RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-009554/AABS
Case Name: William Sandford v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: David A. Stein, Counsel
For the Respondent: Kathleen Mertes, Counsel
OVERVIEW
1On March 30, 2026, the respondent requested reconsideration of the Tribunal’s decision released March 11, 2026 (“decision”).
2Stemming from an accident on September 8, 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 Tribunal found the applicant was entitled to one of three treatment plans in dispute, i.e., a partially approved plan for psychological treatment (dated November 1, 2024). Specifically, the Tribunal found the applicant was entitled to the denied portion of the plan related to “observation and monitoring” in the amount of $598.44.
3The Tribunal also granted the applicant interest on the plan, but it denied his request for an award.
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 respondent relies on Rule 18.2(a) and Rule 18.2(b) to support its request. It is seeking to have the Tribunal vary the decision to find the applicant is not entitled to the denied portion of the treatment plan for psychological treatment. It is also asking for the interest order to be varied.
6The applicant asks the Tribunal to dismiss the request for reconsideration.
RESULT
7The respondent’s request for reconsideration is dismissed.
ANALYSIS
8The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence.
Rule 18.2(a) and Rule 18.2(b) – Dr. Bodenstein Letter
9The respondent challenges the Tribunal’s decision to allow the applicant to rely on a late-served letter from psychologist, Dr. Eyal Bodenstein (dated June 10, 2025). The Tribunal’s reliance on this letter not only breached its right to procedural fairness (as it was deprived of the ability to obtain input from its assessors), but the respondent claims the Tribunal erred in its assessment of the letter’s contents. Specifically, the respondent argues that the Tribunal relied on the letter to erroneously impute it with knowledge of a “re-assessment”, even though this knowledge came from the late-served letter itself.
10After determining that the letter was first served on the respondent with the applicant’s hearing submissions, the Tribunal turned its attention to Rule 9.3 at paragraph 11 of the decision (emphasis added):
As noted above, Rule 9.3 sets out the factors to consider in granting a party, who has failed to follow disclosure orders, permission to rely on the subject document or thing in the hearing. I have considered the parties’ submissions on this issue and the factors in Rule 9.3 and grant permission for the applicant to rely on the letter for the following reasons:
i. The letter is relevant to issue #3 in dispute by providing further rationale for the re-assessment (observations and monitoring) undertaken by Dr. Bodenstein;
ii. The respondent had knowledge of the results of the re-assessments (Beck Depression Inventory-II, Beck Anxiety Inventory, Beck Hopelessness Scale, and Pain Patient Profile) from the Psychological Progress and Second Treatment Plan Preparation report, dated November 1, 2024, that appears to have been attached to the subject OCF-18 for $1,995,32 (and was included in the applicant’s documents for the hearing), and echoed in the Additional Comments section of the treatment plan. The respondent therefore had the ability to consider and assess the necessity of these activities as part of its consideration of the treatment plan and include its reasons for denying that portion of the treatment plan in its EOB.
iii. There is some prejudice to the respondent by permitting the applicant to rely on the letter, but the prejudice is mitigated by the respondent having knowledge of the details regarding the re-assessment and it had an ability to provide reasons for denying that portion of the treatment plan in the respective EOB.
iv. While I certainly agree with the applicant, that entitlement to disputed claims for benefits should be determined on the merits based on the parties’ evidence and submissions, the late submission of this letter constitutes more than an “irregularity”. I am permitting the applicant to rely on it because it is relevant to the issues and the respondent had knowledge of re-assessment results, but adherence to disclosure orders is necessary in upholding procedural fairness to all parties. That is why late disclosures such as this one, must satisfy several factors to be granted permission to be relied on.
11I do not find the applicant has shown the Tribunal acted unfairly or erred in its handling of this letter.
12First, by conducting a detailed assessment of the factors under Rule 9.3 (an assessment that considered the impacts and prejudice facing the parties), I am satisfied that the respondent was afforded a fair process in the determination of whether to admit this late-served evidence. The respondent may disagree with the outcome, but disagreement alone is not sufficient to trigger Rule 18.2(a).
