RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
20-010381/AABS
Case Name:
Rell Nowell Luluquisin v. Aviva Insurance Company of Canada and Intact Insurance Company
Written Submissions by:
For the Applicant:
Mireille Dahab, Counsel Avneet Kaur, Counsel
For the Respondent, Aviva Insurance Company of Canada:
Nathalie Rosenthall, Counsel
For the Respondent, Intact Insurance Company:
Jason H. Goodman, Counsel Faiza Ikram, Counsel
OVERVIEW
1On August 19, 2025, both the applicant and one of the two respondents, Aviva Insurance Company of Canada, filed separate requests for reconsideration of the Tribunal’s decision released July 29, 2025 (“decision”). Both requests are addressed in this reconsideration decision.
2The two respondents shall be referred to as “Intact” and “Aviva”.
3A concise summary of this file’s procedural history is found at paragraphs 1 – 3 of the decision:
[The applicant] was involved in an automobile accident on March 17, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was initially denied benefits by [Aviva]. On August 20, 2021, [Intact] took priority over the dispute and maintained some of the previous denials made by Aviva. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
A written hearing was scheduled by the Tribunal, and a decision was released on March 2, 2022. The applicant requested reconsideration of that decision which was dismissed. The applicant appealed both decisions to the Divisional Court, which allowed the appeal, quashed the decision, and remitted the matter back to the Tribunal to be heard by another adjudicator. The matter proceeded to a four-day videoconference hearing before me.
The applicant is seeking an award against Aviva for its previous denials of the various benefits in dispute prior to Intact taking priority over the claim.
4Following the videoconference hearing, the adjudicator found the applicant was entitled to differing monthly amounts of the attendant care benefit (“ACB”) for the period between April 19, 2020 and June 14, 2024. However, as he did not prove that these services had been incurred, no amount was payable.
5The adjudicator further found the applicant was entitled to several OCF-18s, plus interest: i.e., social work counselling, aquatherapy, a home renovation assessment, and concussion treatment (though, for the first two of these plans, the adjudicator granted amounts less than what were claimed by the applicant). The adjudicator denied payment of an OCF-6 for transportation expenses, as well as the OCF-18s for a neurological assessment and a chronic pain assessment.
6The adjudicator concluded that Aviva was liable to pay an award. Aviva’s request for costs was denied.
7The 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.
8The applicant relies on Rule 18.2(a) and Rule 18.2(b) to support his request for reconsideration. He takes issue with the ACB findings, and he is asking the Tribunal to either rescind this part of the decision, or, in the alternative, order a rehearing.
9Intact asks for the applicant’s request for reconsideration to be dismissed.
10In e-mail correspondence (dated September 29, 2025), Aviva indicated that it would not respond to the applicant’s request for reconsideration.
11On January 6, 2026, the applicant withdrew the part of his request involving Intact. He further noted that there is no withdrawal of the “Application in relation to Aviva”. Considering the integrated nature of these claims, it is difficult to simply remove any aspect of the applicant’s reconsideration request that involves Intact. However, I take this withdrawal to mean that any adjusting decisions made after August 20, 2021 are no longer in dispute, as this date is when the priority change took place between the insurers.
12Aviva relies on Rule 18.2(b) to support its request for reconsideration. It is asking the Tribunal to set aside the award.
13Aviva also asks for certain “amendments”, but, considering the substantive nature of these proposed changes, I have considered this relief under the purview of Rule 18, not Rule 17.
14The applicant is asking the Tribunal to dismiss Aviva’s reconsideration request. He is also seeking costs.
15Intact did not respond to Aviva’s request for reconsideration.
RESULT
16The applicant’s request for reconsideration is dismissed.
17Aviva’s request for reconsideration is granted, in part. Pursuant to Rule 18.4, the quantum of the award is varied to $7,263.45.
18The applicant’s costs request is denied.
ANALYSIS – APPLICANT’S RECONSIDERATION REQUEST
19The 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.
20Starting with the applicant’s reconsideration request, I find he has not established any grounds for reconsideration based on either Rule 18.2(a) or Rule 18.2(b).
