RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 25-004660/AABS
Case Name: Stephanie Villella v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Michael Kennedy, Counsel
OVERVIEW
1On December 9, 2025, the applicant requested reconsideration of the Tribunal’s preliminary issue decision released November 5, 2025 (“preliminary decision”) and the substantive issues decision released November 28, 2025 (“substantive decision”).
2Stemming from an accident on March 1, 2023 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties disputed the payment of two benefits: an attendant care benefit in the amount of $6,000.00 per month (“ACB”) and a housekeeping and home maintenance benefit in the amount of $100.00 per week (“HH”).
3According to the applicant, there is no dispute over her entitlement to these benefits, nor is there any disagreement over the quantum. Rather, since these services were provided by family members that did not experience an economic loss, the parties are at odds over whether the “incurred” provisions of the Schedule violate the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).
4The parties participated in a written preliminary issue hearing. The Tribunal was asked to determine whether s. 3(7)(e)(iii) and s. 19(3) of the Schedule violate the Code. The Tribunal concluded that these provisions do not violate the Code (at paragraph 44 of the preliminary decision):
The provisions in sections 3(7)(e) and 19(3) of the Schedule do not violate the Applicant’s human rights on the basis of her family status or disability. The provisions apply universally to all service providers. The Applicant chose to employ the services of family members instead of a hiring a professional who provides the services in the course of their employment, occupation or profession in which they would ordinarily have been engaged, but for the accident.
5Following this determination, the parties attended a videoconference hearing on November 24, 2025. The parties requested an order dismissing the application based on the findings set out in the preliminary decision. The Tribunal granted this order.
6The 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.
7The applicant relies on Rule 18.2(b) to support her request. In addition to cancelling the decisions, the applicant is asking the Tribunal to redo the discrimination analysis from the preliminary decision as part of this reconsideration decision. As such, the applicant has provided a detailed account of what she interprets to be the correct approach for assessing claims of discrimination under the Code.
8The respondent asks the Tribunal to dismiss the request for reconsideration.
RESULT
9The applicant’s request for reconsideration is dismissed.
ANALYSIS
10The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. 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.
11The primary error put forward by the applicant is her assertion that the Tribunal incorrectly relied on the Court of Appeal for Ontario’s ruling in Henry v. Gore Mutual Insurance Company, 2013 ONCA 480 (“Gore”). According to the applicant, the Court was interpreting a different version of the “incurred” provisions than the provisions that are now at issue, namely, the wording of s. 19 has changed since this earlier claim. By providing a side-by-side contrast of this statutory language, the applicant submits the Tribunal committed a legal error that warrants a new analysis.
12The applicant further submits that the Tribunal’s finding that a “windfall” may occur if family members are paid for services that do not result in an economic loss “demeans the dignity of, and disadvantages family members providing services, by expecting the provision of free services”. She also claims this finding misinterprets the “windfall” concerns from Gore.
13The applicant then argues that the Tribunal erred by finding the applicant could have chosen to hire a professional service provider, as she claims the rates on the Form 1 “fall below minimum wage”. The applicant also highlights how the Tribunal did not make a finding as to whether her family members are part of a protected class under the Code. Finally, she submits the Tribunal’s discrimination analysis incorrectly substituted formal equality for substantive equality.
14Starting with the applicant’s primary ground for reconsideration, I do not find she has shown that the Tribunal erred in its assessment of Gore. While the applicant focuses on the difference between how s. 19 was written at the time of the claim in Gore versus the current iteration that applies to her claim, I do not see how this difference impacted the preliminary decision. Rather, the Tribunal’s reliance on the reasoning in Gore focused on what the Court said about the role of the “incurred” provisions in the overall accident benefits regime, not the specific wording of the provisions themselves.
15For instance, at paragraphs 30 and 31 of the preliminary decision, the Tribunal made the following observations about the reasoning in Gore:
I find that the Applicant has not demonstrated that the incurred expense provisions were enacted to limit payments specifically to family members who provide ACBs to injured persons. I find that Gore concludes that the economic loss factor serves as a threshold for entitlement to ACBs. Gore also provides that the requirement to have ACBs calculated by a nurse or occupational therapist (“OT”) in a Form-1 makes it clear that the underlying premise that, once entitlement is established, the amount of the benefit is based on the person’s needs.
Gore comments on the changes in the Schedule relating to an incurred expense but does not find it as fact that the changes were enacted for the reason of limiting compensation to family members. This decision by the Court of Appeal is the current iteration and is binding upon me.
16I do note that it is a bit unclear as to what the Tribunal is referring to when it uses the term “current iteration” at the end of paragraph 31. However, considering the Tribunal later contrasts Gore with the Divisional Court’s earlier reasoning in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, I find the term “current iteration” is not a reference to the version of the Schedule that was before the Court of Appeal. Rather, the Tribunal was noting that the Court of Appeal’s ruling in Gore is the most up-to-date articulation of the principles from this particular dispute.
17Then, at paragraph 35, the Tribunal clearly articulated the role that Gore played in its Code analysis:
I characterize the decision of the Court of Appeal in Gore as highlighting the historical circumstances which led to the incurred provision in the Schedule. It notes that a report by the Financial Service [sic] Commission of Ontario (“FSCO”), which preceded the changes to the Schedule, found that certain regions were experiencing an over-utilization of ACBs, and anecdotal evidence that claimants with minor injuries were claiming and receiving ACBs. Critically, the FSCO report addressed in Gore, which discussed the issue of over-utilization of ACBs, refers to “family members and friends” who provide ACBs.
18The specific wording of s. 19 was not the focus of this analysis. Instead, the Tribunal was looking to Gore to provide the historical context for what role the “incurred” provisions have come to play in the Schedule. Therefore, I do not find the applicant has shown that the Tribunal erred in its assessment of Gore in the preliminary decision.
