Vaillancourt v. Intact Insurance Company, 2026 CanLII 42219

Citation: Vaillancourt v. Intact Insurance Company, 2026 ONLAT 25-000367/AABS-R

RECONSIDERATION DECISION

Before:

Tyler Moore, Vice-Chair

Licence Appeal Tribunal File Number:

25-000367/AABS

Case Name:

Kelsey Vaillancourt v. Intact Insurance Company

Written Submissions by:

For the Applicant:

Sherilyn Pickering, Counsel

For the Respondent:

David Koots, Counsel

OVERVIEW

1On December 10, 2025, the applicant requested reconsideration of the Tribunal’s decision dated November 19, 2025 (“decision”).

2The Tribunal found that the applicant was not entitled to attendant care benefits (“ACBs”), transportation and form completion costs, provider travel, assistive devices, the disputed amount for an occupational therapy and attendant care needs assessment psychological assessment, a psychovocational assessment, the cost for medical cannabis and Metformin medication, interest, or an award.

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 reconsideration pursuant to Rule 18.2(b). The applicant seeks an order overturning the Tribunal’s decision and finding that she is entitled to the attendant care and medical benefits in dispute.

5The respondent submits that the request for reconsideration should be dismissed.

RESULT

6The applicant’s reconsideration request is granted, in part.

MOTION

7On January 23, 2026, the respondent filed a Notice of Motion with the Tribunal requesting that the evidence filed at Tabs 4 to 6 of the applicant’s reconsideration reply submissions, along with all arguments related to the improper reply evidence, be struck from the record with respect to the reconsideration.

[8]

8The respondent submits that it is improper to file new evidence in reply submissions. A party requesting reconsideration is expected to put its best foot forward when requesting a reconsideration, and if a party feels that a hearing transcript was required to support that request, it was their obligation to do so at first instance.

9The respondent relies on several cases to support its position, including:

a. Salvaggio v. Wawanesa Mutual Insurance Company, 2025 CanLII 75780 (ON LAT) (“Salvaggio”)

b. E.M. v. Aviva, 2020 CanLII 12741 (ON LAT) (“E.M.”)

c. Derenzis v. Gore, 2025 ONSC 2732 (“Derenzis”)

d. 18-001471 v. Economical Insurance Company, 2019 CanLII 22187 (“18-001471”)

e. A.J. V. Aviva General Insurance, 2020 CanLII 75200 (ON LAT) (“A.J.”)

10The respondent also submits that it is hard to comprehend the applicant’s argument that the timeline to file for reconsideration was insufficient to obtain transcripts. According to the respondent, the hearing transcripts were only ordered by the applicant the day before the reconsideration submissions were due and they were received within one week.

11The respondent argues that it would be prejudiced by the inclusion of over 660 pages of hearing transcript evidence. According to the respondent, it does not matter that the transcripts describe evidence that it was a part of, because the transcripts alter the weight of the evidence, which the respondent has no means of answering.

12With respect to the timeline for ordering the transcripts, the applicant submits that there were many steps required before ordering them, including:

a. Counsel reviewing the Tribunal’s decision and considering whether there are grounds for reconsideration.

b. Counsel obtaining instructions from the applicant, which in this case required multiple calls to confirm her understanding of the recommendation because of her cognitive and psychological impairments. Final instructions were only obtained on December 3, 2025.

c. Counsel determining which court reporter attended the hearing, then making the request, obtaining the quote, confirming instructions to proceed, and finally ordering the transcripts.

13The applicant submits that she is not formulating a new basis for reconsideration, but rather including the hearing transcripts in her reply submissions to directly respond to an issue raised by the respondent in its reconsideration submissions. According to the applicant, the Adjudicator was able to render her decision based on her own hearing notes and those closing notes submitted by Counsel.

14I agree that the right of reply is a limited one that is not open to a party reformulating or raising new arguments. In this case, however, I find that the applicant’s inclusion of the hearing transcript is in response to an issue raised by the respondent in their submissions. Specifically, the respondent submitted that the applicant made assertions about the evidence and arguments at the hearing without providing supporting evidence.

