RECONSIDERATION DECISION
Before: Rachel Levitsky, Adjudicator
Licence Appeal Tribunal File Number: 22-012064/AABS
Case Name: Ghada Lisa Kakish v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Mohamed Elbassiouni, Counsel
For the Respondent: Cara L. Boddy, Counsel
OVERVIEW
1On January 8, 2025, the applicant requested reconsideration of the Tribunal’s decision dated November 27, 2024 (the “decision”).
2Following a hearing in writing, I decided that the applicant was not entitled to the denied portion of a treatment plan for catastrophic assessments, an income replacement calculation report, an award, or interest.
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 seeks a reconsideration pursuant to Rule 18.2(b). She argues that I erred in interpreting s. 38 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), and that I did not correctly assess her claim for an income replacement calculation report. The applicant requests that the Tribunal determine that she is entitled to the issues in dispute.
5The respondent submits that the applicant’s request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is granted, in part.
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.
Catastrophic Assessments
8As it relates to the notices for catastrophic assessments, I find that the applicant has partially established grounds for reconsideration under Rule 18.2(b).
9The applicant submits that I did not consider s. 38 of the Schedule in its entire context and its grammatical and ordinary sense harmoniously with the scheme and object of the Regulations and the Insurance Act, pursuant to Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC). The applicant argues that I made errors with respect to my application of s. 38(8) to respondent’s notice letters, dated March 12, 2021, and May 13, 2021.
10At paragraphs 15 to 17 of my decision, I found that the notice of May 13, 2021, was compliant with s. 38(8). While the applicant disagrees with my finding with respect to this latter notice, for the reasons below, I find that she has not established that I erred in making that finding.
11The applicant submits that the notice dated May 13, 2021, did not identify the specific assessments or services as required by s. 38(8). She also submits that I erred when I found that the respondent complied with s. 38(8), as the notice referred the applicant to Dr. Khaled’s report which was attached. She argues that the obligation to identify goods and services is on the respondent, and it cannot delegate that obligation to its assessors many weeks after the treatment plan was submitted.
12At paragraph 17 of my decision, I stated the following:
Nothing in the Schedule specifies that the requirements set out in s. 38(8) must be located within the body of a letter specifically, or that enclosures to a notice letter are not considered part of the notice. I find that the letter and its enclosures are what make up the notice, and not just the letter itself.
13The applicant has not provided any binding authority that states the letter itself must include all components required by s. 38(8). She relies on G.P. v. Wawanesa Mutual Insurance Company, 2022 CanLII 45306, however, as I explained at paragraph 17 of my decision, I was not bound by that decision, and I did not agree with the reasoning in it. She has accordingly not proven that I erred in fact or law by finding that the notice complied with s. 38(8), and I find that this submission is an attempt to re-litigate an argument made at first instance.
14Finally, the applicant argues that the notice dated May 13, 2021, is a notice required under s. 38(14). She submits that I erred in law by equating the notice under s. 38(8) with the notice under s. 38(14). I note that, in the applicant’s hearing submissions, she argued that the May 13, 2021, notice did not comply with s. 38(8). She did not mention s. 38(14). The purpose of the reconsideration process is not to raise new arguments that could have been made during the hearing. Additionally, aside from quoting s. 38(14), which I did not mention in my decision, she does not point to any specific part of my decision or elaborate on why she believes I erred. In any event, the applicant has not explained how the result would have differed even if I erred in this regard.
15With respect to the notice of March 12, 2021, the applicant argues that, contrary to my findings, the notice did not inform her that the entire amount of the treatment plan was not approved pending the results of an insurer’s examination. Instead, the letter simply stated “TBD”. She argues that it is incorrect and unreasonable to find that “TBD” meets the requirements under s. 38(8) of the Schedule.
16I agree with the applicant that I erred in finding that the notice of March 12, 2021, was compliant with s. 38(8), as it did not specify whether the respondent agreed or did not agree to pay for the services described in the treatment plan.
