. 280. I accept that s. 280 covers a wide array of disagreements, as determined in Stegenga, however I find that it does not cover municipal or zoning issues, which was the dispute before the Tribunal. In short, I find that the applicant has not established that I committed an error of law in determining that I have no jurisdiction to determine the encroachment of the municipal property.

20Regardless of my findings about jurisdiction, I found that the applicant had not met her onus because she made no specific submissions, and her expert report was silent on why the garage had to be built at the rear of the property. As noted at paragraph 54 of the decision, I considered whether building the garage at the rear of the property was reasonable and necessary for the applicant’s impairments, which the Tribunal does have jurisdiction over. I see no error of law or fact in determining that I had no jurisdiction over encroachment, but rather I had jurisdiction over whether it was reasonable and necessary based on the applicant’s accident related impairments.

(b) Installation of new flooring

21I find that the applicant has not met her onus in establishing that I made an error of fact in my determination that the installation of new flooring in the foyer, office, kitchen, laundry room, master bedroom, craft room, living room, and back hall was not reasonable and necessary.

22The applicant argues that I made an error of fact when I determined that the applicant’s uneven and inconsistent flooring did not pose a tripping/falling hazard. She argues that there is a “commonsense inference” that can be drawn from the evidence, including, but not limited to: “the applicant’s mobility issues, her reliance on assistive devices, and other evidence of the applicant’s issues with transversing on inconsistent and uneven surfaces.” She further argues that my finding that the current flooring does not pose a tripping/falling hazard is “unsound and unjustifiable”, and that I made an inference against her that there was no evidence of her falling or tripping as a result of the uneven flooring within her home.

23I find that the applicant has not established that I made an error of fact. At paragraph 15 of the decision, I determined that the applicant had not demonstrated the need for new flooring, because she had not demonstrated that that the current flooring posed a tripping/falling hazard. Rather, I find the applicant’s argument on this point in her reconsideration submissions are an attempt to re-litigate my findings. This is not the purpose of the reconsideration process.

24At paragraph 11 of the decision, I noted that the applicant argued that she had a catastrophic right leg compound fracture, and, as a result, she used mobility devices both inside and outside the home, and that she argued that the current flooring in her home increased the risk of tripping and falling. At paragraphs 16 and 18 of the decision, I weighed the evidence from Mr. Thomas and Ms. Blackwell, and I placed less weight on their reports for the following reasons. First, neither provided a compelling rationale on how the uneven flooring increased the applicant’s risk of falling and tripping. Second, Ms. Blackwell provided no specifics between the connection of the applicant’s impairments, the uneven flooring, and the increased risk. Third, there was a limited rationale by Ms. Blackwell of how the applicant’s mobility aids increased the risks of tripping and falling. Fourth, they did not address how uneven the flooring was. Further, Ms. Blackwell observed the applicant walking indoors, and there was no mention of her falling/tripping or having difficulties with navigation because of the uneven flooring (other than the outdoor ramp which was not in dispute). Therefore, I find that the applicant’s argument that an inference can be drawn is an attempt to re-litigate the weight assigned to the evidence, which is not the purpose of the reconsideration process.

25Further, the applicant has not referred me to evidence that demonstrates that I made an error of fact in concluding that the new flooring was not reasonable and necessary. Rather, the applicant largely relies upon the Functional Abilities Evaluation Report, dated February 1, 2023, completed by Dr. Zachary Bain, chiropractor, which she relied on at the initial hearing. I acknowledge that Dr. Bain opined that the applicant’s gait became increasingly antalgic throughout the walking test, she required rest, and she was precluded from attempting stair climbing, balance, kneeling and crouching tests. However, Mr. Bain did not address whether the applicant’s current flooring caused the applicant’s gait to become antalgic, that she required rests because of the flooring, nor did Mr. Bain addressed how the applicant being unable to do balance tests affected her ability to navigate through her home with the current flooring.

26The applicant’s remaining submissions are largely a recitation of her submissions at first instance. I find that she is largely attempting to relitigate the Tribunal’s findings, which is not the purpose of a reconsideration. The reconsideration process is not meant to be a reweighing of the evidence presented at first instance. For example, the applicant argues that Mr. Dan Gauthier, occupational therapist, acknowledged the applicant’s difficulty with transversing uneven surfaces, as he deemed rolling the lawn and pouring a concrete floor in the basement as reasonable and necessary. However, this submission was already addressed in the decision at paragraph 21, where I determined that the question of the unrolled lawn and a deteriorated basement floor was a separate consideration, and there was no suggestion that these surfaces are the same as in the main floor of the home.

27Moreover, the applicant’s argument that I wrongly distinguished the dangers posed by the uneven flooring in the main floor of the home from that of the lawn and basement are an attempt to re-litigate my findings, as indicated above. The applicant has not referred me to any evidence that establishes that I made an error of fact at paragraph 21 of my decision.

28I do not concur that my finding with respect to the current flooring not posing a tripping and falling hazard is unsound and unjustifiable. In paragraphs 16 to 20, I provided reasons on why the applicant had not satisfied me, on a balance of probabilities, that the current flooring posed a tripping and falling hazard. In essence, I placed less weight on the reports of Ms. Blackwell and Mr. Thomas for the reasons outlined above at paragraph 24 and placed more weight on the report of Mr. Gauthier because his opinion was supported by the observations of the applicant having functional mobility in the rooms where the flooring is in dispute. In short, I weighed the evidence of the various experts and provided reasons on what weight I placed on the various reports.

