RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-002066/AABS
Case Name: Maria Salvaggio v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Julia Vilorio Peguero, Counsel
For the Respondent: Mai Nguyen, Counsel
OVERVIEW
1On April 21, 2025, the applicant requested reconsideration of the Tribunal’s decision released March 24, 2025 (“decision”).
2Stemming from an accident on December 25, 2016 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties participated in a two-day videoconference hearing. In the decision, the adjudicator found the applicant was not entitled to a non-earner benefit (“NEB”), nor was she entitled to the nine treatment plans in dispute. The applicant’s requests for interest and an award were also denied.
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 relies on Rule 18.2(b) to support her request for reconsideration. She is seeking an order finding that she is entitled to the NEB, as well as six of the nine disputed treatment plans. The applicant does not appear to contest the denials of issues 5, 6, and 7 from the decision.
5The respondent asks the Tribunal to dismiss the request for reconsideration.
RESULT
6The applicant’s request for reconsideration is dismissed.
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. I find the applicant has not met this onus.
Non-Earner Benefit
8I find the applicant has not shown that the adjudicator erred by concluding that she did not dispute the NEB denial within the two-year limitation period set out in s. 56 of the Schedule.
9Briefly, the adjudicator found that the applicant’s claim for an NEB was denied on March 17, 2017, as the letter noted that—despite providing an OCF-3 that supported entitlement—s. 12(3) of the Schedule barred her from receiving any NEB payments until she was 18 years old. With a valid denial, the adjudicator concluded that the applicant’s decision not to file her application with the Tribunal until February 15, 2024 meant she did not comply with the limitation period. The adjudicator also denied her request to extend the limitations period based on s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”). The adjudicator found, in part, that the prejudice caused by the delay leaned against granting this relief.
10The applicant contends that the adjudicator erred in two ways. First, the applicant claims that the respondent’s March 17, 2017 letter is not “a clear and unequivocal denial for the NEB”, as it does not comply with the standard set out in Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”). Second, as she was only 15 years old at the time of the accident, the applicant claims it was unreasonable to require her to dispute the denial before the NEB was even payable. She cites D.C. v. TD Insurance Meloche Monnex, 2023 CanLII 77319 (ON LAT) (“D.C.”) in support of this latter argument.
11The respondent opposes this position, claiming that the adjudicator has already considered and rejected the applicant’s arguments about the sufficiency of the denial letter. It also claims that her s. 56 analysis is consistent with Tribunal case law, e.g., Weathers v. Toronto Transit Commission Insurance Company Limited, 2021 CanLII 43538 (ON LAT).
12In reply, the applicant challenged the relevance of the respondent’s case law.
13To start, I find the applicant has not established an error of fact or law as it relates to the adjudicator’s finding that the March 17, 2017 letter constituted a valid denial. The adjudicator considered the contents of the letter at paragraph 20, and, aside from disagreeing with the result, the applicant has not identified any specific errors with this analysis. I also note that the adjudicator referred to Smith when summarizing the applicant’s position at paragraph 16—a sign that the adjudicator turned her mind to the relevant legal test. As noted above, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision.
14Turning to the argument about D.C., I note that the adjudicator considered this decision in her reasons at paragraph 24. Specifically, when assessing the applicant’s request to extend the limitations period, the adjudicator noted that the holding in D.C. suggests that the “payment of the NEB ought to have been deferred until [the applicant] reached the age of 18 on May 18, 2019.”
15I do note that there is little other analysis about D.C. in the decision. Yet, aside from the fact that the adjudicator was not bound by this Tribunal decision, the applicant has not shown how her assessment of this prior case constitutes an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. Further, even if May 18, 2019 was accepted as the correct denial date, there is no explanation for why she did not file her application with the Tribunal until over four years later in February 2024. Either way, the adjudicator’s conclusion that there was a breach of s. 56 would stand.
16The applicant has not challenged the denied limitation period extension, pursuant to s. 7 of the LAT Act, in this request for reconsideration.
17I find the applicant has not established an error of fact or law as it relates to the adjudicator’s denial of the treatment plan for chiropractic treatment, pursuant to Rule 18.2(b).
18The adjudicator did not allow this treatment plan to proceed to be assessed on a substantive basis, as she concluded that the applicant did not attend a properly scheduled insurer’s examination (“IE”). As such, this part of the application was barred from proceeding to a hearing due to s. 55(1)2 of the Schedule.
19The applicant challenges this finding by submitting that the adjudicator referred to reasons “that were never included in the Notice for this IE”. Specifically, the applicant claims the “reasons” provided in the respondent’s August 5, 2022 letter only referred to the denial of the treatment plan, not the scheduling of the IE. Further, the IE was rescheduled, and yet no reasons were provided in the subsequent notice. Therefore, without proper reasons, the notice does not comply with s. 44(5). The applicant then listed a series of exhibits “that were all admitted and referenced to in relation to this OCF-18 during the hearing.”
20The respondent submits that the applicant has “simply repeated the arguments that she made at the hearing.”