19Turning to the “windfall” analysis, the applicant appears to take issue with the following comments at paragraph 43 of the preliminary decision:
Compulsory auto insurance serves as a safety net for a society, which compensates accident victims for their losses. In the Applicant’s case, there is no tangible loss to account for. Her mother is retired and never sustained an economic loss and her husband’s employer accommodated his schedule so that he could provide ACBs to the Applicant without suffering a loss of income. Paying the non-professional service providers the rate of a professional service provider would then result in a windfall for those service providers who would never have ordinarily provided the service if not for the accident. On the other hand, professional service providers do not receive a windfall because they would be providing goods and services regardless of whether the Applicant was injured – it would just be to a different customer.
20Even if I accepted the applicant’s position that this comment is incorrect, I do not see how changing this part of the analysis would likely have impacted the outcome. The focus of the preliminary decision was whether s. 3(7)(e) and s. 19(3) of the Schedule violate the Code. This comment about the potential for a windfall occurred after the conclusion of the discrimination analysis. It is, in effect, an observation made in obiter about the potential outcome of proceeding without these “incurred” provisions. Therefore, even if the observations made in paragraph 43 were removed from the larger analysis, I do not see how the preliminary decision would likely have changed. The determination that the “incurred” provisions do not violate the Code would still stand.
21I also do not find the Tribunal misinterpreted Gore in its assessment of this potential windfall. There is no reference to Gore in this part of the decision. The windfall concerns raised by the Tribunal arose from its own assessment of the “incurred” provisions and their impact on family members. As such, while the reference to a “windfall” in Gore referred to a situation where no actual services are provided to an applicant (a different situation than the one detailed in paragraph 43), I see no issue with this divergence.
22I then find the applicant has not shown the Tribunal erred by concluding she could have chosen to hire a professional service provider. First, the applicant did not argue during the preliminary issue hearing that the Form 1 rates “fall below minimum wage”. Parties are expected to put their best foot forward during the hearing, as reconsideration is not a venue for presenting new arguments that could have been reasonably raised at an earlier stage. The applicant noted in her initial submissions that she preferred “to contract with her husband and mother due to her disabilities”. Other arguments about the alleged inadequacy of professional service providers could have been raised at that time.
23Second, this alleged error is better understood as a challenge to a finding made by the Tribunal at first instance. As noted above, reconsideration is not a venue for asking the Tribunal to re-assess findings made during the hearing. Instead, a party requesting reconsideration must establish that an error was committed. I find the applicant’s reconsideration submission about her alleged inability to contract with a professional service provider effectively amounts to a disagreement with a factual finding made by the Tribunal.
24I further find the Tribunal did consider the applicant’s arguments about how her family members were potentially discriminated against by the “incurred” provisions of the Schedule. While there may not have been an explicit finding about what, if any, protected class they fell under, the Tribunal addressed the substance of this argument at paragraphs 38 and 39 (emphasis added):
I acknowledge the Applicant’s submissions that the incurred provision disproportionately discriminates against family members, because family members are most likely to provide care other than a person providing the services through the course of their employment. I find this argument holds no weight for two reasons. First, the incurred provision is applied universally, regardless of the person’s relationship to the insured. That is, it applies to neighbours, friends, and acquaintances as equally as it does to family members. Second, because the insured person has the option to select their service provider and, if they wish to be able to fully compensate that service provider through the benefits they receive from their insurer, then they ought to retain the services of a professional or a service provider who suffers a measurable economic loss, as outlined in Gore.
Family members are not barred from receiving full compensation if they meet the required qualifications. The Applicant’s family members would be entitled to payment of the full amount of ACBs if they provided ACBs throughout the course of their employment, occupation or profession in which they would ordinarily have been engaged, but for the accident. The only reason why they are not compensated fully is they do not normally provide attendant care services – not because they are relatives of the Applicant. Including a rough check on costs associated with ACBs to limit abuse of the benefit is not a discriminatory practice. Thus, it cannot be said that the Schedule discriminates based on family status.
25The applicant has not explained how this line of reasoning is incorrect. Again, disagreement alone will not trigger Rule 18.2(b).
26In reply, the applicant submits that the respondent accepted that the Tribunal “failed to consider whether the incurred provisions discriminate against family members of disabled people, as a protected class.” Beyond the fact that I do not interpret the respondent’s submissions as accepting this proposition, my finding about the scope of the Tribunal’s analysis on this point remains.
27In a similar vein, I do not find the applicant has shown that the Tribunal’s discrimination analysis incorrectly focused on formal equality. The Supreme Court of Canada has consistently found that discrimination should be understood through the lens of substantive equality, not formal equality: see, for example, Withler v. Canada (Attorney General), 2011 SCC 12 (“Withler”). Though speaking to the use of this analysis for s. 15(1) of the Charter, the difference between these concepts is neatly described at paragraph 39 of Withler:
… Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.
28I recognize that there are aspects of the preliminary decision where the Tribunal appears to engage in the kind of formal equality analysis that the Supreme Court discourages. For instance, at paragraph 38, the Tribunal notes that “the incurred provision is applied universally, regardless of the person’s relationship to the insured”.
29Read in isolation, this comment may appear to show a narrow, formalistic analysis. However, as both paragraphs 38 and 39 quoted above demonstrate, the universal application of the “incurred” provisions is only one part of a larger, more holistic analysis. In other words, I am satisfied that the Tribunal conducted the kind of analysis envisioned by the Supreme Court in Withler: “The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group.”
30Taken together, I find the applicant has not demonstrated any grounds for reconsideration based on Rule 18.2(b).
CONCLUSION & ORDER
31The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: March 12, 2026