RECONSIDERATION DECISION
Before: Melanie Malach, Adjudicator
Licence Appeal Tribunal File Number: 23-009183/AABS
Case Name: Rowena Plourde v. Intact Insurance Company
Written Submissions by:
For the Applicant: Meghan Fyall, Counsel
For the Respondent: Olivia Hajdas, Counsel
OVERVIEW
1On May 15, 2025, the applicant requested reconsideration of the Tribunal’s decision dated April 24, 2025 (“decision”).
2Stemming from an accident on June 15, 2022, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Following a written hearing, I found that with respect to the preliminary issue in dispute, the applicant was barred from proceeding to a hearing on the three treatment plans dated June 18, 2022, June 18, 2022 and March 23, 2023, due to her failure to attend an insurer’s examination under s. 44 of the Schedule. I further found that the applicant was not entitled to the remaining treatment plans in dispute or attendant care benefits.
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 criteria cited by the applicant in support of her reconsideration request is Rule 18.2(b) and Rule 18.2(c).
5The applicant is requesting an order reversing my decision.
6The respondent opposes the applicant’s reconsideration request.
RESULT
7The applicant’s request for reconsideration is denied.
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.
Rule 18.2(b) – The Tribunal did not commit an error of law or fact
9The applicant submits that I made errors of law or fact which impacted my analysis. Specifically, the applicant submits that I erred by:
a. Applying s. 55 of the Schedule to the occupational therapy assessment treatment plan, dated June 18, 2022;
b. Applying s. 55 of the Schedule to the occupational therapy services treatment plans, dated June 18, 2022 and March 23, 2023;
c. Denying entitlement to the functional cognitive assessment treatment plan, dated August 23, 2023;
d. Denying entitlement to attendant care benefits; and
e. Denying entitlement to the treatment plans, dated June 18, 2022 and March 23, 2023 on a substantive basis.
Did the Tribunal make an error in law in determining the preliminary issue
10The preliminary issue before me was whether the applicant was barred from proceeding to a hearing on three treatment plans, two dated June 18, 2022 and one dated March 23, 2022, due to the applicant’s non-attendance at an insurer’s examination under s. 44 of the Schedule. I concluded that the Notice of Examination (“NOE”), dated May 11, 2023, in respect to all three treatment plans, was proper. As such, the applicant’s non-attendance at the s. 44 assessment barred her from proceeding to a hearing on these issues.
11The applicant in her reconsideration submissions claims that I made an error in law in finding that she is statute barred under s. 55(1)(2) of the Schedule. She submits that, following her reply submissions on September 12, 2024, the respondent removed her from the MIG on September 23, 2024. She advised the Tribunal of this removal on March 6, 2025. She claims that, as she was removed from the MIG following the submission deadline, relevant evidence was not before the Tribunal when submissions were made, which would have affected the result of my decision.
a. Treatment Plan, dated June 18, 2022 for an occupational therapy assessment
12I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to the treatment plan, dated June 18, 2022, for an occupational therapy assessment.
13The applicant submits that this treatment plan was partially approved by the respondent following the hearing submission deadline. According to the applicant, the respondent partially approved this treatment plan in the amount of $2,099.75 on October 15, 2024. She therefore submits that I made an error in law in finding that she was statute barred in respect to this treatment plan because the respondent subsequently partially approved it. The applicant therefore submits that an IE was no longer required to assess this treatment plan and thus s. 55 cannot be legally applied to bar entitlement.
14The respondent submits that the treatment plan in issue is not the same plan that was partially approved by the respondent. Both refer to an occupational therapy assessment, but the disputed treatment plan was submitted on June 23, 2022, and the treatment plan that was partially approved was submitted on October 2, 2024.
15Based on the applicant’s reply submissions, I find that the treatment plan dated June 18, 2022, was resubmitted and approved on October 3, 2024. However, the only treatment plan at issue before me is the one initially submitted on June 23, 2022. I have no jurisdiction over the treatment plan resubmitted on October 3, 2024, as it was not before me at the initial hearing. I find that the applicant has not established that I committed an error in law in my initial decision with respect to this treatment plan. I confirm that the NOE dated May 11, 2023 was proper and that the applicant’s non-attendance at the scheduled s. 44 assessment bars her from proceeding with her claim with respect to this treatment plan.
16For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration with respect to the treatment plan dated June 18, 2022, is dismissed.
b. Treatment Plans, dated June 18, 2022 and March 23, 2023 for occupational therapy services
17I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to the treatment plans, dated June 18, 2022 and March 23, 2023 for occupational therapy services.
18The applicant submits that I made an error in law in finding that she is statute barred by s. 55 of the Schedule, because the “reason” for the IEs was MIG determination, which is no longer in dispute. She further submits that I made an error in finding that the “reasons” provided, i.e., that the respondent reviewed clinical notes and records but cannot determine whether the injuries warrant the proposed treatment, were sufficient to comply with s. 44(5) of the Schedule.
19The applicant further submits that, following her removal from the MIG, it partially approved a new treatment plan for occupational therapy without an IE request. Therefore, it cannot be reasonably found that occupational therapy is reasonable and necessary in November 2024, but not in June 2022 and March 2023, when the applicant’s injuries were in the acute phase of recovery.