Rule 18.2(a) – Procedural Fairness
21The applicant alleges the adjudicator materially breached his right to procedural fairness in two ways. First, relying on recent Divisional Court case law, the applicant claims the adjudicator inappropriately preferred an expert opinion from Intact’s occupational therapist, Reema Shafi, even though this expert was not subject to cross-examination. The applicant also notes that this witness was summonsed, but did not appear. Second, the applicant claims the adjudicator improperly considered Intact’s written submissions from the quashed hearing.
22Intact argues the applicant has not made out either ground under Rule 18.2(a). In regard to Ms. Shafi’s report, it argues that this expert was never listed on its final witness list, and “there is no evidence to corroborate that she was ever summonsed”. Further, it submits that the applicant’s example of where the adjudicator allegedly relied on its written hearing submissions appears to be a reference to oral submissions. It also highlights paragraphs 13 to 15 of the decision where the adjudicator declined its request to rely on the written submissions.
23In reply, the applicant reiterated his position that the adjudicator’s reliance on Ms. Shafi’s opinion contravened binding case law, adding that this report should have been given less weight than the report from his occupational therapist, Bridgette Marshall.
24To start, I find the applicant has not demonstrated a material breach of fairness related to the Tribunal’s handling of the evidence from Ms. Shafi. To support this breach, the applicant cites a trio of Divisional Court cases where the Tribunal’s reliance on untested, expert evidence was found to be procedurally unfair. While I accept that cross-examination is an essential tool for testing the veracity of expert evidence, I find the circumstances before me do not align with these prior cases.
25In Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”), one of the respondent’s experts attended the hearing, but refused to complete cross-examination. Despite this refusal, the Tribunal relied on this opinion to deny the applicant’s claim. This procedural choice led the Court to quash the decision.
26In Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 (“Vivekanantham”), one of the respondent’s experts was served with a summons, but he refused to attend the hearing. Relying on Shahin, the Court concluded that, once the expert refused to comply with the summons, the Tribunal should have refused to admit his report.
27Finally, in Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”), the Court again quashed a decision based on the Tribunal’s reliance on an expert opinion that was not subjected to cross-examination. The Court highlighted that, despite being listed on its witness list and then later asked for by the applicant, the respondent did not present this witness.
28A common theme in these cases is the presence of clear requests on the part of the applicants to have certain witnesses attend for cross-examination. Whether it is explicitly notifying the respondent, serving a summons, or, in the case of Shahin, beginning the cross-examination, there were clear efforts made by the applicants to show that they needed to cross-examine these experts. At the very least, the applicants were able to reasonably assume that these experts would attend the hearing. When the experts did not attend (or did not complete their cross-examination), the Court found any reliance on these reports was unfair.
29In the present case, I find the applicant has not established that he informed the respondent that Ms. Shafi was required for cross-examination, nor was it reasonable for the applicant to assume she would attend the hearing. First, the Case Conference Report and Order did not include Ms. Shafi as a potential witness for either party. Second, Intact did not include Ms. Shafi on its final witness list, nor did the applicant indicate on his list that he wanted her to attend. Third, though the applicant claims Ms. Shafi was “duly summonsed”, there is no evidence to support this claim. Moreover, after the respondent pointed out this lack of evidence in its responding submissions, the applicant did not address this argument in reply. While the applicants in the earlier cases could have reasonably assumed that they would have had a chance to cross-examine certain experts, I find the applicant has not shown that such an assumption could have been reasonably made in this case.
30I further note that, when the adjudicator commented on how Ms. Shafi did not testify, this comment was made in the context of how the respondent did not have proper notice that this witness needed to attend. Put another way, since the adjudicator found the applicant did not properly inform the respondent that his OT assessor would testify, it was, in turn, reasonable that the respondent did not ask Ms. Shafi to counter this unforeseen testimony (at paragraph 58):
… Moreover, because of the applicant’s insufficient notice to the respondent that he was calling OT Marshall as a witness I have given her testimony criticizing the respondent’s IE assessments little weight because had the respondent been aware that the applicant was calling this witness, it would likely have called OT Shafi to testify.
31Taken together, these facts show the circumstances before me differ from the situations addressed in Shahin, Vivekanantham, and Plante. As such, I find the applicant has not established a material breach of procedural fairness based on the adjudicator’s handling of Ms. Shafi’s evidence.
32Turning to the allegation that the adjudicator relied on Intact’s written submissions from the quashed hearing, I find the applicant has not established this alleged breach. The applicant claims the adjudicator improperly relied on these written submissions, despite the Divisional Court’s order to quash this prior decision. To support his claim, the applicant highlights the following line from paragraph 68 of the decision (emphasis added):
The applicant relies on the invoices of WS Management between March 2021 and June 2024 in support of his position that ABCs [sic] have been incurred. I note that all of the invoices note the month, indicate that the service provided was for attendant care and most of the invoices are in the amount to $3,361.75 per month. Based on the evidence before me, it is unclear when these invoices were submitted to the respondent. However, Intact acknowledged that it had some of these invoices as of the written hearing date in 2022.
33I find this single reference to “the written hearing date in 2022” is not sufficient to establish that the adjudicator considered these submissions, especially as she had explicitly ruled that the parties could not rely on same: see paragraphs 13 – 15 of the decision. The applicant has the onus to demonstrate that Rule 18.2(a) has been triggered. I find this single reference to the written hearing is not sufficient to ground a claim that the adjudicator materially breached the applicant’s right to procedural fairness.
Rule 18.2(b) – Error of Fact or Law
34I find the applicant has not established any grounds for reconsideration, pursuant to Rule 18.2(b). The applicant raises several alleged errors, and I will address them in turn.
35First, the applicant alleges that the adjudicator erred in the interpretation and application of the “incurred” requirement for payment of the ACB, pursuant to s. 3(7)(e) of the Schedule. Specifically, the applicant claims the Tribunal’s need for specific invoices detailing the cost of each service is not found in this provision. The applicant also notes that, while additional information can be obtained about attendant care services under s. 46.2, this obligation only applies to service providers. According to the applicant, the Tribunal “overlooked this provision and improperly placed the burden on the Applicant to proactively produce information that the insurer never requested.”
36After laying out the relevant test under s. 3(7)(e), the Tribunal addressed the “incurred” question at paragraphs 68 + 69:
The applicant relies on the invoices of WS Management between March 2021 and June 2024 in support of his position that ABCs [sic] have been incurred. I note that all of the invoices note the month, indicate that the service provided was for attendant care and most of the invoices are in the amount to $3,361.75 per month. Based on the evidence before me, it is unclear when these invoices were submitted to the respondent. However, Intact acknowledged that it had some of these invoices as of the written hearing date in 2022.
Although the invoices support that the applicant received ACBs, I find they do not provide sufficient information about what services were provided to the applicant as they do not provide any information or a breakdown about what the service provider did for the applicant. Moreover, I have no other evidence before me from the service provider regarding same. As a result, I do not have any information about whether they were providing Level 1, 2 or 3 services. Consequently, I find there to be insufficient evidence before me to support that the applicant received the expenses to which the service relates, and that the applicant has not proven that the ACBs were incurred. As a result, he is not entitled of [sic] payment of the various amounts that I found to be reasonable and necessary for the time period in dispute.
37As noted above, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. Rather, to trigger Rule 18.2(b), the requesting party must show there was a legal or factual error, and that this error would likely have impacted the outcome.
38Though he characterizes this ground as a legal error, namely, a misapplication of the “incurred” provision, the applicant appears to be disputing the Tribunal’s review of the ACB invoices. Specifically, he takes issue with the Tribunal’s finding that there is “insufficient evidence before me to support that the applicant received the expenses to which the service relates”. It is not enough to disagree with a factual finding, and I see no legal error in this approach.
39Further, while the applicant may claim there is no basis in the Schedule for requiring the level of detail noted in the decision, I find this level of scrutiny is a reasonable reading of s. 3(7)(e). The provision states that an insured person must show, in part, that they “received the goods or services to which the expense relates”. Therefore, I see no issue with the adjudicator requiring the applicant to demonstrate that his service providers “were providing Level 1, 2 or 3 services”.
40I also note that the wording of s. 46.2 of the Schedule is permissive. There is no requirement for an insurer to use this provision to obtain information from an insured person’s service providers about their attendant care. As such, I see no error in the Tribunal’s decision to not consider this provision in determining whether the applicant had met his onus to show these services had been incurred.
41Next, and following on the claims made above regarding Ms. Shafi’s evidence, the applicant submits the adjudicator focused too narrowly on this opinion at the expense of the larger evidentiary record. Once again, the applicant may disagree with the outcome of the decision, but disagreement alone will not trigger Rule 18.2(b). In the applicant’s request, I do not find he has established any errors with the scope of the adjudicator’s evidentiary review. On the contrary, the decision shows she engaged in a comprehensive assessment of the evidence.
