RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-000953/AABS
Case Name: Joseph Berberich v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Turel Hufriz, Paralegal
For the Respondent: Jessica Rogers, Counsel
OVERVIEW
1On November 7, 2025, the applicant requested reconsideration of the Tribunal’s decision released October 17, 2025 (“decision”).
2Stemming from an accident that his grandson was involved in on August 15, 2021, 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 participated in a written hearing. In the decision, the adjudicator dismissed the applicant’s claim for the outstanding amounts from three treatment plans for psychological services. Specifically, the Tribunal did not endorse the applicant’s view that his treating psychotherapist was entitled to the higher hourly rate of a psychologist.
3The Tribunal also dismissed his claim for interest.
4The 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.
5The applicant relies on Rule 18.2(b) and Rule 18.2(c) to support his request for reconsideration. He is seeking an order finding he is entitled to the disputed amounts in the three treatment plans, plus interest.
6The respondent asks the Tribunal to dismiss the request for reconsideration.
RESULT
7The applicant’s request for reconsideration is granted.
8Pursuant to Rule 18.4, the decision is cancelled. The matter shall be reheard based on the parties’ submissions and evidence from the written hearing.
ANALYSIS
9The 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(b) – Errors of Fact or Law
10I find the applicant has established grounds for reconsideration based on Rule 18.2(b).
11The applicant raises several alleged errors with the decision. First, the applicant claims the respondent did not provide denial letters that complied with s. 38(8) of the Schedule. Second, the applicant submits the Tribunal erred in its conclusion that his treating psychotherapist, Corrado Recchiuti, was not entitled to the hourly rate of a psychologist. Specifically, he highlights Mr. Recchiuti’s experience and education to support this ground. Finally, the applicant claims the Tribunal erred by stating he did not provide copies of the disputed treatment plans with his submissions, even though the OCF-18 forms were included with his reply.
12To start, I note that the applicant did not raise concerns with the respondent’s denial letters during the written hearing. Parties are expected to put their best foot forward during the hearing, as reconsideration is generally not a venue for presenting new arguments that could have been reasonably raised at an earlier stage. I see no reason why an argument for payment based on s. 38 could not have been raised during the written hearing.
13Next, the applicant’s arguments about the experience and education of his treating psychotherapist are best understood as attempts to dispute the Tribunal’s assessment of the evidence. As noted above, the reconsideration process is not a venue for asking the Tribunal to re-weigh evidence considered at first instance. Decision-makers are entitled to assess the merits of a party’s case, and—unless this evidentiary analysis is shown to be legally or factually incorrect—questioning the weight assigned to the evidence is not the purpose of a reconsideration.
14However, I do accept that the applicant has shown an error in the Tribunal’s determination that it did not receive copies of the OCF-18 forms.
15A key aspect of the Tribunal’s findings about Mr. Recchiuti’s hourly rate can be found at paragraphs 15 and 16 of the decision (emphasis added):
While the applicant argues the respondent should approve the psychologist’s rate, I have not been directed to any evidence that the work being done by Mr Recchiuti was essentially the same as a psychologist, or that he is entitled to a higher rate by virtue of his expertise, experience or credentials. The applicant has not submitted the OCF-18s which would outline the scope of therapy conducted, or how it is essentially the same or different than what could be conducted by a psychotherapist.
I was not led to evidence which indicates the therapy work conducted was essentially the same as a psychologist, or that Mr Rechiuti [sic] was under constant supervision from a psychologist…
16Though not included with his initial written submissions, the OCF-18 forms were included with the applicant’s reply.
17Parties are discouraged from splitting their case between the initial submissions and the reply, as this practice affects the responding party’s ability to fairly and fully address their arguments. However, there is a difference between finding that the party with the onus has not made out their case at first instance, versus a finding that a document was not submitted (even though it was). I find the Tribunal’s reasons in this case were not limited to finding that the applicant’s evidence at first instance was insufficient to meet his evidentiary burden. Instead, the Tribunal went on to erroneously determine that certain, key documents were not submitted.