15I also find that the cases cited by the respondent are distinguishable on the facts. For example, in Salvaggio the applicant did not submit the hearing transcripts on reconsideration, stating only that it could be provided if required. In Derenzis, the Divisional Court upheld a Tribunal decision to strike an affidavit sworn by a former adjudicator to establish institutional bias at the Tribunal, but bias was a new ground that was not raised in the initial reconsideration submissions. Here, as noted above, the applicant is not arguing a new ground for reconsideration, but rather replying to a position taken by the respondent in its responding submissions.

16For these reasons, the respondent’s motion is denied.

ANALYSIS

17The 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.

Attendant Care Benefits

18I find that the Tribunal did not make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made, in deciding that the applicant was not entitled to ACBs in the amount of $4,484.86 ($6,000.00 less $1,515.54 approved) per month from July 18, 2024 to October 6, 2024 and $5,157.20 ($6,000.00 less $842.80 approved) per month from October 7, 2024 to date and ongoing.

19The applicant submits that the Tribunal erred in fact by finding that there was no evidence that she had incurred attendant care, when there was evidence that she had a personal support worker (“PSW”) and invoices were submitted for same. When the PSW stopped working, the applicant tried to find another one but could not find a suitable one within the amounts approved. According to the applicant, this was raised in her evidence and in closing statements.

20At paragraphs 11, 14, and 22 of the decision, the Tribunal acknowledges that the applicant was approved for ACBs by the respondent but did not incur any during the time period in question. Specifically, the Tribunal noted, at paragraph 14, that:

“The applicant testified that an incident occurred with her PSW, she lost trust in the PSW she had, therefore she let her go. She has not replaced that PSW and has not incurred any further PSW expenses post July 18, 2024. Therefore, she did not have proof of incurred costs to provide the Tribunal from July 18, 2024 to October 6, 2024,” pursuant to the requirement of s. 19 of the Schedule.

21At paragraph 19 of the decision, the Tribunal noted that the applicant had not submitted an updated Form 1 since November 30, 2022, or provided any new ACB invoices since July 18, 2024. Based on the applicant’s own testimony, the Tribunal found that the applicant provided no evidence of incurred ACBs between July 18, 2024 and October 6, 2024, the first ACB time period in dispute, and that the ACB invoices provided by the applicant were for the time period prior to July 18, 2024. As such, I am not satisfied that the Tribunal made an error of fact in this regard.

22The applicant further submits that the Tribunal erred in law by not analyzing and applying the deemed incurred provision. The Tribunal considered s. 3(8) of the Schedule but given that the applicant did not lead evidence that ACBs were incurred, it found that it was not applicable. According to the applicant, s. 3(8) of the Schedule is considered when the benefit was not incurred and it is therefore applicable in cases where there is no evidence that it was incurred. In this case, the benefit was not incurred to the same extent and amount that it would have been but for the respondent’s withholding of the benefit.

23I find that the Tribunal did make an error at paragraph 16 of the decision in stating that it had considered s. 3(8) of the Schedule and that it did not apply because the parties did not deal evidence that the ACBs were incurred for two reasons. First, I agree that there is no evidence that this argument was raised about the applicability of s. 3(8) by the parties at first instance. In addition, the Tribunal erred when it stated that it did not apply because there was no evidence the services were incurred. Section 3(8) is about deeming expenses, not about proof of incurred. However, I find that the error would not likely have changed the outcome of the decision.

24As previously noted, at paragraphs 11, 14, 20, and 22 of the decision, the Tribunal determined that the respondent had approved attendant care benefits for the time periods in dispute, but none was incurred. The applicant has not shown that the respondent’s conduct was unreasonable, thereby triggering the provisions in s. 3(8). Given the facts of this case, I find that the deemed incurred provisions set out in s. 3(8) of the Schedule would not appropriately be triggered, as set out by the Tribunal in the decision.

25In sum, though the Tribunal did make an error in addressing an argument that was not raised by the parties and in framing when s. 3(8) is triggered under the Schedule, I find that the Tribunal would likely not have reached a different result had that error not been made.

$2,284.13 for Occupational Therapy Services proposed in a treatment plan dated November 20, 2023

26The applicant has established grounds for reconsideration with respect to the treatment plan dated November 20, 2023.

27The applicant submits that the Tribunal erred in defining the issue in dispute in relation to this plan for occupational therapy services. According to the applicant, this was not a benefit that was partially approved, and the entire treatment plan was in dispute. The applicant also submits that the Tribunal did not address the test for whether the treatment plan was reasonable and necessary. As a result, the Tribunal has not demonstrated that it was sensitive to the issue and grappled with it.

28The respondent did not provide reconsideration submissions with respect to this issue.

29At paragraph 2 v. of the decision the Tribunal listed the issue in dispute as “is the applicant entitled to $19.80 ($2,284.13 less $1,995.00 less $149.63) for travel for a service provider, proposed by Rehab First Inc. in a plan dated November 20, 2023?”

30I agree with the applicant that issue 11 as listed in the CCRO dated February 26, 2025 reflects that the treatment plan was not partially approved and that the treatment plan in its totality was in dispute. I find no evidence in the Tribunal’s decision that it considered the entirety of the treatment plan and therefore find that the Tribunal made an error of fact such that the Tribunal would likely have reached a different result had the error not been made. I find that this error in fact meets the threshold for triggering Rule 18.2(b).

31Therefore, I find that the applicant has established grounds for reconsideration with respect to this treatment plan.

$5,562.14 for Assistive Devices (mattress, mattress protector, pillow)

32The applicant has not established grounds for reconsideration with respect to the treatment plan for assistive devices.

33The applicant submits that the Tribunal erred in fact in finding that the request for a mattress and related devices is not supported by medical records. According to the applicant, there are extensive records indicating that she suffered from sleep impairments and a diagnosed sleep disorder arising from the accident.

34At paragraphs 33, 35, and 37-39 of the decision, the Tribunal considered the applicant’s testimony and the recommendations of Dr. Mohamed Khaled, physician, and Angela Hubbard, occupational therapist. The Tribunal acknowledged that the applicant suffered from sleep impairments, but found that a complex sleep system, as proposed, was not reasonable and necessary for the applicant’s sleep impairment based on the medical records. Specifically, at paragraph 39 of the decision, the Tribunal found that:

…“the underlying need to a new mattress is based on the applicant’s self-reported fatigue and safety concerns and not a goal. I agree with the respondent and Dr. Khaled her mattress is very old and most certainly in need of a replacement. Although I take into consideration OT Hubbard recommended a mattress rather than a complex sleep system which the applicant chose on her own. I agree that pain relief and restorative sleep are reasonable goals, however, I find the request is not supported by medical records indicating that the applicant has a sleep disorder which supports the assistive device listed in the OCF-18.”

35I find that the applicant is attempting to re-argue her case because she disagrees with the Tribunal’s decision and weight given to the evidence. She has not established an error of law or fact, and therefore this does not meet the threshold for reconsideration under Rule 18.2(b).

$219.95 ($2,484.13 less $2,244.38 approved less $19.95 withdrawn) for Occupational Therapist Travel Costs and Form Completion related to a treatment plan dated January 31, 2023

36The applicant has established grounds for reconsideration with respect to travel expenses under the treatment plan dated January 31, 2023.

37The applicant submits that the Tribunal erred in fact by finding that she did not provide submissions beyond the reasonableness and necessity of the provider’s mileage expenses listed on the treatment plan, when she provided submissions in respect of provider travel time. According to the applicant, Angela Hubbard, occupational therapist, provided testimony at the hearing that the treatment was provided in-home, it needed to be provided in-home, and Ms. Hubbard also testified about the amount of time she spent commuting to provide that treatment.

38The respondent submits that the decision provided adequate reasons explaining why the additional amounts for travel were not approved.

39At paragraph 43 of the decision the Tribunal noted that “[t]he applicant did provide further submissions beyond the reasonableness and necessity of the mileage.”

[40]

40I find that the transcript of the applicant’s hearing closing submission supports that she addressed the issue of travel time for Ms. Hubbard related to this treatment plan at the time of the hearing. According to the transcript, the applicant submitted that that “in light of the need for the care to be in-home, the travel time is reasonable and necessary.” I agree with the applicant that this was not addressed by the Tribunal in its decision and constitutes an error of fact that would likely have changed the result, thereby triggering Rule 18.2(b).

41I find that the applicant has established grounds for reconsideration with respect to the travel expenses under the treatment plan dated January 31, 2023.

$50.39 ($2,200.00 $2,149.61 approved) for a Psychological Assessment

42The applicant has established grounds for reconsideration with respect to the balance of this treatment plan.