20The respondent submits that the applicant’s arguments are merely restating her arguments made in her original submissions. It submits that reconsideration is not an opportunity for a party to relitigate its position where it disagrees with the decision.
21The respondent further submits that the applicant was within the MIG at the time of the denial. It submits that, even if an applicant is removed from the MIG following written submissions, the respondent’s letter at the time of the denial, should it reference the MIG, would be compliant with s. 38(8) of the Schedule.
22I find the applicant has not shown that my decision regarding the NOE and its compliance with s. 44(5) of the Schedule is an error of fact or law. I find that, at the time the NOE was rendered, it provided a clear and sufficient reason to allow the applicant to make an informed decision whether to attend the IE examination. As stated in my decision at paragraph 18:
I find that the NOE specifically referenced the applicant’s medical condition and referred to specific documentation that it reviewed. The NOE also explained the reason for the assessment in relation to her medical condition and the benefits at issue. The respondent advised the applicant that upon review of the medical documentation, it required an independent assessor to determine the applicability of the MIG to determine whether the applicant’s injuries warrant the proposed treatment. I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule. I do not accept the applicant’s submission that the respondent failed to provide any specifics about the applicant’s medical condition as the respondent noted that the applicant’s injuries were minor. I further find that the respondent provided, the name, profession/designation, and specialty of the assessor as well as the date, time and location of the examinations.
23I find that, whether she was subsequently removed from the MIG or similar treatment plans are approved, the applicant has not established how these developments would challenge my decision that the NOE complies with s. 44(5) of the Schedule. The time for analysis of the NOE is the date it is rendered. The NOE was provided by the respondent based on the known circumstances at the time. Whether the respondent subsequently removes the applicant from the MIG or approves subsequent treatment plans is irrelevant to that determination. The key fact is that, following receipt of a compliant NOE, the applicant did not attend the s. 44 assessment to assess the MIG and the treatment plans. Subsequent adjusting of issues in the file does not retroactively affect the determination of whether the NOE was compliant.
24I find that the applicant’s request for reconsideration is an attempt to re-argue her case, and that the applicant is asking the Tribunal to re-weigh the evidence submitted at the initial hearing with respect to the NOE. A reconsideration is not an opportunity to re-argue one’s case.
25For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration with respect to the treatment plans, dated June 18, 2022 and March 23, 2023, is dismissed.
Did the Tribunal make an error in law in determining entitlement to the treatment plan, dated August 23, 2023?
26I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to the functional cognitive assessment treatment plan dated August 23, 2023.
27The applicant submits that I erred in finding that the respondent’s denial letter, dated September 11, 2023, was compliant with s. 38(8) of the Schedule. The applicant submits that the only reason provided by the respondent in its denial letter was that the applicant suffered a minor injury from the accident. The applicant argues that relying on MIG as a reason for denying a treatment plan when MIG is not in dispute is an error of both law and fact. The applicant submits that, as she was no longer in the MIG, the Tribunal was to determine if there were any other reasons provided outside of the MIG in the denial letter, and there was no reason provided at all.
28The respondent submits that, even if the applicant is removed from the MIG following written submissions, its letter at the time of denial, should it reference the MIG, would be compliant with s. 38(8).
29In line with the reasoning above regarding s. 44(5), I find that whether the applicant was subsequently removed from the MIG does not change my decision that the denial letter was compliant with s. 38(8) of the Schedule. The time for analysis of the denial letter is the date it is rendered. Whether the respondent subsequently removes the applicant from the MIG is irrelevant to that determination.
30For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration with respect to the treatment plan dated August 23, 2023, is dismissed.
Did the Tribunal make an error in law in determining entitlement to Attendant Care Benefits?
31I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to the attendant care benefits.
32The applicant submits that I made an error in law in finding that the respondent is not required to provide reasons for its denial of the attendant care benefits.
33At paragraph 73 of the applicant’s initial written submissions, she argued:
It is the applicant’s position that there is no denial of the Form 1 which contravenes s. 38(8) of the SABS, as not a single reason has been provided for the denial to date. The applicant requests that the Tribunal employ the consequences of s. 38(11), specifically that Intact cannot take a MIG position and that the Form 1 be approved.
34My finding in the decision at paragraph 37, states that, “I find that s. 38(8) of the Schedule does not apply to claims for attendant care benefits and therefore the applicant cannot rely on s. 38(8).” At paragraph 38, I state that, “I find that upon review of the evidence provided, the applicant had not provided any other evidence to support that attendant care benefits should be payable by the respondent.”
35The applicant argues that I held that the respondent is not required to provide a reason for denying attendant care benefits. She argues that she inadvertently relied on s. 38(8) instead of s. 42(3) in her submissions, and she submits that this section requires the respondent to provide the reasons for the denial.
36I find that I did not make an error in law and the applicant has not met the Rule 18.2 criteria. In my decision, I relied upon the applicant’s submissions that s. 38(8) applied to attendant care benefits, which it does not. It is not the role of the adjudicator to make the applicant’s case. Also, I did not state in the decision that the respondent is not required to provide a reason for denying the attendant care benefits.