29With respect to the argument that I allegedly made an inference against the applicant, I disagree. As noted at paragraphs 16 and 18 of the decision, one of the reasons why I placed less weight on Ms. Blackwell and Mr. Thomas’s reports were because the applicant did not advise that she had fallen from the uneven flooring, and that there was no mention of the applicant tripping/falling during the assessment. In short, I disagree that I made an inference against the applicant, and instead find that I outlined the reasons why I preferred the evidence that I did.

30Further, I did not conclude that only if the applicant had fallen would then the installation of new flooring be reasonable and necessary. Rather, I considered the lack of evidence with respect to the applicant advising that she had fallen from the uneven flooring, and that there was no mention of the applicant tripping/falling during the assessment. As indicated at paragraph 24 above, there were other reasons on why I placed less weight on the applicant’s evidence, and I did not draw an inference against the applicant, but rather provided reasons why I placed less weight on this evidence.

(c) Electrical rewiring and drywall replacement

31I find that the applicant has not established that I made an error of law or fact in arriving at my conclusion that re-wiring and replacing the drywall was not reasonable and necessary.

32The applicant’s reconsideration submissions on why the electrical rewiring and drywall replacement are reasonable and necessary amount to an attempt to raise new arguments for the first time. Notably, at paragraph 24 of the decision, I noted the applicant relied on Mr. Thomas’s report, and, at paragraph 26 of the decision, I provided reasons on why the applicant had not met her burden. Significantly, I noted that the applicant, in her own submissions, provided no connection between her accident-related impairments and the proposal to re-wire and drywall her home, nor did she refer me to evidence to support this connection. Now the applicant argues that the proposed rewiring and drywall replacement are necessitated by the other proposed home modifications, which was never raised at first instance.

33The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could have made, but did not, during the hearing. Parties are expected to put their best foot forward when first called to do so. The applicant had an opportunity to address this argument in her hearing submissions, but she did not do so. The applicant has provided no explanation on why this argument could not have been raised with her initial hearing submissions. Therefore, I will not consider these new arguments raised by the applicant.

(d) The addition of a therapy room, furnace, and water heater

30I find that the applicant has not established that I made an error of fact or law in my determination that the proposed addition of a therapy room, furnace, and water heater was not reasonable and necessary.

31The applicant raises no arguments on reconsideration with respect to my determination that the proposed recommendation to relocate the furnace and water heater to the addition was not reasonable and necessary. Instead, the applicant argues that I applied the wrong criterion during my analysis when, at paragraphs 33 and 37, I determined that the cost of the therapy room was “excessive”. She argues that cost is not a proper criterion under the Schedule to evaluate home modifications, and that, instead, the test is whether the modifications are reasonable and necessary to address her impairments or to facilitate her rehabilitation.

32At paragraphs 32 to 35 of the decision, I determined that the proposed cost of $170,000.00 to build a therapy room was “excessive”, because the addition was proposed to store one therapy bike. I further found that the applicant had not referred me to evidence to support that her office was not large enough to house the bike, that neither Mr. Thomas nor Ms. Blackwell addressed whether there was an alternative room to house the bike, and that Ms. Blackwell provided an insufficient rationale on why the bike had to be moved from its current location.

33I disagree with the applicant that cost is not a proper criterion under the Schedule to evaluate home modifications, because cost is part of the analysis under section 16(1) to determine whether the addition was reasonable and necessary for the applicant’s accident-related impairments. Otherwise, if the applicant’s interpretation was accepted, it would lead to an absurd result where cost would never be factored into the reasonable and necessary analysis, other than to determine whether it was more reasonable to purchase a new home. If the legislature intended for costs to be only considered with respect to determining whether purchasing a new home was cheaper, as argued by the applicant, then it would have been explicitly stated. Rather, section 16(3)(i) states that the purchase of a new home could be considered if it was more reasonable than renovating the current home. However, section 16 does not state that costs will not be considered, unless it is respect to a purchase of a new home. Rather, if the costs associated with purchasing a new home are more reasonable than renovations, that route can be taken.

34Moreover, I note that the Tribunal has routinely considered the cost of a treatment plan in determining whether the medical benefits proposed are reasonable and necessary under section 15 of the Schedule, and I see no reason why the same cost analysis wouldn’t be used for determining rehabilitation benefits under section 16. I also note that, in her initial hearing submissions, the applicant did not dispute the respondent’s argument with respect to the costs being excessive, and she argued that her house was not large enough to house the therapy bike, and therefore she needed the addition to store it. In short, the applicant has not established that I applied the wrong criterion, and, therefore, I find that no errors or law or fact in considering the cost of the proposed plan.

35The applicant also argues for the first time that the therapy room is crucial for her ongoing treatment and safety, which I find is a new argument raised at reconsideration. I addressed the applicant’s arguments for entitlement at the initial hearing. These arguments included her reliance upon Ms. Blackwell’s report, that her office was not large enough to store the bike, that Mr. Gauthier did not provide a medical or other explanation on why the addition is not reasonable and necessary, and her reliance upon the authority of S.M., where it was held that a therapy room would afford the applicant space and ability to engage in exercises in the convenience of her home. From paragraphs 33 to 37, I provided reasons on why I disagreed with the applicant’s position. The applicant has provided no explanation on why this new argument that the room is crucial for her ongoing treatment and safety was not raised at first instance, and as such, I will not be considering this new argument.

CONCLUSION & ORDER

34The applicant’s request for reconsideration is dismissed.

Tanjoyt Deol

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal