RECONSIDERATION DECISION
Before: Julian Di Battista, Vice-Chair
Licence Appeal Tribunal File Number: 23-002418/AABS
Case Name: Kathleen Pospiech v. The Dominion of Canada General Insurance Company
Written Submissions by:
For the Applicant: Michael Yermus, Counsel
For the Respondent: Michelle Mainprize, Counsel
OVERVIEW
1On March 7, 2025, the applicant requested reconsideration of the Tribunal’s decision dated February 14, 2025 (“decision”).
2Following a written hearing, I released the decision, wherein I found that the applicant was not entitled to additional Attendant Care Benefits (“ACBs”) over those already being received. I found that the applicant was not entitled to additional ACBs as I preferred the Form 1 of the section 44 assessor to the Form 1 completed by the section 25 assessor.
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 submits that the Tribunal committed a material breach of procedural fairness, as outlined in Rule 18.2(a), and that the Tribunal made an error in law or fact such that the Tribunal would likely have reached a different result if the error had not been made, as outlined in Rule 18.2(b). The applicant also raised an allegation of bias.
5The applicant seeks that the decision be set aside and a new hearing ordered.
6The respondent opposes the request for reconsideration. The respondent also submits that this reconsideration request only addresses the Attendant Care Benefit. As such, if the request is accepted, it asks that the new hearing only focus on this benefit and not include the OCF-18s, OCF-6s, award and interest which were decided in the decision.
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.
Rule 18.2(a) – The Tribunal did not commit a material breach of procedural fairness
9I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness, pursuant to Rule 18.2(a).
10The applicant submits that I ignored 700 pages of evidence submitted and only focused on the two Form 1s received. The applicant specifically notes that expert evaluations, clinical notes and records of various specialists, and interviews from family and friends were ignored in the decision. The applicant points to paragraph 20 in the decision:
Given that there is no evidence submitted to the Tribunal detailing incurred attendant care, I will be focusing my analysis on the attendant care entitlement going forward. This analysis will focus on the Form 1 relied on by the insurer from Ms. Mehta and the most recent Form 1 submitted by the insured from Ms. Westbrook.
11The applicant submits that this is proof that I only reviewed these two Form 1s.
12The respondent submits that this paragraph was taken out of context, as paragraph 20 was referring to the fact that, while the applicant was assessed 6 times by various Occupational Therapists during the period for which the benefits are disputed, there was no evidence of incurred Attendant Care services. According to the respondent, the Tribunal can only make an order on a forward looking basis using the most recent Form 1s.
13I find that the applicant did take paragraph 20 out of context.
14Over the course of the claim, six Form 1s were completed. Three were prepared by s. 25 assessors and three by s. 44 assessors. They were submitted on the following dates:
| Date | Provider | Section | |
|---|---|---|---|
| 1 | June 7, 2021 | Janice Kim, OT | s.25 |
| 2 | August 26, 2021 | Harish Sharma, OT | s.44 |
| 3 | April 4, 2022 | Janice Kim, OT | s.25 |
| 4 | November 2, 2022 | Harish Sharma, OT | s.44 |
| 5 | November 28, 2023 | Amanda Westbrook, OT | s.25 |
| 6 | April 23, 2024 | Shaynee Mehta, OT | s.44 |
15Section 19(1)(a) of the Schedule states that attendant care benefits can only be paid for expenses which have been incurred.
16I declined to make a finding on ACB entitlement relating to Form 1s number 1-4 above.
17There was no evidence submitted that any amounts were incurred on these previously completed Form 1s. Therefore, there was no remedy the Tribunal can order. My analysis in the decision was limited to Form 1s 5 and 6.
18This does not mean that no other documents were reviewed. However, the document which defines entitlement to an Attendant Care Benefit is the Form 1. The task before me was, therefore, to weigh the Form 1s from Ms. Westbrook and Ms. Mehta.
19In reviewing these Form 1s, the documents which I found most helpful were the accompanying reports of the Occupational Therapists. These reports provide additional commentary and details as to the impairments that exist and the justifications for the recommended levels of care.
20I note that I preferred the Form 1 of Ms. Mehta, and I did so for reasons listed in paragraphs 29-31 of the decision. Briefly, I identified inconsistencies between Ms. Westbrook’s Form 1 and the comments made in her accompanying report regarding the impairments observed.
21The applicant specifically notes, in paragraph 20 of her reconsideration submissions, that the key issue is whether she lacks the ability to respond to an emergency. However, when looking at her report, Ms. Westbrook does not address the applicant’s ability to respond to an emergency and has made no recommendations for care to address that item.
22If the assessor does not address an item in their assessment (and then does not link that item to a recommendation for care in the Form 1), I find there is no need to reference additional evidence not related to the Form 1 in the decision.
23The determining documents for Attendant Care are the Form 1 and the accompanying assessment report. Medical records and expert opinions can be used to support the recommendations made in the Form 1. However, in this case, I found the assessors own commentary in her accompanying report to be the most persuasive.
24For the reasons above, I find that the applicant has not shown a material breach of procedural fairness has occurred.