13Further, the respondent may contend that the Tribunal misinterpreted the contents of the letter, but I do not share this view of the decision. When the reasons underpinning the Tribunal’s analysis of the Dr. Bodenstein letter are read in the full context of the decision, I am satisfied that the knowledge of the “re-assessment” that the Tribunal was referring to in the quotation above involves test results from a prior psychological report, not the letter itself. For instance, when the Tribunal discusses the “results of the re-assessments” in paragraph 11(ii), it is referring to test results from a “Psychological Progress and Second Treatment Plan Preparation report”, dated November 1, 2024. These results appear to have been copied into the OCF-18 that the respondent later.
14When the references to a “re-assessment” are understood as the testing that took place prior to the preparation of the OCF-18, I am not satisfied that the respondent has shown that the Tribunal was incorrectly referring to a “re-assessment” that it would not have had knowledge of until this letter was served. Rather, this complaint appears to be an improper dispute with the Tribunal’s weighing of the evidence, namely, a dispute with the Tribunal’s reliance on this letter to help support the reasonable and necessary nature of the plan.
Rule 18.2(b) – Application of Section 25
15The respondent next submits that the Tribunal erred in its application of s. 25 of the Schedule, namely, it claims the Tribunal interpreted s. 25(1)(3)(i) “in isolation and without regard for both section 25(3)… and the Professional Services Guideline”. Since s. 25(3) limits the amounts payable under s. 25(1) to the rates set out in the Professional Services Guideline, the Tribunal erred by not applying the $200.00 limit from the Guideline to the request for “observation and monitoring”.
16The Tribunal addressed the respondent’s argument about s. 25 and the cost of the “observation and monitoring” portion of the treatment plan at paragraph 52 (emphasis in original):
I am not persuaded by the respondent’s submission that assessing and evaluating psychological functioning is limited to $200.00 based the Professional Services Guideline, because s. 25(1)(3)(i) of the Schedule requires an insurer pay the reasonable fees charged by a health practitioner for approving a treatment and assessment plan, including any assessment or examination necessary for that purpose, if any one or more of the goods, services assessments or examinations described in the treatment plan have been approved by the insurer (emphasis, my own). I am persuaded that the observation and monitoring identified in the treatment plan is integral to the treatments already approved by the insurer in this case.
17I do not accept this ground for reconsideration. Aside from the fact that the respondent appears to be re-litigating an unsuccessful position from the hearing, it has not demonstrated any error with this part of the decision.
18The respondent draws the Tribunal’s attention to a part of the Professional Services Guideline under the header “Forms”:
The $200 maximum fee referred to in this Guideline and in Superintendent’s Guideline No. 06/10 (July 2010 Professional Services Guideline) for a Treatment and Assessment Plan (OCF-18) applies only to the services of a health practitioner as referred to in subsection 25 (1) 3 of the SABS, namely reviewing and approving an OCF-18 under subsection 38 (3) (c), including any assessment or examination necessary for the purpose of that review and approval by the heath practitioner. The $200 maximum fee does not apply to assessments or examinations that are proposed in an OCF-18 and that an insurer agrees to pay for under subsection 38 (8) of the SABS.
19As this section of the Guideline makes clear, the “assessment or examination” captured under this $200.00 limit involves any assessment or examination needed to review and approve an OCF-18 form. In fact, as the last line in this paragraph states, the $200.00 fee “does not apply to assessments or examinations that are proposed in an OCF-18”.
20I also note that the Tribunal’s reference to s. 25(1)(3) was made in response to an argument that the respondent raised. It did not, of its own volition, engage with this section of the Schedule to support payment of this item from the partially approved plan.
21Taken together, I do not find the respondent has shown that the Tribunal erred in its assessment of s. 25 of the Schedule. Rather, it correctly concluded that the $200.00 fee described in the Guideline did not apply to the “observation and monitoring” being requested by the applicant. The Tribunal instead applied the correct test of “reasonable and necessary” to determine that the applicant was entitled to this item. I see no error in this approach.
22In sum, I find the respondent has not met its onus to establish any grounds for reconsideration under Rule 18.2.
CONCLUSION & ORDER
23The respondent’s request for reconsideration is dismissed.
___________________
Craig Mazerolle
Vice-Chair
Released: May 15, 2026