42The applicant then claims that the adjudicator committed a legal error by finding at paragraph 64: “I am unable to make a determination of the quantum of Attendant Care Benefits beyond June 2024 as there is insufficient evidence before me regarding the Applicant’s ongoing attendant care needs.” According to the applicant, this finding is an error of law (and a breach of procedural fairness), because it amounts to the adjudicator refusing to decide an issue within “her jurisdiction and mandate.” The applicant points to the testimony and documentary evidence as proof that “it was not open to the Tribunal to refuse to adjudicate entitlement past a certain date.”
43I do not agree. While the applicant may disagree with the outcome, it is, ultimately, a finding that the adjudicator was entitled to make. The adjudicator weighed the evidence, and she concluded there was not enough evidence to make a determination about the applicant’s ongoing attendant care needs. I see no error in this approach.
44I also note that this finding appears to relate solely to Intact’s handling of the claim, and this portion of the dispute has been removed by the applicant.
45Finally, the applicant takes issue with the adjudicator’s choice to treat “24/7 supervisory care” as a separate issue from his overall entitlement to the ACB. The applicant claims this approach meant the adjudicator failed to use a “proper holistic approach” when assessing the Form 1 that covered the period of December 2023 onward.
46I find the applicant has not shown how this approach is incorrect. First, I find no issue with the adjudicator’s assessment of “24/7 supervisory care” as a standalone issue. After identifying this service as a key disagreement between the parties, the adjudicator engaged in a detailed analysis of their arguments and evidence from paragraphs 19 – 30 of the decision. The adjudicator then assessed the individual Form 1s. Therefore, while the applicant may not endorse this bifurcation in the adjudicator’s reasons, he has not pointed me to any legal authority or principle that shows this approach was legally or factually incorrect.
47Taken together, the applicant has not established any grounds for reconsideration.
ANALYSIS – AVIVA’S RECONSIDERATION REQUEST
48Turning to Aviva’s request, I find it has established grounds for reconsideration, pursuant to Rule 18.2(b). Briefly, Aviva has shown the Tribunal erred in its calculation of the award quantum. The rest of its request is dismissed.
49In the decision, the adjudicator concluded that Aviva owed the applicant an award based on four treatment plans, i.e., chiropractic treatment (for the plan in the amount of $3,847.03); social work treatment; a home renovation assessment; and concussion treatment. The adjudicator found no award was owing based on the respondent’s handling of the ACB or the treatment plan for aquatherapy.
50The adjudicator provided the following summary of her award analysis at paragraphs 116 and 117:
Overall, I find Aviva’s conduct in its adjustment of this claim meets the threshold for an award. I find the many errors made in the adjuster’s handling of this claim go beyond making a few mistakes because of the COVID 19 pandemic. I find that Aviva repeatedly failed to meet its procedural obligations as far as responding to treatment plans within 10 business days after receiving the claims (sometimes three months late). I find there was a pattern of disregard and delay in assessing the applicant’s entitlement to accident benefits. In addition, it issued several deficient notices denying OCF-18s where the medical reasons made little sense based on the medical records. I find the transcript of the adjuster’s cross-examination demonstrates that many of the OCF-18s were denied for no valid reason at all.
In addition, I find Aviva engaged in an unfair practice where it pre-emptively denied OCF-18s before IE assessments were carried out as the adjuster testified that Aviva had a process where the adjuster would send denial letters, outlining the reason for the denial to IE assessors before the assessments were completed, and the assessment company would send out the denial. I find this practice egregious and completely inappropriate. Aviva owed a duty of good faith to a CAT impaired applicant to adjust his entitlement to accident benefits fairly and promptly and this was not done in this case…
51In the end, Aviva was ordered to pay an award in the amount of $9,041.12, plus interest payable in accordance with Reg. 664. The adjudicator stated at paragraph 141 that $9,041.12 “is 50% of the total value of the OCF-18s that I have determined were unreasonably denied.”
52Beyond a general claim that its adjusting of these benefits did not reach the high threshold needed to issue an award, Aviva challenges this order in several specific ways. I will address each of these arguments in turn.