Rule 18.2(b) - The Tribunal did not err in fact or law
25I find that the Tribunal did not commit an error in fact or law which would have likely led to a different result had the error not been made.
26The applicant submits that I made the below errors of fact:
a. Incorrectly identified justifications for Level 2 Attendant Care;
b. Applied a limited definition of “Emergency”;
c. Ignored clear references to the ability to respond in an emergency; and
d. Incorrectly identified purposes of level 3 attendant care needs.
27The respondent submits that no error was made.
28The applicant submits that I mischaracterized or misidentified Ms. Westbrook’s justifications for Basic Supervisory Care. Notably, the applicant identifies paragraph 26 of the decision, where I list the justifications that Ms. Westbrook made for Basic Supervisory Care.
29However, the applicant has not mentioned paragraph 27 where I note that these items are addressed and covered by the Form 1 and associated report of Ms. Mehta, as well as the fact that the respondent has approved Attendant Care for these items.
30In comparing the competing Form 1s and assigning weight, I need to understand the rationale behind the recommendation made within the Form 1. To assign weight, the value proposed in the Form 1 needs to be connected to a justification in the assessment. As identified in paragraphs 29-31 of the initial decision, I found the commentary made in Ms. Westbrook’s report do not support the values proposed in the accompanying Form 1. As such, I assigned weight accordingly. This decision to assign weight is not subject to reconsideration. Unless a party can show there was an error in this exercise, mere disagreement with the weight assigned is not a valid ground for reconsideration.
31The applicant further submits that I misunderstood the justifications underpinning Ms. Westbrook’s opinion. However, her opinion on the Form 1 was not supported by her own report.
32With regards to the alleged error about my definition of an “Emergency”, and my alleged ignorance to references to the applicant’s ability to respond in an emergency, I note that, in her Form 1, Ms. Westbrook proposes 8,264 minutes (137.73 hours or 5.74 days) of Level 2 of Basic Supervisory Care. This recommendation is categorized in the Form 1 as “lacks the ability to respond to an emergency or needs custodial care due to changes in behavior.”
33Again, Ms. Westbrook has made this recommendation in her Form 1, and it is a sizable recommendation, but she does not speak to the applicant’s abilities in an emergency in her accompanying assessment. In her submissions, the applicant attempts to extrapolate support for this recommendation by linking together various other items. However, the fact remains that in the accompanying assessment report, Ms. Westbrook does not address the applicant’s abilities in an emergency. In fact, Ms. Westbrook never uses the word “emergency” in the report. If Ms. Westbrook felt that the applicant is unable to respond to an emergency, she did not say so explicitly in her report.
34The applicant contends that my definition of an emergency is too narrow, however, the applicant does not define an emergency. The applicant lists out the items they feel justifies the attendant care recommendation of 24/7 care, but again, in the accompanying report, the assessor does not address the applicant’s needs in an emergency, despite recommending 5.74 days of care for that purpose.
35With regards to the incorrect application of level 3 care needs, I again point to the applicant’s evidence. If the applicant’s assessor states in their assessment report that the applicant is physically able to bathe herself, yet, requires a prompt to do so, this is not justification for level 3 care. Level 3 care is, by definition, for complex healthcare and hygiene functions. A prompt to shower does not fit that definition.
36As mentioned, it is these inconsistencies between Ms. Westbrook’s Form 1 and report that led me to assign higher weight to the report of Ms. Mehta.
37Therefore, I find that the applicant has not proven an error of fact that would likely have resulted in a different decision.
38The applicant further submits that the factual errors identified are “so egregious” that they amount to an error in law, as I have misunderstood the facts to the point that I could not apply the Schedule correctly. However, as I have found no error in fact, I further find that there is no resulting error in law.
The applicant has not proven a reasonable apprehension of bias
39The applicant further submits that there is a reasonable apprehension of bias in my adjudication of this application.
40It is submitted that I failed to properly engage with the key issue of the Applicant’s eligibility for additional benefits and blatantly omitted critical and determinative evidence from my analysis. It is also submitted that I committed errors of fact and law, cherry-picked evidence of functionality and have improperly narrowed the definition of emergency.
41The applicant points to my adjudicative record, claiming that I find in favour of respondents more often than applicants. The respondent submits that an adjudicative record is not indicative of bias, and that, to establish a claim of bias, the applicant must identify specific reasons on why I was biased against her.
42The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC), at p. 394:
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
43Then, in Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at para. 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging actual or a reasonable apprehension of bias must establish the presence of serious grounds.
44Following on the reasoning in these cases, I do not find that the applicant’s submissions have addressed whether or not I have decided the matter fairly. I
45It is well settled that to raise a claim for bias, specific examples must be submitted and that one’s general adjudicative record is not sufficient. As the applicant has not made any submissions which go further than my adjudicative record (including any examples of bias in my present decision), I find that the applicant has not established a reasonable apprehension of bias.
CONCLUSION & ORDER
46The applicant has not established grounds for reconsideration under Rule 18.2(a) or Rule 18.2(b).
47The applicant’s request for reconsideration is dismissed.
Julian DiBattista
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: August 6, 2025