17I find that my error with respect to the notice of March 12, 2021, was material, as it appears based on an invoice from the clinic that submitted the treatment plan that a portion of the treatment plan may have been incurred prior to the notice of May 13, 2021. Section 38(11) of the Schedule states that if an insurer fails to give notice in accordance with subsection (8), the insurer shall pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
18However, there are additional notice letters that were briefly mentioned by the parties in their written hearing submissions that I did not make findings on. The sufficiency of these notice letters could impact whether the treatment plan is payable. As I did not address these notice letters in my initial decision, and the parties have not made submissions on them in this reconsideration, I am unable to determine whether sufficient notice was provided prior to the treatment plan being incurred.
19As such, I find that it is appropriate to partially grant the applicant’s request for reconsideration. Pursuant to Rule 18.4(b)(ii), a rehearing will be granted for the following issue:
Prior to May 13, 2021, was sufficient notice provided in accordance with s. 38(8) of the Schedule with respect to the treatment plan for catastrophic assessments? If not, is any portion of the treatment plan payable in accordance with s. 38(11)?
Income Replacement Calculation Report
20As it relates to my findings regarding the income replacement calculation report, I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
21The applicant submits that nothing in the Schedule requires an insured person to establish that the quantum of income replacement benefits (“IRBs”) was an issue in dispute between the parties to merit payment of an income replacement calculation report. At paragraph 27, I explained that pursuant to s. 7(4), an insurer shall pay the expense for the preparation of a report of this nature if a number of conditions are met, including that the expense is reasonable and necessary for the purpose of determining an insured person’s entitlement to an IRB. At paragraph 29, I questioned the need for an accounting report where there was no indication that the quantum of the benefit was ever at issue. The applicant has not established that I erred in considering this fact when determining whether this expense was reasonable and necessary.
22The applicant also submits that I erred when I found that the IRB calculation was not complex, arguing that the calculation was “very complex” and involved taking into account that the applicant had multiple jobs after the accident, received severance pay, and received Employment Insurance. At paragraph 31, I noted that the applicant had multiple jobs, received severance pay, and received Employment Insurance. Then, at paragraph 32, I disagreed with the applicant that her situation was “unique and complex”, and I found that deducting 70% of her gross post-accident income was straightforward and did not necessitate the services of an accountant.
23It appears the applicant is attempting to relitigate the issue of whether this report was reasonable and necessary, which is not the purpose of a reconsideration. I find that the applicant has not established that it was an error of fact or law for me to have determined that her IRB calculation was not complex.
24As it relates to my findings about the income replacement calculation report, I accordingly find that the applicant has not established that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
CONCLUSION & ORDER
25Pursuant to Rule 18.4(b)(ii), a rehearing will be granted for the following issue:
Prior to May 13, 2021, was notice provided in accordance with s. 38(8) of the Schedule with respect to the treatment plan for catastrophic assessments? If not, is any portion of the treatment plan payable in accordance with s. 38(11)?
26The written rehearing is to be scheduled for October 9, 2025.
27The parties will serve their written submissions and evidence on each other and file with the Tribunal according to the following timetable:
Submissions
Due Date
Page Limit
Applicant’s submissions and evidence:
September 26, 2025
8 pages
Respondent’s submissions and evidence:
October 3, 2025
8 pages
Applicant’s reply submissions or written notice that no reply submissions will be filed:
October 8, 2025
4 pages
(a) The page limits are exclusive of evidence and case law. The hearing adjudicator may choose not to consider submissions which exceed the page limits.
(b) No affidavits will be submitted as evidence. Expert evidence will be submitted by reports.
28Submissions and document/authority briefs shall be double-spaced, 12-point, Arial or Times New Roman font and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number. The hearing adjudicator may choose not to review evidence not so referenced.
29The remainder of the applicant’s request for reconsideration is dismissed.
Rachel Levitsky
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 9, 2025