43The applicant submits that the Tribunal erred in fact and law in finding that she did not provide further details about what the denied portion of this treatment plan is for. According to the applicant, this was addressed at the hearing in preliminary discussions, the evidence of Dr. Humayun, and again in closing statements.

44According to the applicant, the denied portion of the assessment was for form completion, and the respondent limited the approval of form completion to 1 hour. Dr. Humayun testified that the clinic does a 1-hour intake interview and then it takes them 1 hour to prepare the intake report which is necessary to complete the OCF-18.

45The transcript of the applicant’s hearing closing reflects her submission that “the respondent partially denied the form completion, limiting it to 1 hour. The PSG does not state that the $200 per hour for OCF-18s are to be based on an hourly rate…As Dr. Humayun testified, the clinic has a standard procedure where they book a 1 hour intake interview with the patient and then it takes an hour for them to prepare the intake report…Thus 2 hours of time is reasonable and necessary.”

46At paragraph 49 of the decision, the Tribunal noted that “the applicant did not provide further details about what the denied portion is for, she gave no further submissions at all.” I agree with the applicant that this constitutes an error in fact that would likely have changed the outcome of the decision, thereby triggering Rule 18.2(b).

47I find that the applicant has established grounds for reconsideration with respect to the remaining balance of this treatment plan.

Medical Cannabis

48The applicant has not established grounds for reconsideration with respect to the claims for prescription medical cannabis.

49The applicant submits that the Tribunal erred in its analysis, applying the incorrect test for whether the prescription cannabis is reasonable and necessary. According to the applicant, the test for medication submitted on a claim form is not the same as for treatment plans which includes goals of treatment, those goals being met, and reasonableness of costs. For medications, the test is whether the accident caused the impairment that necessitates the prescription, whether the medication is reasonable and necessary for effecting treatment for an accident-related impairment, and whether a regulated health professional provided the prescription.

50According to the applicant, she suffered from mood impairments, migraine headaches, and pain as a result of the accident, which is supported by the medical evidence and testimony heard. She also testified at the hearing that cannabis helped her more than other medications to control her accident-related symptoms.

51The respondent submits that the applicant focuses on the Tribunal’s mention of the goals of the treatment but ignores that the Tribunal concluded at paragraph 65 of the decision that “[s]he has not provided corroborating medical evidence that the medical marijuana is reasonable and necessary for her accident-related condition.” The respondent also submits that the Tribunal highlighted that Dr. Khaled’s medical opinion did not support the use of cannabis and that the applicant used cannabis pre-accident.

52Entitlement to prescription medication is governed by s. 15(1)(c) of the Schedule. Pursuant to s. 15(1)(c), the applicant must establish that the proposed medication is reasonable and necessary. I find that the same reasonable and necessary test applies whether medication is claimed on an OCF-6 or proposed on an OCF-18/treatment plan. Claiming medication on an OCF-6 does not remove the reasonable and necessary test governed by s. 15 of the Schedule. As a result, I find that there is no meaningful difference between the test the applicant suggests is correct and the test applied by the Tribunal in the decision.

53I agree with the applicant that the Tribunal made an error of fact in paragraph 65 of the decision. The Tribunal stated that “the applicant has not met her onus to prove on a balance of probabilities that these treatment plans for medical marijuana are reasonable or necessary.” I find, however, that the Tribunal’s error of fact does not rise to the threshold that would trigger reconsideration under Rule 18.2(b). Specifically, that the Tribunal would likely not have reached a different result had the error not been made.

54I also find that the applicant’s submission that the Tribunal did not consider her testimony or the supportive medical evidence constitutes an attempt to re-argue her position. At paragraphs 63-65 of the decision, the Tribunal considered the applicant’s testimony, the medical evidence, and provided reasons to support its findings.

55I find that the applicant has not established grounds for reconsideration with respect to the OCF-6s for medical cannabis.

Award

56The applicant submits that the Tribunal erred in law and fact by finding that the respondent adjusted the file in a manner that was reasonable. According to the applicant, the respondent relied blindly on its s. 44 assessor reports in making its determination.

57At paragraph 80 of the decision, the Tribunal determined that the respondent “adjusted the file in a manner that is reasonable.” The applicant has not shown that the Tribunal made an error of fact or law that would rise to the level of reconsideration under Rule 18.2(b). I find that the applicant is attempting to re-argue her position with respect to the award.

