Dilber Tahir v. Wawanesa Mutual Insurance Company, 2026 CanLII 45615

RECONSIDERATION DECISION

Before: Tyler Moore, Vice-Chair

Licence Appeal Tribunal File Number: 24-005734/AABS

Case Name: Dilber Tahir v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Aylina Dhanji, Counsel Sareena Samra, Counsel

For the Respondent: Michelle Panagiotakos, Counsel

OVERVIEW

1On February 3, 2026, the respondent requested reconsideration of the Tribunal’s decision dated January 13, 2026 (“decision”).

2The Tribunal found that the applicant was entitled to $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services provided the expenses were incurred prior to June 17, 2024; $183.65 ($4,179.60 less $3,995.95 approved) for physiotherapy services; $24.62 for medication; $550.00 for an eye exam/glasses; $347.00 for dental services; interest on the amounts payable; and an award in the amount of $75.00.

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 respondent seeks reconsideration pursuant to Rules 18.2(a) and 18.2(b). The respondent seeks an order varying the Tribunal’s decision by disentitling the applicant to the benefits, interest, and award previously granted.

5The applicant submits that the respondent’s reconsideration request should be dismissed.

RESULT

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

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rules 18.2(a) and 18.2(b)

Entitlement to $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services

8The respondent has established grounds for reconsideration with respect to the partially approved occupational therapy services treatment plan submitted on March 18, 2024.

9The Tribunal found that the applicant was entitled to the disputed amount provided the expenses were incurred prior to June 17, 2024, and that there was no entitlement beyond the previously approved amount after June 17, 2024.

10The respondent submits that the Tribunal erred in fact by finding that it responded to the proposed treatment plan on June 17, 2024, when the response was dated June 12, 2024. The respondent also submits that it first responded to the proposed treatment plan on April 11, 2024, denying it because there was insufficient supportive medical documentation. Then, on May 13, 2024, after receiving additional medical information from the applicant, the respondent provided further notice that the treatment plan would be addressed at an upcoming s. 44 assessment. According to the respondent, the June 12, 2024 letter was its final response, or determination, in relation to the treatment plan following the s. 44 assessment.

11The respondent further submits that at paragraphs 19 and 20 of her initial submissions, the applicant speaks only in general terms as far as what an insurer’s obligations are under s. 38(8) of the Schedule, without asserting that the respondent’s notice related to this treatment plan was deficient or late. As a result, the Tribunal erred in fact by assuming that the June 12, 2024 letter was the respondent’s only response to the proposed treatment plan, especially when there were no submissions of lateness made by the applicant.

12The applicant submits that the respondent is relying on evidence that was not provided in its initial submissions or document brief and is trying to advance new arguments in its reconsideration submissions. According to the applicant, the respondent did not provide a proper notice of denial for the treatment plan.

13At paragraph 17 of the applicant’s hearing submissions, she indicated that “the respondent’s reasoning for the partial approval lacks a detailed explanation/justification.” At paragraphs 19 and 20 of the applicant’s hearing submissions she stated that “under s. 38(8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan it will approve or refuse to pay” and that “the onus is on the insurer to establish that the applicant has received the proper notice of denial and that the denial was clear and unequivocal.”

14I agree with the respondent that the applicant made no submissions based on the alleged lateness of the response at first instance.

15Paragraphs 7 - 9 of the respondent’s hearing submissions addressed the applicant’s general argument that the June 12, 2024 response was deficient pursuant to s. 38(8) of the Schedule, but it did not address any previous responses or Notices of Assessment related to this treatment plan, as there was no argument being made by the applicant that the response was late. The applicant’s submission was limited to the fact that the response lacked reasoning and a detailed justification for the partial approval.

16Given that the Tribunal found that the applicant was entitled to the disputed portion of the treatment plan, “provided the expenses were incurred prior to June 17, 2024, and no entitlement beyond the approved amounts after June 17, 2024”, I find that the Tribunal’s error of fact meets the threshold for triggering Rule 18.2(b).

17I find that the respondent has established grounds for reconsideration with respect to the partially approved treatment plan for occupational therapy services.

Entitlement to $183.65 ($4,179.60 less $3,994.95 approved) for physiotherapy services

18The respondent has established grounds for reconsideration with respect to the partially approved treatment plan for physiotherapy services, submitted on July 29, 2024.

19The Tribunal found that the applicant was entitled to the disputed forearm crutches and a bed handle in the amount of $183.65 because the respondent did not provide any submissions at first instance.