53First, Aviva claims the adjudicator did not have the jurisdiction to order an award based on the plan for chiropractic treatment, because this plan was not in dispute. Further, it submits the adjudicator’s reasoning about this plan contains errors, e.g., she does not mention the applicant’s refusal to attend an insurer’s examination (“IE”); the decision incorrectly mentions a second notice; the adjudicator’s understanding of when this plan was submitted is incorrect, etc.
54Starting with the Tribunal’s jurisdiction to issue an award based on an amount that is not in dispute, I find Aviva’s position is not legally correct. As established in McDonald v. Aviva Insurance Company, 2024 ONSC 6030, the Tribunal may order an award based on amounts that an insurer has agreed to pay. Therefore, even if this chiropractic treatment plan was not a part of the dispute (since Aviva agreed to pay for it prior to the hearing), it can still form part of an award.
55Turning to the alleged errors in this part of the analysis, I find Aviva has not established how any of these errors would likely have impacted the outcome. After laying out the parties’ positions (including Aviva’s contention that this plan had not been incurred), the adjudicator provided her reasons for granting an award based on this treatment plan at paragraphs 120 and 121:
I find this OCF-18 was unreasonably denied and there was an unreasonable delay in Aviva’s approval of this benefit. The parties relied on the transcript from the cross-examination of the adjuster which took place on July 22, 2021, where the adjuster acknowledged that it first sent the applicant notice partially approving this OCF-18. However, it then issued a subsequent notice denying it. The adjuster conceded that the second notice was sent to the applicant by error and confirmed that it would partially approve the OCF-18.
I find that there was an unreasonable delay in the respondent approving the OCF-18 as it was not until the cross-examination of the adjuster (long after the case conference) that the applicant was advised that this OCF-18 was partially approved. I find this delay imprudent as Aviva should have been aware at the case conference whether this issue was approved or denied or that a mistake had been made. Instead, the applicant did not find out about the status of this OCF-18 until July 2021 and should not have had to wait over a year to find out that it was approved. I find Aviva breached its duty of good faith to the applicant in its adjusting of this OCF-18. Finally, I find whether the OCF-18 has been incurred is irrelevant to whether an award is payable. Section 10 of Reg. 664 only speaks to the applicant being “entitled” to the benefit, and not whether the expense has been “incurred,” in order to ground an award.
56As this quotation makes clear, the central finding that allowed the adjudicator to conclude there was an unreasonable delay was the fact that “the applicant did not find out about the status of this OCF-18 until July 2021”. Due to the importance of this finding, I do not find Aviva has shown why any of its alleged errors (e.g., no “second notice”; the decision does not mention the missed IE, etc.) would have had any impact on the adjudicator’s reasoning.
57I do note that there is an earlier reference to the speed at which Aviva adjusted the applicant’s entire claim, a finding that may have been impacted by its contention that the decision did not account for the gap between the completion of this particular plan on March 9, 2020 and its submission on April 7, 2020. Specifically, while laying out several general comments about her overall award analysis, the adjudicator stated at paragraph 116: “I find that Aviva repeatedly failed to meet its procedural obligations as far as responding to treatment plans within 10 business days after receiving the claims…”
58Yet, even though the gap between March 9 and April 7, 2020 may have been relevant to this part of the analysis, I still do not find Aviva has established that this alleged error would likely have impacted the outcome. Beyond the fact that the specific analysis about this plan had little to do with when it was submitted, the adjudicator accepted that some of the delay involved in the adjusting of this claim took place during the initial months of the COVID-19 pandemic: see paragraph 116. Therefore, even if the adjudicator had explicitly mentioned this one-month gap, I find it is likely that it would have been explained away as a byproduct of the pandemic. Either way, Aviva has not shown that the failure to mention this gap would likely have impacted the outcome of the decision, pursuant to Rule 18.2(b).
59Next, Aviva disputes the adjudicator’s choice to consider the social work treatment and home renovation assessment plans as a single entity in the decision. According to Aviva, the adjudicator did not provide specific justifications for why these two plans each merited an award. Additionally, Aviva argues the adjudicator misstated the adjuster’s testimony, and she ignored evidence that countered the applicant’s account of family conflict.