Interest

58The applicant submits that the Tribunal made what appears to be a typographical error in respect of interest. At paragraphs 82, 83, and in the Order section of the decision, the Tribunal stated that the applicant is entitled to interest, however at paragraph 6. xi the Tribunal indicated that the respondent was not liable to pay a s. 10 award or interest. The applicant requests that the Tribunal clarify these ambiguities to correctly reflect the Tribunal’s intended determination.

59The respondent did not provide any reconsideration submissions with respect to interest.

60Pursuant to Rule 17(b), the Tribunal may at any time clarify an order or decision that contains a mistatement or ambiguity, which is not substantive and does not change the order or decision.

61I agree with the applicant that the Tribunal made a typographical error at paragraph 6. xi of the decision, and that the Tribunal’s intended order was that she is entitled to interest related to the overdue payment of benefits, as noted in the Tribunal’s decision order.

62For clarity, paragraph 6. xi of the decision is amended to read:

“The respondent is not liable to pay a s.10 award. The applicant is entitled to interest on the treatment plans for the psychovocational assessment and the prescription Metformin in accordance with s. 51 of the Schedule.”

Rule 18.4 – Outcome of Reconsideration

63Having found that the applicant established grounds for reconsideration under Rule 18.4 as set out above, I will now turn to the outcome of this reconsideration.

64I am cancelling the decisions on the partially approved psychological assessment, the partially approved treatment plan dated January 31, 2023 for transportation and form completion costs, and the plan for occupational therapy services dated November 20, 2023, and related interest and award.

65I find it appropriate to use my authority under Rule 18.4 to order a re-hearing for the partially approved psychological assessment, the partially approved treatment plan dated January 31, 2023 for transportation and form completion costs, and the plan for occupational therapy services dated November 20, 2023 (plus applicable interest and the claim for an award on these treatment plans).

66The applicant has demonstrated that the Tribunal did not properly assess her entitlement to these plans, so I am satisfied that the only appropriate remedy is to have the Tribunal conduct a re-hearing of these issues.

67I am satisfied that these issues can be re-heard by way of a written hearing. The need for an efficient conclusion to this proceeding leans in favour of allowing these remaining treatment plans to be decided in a focused and expeditious manner. The rehearing will be conducted based on the record and the transcript of the initial hearing. I see no prejudice facing the parties from ordering a written hearing, as it is an appropriate balance between the need for an efficient conclusion to this proceeding and the parties’ right to procedural fairness.

CONCLUSION & ORDER

68The applicant’s request for reconsideration is granted in part.

69Pursuant to Rule 18.4, I am cancelling the decisions on the partially approved psychological assessment, the partially approved treatment plan dated January 31, 2023 for transportation and form completion costs, and the plan for occupational therapy services dated November 20, 2023 and related interest and award.

70The issues shall be reheard in writing before a different adjudicator.

71The issues in dispute for the re-hearing are:

a. Is the applicant entitled to $219.95 ($2,484.13 less $2,244.38 approved less $19,95 withdrawn) for transportation and form completion in relation to a treatment plan/OCF-18 (“plan”), proposed by Rehab First Inc. in a plan dated January 31, 2023?

b. Is the applicant entitled to $50.39 ($2,200.00 less $2,149.61 approved) for a psychological assessment, proposed by Fox Psychological in a plan dated May 24, 2023?

c. Is the applicant entitled to $2,284.13 for occupational therapy services, proposed by Rehab First Inc. in a plan dated November 20, 2023?

d. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant (as it relates to issues a., b., and c. above only)?

e. Is the applicant entitled to interest on any overdue payment of benefits (as it relates to issues a., b., and c. above only)?

72The parties must file with the Tribunal and serve their written submissions and evidence, and authorities according to the following timetable:

Submissions

Due Date

Page Limit

Applicant’s submissions, evidence and authorities:

30 calendar days following the release of this decision

7 pages

Respondent’s submissions, evidence, and authorities:

14 calendar days after the date the applicant’s submissions are due

7 pages

Applicant’s reply submissions or written notice that no reply submissions will be filed:

7 calendar days after the date the responding submissions are due

3 pages

73The page limits are exclusive of evidence and authorities.

74All submissions, evidence and authority briefs filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.

75The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.

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76If the parties resolve the issue(s) in dispute, the applicant shall immediately advise the Tribunal in writing.

77I am not seized.