18I then find that the applicant has shown how correcting this error would likely have impacted the outcome of the decision. As the applicant argues in his reconsideration submissions:
The Applicant’s treatment goals and strategies were focused on reducing his experienced anxiety, improving his sleep, improving his memory and concentration, increasing his ability to cope with his grandson’s death, and eliminate his phobic and avoidant behaviors. A variety of CBT and narrative therapy techniques have been employed during his psychotherapy sessions. Since the therapy began, the Applicant has become increasingly aware of the triggers that contribute to his anxiety while in a vehicle or in the community.
19The Tribunal found the applicant did not provide information about the kind of therapy his treating psychotherapist was performing. This finding was key to the Tribunal’s conclusion that Mr. Recchiuti was not entitled to the higher hourly rate. The applicant has shown that the overlooked OCF-18 forms provided details about this treatment.
20The respondent claims the Tribunal “specifically referenced the fact that the OCF-18s submitted did not outline the scope of the therapy conducted”. I find this interpretation of the decision is not correct. The Tribunal did not assess the contents of the OCF-18 forms to find that they “did not outline the scope of the therapy conducted”. Rather, it found the forms had not been submitted.
21The respondent further submits that these forms would not have helped the applicant’s case, but the standard that the applicant must meet to merit a reconsideration under Rule 18.2(b) is not that correcting the error would change the result. Rather, the applicant must only show that this error “would likely” have impacted the outcome. By showing that the Tribunal erroneously determined certain key documents were not submitted, I am satisfied that the applicant has met the standard under Rule 18.2(b).
Rule 18.2(c) – New Evidence
22Though I have found the applicant established a ground for reconsideration, I still find it is necessary to address his claim that there is new evidence that meets the standard under Rule 18.2(c). I do not find he has made out this ground.
23Rule 18.2(c) requires the requesting party to meet the following three-part test:
a. There is “evidence that was not before the Tribunal when rendering its decision”;
b. This evidence “could not have been obtained previously by the party now seeking to introduce it”; and,
c. This evidence “would likely have affected the result”.
24At the time that the applicant’s initial submissions and reply were filed (i.e., February 11 and March 5, 2025, respectively), Mr. Recchiuti was listed as a “Registered Psychotherapist (Qualifying)”. On April 3, 2025, his professional designation changed to “Registered Psychotherapist”.
25According to the applicant, this information was not available at the time his submissions were due, so this change should be considered new evidence for the purpose of Rule 18.2(c). The applicant also submits that Mr. Recchiuti completed a clinical supervision course on October 6, 2025, again after he filed his written hearing submissions.
26The respondent argues that the applicant has not met the “would likely have affected the result” branch of the Rule 18.2(c) test. Specifically, the respondent submits that this change to Mr. Recchiuti’s qualifications have no impact on the parties’ dispute, since he provided his services to the applicant before the “Qualifying” designation was removed. The services also pre-date the completion of the clinical supervision course.
27I agree with the respondent’s position that this new information would have no impact on the question before the Tribunal, i.e., whether Mr. Recchiuti is entitled to a higher hourly rate. If the disputed psychological services had already been incurred before the applicant filed his written submissions, I am not satisfied that changes to Mr. Recchiuti’s education and professional designations following this time would have any impact on the decision.
28In reply, the applicant claims that the psychotherapist completed degrees between 2011 and 2020 that included Cognitive Behavioural Therapy as part of the training. I do not see how this argument addresses the respondent’s position.
Rule 18.4 – Cancelling the Decision
29The applicant has established grounds for reconsideration under Rule 18.2, so I must determine what the appropriate remedy is under Rule 18.4. Though the applicant is seeking an order finding he is entitled to the disputed benefits; I find the nature of the error established above shows that the most appropriate way to proceed is to have the matter reheard by a new adjudicator.
30This review will be based on the evidence and submissions from the written hearing, as I see no need for fresh evidence or arguments from the parties. This arrangement will also allow the matter to be resolved in a timelier fashion.
CONCLUSION & ORDER
31The applicant’s request for reconsideration is granted.
32Pursuant to Rule 18.4, the decision is cancelled. The matter shall be reheard based on the parties’ submissions and evidence from the written hearing.
33I am not seized.
Craig Mazerolle
Vice-Chair
Released: January 8, 2026