20The respondent submits that the Tribunal erred in finding that it made no submissions on the disputed treatment plan, when it clearly had. At paragraphs 21 and 22 of the respondent’s hearing submissions, it stated that these items were not reasonable and necessary because the s. 44 assessor had indicated that the applicant already had crutches and because a bed rail had been previously approved. According to the respondent, the applicant made no submissions indicating why a second bed handle/rail device or a second pair of crutches were reasonable and necessary.

21The applicant submits that the Tribunal reviewed all of the medical evidence and made a determination that proposed treatment plan was reasonable and necessary.

22At paragraph 43 of the decision, the Tribunal stated that “the respondent made no submissions on the recommended forearm crutches and a bed handle.” Having reviewed the respondent’s submissions made at first instance, I agree that these items were addressed in its hearing submissions. There is no evidence, however, that these submissions were considered by the Tribunal in its decision. I find that the Tribunal made an error in fact that meets the threshold for triggering Rule 18.2(b).

23I find that the respondent has established grounds for reconsideration with respect to the partially approved treatment plan for physiotherapy services.

Entitlement to $24.62 for Medication

24I find that the respondent has established grounds for reconsideration with respect to the OCF-6 for medication, submitted April 10, 2024.

25The respondent submits that the Tribunal did not address its submissions with respect to this issue in dispute. Specifically, at paragraphs 26 and 27 of its hearing submissions, the respondent submitted that the escitalopram was already paid, that there was no compelling evidence that that pantoprazole was prescribed as a result of the accident, and that the escitalopram and pantoprazole receipts did not account for the $24.62 being claimed on the OCF-6. Specifically, $14.73 of the total amount claimed on the OCF-6 was not supported with receipts.

26The respondent also submits that the Tribunal erred in fact by finding that the physician’s notes and records supported entitlement to the full amount of the OCF-6, especially where no such evidence or submissions were led or made by the applicant demonstrating that the medications were prescribed as a result of the accident. The respondent further submits that the Tribunal erred in law by finding that the applicant was entitled to the $14.73 amount listed above, as she had not proven to have incurred this amount, contrary to s. 3 and s. 15 of the Schedule.

27The applicant submits that the Tribunal reviewed all of the medical evidence and the submissions of the parties when making its determination.

28The Tribunal addressed the OCF-6 at paragraph 50 of the decision, finding that “the claim for $24.62 for reimbursement of medications is reasonable and necessary as support [sic] by the clinical notes and records of the applicant’s physician.” I find, however, that there is no indication that the Tribunal considered and addressed the respondent’s position in the decision.

29At paragraph 26 of the respondent’s hearing submissions, the respondent stated that “the OCF-6 was denied because one of the expenses therein in the amount of $14.73 was not supported by a prescription.” At paragraph 27 of those submissions, the respondent noted that “the applicant later provided documentation in support of the escitalopram and it was subsequently paid according to a letter of September 24, 2024, in the amount of $5.78.”

30I find that the Tribunal did not address the respondent’s arguments related to a subsequent reimbursement for the escitalopram expense being claimed, the fact that the accompanying receipts did not add up to the amount being claimed, and the respondent’s position that there was no evidence that pantoprazole, a proton pump inhibitor typically prescribed for acid reflux, was prescribed as a result of the applicant’s accident-related injuries. As a result, I find that the Tribunal made a material breach of procedural fairness that meets the threshold for triggering Rule 18.2(a).

31Therefore, I find that the respondent has established grounds for reconsideration with respect to the OCF-6 for medication.

Entitlement to $550.00 for an Eye Exam and Glasses

32I find that the respondent has established grounds for reconsideration with respect to the OCF-6 for an eye exam and glasses, dated July 24, 2024.

33The respondent submits that there was no direct evidence before the Tribunal that the applicant’s lenses or frames were damaged as a result of the accident, other than a photo that had no time or date stamp that had not previously been produced. The respondent also submits that it had requested that the picture be excluded from evidence at paragraph 29 of its hearing submissions.

34According to the respondent, the Tribunal erred in fact and law by speculating that the applicant broke her glasses based only on the possibility of damage. The Tribunal also committed a material breach of procedural fairness by allowing evidence that had not been previously produced until the hearing and by not addressing the respondent’s submissions in that regard.

35The applicant submits that the Tribunal considered the evidence and made a determination, providing detailed reasons for the decision. According to the applicant, the respondent had the opportunity to fully argue their case and respond to her position, so there has been no breach of procedural fairness.