37Upon review of the applicant’s submissions, she admits to relying upon the wrong section in her initial submissions and submits that the proper applicable section is s. 42(3) of the Schedule.
38The respondent submits that its notice letter in response to the Form 1 received on September 26, 2023, dated October 11, 2023, clearly notes that the applicant’s impairment, at that time, fell within the MIG (under “Additional specifications regarding your claim”). It submits that this is a valid medical reason.
39I find that the Form 1 was provided to the respondent on September 26, 2023. I find that the respondent’s letter dated October 11, 2023, was therefore not provided two-three months after receipt of the Form 1 as suggested by the applicant.
40Upon review of s. 42(3) of the Schedule and the respondent’s letter dated October 11, 2023, I agree with the respondent that this notice complies with s. 42(3) of the Schedule. Under “Additional specifications regarding your claim”, the respondent states that it received the Form 1 completed on April 18, 2023, and received on September 26, 2023. It further sets out the definition of a minor injury and that, based on the injuries reported by the applicant and the information on file, her impairment falls within the MIG. The respondent requested that two IE assessments be completed. I refer to my findings at paragraph 38 of my decision, where I find that the applicant has not provided any submissions with respect to her failure to attend the two scheduled IE assessments in contravention of s. 44 of the Schedule.
41For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration with respect to entitlement to the attendant care benefits is dismissed.
Did the Tribunal err in law by denying entitlement to the treatment plans dated June 18, 2022 and March 23, 2023, on a substantive basis?
42The applicant submits I made an error in law in denying entitlement to the treatment plans dated June 18, 2022 and March 23, 2023, on a substantive basis. She argues that these treatment plans ought to have been adjudicated on the merits. The applicant submits that, regardless of whether the NOE had proper reasons, the respondent acknowledged receipt of the treatment plan, dated June 18, 2022, on June 23, 2022, and the denial letter was provided on November 25, 2022. In addition, the treatment plan, dated March 23, 2023, was not denied until April 19, 2023. As such, the treatment plans are automatically payable after the 10th business day, based on s. 38(11) of the Schedule.
43The respondent submits that the timelines submitted by the applicant are not accurate. It submits that, with respect to the treatment plan, dated June 18, 2022, it was submitted on November 14, 2022, and denied by the respondent on November 25, 2022. With respect to the treatment plan dated March 23, 2023, it was submitted on April 4, 2023, and denied on April 19, 2023. The respondent submits that both plans were denied within the ten-day timeline prescribed in the Schedule.
44I find upon the evidence submitted by the respondent at Tabs 13 – 16 of its document brief that the treatment plan, dated June 18, 2022, was submitted on November 14, 2022, and denied on November 25, 2023. Similarly, the treatment plan, dated March 23, 2023, was submitted on April 4, 2023, and denied on April 19, 2023. I find that the treatment plans were responded to within 10 business days and therefore are not payable pursuant to s. 38(11) of the Schedule.
45I do not accept the applicant’s argument that I made an error of law or fact by not assessing these treatment plans on a substantive basis. The preliminary issue in dispute dealt with these treatment plans. Having found that the applicant did not comply with s. 44 of the Schedule, there was no basis to assess them on a substantive basis.
46For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration with respect to entitlement to the treatment plans dated June 18, 2022 and March 23, 2023, is dismissed.
Rule 18.2(c) – The applicant has not provided evidence that was not before the Tribunal when rendering its decision
47I find that the applicant has not established grounds for reconsideration based on Rule 18.2(c).
48There are three components to Rule 18.2(c) that a party requesting reconsideration under this rule must satisfy. First, there must be evidence not before the Tribunal when rendering its decision. The party must also demonstrate that the evidence could not have been previously obtained, and finally, the evidence would likely have affected the Tribunal’s decision result.
49The applicant submits that following her reply submissions for the written hearing on September 12, 2024, the respondent removed her from the MIG on September 23, 2024. She advised the Tribunal of this removal by letter dated March 6, 2025. She claims that, as she was removed from the MIG following the submission deadline, relevant evidence was not available when her submissions were made. In turn, this evidence was not before the Tribunal, and, it would have affected the result of my decision.
50I find that I reviewed the applicant’s letter dated March 6, 2025, wherein she advised that MIG was no longer an issue and that several treatment plans were resolved. Therefore, the information that the applicant was no longer in the MIG was available to me when I made my decision. The standard under Rule 18.2(c) is new evidence, not new submissions. While the applicant has made new submissions in her reconsideration submissions that were not made in her initial submissions, I do not find that these submissions have affected my previous decision. The applicant’s new submission is that because she was subsequently removed from the MIG, the Tribunal could not rely on this for determining if the NOE was non-complaint. However, as stated above, I do not find these submissions persuasive.
51For these reasons, I do not find that the applicant has met the test for reconsideration under Rule 18.2(c).
ORDER
52For the reasons set out above, the applicant’s request for reconsideration is denied.
Melanie Malach Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: July 11, 2025