21I find the applicant has not established an error of fact or law as it relates to the conclusion that the respondent’s August 5, 2022 letter met the standard under s. 44(5). The adjudicator considered the contents of the letter, and, at paragraph 38 of the decision, she teased out the essential parts as it relates to s. 44(5) [emphasis added]:
I find that the medical and other reasons provided by the respondent when it requested that the applicant attend an examination with Dr. Soric are compliant with the Schedule. In its letter dated August 5, 2022, the respondent advised the applicant that the treatment plan was not reasonable and necessary as the medical documentation on file (including the clinical notes and records of the applicant’s family physician from November 16, 2018 to November 1, 2019, a s. 25 occupational therapy report dated March 2020, a s. 25 occupational therapy report dated August 6, 2020, a treatment confirmation form (OCF-23), and treatment plan dated May 31, 2019) does not indicate any issue with regards to ongoing physical pain due to the accident. The respondent noted that the applicant’s injuries were described as whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, sprain and strain of lumbar spine, and headache. The respondent advised that it required an update on the applicant’s medical status to determine whether the treatment plan was reasonable and necessary as a result of the accident.
22It is also clear that the adjudicator differentiated between reasons focused on explaining the denial vs. those focused on justifying the need for an IE.
23Aside from disagreeing with her interpretation of the letter, the applicant has not identified any errors in this analysis. Once again, the reconsideration process is not an opportunity for a party to re-litigate a position presented and rejected at first instance.
24I also note that the applicant’s argument that there were no reasons provided in the notice for the rescheduled IE does not appear to have been made during the initial hearing, as the adjudicator only references the rescheduling of this IE when summarizing the respondent’s arguments at paragraph 37. Regardless, the applicant has not pointed to any legal authorities that state that subsequent IE notices must contain the same information provided in the initial notice. Instead, it appears the adjudicator was satisfied that the applicant had all the information she needed about the IE, such that she could then conclude that s. 55(1)2 was triggered. The applicant has not successfully challenged the analytical framework for this finding.
25Further, since the statutory bar for disputing this treatment plan on a substantive basis remains, I do not find the applicant has established an error in fact or law by citing the different exhibits presented about this OCF-18 during the hearing.
Remaining Treatment Plans
26I find the applicant has not established an error of fact or law as it relates to the adjudicator’s denials of the remaining treatment plans, pursuant to Rule 18.2(b).
27For all the remaining treatment plans, the applicant makes the same basic argument, namely, she contends that the adjudicator’s denials made no reference to her extensive medical evidence. Instead, she claims the adjudicator made unsubstantiated findings that she was not directed to any evidence to support the reasonable and necessary nature of these plans. The applicant then highlights 15 exhibits from the hearing, submitting that: “Considering the extensive records referenced in relation to the OCF-18s in dispute, [the adjudicator] did not refer to any in justification for the findings in the decision.”
28In support of this position, the applicant cites Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369 (“Luluquisin”), a case where the Divisional Court set aside the Tribunal’s decision due to reasons that were “brief and frequently conclusory” (at paragraph 2).
29The respondent opposes this argument, claiming that the adjudicator provided reasons to explain her findings.
30In reply, the applicant argues that she is not asking for re-litigation of the same evidence, as this evidence was not considered during the hearing.
31At paragraphs 41 to 55 and 75 to 92 of the decision, the adjudicator provided detailed explanations for why she denied each of these treatment plans. These reasons engaged with the evidentiary record. For instance, when assessing the occupational therapy services plan in the amount of $6,033.60, the adjudicator weighed evidence from several sources—such as the clinical notes and records of FunctionAbility and a letter from Shelia Don, occupational therapist. She then provided an explanation for why the evidence was not sufficient to meet the applicant’s onus.
32Then, for the counselling services plan in the amount of $5,553.97, the adjudicator again considered evidence from several sources, including a neuropsychological report from Dr. Giselle Braganza, and she again concluded that the applicant did not meet her onus.
33Similar reasoning is provided by the adjudicator for the other three plans.
34I accept the reasoning from Luluquisin, along with the applicant’s position that reasons should be responsive to the parties’ evidence. In the present case, this standard was met.
35While she may contest this characterization, the applicant’s arguments about these remaining treatment plans are based on her dissatisfaction with the weighing of the evidence. To trigger Rule 18.2(b), more is required than disagreement alone—the requesting party must show how the adjudicator erred, either factually or legally, in their assessment of the evidence. The party must also show how the error would likely affect the outcome. The applicant has not met this onus.
Hearing Transcript
36I do note that the applicant states in her initial reconsideration submissions that, if a copy of the transcript is required, it “can be requested and provided.” She also claims that the respondent has refused her request for a transcript “in accordance with Rule 13.2”. The respondent did not explicitly address this allegation in its submissions.
37A requesting party is expected to put its best foot forward when requesting a reconsideration. As such, I will not consider whether additional records could have been provided to help the applicant meet her onus. If the applicant felt it was necessary to provide a transcript to support her request, it was her obligation to do so at first instance—not to wait and see if the Tribunal needed this record.
38Second, aside from the fact that Rule 13.2 refers to the Tribunal’s ability to record in-person or electronic hearings (not the ability to request a copy of the transcript from the opposing party), I find the applicant has not provided any support for her assertion that the respondent stymied her request. The respondent was the party who retained the court reporter for this hearing, however, there is no evidence to show that it denied the applicant’s request for a transcript, pursuant to Rule 13.4.
CONCLUSION & ORDER
39The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 25, 2025