36At paragraph 52 of the decision, the Tribunal considered “the respondent submitted there was no evidence of the applicant’s glasses being damaged in the accident.” The Tribunal then concluded that, “I find on a balance of probabilities that her glasses were damaged as a result of the accident by rational inference when the applicant was knocked off her wheelchair in the accident and struck her head.

37While I agree that the respondent had the opportunity to argue their case and respond to the applicant’s position, I find that the Tribunal’s decision does not address the respondent’s central argument about the admissibility of the photograph at first instance.

38By not addressing the respondent’s central argument at first instance, I find that the Tribunal made a material breach of procedural fairness that meets the threshold for triggering Rule 18.2(a).

39I find that the respondent has established grounds for reconsideration with respect to the OCF-6 for an eye exam and glasses.

Entitlement to $347.00 for Dental Services

40I find that the respondent has not established grounds for reconsideration with respect to the OCF-6 for dental services, dated July 24, 2024.

41The respondent submits that the Tribunal erred in fact and law by speculating that the applicant sustained a dental injury based only on the possibility of same. While the applicant’s head impact and concussion were the basis for the Tribunal inferring dental damage, such a finding was not supported by the evidence. According to the respondent, the dental invoice of July 12, 2024 indicated “emergency” on it, but the invoice was dated four months after the accident.

42The Tribunal considered the OCF-6 and the dental invoice at paragraph 53 of the decision. The Tribunal was persuaded by the applicant’s submission that “as she was knocked off her wheelchair and struck her head as a result of the accident dental damage also occurred requiring repair; the dental invoice indicates emergency repair.”

43I find that respondents’ submissions constitute an attempt to re-argue its position because it disagrees with the Tribunal’s weighing of the evidence. The respondent has not demonstrated an error of fact or law such that the Tribunal would likely have reached a different decision had the error not been made.

Entitlement to $75.00 for an Award

44The underlying benefit that supported the Tribunal’s decision to grant $75.00 for an award, entitlement to forearm crutches and a bed handle, is impacted by my finding that the respondent established grounds for reconsideration under Rule 18.2(b).

45As a result, the Tribunal’s finding for an award is based on an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.

Rule 18.4 – Outcome of Reconsideration

46Having found that the applicant established grounds for reconsideration under Rule 18.2 as set out above, I will now turn to the outcome of this reconsideration.

47I am cancelling the following approvals from the decision: the partially approved treatment plan for occupational therapy services, submitted March 14, 2024, the partially approved treatment plan for physiotherapy services, dated July 29, 2024, entitlement to an award, and the OCF-6s for medications, dated April 10, 2024, and an eye exam/glasses, dated July 24, 2024.

48I find it appropriate to use my authority under Rule 18.4 to order a re-hearing for these medical benefits (plus applicable interest and an award).

49The respondent has demonstrated that the Tribunal did not properly assess the applicant’s entitlement to these plans and expenses, so I am satisfied that the only appropriate remedy is to have the Tribunal conduct a re-hearing of these issues.

50I am then further 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. I am also satisfied that two treatment plans and two OCF-6s can be adequately addressed based on the existing party submissions and evidence. Taken together, 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

51The respondent’s request for reconsideration is granted, in part.

52Pursuant to Rule 18.4, I am cancelling the decisions on the following approvals from the decision: the partially approved treatment plan for occupational therapy services, submitted March 14, 2024, the partially approved treatment plan for physiotherapy services, dated July 29, 2024, entitlement to an award, and the OCF-6s for medications, dated April 10, 2024, and an eye exam/glasses, dated July 24, 2024.

53The issues shall be reheard in writing before a different adjudicator.

54The issues in dispute for the re-hearing are:

a. Is the applicant entitled to $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic (“Somatic”) in a treatment plan/OCF-18 submitted March 18, 2024?

b. Is the applicant entitled to $183.65 ($4,179.60 less $3,995.95 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a treatment plan submitted July 29, 2024?

c. Is the applicant entitled to $24.62 for medication, submitted on a claim form/OCF-6 dated April 10, 2024?

d. Is the applicant entitled to $550.00 for an eye exam and glasses, submitted on a claim form/OCF-6 dated July 3, 2024?

e. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

55The parties must file with the Tribunal and serve their written submissions, 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

56The page limits are exclusive of evidence and authorities.

57All 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.

58The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.

59If the parties resolve the remaining issue(s) in dispute, the applicant shall immediately advise the Tribunal in writing.

60I am not seized.

Tyler Moore Vice-Chair