60The adjudicator addressed these two plans and the award at paragraphs 122 – 125 of the decision:
The applicant is entitled to an award on the OCF-18s for social work treatment and home assessment.
The applicant argues that the respondent’s denial of the OCF-18 for social work was unreasonable because family counselling was needed, and the lack of treatment resulted in him being kicked out of his family home. Further, Aviva’s request that he attend an IE was unreasonable because he had already attended multiple psychological assessments and another one was unnecessary.
Aviva submits that its denial of this OCF-18 for social work was reasonable because it sought a duplication of services. Further, the applicant did not have any functional limitations within the home that would require a home assessment.
I find the respondent was unreasonable in its denial of both of these OCF-18s because as noted above, I find the applicant’s conflict with his family post-accident was supported throughout the medical records. Further, the adjuster acknowledged during cross-examination that the goal of the OCF-18 was reasonable but could be dealt with by another service provider who was already providing treatment such as a rehabilitation support worker or the OT. The adjuster also conceded that she had received the report of OT Chan in 2021 which discussed his ongoing conflict with family, social isolation and not independently accessing the community. Despite this, the adjuster did not revisit its denials of these OCF-18s. I find Aviva had sufficient medical evidence to partially approve the OCF-18 for social work and approve the OCF-18 for a home assessment and that it did not require another IE because it had recently done CAT assessments which found significant psychological impairments and functional limitations as a result.
61In reviewing these reasons, I find Aviva has not demonstrated how the Tribunal erred. First, I am satisfied that the adjudicator properly explained why the handling of these two treatment plans merited an award, namely, the medical evidence supported entitlement, but, despite having this information, Aviva did not take prompt steps to approve the plans. Also, there is nothing inherently wrong with grouping common treatment plans together in one’s reasons, so long as there is a clear explanation for each finding.
62I further find Aviva’s arguments about how there was “a lack of evidence” to support the finding that the applicant had been kicked out of the family home is better understood as a disagreement with the weighing of the evidence. As noted above, the reconsideration process is not a venue to ask the Tribunal to re-weigh evidence considered at first instance. I also note that, while Aviva challenges this finding as a “factual error” due to the applicant’s “self-reporting”, there is no clear indication of what “self-reporting” it is referring to (at paragraph 37 of Aviva’s initial reconsideration submissions):
Furthermore, based on the Applicant’s self-reporting, he appears to have still been residing in the family home in January 2021, and indeed remained in the family home following the date of the proposed OCF-18s. This is a factual error.
63Aviva did not expand on this point in its reply.
64As the party requesting reconsideration, Aviva has the onus to establish that there was a factual error. This unspecified reference to “self-reporting” is not sufficient to meet this burden.
65In a similar vein, though Aviva claims the clinical notes and records of the family doctor “and the ongoing approved psychological treatment” should have factored into the award analysis, there is no obligation for a decision-maker to list every piece of evidence presented during a hearing. Rather, this argument is, again, a disagreement with the Tribunal’s findings.
66Finally, I do not find Aviva has shown the adjudicator erred in her assessment of the adjuster’s testimony. By referencing the cross-examination transcript from July 2021, the adjudicator found the adjuster had (at paragraph 125 of the decision) “acknowledged… that the goal of the OCF-18 was reasonable but could be dealt with by another service provider”. Aviva challenges this interpretation, claiming it is a misreading of the following answer:
Q. Sorry, would you have approved a psychotherapist OCF-18 with these goals?
A. If the treatment is already approved. If they changed and added that goal, I would not have had a problem with it. I mean, he's been approved for psychotherapy from the outset. That's never been the issue.
67Again, Aviva is attempting to re-litigate a conclusion reached at first instance. Though it may disagree with the adjudicator’s reading of this answer, I do not find it has demonstrated that this interpretation is factually incorrect. Rather, there appears to be more than one valid interpretation of this answer. This type of disagreement is not sufficient to trigger Rule 18.2(b).
68In addition to claiming that it was entitled to rely on this more up-to-date opinion, Aviva submits the adjudicator incorrectly stated the findings from its assessor, Dr. Deborah Rabinovitch, physiatrist. Briefly, Aviva claims the adjudicator incorrectly stated that Dr. Rabinovitch found the applicant had not sustained a concussion.
69The Tribunal addressed the award and this plan at paragraphs 126 – 128:
The applicant is entitled to an award on the OCF-18 for the concussion treatment.
I find the respondent unreasonably denied this OCF-18. The respondent denied this OCF-18 because it was inconsistent with the applicant’s diagnosis. During the adjuster’s cross-examination she conceded that the reason for its denial was inconsistent with the CAT IEs because Dr. Zakzanis, neurologist diagnosed the applicant with a mild neurocognitive disorder because of a traumatic brain injury sustained in the accident. However, it was the adjuster’s opinion that this TBI should have healed by the time this OCF-18 was submitted. I find the adjuster is a not a doctor and was making up new reasons for why this OCF-18 was denied.
The respondent also relied on the IE of Dr. Rabinovitch to deny this OCF-18 who determined that it was not reasonable and necessary because of any musculoskeletal impairment. I find Dr. Rabinovitch’s opinion inconsistent with the opinion of Dr. Zakzanis and the rest of the medical record which document the applicant’s post-concussive symptoms. I find Aviva’s denial of this OCF-18 unreasonable because the adjuster had an obligation to fairly assess all of the medical information in its file and not blindly rely on the IE report of one assessor which was inconsistent with the medical record it had in its possession.
70I do not find Aviva has established any error in this part of the analysis that triggers Rule 18.2(b). Aside from the fact that there is no indication that the Tribunal understood Dr. Rabinovitch’s opinion to be that the applicant did not sustain a concussion (but rather this opinion was “inconsistent” with other findings), Aviva’s arguments appear to again be a disagreement with the outcome. For instance, while Aviva submits it was reasonable for it to rely on Dr. Rabinovitch’s more contemporaneous findings, I am not satisfied that there is any factual or legal error evidenced by this preference.
71Overall, though Aviva may claim that its adjusting of these four treatment plans did not reach the high threshold needed to issue an award, I find its arguments are largely an attempt to re-argue its case from the hearing. This is not the proper use of the reconsideration process.
Award Quantum
72Finally, Aviva contests the award quantum. It submits that the correct award amount is $7,263.45, but, due to a calculation error, the decision lists $9,041.12.
73Between paragraphs 118 and 132 of the decision, the following four treatment plans are noted as forming the basis for the award:
a. $2,200.00 for the home renovation assessment plan;
b. $4,290.00 from the partially approved plan for social work treatment;
c. $4,189.25 for the treatment plan for concussion treatment; and,
d. $3,847.00 for the treatment plan for chiropractic treatment.
74Added together, these plans total $14,526.25. Half of this amount is $7,263.45.
75The applicant challenges Aviva’s position by claiming (emphasis added):
Read together, those plan amounts total $18,082.24 $3,847.03 (chiro) + $4,290.00 (social work) + $2,200.00 (home assessment) + $4,189.25 (concussion) + $3,555.96 (aquatherapy). 50% of $18,082.24 is $9,041.12, which is exactly the quantum the Tribunal ordered.
76Though this arithmetic is correct, the Tribunal explicitly excluded the aquatherapy plan from the award at paragraph 129 of the decision. By seemingly including this plan in the award calculation, I find Aviva has shown there was an error in this part of the decision. Further, if this error had not occurred, the outcome would have been different, namely, the amount ordered would have been $7,263.45.
77In light of this error, I am satisfied that the most appropriate remedy under Rule 18.4 is to vary the decision to correct the award quantum.
COSTS REQUEST
78I do not find the applicant has met the threshold necessary for ordering costs.
79Rule 19.1 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. The party requesting costs has the onus to demonstrate such an order is merited.
80The applicant states in his responding submissions to Aviva’s request that the Tribunal should “Award costs of this reconsideration request to the Applicant, given Aviva’s improper attempt to re-litigate settled issues.” Not only are parties permitted under Rule 18.1 to seek reconsideration of any decision that finally disposes of an appeal, but this brief statement is insufficient to meet the high threshold needed to order costs under Rule 19.1.
CONCLUSION & ORDER
81The applicant’s request for reconsideration is dismissed.
82Aviva’s request for reconsideration is granted, in part. Pursuant to Rule 18.4, the references to “$9,041.12” in paragraphs 5, 141, and 146 of the decision are varied to now read “$7,263.45”.
83The applicant’s costs request is denied.
Craig Mazerolle
Vice-Chair
Released: March 11, 2026